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[F.A.Q.]
Vanuatu Consolidated Legislation - 2006 |
LAWS
OF THE REPUBLIC OF
VANUATU
Consolidated
Edition 2006
Commencement: 27 October 1986
CHAPTER
191
COMPANIES
Act
12 of 1986ARRANGEMENT OF SECTIONS
PART 1 – PRELIMINARY PROVISIONS
1.
Interpretation
PART 2 – CONSTITUTION AND INCORPORATION OF COMPANIES
Incorporation
by Registration Upon Permit of Minister
2. Application for permit to
form a company
3. Form of
application
4. Power to obtain further
particulars
5. Requirements with
respect to memorandum
6. Signature of
memorandum
7. Restriction on
alteration of memorandum
8. Alteration
of authorised business or objects
9.
Objects of existing companies
Articles of Association
10. Articles prescribing
regulations for companies
11.
Regulations required in case of unlimited company or company limited by
guarantee
12. Adoption and application
of Table A
13. Printing and signature
of articles
14. Alteration of articles
by special resolution
Form of Memorandum and Articles
15. Statutory forms of
memorandum and articles
Registration
16. Powers of Minister on
application
17. Endorsement of permit
on original memorandum
18. Filing of
memorandum
19. Duties of registrar
before accepting memorandum
20.
Certificate of incorporation, effect of
registration
21. Conclusiveness of
certificate of incorporation
Re-registration of Companies
22. Limited companies may
apply for permit to be re-registered as
unlimited
23. Unlimited companies may
apply for permit to be re-registered as
limited
24. Penalty for false
statement
25. Penalty for
falsification of memorandum or other document
Provisions with respect to Names of Companies
26. Restriction on name of
company
27. Change of
name
28. Power of registrar to require
company to abandon misleading name
29.
Power to dispense with "limited" in name of charitable and other
companies
General
Provisions with respect to Memorandum and Articles
30. Effect of memorandum and
articles
31. Provision as to
memorandum and articles of companies limited by
guarantee
32. Alterations in
memorandum or articles increasing liability to contribute to share capital not
to bind existing members without
consent
33. Power to alter conditions
in memorandum which could have been contained in
articles
34. Copies of memorandum and
articles to be given to members
35.
Issued copies of memorandum to embody alterations
Membership
of Company
36. Definition of
member
37. Membership of holding
company
Private Companies
38. Meaning of "private
company"
39. Consequences of default
in complying with conditions constituting a company a private
company
40. Restriction on alteration
of articles
41. Passing of resolutions
by entries in minute book etc.
Reduction of Number of Members below Legal Minimum
42. Members severally
liable for debts where business carried on with fewer than seven, or in case of
private company two, members
Contracts, etc.
43. Pre-incorporation
contracts
44. Capacity of
company
45. Unauthorised
acts
46. Form of
contracts
47. Bills of exchange and
promissory notes
48. Execution of
deeds abroad
49. Power for a company
to have official seal for use abroad
Authentication of Documents
50. Authentication of
documents
PART 3 – SHARE CAPITAL AND DEBENTURES
Prospectus
51. Prospectus to be
approved by Minister
52. Matters to be
stated and reports to be set out in
prospectus
53. Exclusion of section 52
and relaxation of Schedule 4 in case of certain
prospectuses
54. Expert's consent to
issue of prospectus containing statement by
him
55. Registration of
prospectus
56. Civil liability for
mis-statements in prospectus
57.
Criminal liability for mis-statements in
prospectus
58. Document containing
offer of shares or debentures for sale to be deemed
prospectus
59. Interpretation of
provisions relating to prospectuses
Allotment
60. Prohibition of
allotment unless minimum subscription
received
61. Effect of irregular
allotment
62. Applications for, and
allotment of, shares and
debentures
63. Allotment of shares and
debentures to be dealt in on stock
exchange
64. Return as to
allotments
Commissions and Discounts, etc.
65. Power to pay certain
commissions, and prohibition of payment of all other commissions, discounts,
etc.
66. Prohibition of provision of
financial assistance by company for purchase of or subscription for its own, or
its holding company's,
shares
Construction of References to offering Shares or Debentures to the Public
67. Construction of
references to offering shares or debentures to the public
Issue of Shares at Premium and Discount and Redeemable Preference Shares
68. Application of
premiums received on issue of
shares
69. Prohibition on allotment of
shares at a discount
70. Power to
issue redeemable preference shares
Miscellaneous Provisions as to Share Capital
71. Power of company to
arrange for different amounts being paid on
shares
72. Power of company limited by
shares to alter its share capital
73.
Notice to registrar of consolidation of share capital, conversion of shares into
stock, etc.
74. Notice of increase of
share capital
Reduction of Share Capital
75. Special resolution for
reduction of share capital
76.
Application to court for confirming order, objections by creditors, and
settlement of list of objecting
creditors
77. Order confirming
reduction and powers of court on making such
order
78. Registration of order and
minute of reduction
79. Liability of
members in respect of reduced
shares
80. Penalty for concealing name
of creditor, etc.
Variation of Shareholders' Rights
81. Rights of holders of
special classes of shares
Transfer of Shares and Debentures, Evidence of Title, etc.
82. Numbering of
shares
83. Transfer not to be
registered except on production of instrument of
transfer
84. Transfer by personal
representative
85. Registration of
transfer at request of transferor
86.
Notice of refusal to register
transfer
87. Certification of
transfers
88. Duties of company with
respect to issue of certificates
89.
Certificate to be evidence of
title
90. Evidence of grant of
probate
91. Issue and effect of share
warrants to bearer
92. Penalty for
personation of shareholder
Special Provisions as to Debentures
93. Register of debenture
holders
94. Rights of inspection of
register of debenture holders and to copies of register and trust
deed
95. Liability of trustees for
debenture holders
96. Perpetual
debentures
97. Power to re-issue
redeemed debentures in certain
cases
98. Specific performance of
contracts to subscribe for
debentures
99. Payment of certain
debts out of assets subject to floating charge in priority to claims under the
charge
PART 4 – REGISTRATION OF CHARGES
Registration of Charges with Registrar of Companies
100. Registration of
charges created by companies
101.
Charges to secure fluctuating
amounts
102. Duty of company to
register charges created by
company
103. Duty of company to
register charges existing on property
acquired
104. Register of charges to
be kept by registrar
105. Endorsement
of certificate of registration on
debentures
106. Entries of
satisfaction and release of property from
charge
107. Rectification of register
of charges
108. Registration of
enforcement of security
Provisions as to Copies of Instruments creating Charges
109. Copies of instruments
creating charges to be kept by
company
110. Right to inspect copies
of instruments creating charges
Application of Part 4 to Companies Incorporated Outside Vanuatu
111. Application of Part 4
to charges created, and property subject to charge acquired, by company
incorporated outside Vanuatu
PART 5 – MANAGEMENT AND ADMINISTRATION
Registered Office and Name
112. Registered office of
company
113. Publication of name by
company
Register of Members
114. Register of
members
115. Index of
members
116. Provisions as to entries
in register in relation to share
warrants
117. Inspection of register
and index
118. Consequences of failure
to comply with requirements as to register owing to agent's
default
119. Power to close
register
120. Power of court to
rectify register
121. Trusts not to be
entered on register
122. Register to
be evidence
Branch Register
123. Power for company to
keep branch register
124. Regulations
as to branch register
125. Stamp duty
in case of shares registered in branch
registers
126. Provisions as to branch
registers kept in Vanuatu
Annual Return
127. Duty to deliver
annual returns
128.
(Repealed)
129.
(Repealed)
130.
(Repealed)
131.
(Repealed)
Meetings and Proceedings
132. Annual general
meeting
133. Convening of
extraordinary general meeting on
requisition
134. Length of notice for
calling meetings
135. General
provisions as to meetings and
votes
136. Power of court to order
meeting
137.
Proxies
138. Right to demand a
poll
139. Voting on a
poll
140. Representation of
corporations at meetings of companies and of
creditors
141. Circulation of members'
resolutions, etc.
142. Extraordinary
and special resolutions
143.
Resolutions requiring special
notice
144. Registration and copies of
certain resolutions and
agreements
145. Resolutions passed at
adjourned meetings
146. Minutes of
proceedings of meetings of company and of directors and
managers
147. Inspection of minute
books
Accounts and Audit
148. Keeping of books of
account
149. Financial
year
149A. Accounting reference
periods and accounting reference
dates
149B. Alteration of accounting
reference date
149C. Profit and loss
account and balance sheet
150. General
provisions as to contents and form of
accounts
151. Statement in holding
company's accounts of identities and places of incorporation of subsidiaries,
and particulars of shareholdings
therein
152. Statement in company's
accounts of identities and places of incorporation of companies not subsidiaries
whose shares it holds,
and particulars of those
shares
153. Statement in subsidiary
company's accounts of name and place of incorporation of its ultimate holding
company
154. Obligation to lay group
accounts before holding company
155.
Form of group accounts
156. Contents
of groups accounts
157. Financial year
of holding company and subsidiary
158.
Meaning of "holding company" and
"subsidiary"
159. Signing of balance
sheet
160. Accounts and auditors'
report to be annexed to balance
sheet
161. Directors'
report
162. Right to receive copies of
balance sheets, auditors' report and directors'
report
163. Appointment and
remuneration of auditors
164.
Appointment of auditor optional for certain private
companies
165. Provisions as to
resolutions relating to appointment and removal of
auditors
166. Disqualification for
appointment as auditor
167. Auditors'
report and right of access to books and to attend and be heard at
meetings
168. Construction of
references to documents annexed to accounts
Inspection
169. Investigation of
company's affairs
170. Power of
inspectors to carry investigation into affairs of related
companies
171. Power of inspector to
inform Minister of matters tending to show commission of
offence
172. Production of documents,
and evidence, on investigation
173.
Inspectors' report
174. Power of
Minister to present winding-up petition or petition under section 217 in
consequence of investigation,
etc.
175. Power of Minister to bring
civil proceedings on behalf of body
corporate
176. Expenses of
investigation of company's
affairs
177. Inspectors' report to be
evidence
178. Appointment and powers
of inspectors to investigate ownership of
company
179. Power to require
information as to persons interested in shares or
debentures
180. Power to impose
restrictions on shares or
debentures
181. Saving for legal
practitioners and bankers
182.
Extension of Minister's powers of investigation to certain bodies incorporated
outside Vanuatu
Inspection of Company’s Books and Papers
183. Power of Minister to
require production of documents
184.
Entry and search of premises
185.
Provision for security of
information
186. Penalization of
destruction, mutilation, etc., of company
documents
187. Penalization of
furnishing false information
188.
Saving for legal practitioners and bankers
Directors and other Officers
189.
Directors
190.
Secretary
191. Prohibition of certain
persons being sole director or
secretary
192. Avoidance of acts done
by person in dual capacity as director and
secretary
193. Validity of acts of
directors
194. Restrictions on
appointment or advertisement of
director
195. Share qualifications of
directors
196. Removal of
directors
197. Alternate
directors
198. Resolution in lieu of
meeting
199. Provisions as to
undischarged bankrupts acting as
directors
200. Power to restrain
fraudulent persons from managing
companies
201. Loans to
directors
202. Approval of company
requisite for payment by it to director for loss of office,
etc.
203. Approval of company
requisite for any payment, in connection with transfer of its property, to
director for loss of office, etc.
204.
Duty of director to disclose payment for loss of office, etc., made in
connection with transfer of shares in
company
205. Provisions supplementary
to sections 202 to 204
206.
Particulars in accounts of loans to officers,
etc.
207. General duty to make
disclosure for purposes of section
206
208. Disclosure by directors of
interests in contracts
209. Register
of directors and secretaries
210.
Provisions as to assignment of office by directors
Avoidance of Provisions in Articles or Contracts relieving Officers from Liability
211. Provisions as to
liability of officers and auditors
Arrangements and Reconstructions
212. Power to compromise
with creditors and members
213.
Information as to compromises with creditors and
members
214. Provisions for
facilitating reconstruction and amalgamation of
companies
215. Power to acquire shares
of shareholders dissenting from scheme or contract approved by
majority
Minorities
216. Alternative remedy to
winding-up in cases of oppression
PART 6 – WINDING-UP
(i) Preliminary
Modes of Winding-Up
217. Modes of
winding-up
Contributories
218. Liability as
contributories of present and past
members
219. Definition of
"contributory"
220. Nature of
liability of contributory
221.
Contributories in case of death of
member
222. Contributories in case of
bankruptcy of member
(ii) Winding-up by the Court
Jurisdiction
223. Jurisdiction to
wind-up companies registered in Vanuatu
Cases
in which a Company may be wound-up by the Court
224. Circumstances in which a
company may be wound up by the
court
225. Definition of inability to
pay debts
Petition for Winding-Up and Effects thereof
226. Provisions as to
application for winding-up
227. Powers
of court on hearing petition
228.
Power to stay or restrain proceedings against
company
229. Avoidance of dispositions
of property, etc., after commencement of
winding-up
230. Avoidance of
attachments, etc.
Commencement of Winding-Up
231. Commencement of
winding-up by the court
Consequences of Winding-Up Order
232. Copy of order to be
forwarded to registrar
233. Actions
stayed on winding-up order
234. Effect
of winding-up order
Official Receiver in Winding-Up
235. Official receiver in
bankruptcy to be official receiver for winding-up
purposes
236. Appointment of official
receiver by court in certain
cases
237. Statement of company's
affairs to be submitted to official
receiver
238. Report by official
receiver
Liquidators
239. Power of court to
appoint liquidators
240. Appointment
and powers of provisional
liquidator
241. Appointment, style,
etc., of liquidators
242. Provisions
where person other than official receiver is appointed
liquidator
243. General provisions as
to liquidators
244. Custody of
company's property
245. Vesting of
property of company in liquidator
246.
Powers of liquidator
247. Exercise and
control of liquidator's powers
248.
Books to be kept by liquidator
249.
Payments of liquidator into trust account,
etc.
250. Audit of liquidator's
accounts
251. Control of Minister over
liquidators
252. Release of
liquidators
Committees of Inspection
253. Meetings of creditors
and contributories to determine whether committee of inspection shall be
appointed
254. Constitution and
proceedings of committee of
inspection
255. Powers of Minister
where no committee of inspection
General Powers of Court in case of Winding-Up by Court
256. Power to stay
winding-up
257. Settlement of list of
contributories and application of
assets
258. Delivery of property to
liquidator
259. Payment of debts due
by contributory to company and extent to which set-off
allowed
260. Power of court to make
calls
261. Payment into bank of moneys
due to company
262. Order on
contributory conclusive evidence
263.
Appointment of special manager
264.
Power to exclude creditors not proving in
time
265. Adjustment of rights of
contributories
266. Inspection of
books by creditors and
contributories
267. Power to order
costs of winding-up to be paid out of
assets
268. Power to summon persons
suspected of having property of company,
etc.
269. Power to order public
examination of promoters and
officers
270. Power to arrest
absconding contributory
271. Powers of
court cumulative
272. Delegation to
liquidator of certain powers of
court
273. Dissolution of
company
(iii) Voluntary Winding-Up
Resolutions for, and Commencement of, Voluntary Winding-Up
274. Circumstances in
which company may be wound-up
voluntarily
275. Notice of resolution
to wind-up voluntarily
276.
Commencement of voluntary winding-up
Consequences of Voluntary Winding-Up
277. Effect of voluntary
winding-up on business and status of
company
278. Avoidance of transfers,
etc., after commencement of voluntary winding-up
Declaration of Solvency
279. Declaration of
solvency in case of proposal to wind up voluntarily
Provisions applicable to a Members’ Voluntary Winding-Up
280. Provisions applicable
to a members’ winding-up
281.
Power of company to appoint and fix remuneration of
liquidators
282. Power to fill vacancy
in office of liquidator
283. Power of
liquidator to accept shares, etc., as consideration for sale of property of
company
284. Duty of liquidator to
call creditors' meeting in case of
insolvency
285. Duty of liquidator to
call general meeting at the end of each
year
286. Final meeting and
dissolution
287. Alternative
provisions as to annual and final meetings in case of insolvency
Provisions applicable to a Creditors' Voluntary Winding-Up
288. Provisions applicable
to a creditors' winding-up
289.
Meeting of creditors
290. Appointment
of liquidator
291. Appointment of
committee of inspection
292. Fixing of
liquidators' remuneration and cesser of directors'
powers
293. Power to fill vacancy in
office of liquidator
294. Application
of section 283 to a creditors' voluntary
winding-up
295. Duty of liquidator to
call meetings of company and of creditors at the end of each
year
296. Final meeting and
dissolution
Provisions applicable to every Voluntary Winding-Up
297. Provisions applicable
to every voluntary winding-up
298.
Distribution of property of
company
299. Powers and duties of
liquidator in voluntary
winding-up
300. Power of court to
appoint and remove liquidator in voluntary
winding-up
301. Notice by liquidator
of his appointment
302. Arrangement
– when binding on creditors
303.
Power to apply to court to have questions determined or powers
exercised
304. Costs of voluntary
winding-up
305. Saving for rights of
creditors and contributories
(iv) Provisions Applicable to every Mode of Winding-Up
Proof and Ranking of Claims
306. Debts of all
descriptions may be proved
307.
Application of bankruptcy rules in winding-up of insolvent
companies
308. Preferential
payments
Effect of Winding-Up on antecedent and other Transactions
309. Fraudulent
preference
310. Liabilities and rights
of certain fraudulently preferred
persons
311. Effect of floating
charge
312. Disclaimer of onerous
property of a company
313. Restriction
of rights of creditor as to execution or attachment in the case of a company
being wound up
314. Duties of bailiff
as to goods taken in execution
Offences antecedent to or in course of Winding-Up
315. Offences by officers
of companies in liquidation
316.
Penalty for falsification of
books
317. Frauds by officers of
companies which have gone into
liquidation
318. Liability where
proper accounts not kept
319.
Responsibility for fraudulent trading of persons
concerned
320. Power of court to
assess damages against delinquent directors,
etc.
321. Prosecution of delinquent
officers and members of a company
Supplementary Provisions as to Winding-Up
322. Disqualification for
appointment as liquidator
233. Corrupt
inducement affecting appointment as
liquidator
324. Enforcement of duty of
liquidator to make returns, etc.
325.
Notification that a company is in
liquidation
326. Exemption of certain
documents from stamp duty on winding-up of
companies
327. Books of company to be
evidence
328. Disposal of books and
papers of company
329. Information as
to pending liquidations
330. Unclaimed
assets in Vanuatu to be paid to Companies Liquidation
Account
331. Resolutions passed at
adjourned meetings of creditors and contributories
Supplementary Powers of Court
332. Meetings to ascertain
wishes of creditors or contributories
Provisions as to Dissolution
333. Power of court to
declare dissolution of company
void
334. On registrar's winding-up
petition, the court may order dissolution of a
company
335. Registrar may strike
defunct company off register
336.
Property of dissolved company to be forfeited to Republic
Companies Liquidation Account
337. Companies Liquidation
Account
Rules and Fees
338. Rules and
fees
PART 7 – RECEIVERS AND MANAGERS
339. Disqualification of
body corporate for appointment as
receiver
340. Disqualification of
undischarged bankrupt from acting as receiver or
manager
341. Power to appoint official
receiver as receiver for debenture holders or
creditors
342. Receivers and managers
appointed out of court
343.
Notification that receiver or manager
appointed
344. Power of court to fix
remuneration on application of
liquidator
345. Provisions as to
information where receiver or manager
appointed
346. Special provisions as
to statement submitted to
receiver
347. Delivery to registrar of
accounts of receivers and
managers
348. Enforcement of duty of
receivers and managers to make returns,
etc.
349. Construction of references
to receivers and managers
PART 8 – WINDING-UP OF UNREGISTERED COMPANIES
350. Meaning of
unregistered company
351. Winding-up
of unregistered companies
352. Oversea
companies may be wound up although
dissolved
353. Saving of provisions of
former law as to winding-up of unregistered
companies
354. Contributories in
winding-up of unregistered
company
355. Power of court to stay or
restrain proceedings
356. Actions
stayed on winding-up order
357.
Provisions of Part 8 cumulative
PART 9 – COMPANIES INCORPORATED OUTSIDE VANUATU
Provisions as to Establishment of Place of Business in Vanuatu
358. Application of Part
9
359. Oversea companies to apply for
permit to be registered under Part
9
360. Return to be delivered to
registrar by oversea company where documents, etc.,
altered
361. Accounts of oversea
company
362. Obligation to state name
of oversea company, whether limited, and country where
incorporated
363. Service on oversea
company
364. Cessation of
business
365.
Penalties
366.
Interpretation
Prospectuses
367. Approval of
prospectus and particulars to be contained
therein
368. Exclusion of section 367
and relaxation of Schedule 4 in case of certain
prospectuses
369. Provisions as to
expert's consent, and allotment
370.
Registration of prospectus
371.
Penalty for contravention of sections
367-370
372. Civil liability for
mis-statements in prospectus
373.
Interpretation of provisions as to prospectuses
PART 10 – TRANSFER OF COMPANIES FROM AND TO ANOTHER JURISDICTION
374. Continuation in
Vanuatu of corporation incorporated
elsewhere
375. Continuation outside
Vanuatu of company incorporated under Act
PART 11 – EXEMPTED COMPANIES
376. Certain companies may
be registered as exempted
companies
377. Annual return to be
filed by every exempted company
378.
Restrictions on business of exempted
companies
379. Directors' meetings in
Vanuatu
380. Penalty for carrying on
business contrary to this Part
381.
Application of Act to exempted companies, preservation of
secrecy
382. Certain provisions of Act
to be modified in regard to private exempted companies not specified in Schedule
3
383. Local companies may apply to
Minister to be re-registered as exempted
companies
384. Exempted companies may
apply to Minister to be re-registered as local companies
PART 12 – FRENCH COMPANIES
385. Meaning of "French
Company"
386. French companies to
re-register under this Act
387. Effect
of re-registration as regards company's
constitution
388. French companies no
longer to be formed in Vanuatu
389.
French companies which have not been re-registered to be dissolved or
wound-up
PART 13 – PROVISION WITH RESPECT TO PARTNERSHIPS
390. Prohibition of
associations, etc., with more than twenty members
PART 14 – GENERAL PROVISIONS
Registration
391. Registration
office
392.
Fees
393. Inspection, production and
evidence of documents kept by
registrar
394. No constructive
notice
395. Enforcement of duties of
company and officers
Form of Registers, etc.
396. Form of registers,
etc.
Service of Documents
397. Service of documents
on a company
Offences
398. Penalty for false
statements
399. Penalty for improper
use of word "limited"
400. Provision
with respect to default fines and meaning of "officer in
default"
401. Place of proceedings
against body corporate
402. Production
and inspection of books where offence suspected
Legal Proceedings
403. Cost in actions by
certain limited companies
404. Power
of court to grant relief in certain cases
Application of Act to existing Companies
405. Act to apply to
companies incorporated prior to Act
Application of Companies (Winding-Up) Rules
406. Application of
Companies (Winding-Up) Rules
Miscellaneous
407. Exemption from Part 4
of the Act granted to ship-owning
companies
408. Minister may delegate
powers
409. Exercise of Minister's
discretion under certain sections not to be questioned in any court
proceedings
410.
Rules
SCHEDULE
1 – Application for a permit to
form an incorporated company with or without limited liability in
Vanuatu
SCHEDULE
2 – Tables A, B, C and
D
SCHEDULE
3 – Companies not entitled to the
full privileges accorded to private companies by this
Act
SCHEDULE
4 – Matters to be specified in
prospectus and reports to be set out
therein
SCHEDULE
5 –
(Repealed)
SCHEDULE
6 –
Accounts
SCHEDULE
7 –
Fees
SCHEDULE
8 – Preferential debts; List of
Acts referred to in section 308
________________
COMPANIES
To enact a consolidated company law.
PART 1 – PRELIMINARY PROVISIONS
1.
Interpretation
(1) In this Act,
unless the context otherwise requires, the following expressions have the
meanings hereby assigned to them –
"accounts" includes a company's group accounts, whether prepared in the form of accounts or not;
"agent" does not include a person's counsel acting as such;
"annual fee" means the annual fee required to be paid under section 392;
"annual return" means the return required to be made under section 127 or under section 377;
"approved stock exchange" means any body of persons which is for the time being an approved stock exchange for the purposes of the Prevention of Fraud (Investments) Act, Cap. 70;
"articles" means the articles of association of a company, as originally framed or as altered by special resolution, including, so far as they apply to the company, the regulations contained (as the case may be) in Table A in the First Schedule to the Companies Act, 1929, or in Table A in the First Schedule to the Companies Act, 1948, or in Table A in the Second Schedule to the Companies Regulation (Q.R. No. 9 of 1971), or in Table A in Schedule 2 to this Act;
"book and paper" and "book or paper" include accounts, deeds, writings and documents;
"branch register" has the meaning assigned to it by section 123(1);
"Companies Act, 1929" or "Companies Act, 1948" means the United Kingdom Companies Acts of 1929 and 1948;
"company" means a company formed and registered under this Act or an existing company;
"company limited by guarantee" and "company limited by shares" have the meanings assigned to them respectively by section 2(2);
"contributory" has the meaning assigned to it by section 219;
"creditors' voluntary winding up" has the meaning assigned to it by section 279(4);
"debenture" includes debenture stock, bonds and any other securities of a company whether constituting a charge on the assets of the company or not;
"default fine" has the meaning assigned to it by section 400;
"director" includes any person occupying the position of director by whatever name called;
"document" includes notice, order, summons, and other legal process, and register;
"exempted company" means a company registered or re-registered as an exempted company under section 376 or section 383, respectively;
"existing company" means a company formed and registered in Vanuatu under the Companies Act, 1929, or the Companies Act, 1948, or the New Hebrides Companies (Incorporation) Regulation, 1970, or the Companies Regulation (Q.R. No. 9 of 1971);
"financial year" has the meaning assigned to it by section 149;
"French company" has the meaning assigned to it by section 385;
"general rules" means general rules made under section 338, and includes forms;
"group accounts" has the meaning assigned to it by section 154(1);
"holding company" means a holding company as defined by section 158;
"issued generally" means, in relation to a prospectus, issued to persons who are not existing members or debenture holders of the company;
"local company" means a company other than an exempted company;
"members’ voluntary winding up" has the meaning assigned to it by section 279(4);
"the minimum subscription" has the meaning assigned to it by section 60(2);
"memorandum" means the memorandum of association of a company, as originally framed or as altered in pursuance of any enactment;
"officer", in relation to a body corporate, includes a director, manager or secretary;
"oversea company" means a company incorporated outside Vanuatu to which the provisions of Part 9 apply;
"printed" includes typewritten and reproduced by any process of duplicating, rotaprinting, cyclostyling or photocopying;
"private company" has the meaning assigned to it by section 38;
"prospectus" means any prospectus, notice, circular, advertisement, or other invitation, offering to the public for subscription or purchase any shares or debentures of a company;
"the registrar of companies", or when used in relation to registration of companies, "the registrar", means the registrar or other officer performing under this Act the duty of registration of companies;
"registration fee" means the registration fee required to be paid under section 392;
"resolution for reducing share capital" has the meaning assigned to it by section 75(2);
"a resolution for voluntary winding up" has the meaning assigned to it by section 274(2);
"share" means share in the share capital of a company, and includes stock except where a distinction between stock and shares is expressed or implied;
"share warrant" has the meaning assigned to it by section 91(2);
"subsidiary" means a subsidiary as defined by section 158;
"Table A" means Table A in Schedule 2;
"the time of the opening of the subscription lists" has the meaning assigned to it by section 62(1);
"unlimited company" has the meaning assigned to it by section 2(2).
(2)
A person shall not be deemed to be within the meaning of any provision in this
Act a person in accordance with whose directions
or instructions the directors
of a company are accustomed to act, by reason only that the directors of the
company act on advice
given by him in a professional
capacity.
(3) References in this
Act to a body corporate or to a corporation shall be construed as not including
a corporation sole but as including
a company incorporated outside
Vanuatu.
PART 2 – CONSTITUTION AND INCORPORATION OF COMPANIES
Incorporation by Registration upon Permit of Minister
2.
Application for permit to form a
company
(1) Application may be
made to the Minister, by or on behalf of any seven or more persons, or, where it
is desired to form a private
company, any two or more persons, associated for
any lawful purpose, for a permit to form an incorporated company, with or
without
limited liability.
(2)
Such a company may be –
(a) a company having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them (in this Act termed "a company limited by shares"); or
(b) a company having the liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its being wound up (in this Act termed "a company limited by guarantee"); or
(c) a company not having any limit on the liability of its members (in this Act termed "an unlimited company").
(3)
A company limited by guarantee shall not be registered with shares and shall not
create or issue
shares.
3. Form
of application
(1) An application
for a permit, subject to any directions of the Minister, shall be in the form
and shall contain the particulars
set out in Schedule 1 and, without prejudice
thereto, shall state –
(a) the full names (including any former names), addresses and nationalities of the applicants;
(b) the precise nature and fields of operation and place of the business intended to be carried on by the company and the place proposed for its registered office,
and
shall be accompanied by the original memorandum of association, duly subscribed,
and articles of association, if any, duly signed,
to be filed with the
registrar, together with such number of facsimile copies thereof as the Minister
may require.
(2) An application
for a permit shall be treated as a confidential official document by the
Minister and all public officers having
access thereto, and the provisions of
subsections (3), (4) and (5) of section 381 shall have effect, in the case of
any company proposed
to be registered as an exempted company, with respect to
the information therein
contained.
4.
Power to obtain further
particulars
(1) Before reaching a
decision upon an application for a permit, the Minister may require the
applicants to provide such further information
relating to themselves or to the
proposed company or to other persons having in interest or intending to have an
interest in the
company as the Minister may specify; and unless the Minister is
satisfied that the applicants have supplied such information to the
best of
their ability the Minister shall, without prejudice to his powers under section
16, refuse to proceed further with the
application:
Provided that in the
case of a proposed exempted private company not being a company of a class
specified in Schedule 3 no information
shall be so required respecting the
beneficial interest of any person in the
company.
(2) Any information so
provided by or on behalf of the applicants for a permit shall be treated as
confidential by the Minister and
all public officers having access thereto and
the provisions of subsections (3), (4) and (5) of section 381 shall have effect,
in
relation to any company proposed to be registered as an exempted company,
with respect to such
information.
5.
Requirements with respect to
memorandum
(1) At least seven
persons, or, where it is desired to form a private company, at least two
persons, shall subscribe their names to
the memorandum of every
company.
(2) The memorandum of
every company shall state –
(a) the full names (including any former names), addresses and nationalities of the persons who subscribe their names to the memorandum;
(b) the name of the company, with the word "Limited" as the last word of the name in the case of a company limited by shares or by guarantee;
(c) whether the company is to be a local company or an exempted company;
(d) the part of Vanuatu in which the registered office of the company is proposed to be situate;
(e) the restrictions, if any, upon the business to be carried on by the company, or upon the objects of the company, or a statement that the business or objects of the company are unrestricted; and
(f) the names of the first directors of the company.
(3)
The memorandum of a company limited by shares or by guarantee must also state
that the liability of its members is
limited.
(4) The memorandum of a
company limited by guarantee must also state that each member undertakes to
contribute to the assets of the
company in the event of its being wound up while
he is a member, or within one year after he ceases to be a member, for payment
of
the debts and liabilities of the company contracted before he ceases to be a
member, and of the costs, charges and expenses of winding-up,
and for adjustment
of the rights of the contributories among themselves, such amount as may be
required, not exceeding a specified
amount.
(5) In the case of a
company having a share capital –
(a) the memorandum must also, unless the company is an unlimited company, state the amount of share capital with which the company proposes to be registered and the division thereof into shares of a fixed amount;
(b) no subscriber of the memorandum may take less than one share;
(c) each subscriber must write opposite to his name in words the number of shares he takes.
6.
Signature of memorandum
The
memorandum must be signed by each subscriber in the presence of at least one
witness who must attest the signature, and the full
names of each subscriber and
witness shall also be printed or legibly written
thereon.
7.
Restriction on alteration of
memorandum
A company may not alter
the provisions of its memorandum except in the cases, in the mode and to the
extent for which express provision
is made in this
Act.
8.
Alteration of authorised business or
objects
(1) A company may, by
special resolution, alter its memorandum by changing, imposing or removing any
restriction upon the business
which it is authorised to carry on or by altering
the objects for which it is
established:
Provided that if an
application is made to the court in accordance with this section for the
alteration to be annulled, it shall not
have effect except in so far as it is
confirmed by the court.
(2) Within
28 days of the passing of any such resolution notice thereof shall be given to
the holders of all debentures secured by
a floating charge over any of the
company's property and to the trustees, if any, for such debenture
holders.
(3) Application to the
court under this section shall be made within 60 days after the passing of the
resolution.
(4) An application to
the court under this section may be made –
(a) in the case of a private company, by any member or by anyone to whom notice has been given under subsection (2); or
(b) in the case of a public company, by –
(i) the holders of not less than 5 per cent in the aggregate of the company's issued shares or of any class thereof or, if the company has no shares, by not less than 5 per cent of the company's members;
(ii) by the trustees for the holders of any debentures secured by a floating charge over any of the company's property; or
(iii) by the holders of not less than 5 per cent of the company's debentures secured by a floating charge over any of the company's property.
(5)
If an application to the court is made under this section the company shall
forthwith deliver to the registrar for registration
notice of that
fact.
(6) On an application under
this section the court may make an order confirming the alteration in whole or
in part and on such terms
and conditions as it thinks fit and may adjourn the
proceedings in order that an arrangement may be made to the satisfaction of the
court for the purchase of the interests of dissentients and may give such
directions and make such orders as it may think expedient
for facilitating and
carrying into effect any such arrangement. If the court shall refuse to confirm
the alteration it shall make
an order annulling the
alteration.
(7) The company shall
within 21 days of the making by the court of any order under this section
deliver a copy thereof to the registrar
for
registration.
(8) If a company
makes default in giving or publishing any notice or delivering any document as
required by this section, the company
and every officer of the company who is in
default shall be liable to a default
fine.
9.
Objects of existing companies
A
statement contained in the memorandum of a company incorporated before the
commencement of this Act (27 October 1986) which specifies
the objects for which
the company is established shall, in so far as such objects relate to the
carrying on of any business, be deemed
to be a statement that the business which
the company is permitted to carry on is restricted to the objects so specified,
and shall
be subject in all respects to the provisions of this
Act.
Articles of Association
10.
Articles prescribing regulations for
companies
There may in the case of
a company limited by shares, and there shall in the case of a company limited by
guarantee or unlimited,
be registered with the memorandum articles of
association signed by the subscribers to the memorandum and prescribing
regulations
for the
company.
11.
Regulations required in case of unlimited company or company limited by
guarantee
(1) In the case of an
unlimited company the articles must state the number of members with which the
company proposes to be registered
and, if the company has a share capital, the
amount of share capital with which the company proposes to be
registered.
(2) In the case of a
company limited by guarantee, the articles must state the number of members with
which the company proposes to
be
registered.
(3) Where an unlimited
company or a company limited by guarantee has increased the number of its
members beyond the registered number,
it shall, within 15 days after the
increase was resolved on or took place, give to the registrar of companies
notice of the increase,
and the registrar shall record the
increase.
If default is made in
complying with this subsection, the company and every officer of the company who
is in default shall be liable
to a default
fine.
12.
Adoption and application of Table
A
(1) Articles of association may
adopt all or any of the regulations contained in Table
A.
In the case of a company
limited by shares and registered after the commencement of this Act (27 October
1986), if articles are not
registered, or, if articles are registered, in so far
as the articles do not exclude or modify the regulations contained in Table
A,
those regulations shall, so far as applicable, be the regulations of the company
in the same manner and to the same extent as
if they were contained in duly
registered
articles.
13.
Printing and signature of
articles
Articles must
–
(a) be printed;
(b) be divided into paragraphs numbered consecutively;
(c) be signed by each subscriber of the memorandum of association in the presence of at least one witness who must attest the signature, and the full names of each subscriber and witness shall also be printed or legibly written thereon.
14.
Alteration of articles by special
resolution
(1) Subject to the
provisions of this Act and to the conditions contained in its memorandum, a
company may by special resolution alter
or add to its
articles.
(2) Any alteration or
addition so made in the articles shall, subject to the provisions of this Act,
be as valid as if originally
contained therein, and be subject in like manner to
alteration by special resolution.
Form of Memorandum and Articles
15.
Statutory forms of memorandum and
articles
The form of
–
(a) the memorandum of association of a company limited by shares;
(b) the memorandum and articles of association of a company limited by guarantee and not having a share capital;
(c) the memorandum and articles of association of an unlimited company having a share capital;
shall
be respectively in accordance with the forms set out in Tables B, C, and D in
Schedule 2, or as near thereto as circumstances
admit.
Registration
16.
Powers of Minister on
application
Subject to the
provisions of this Act, the Minister may in his discretion grant or refuse a
permit for which application is made under
this Act and need not give any reason
for his decision upon the
application.
17.
Endorsement of permit on original
memorandum
(1) A permit granted
under section 16 shall be endorsed on the original of the memorandum and shall
be in such form as the Minister
shall
determine.
(2) The memorandum
endorsed with the permit and the original of the articles (if any) shall as soon
as possible be returned to the
applicants or the person or persons acting on
their
behalf.
18.
Filing of memorandum
If a permit
is endorsed on a memorandum, the persons who have subscribed their names thereto
may, within 6 months after the date of
the grant of the permit, file the
memorandum with the
registrar.
19.
Duties of registrar before accepting
memorandum
Before accepting a
memorandum for filing the registrar shall satisfy himself that it is duly
endorsed with a permit and that it conforms
with the requirements of this
Act.
20.
Certificate of incorporation, effect of
registration
(1) Upon the due
filing of the memorandum the registrar shall retain and forthwith register the
memorandum, the name of the company,
and the articles (if any), specifying
whether it is registered as a local company or an exempted company, in a
register to be maintained
by him for the purpose; and shall then forthwith issue
under his hand or seal a certificate of incorporation with the date of
registration
and its status as a local or exempted company, as the case may be,
specified therein, together with a facsimile copy of the memorandum,
and
articles, if any, filed.
(2) From
the date of incorporation mentioned in the certificate of incorporation, the
subscribers of the memorandum, together with
such other persons as may from time
to time become members of the company, shall be a body corporate by the name
contained in the
memorandum, capable forthwith of exercising all the functions
of an incorporated company, and having perpetual succession and a common
seal,
but with such liability on the part of the members to contribute to the assets
of the company in the event of its being wound-up
as is mentioned in this
Act.
21.
Conclusiveness of certificate of
incorporation
A certificate of
incorporation given by the registrar in respect of any association shall be
conclusive evidence that all the requirements
of this Act in respect of
registration and of matters precedent and incidental thereto have been complied
with, and that the association
is a company authorised to be registered and duly
registered under this Act.
Re-registration of Companies
22.
Limited companies may apply for permit to be re-registered as
unlimited
(1) A company which, at
the date of the commencement of this Act (27 October 1986), was registered as
limited or thereafter is so
registered (otherwise than in pursuance of section
23) may apply to the Minister for a permit to be re-registered as unlimited; and
such application shall comply with the requirement of subsection (2), shall be
signed by a director or by the secretary of the company
and shall be lodged with
the Minister together with the documents mentioned in subsection
(3).
(2) The said requirement is
that the application must –
(a) set out such alterations in the company's memorandum as –
(i) if it is to have a share capital, are requisite to bring it, both in substance and in form, into conformity with the requirements imposed by this Act with respect to the substance and form of the memorandum of a company to be formed as an unlimited company having a share capital; or
(ii) if it is not to have a share capital, are requisite in the circumstances; and
(b) if articles have been registered, set out such alterations therein and additions thereto as –
(i) if it is to have a share capital, are requisite to bring them, both in substance and in form, into conformity with the requirements imposed by this Act with respect to the substance and form of the articles of a company to be formed as an unlimited company having a share capital; or
(ii) if it is not to have a share capital, are requisite in the circumstances;
and if articles have not been registered, have annexed thereto, printed articles proposed for registration, being, if the company is to have a share capital, articles complying with the said requirements and, if not, articles appropriate to the circumstances.
(3)
The documents referred to in subsection (1) above are –
(a) the written assent to the company's being registered as unlimited subscribed by or on behalf of all the members of the company;
(b) a declaration made by the directors of the company that the persons by whom or on whose behalf the form of assent is subscribed constitute the whole membership of the company and, if any of the members have not subscribed that form themselves, that the directors have taken all reasonable steps to satisfy themselves that each person who subscribed it on behalf of a member was lawfully empowered so to do;
(c) a printed copy of the memorandum incorporating the alterations therein set out in the application; and
(d) if articles have been registered, a printed copy thereof incorporating the alterations therein and additions thereto set out in the application.
(4)
The Minister may require the applicant to furnish any further or other
information he may think necessary; and, having considered
the application, he
may in his discretion grant or refuse a permit applied for under this section
and need not give any reasons for
his
decision.
(5) Upon the granting of
a permit under subsection (4), the Minister shall endorse the application
accordingly and return it and the
other documents submitted as soon as possible
to the company, which may within 3 months from the date of the permit lodge them
with
the registrar for re-registration of the
company.
(6) The registrar shall
retain the application and other documents lodged with him under subsection (5)
and shall, if articles are
annexed to the application, register them and shall
issue to the company a certificate of incorporation appropriate to the status
to
be assumed by the company by virtue of this section; and upon the issue of the
certificate –
(a) the status of the company shall, by virtue of the issue, be changed from limited to unlimited; and
(b) the alterations in the memorandum set out in the application and (if articles have been previously registered) any alterations and additions to the articles so set out shall, notwithstanding any other provisions of this Act, take effect as if duly made by resolution of the company and the provisions of this Act shall apply to the memorandum and articles as altered or added to by virtue of this section accordingly.
(7)
A certificate of incorporation issued by virtue of this section shall be
conclusive evidence that the requirements of this section
with respect to
re-registration and of matters precedent and incidental thereto have been
complied with, and that the company was
authorised to be re-registered under
this Act in pursuance of this section and was duly so
re-registered.
(8) Where a company
is re-registered in pursuance of this section, a person who, at the time when
the application for it to be re-registered
was lodged, was a past member of the
company and did not thereafter again become a member thereof shall not, in the
event of the
company's being wound-up, be liable to contribute to the assets of
the company more than he would have been liable to contribute
thereto had it not
been so re-registered.
(9) For the
purposes of this section –
(a) subscription to a form of assent by the legal personal representative of a deceased member of a company shall be deemed to be subscription by him;
(b) a trustee in bankruptcy of a person who is a member of a company shall, to the exclusion of that person, be deemed to be a member of the company.
23.
Unlimited companies may apply for permit to be re-registered as
limited
(1) A company which, at
the commencement of this Act (27 October 1986), was registered as unlimited or
thereafter is so registered
(otherwise than by virtue of section 22) may apply
to the Minister for a permit to be re-registered as limited if a special
resolution
that it should so apply to be re-registered (complying with the
requirement of subsection (2)) is passed; and such application shall
be signed
by a director or by the secretary of the company and shall be lodged with the
Minister together with the documents mentioned
in subsection (3), not earlier
than the day on which the copy of the resolution forwarded to the registrar of
companies in pursuance
of section 144 is received by the
registrar.
(2) The said
requirement is that the resolution –
(a) must state the manner in which the liability of the members of the company is to be limited and, if the company is to have a share capital, what that capital is to be; and
(b) must –
(i) if the company is to be limited by guarantee, provide for the making of such alterations in its memorandum and such alterations in and additions to its articles as are requisite to bring the memorandum and articles, both in substance and in form, into conformity with the requirements of this Act with respect to the substance and form of the memorandum and articles of a company to be formed as a company limited by guarantee;
(ii) if the company is to be limited by shares, provide for the making of such alterations in its memorandum as are requisite to bring it, both in substance and in form, into conformity with the requirements of this Act with respect to the substance and form of the memorandum of a company to be formed as a company so limited, and such alterations in and additions to its articles as are requisite in the circumstances.
(3)
The documents referred to in subsection (1) above are a printed copy of the
resolution, a printed copy of the memorandum as altered
in pursuance of the
resolution and a printed copy of the articles as so
altered.
(4) The Minister may
require the applicant to furnish any further or other information he may think
necessary; and, having considered
the application, he may in his discretion
grant or refuse a permit applied for under this section and need not give any
reasons for
his decision.
(5) Upon
the granting of a permit under subsection (4), the Minister shall endorse the
application accordingly and return it and the
other documents submitted as soon
as possible to the company, which may within 3 months from the date of the
permit lodge them with
the registrar for re-registration of the
company.
(6) The registrar shall
retain the application and other documents lodged with him under subsection (5)
and shall issue to the company
a certificate of incorporation appropriate to the
status to be assumed by the company by virtue of this section; and upon the
issue
of the certificate –
(a) the status of the company shall, by virtue of the issue, be changed from unlimited to limited; and
(b) the alterations in the memorandum specified in the resolution and the alterations in, and additions to, the articles so specified shall, notwithstanding any other provisions of this Act, take effect.
(7)
A certificate of incorporation issued by virtue of this section shall be
conclusive evidence that the requirements of this section
with respect to
re-registration and of matters precedent and incidental thereto have been
complied with, and that the company was
authorised to be re-registered under
this Act in pursuance of this section and was duly so
re-registered.
(8) In the event of
the winding-up of a company re-registered in pursuance of this section, the
following provisions shall have effect
–
(a) notwithstanding paragraph (a) of section 218, a past member of the company who was a member thereof at the time of re-registration shall, if the winding-up commences within the period of 3 years beginning with the day on which the company is re-registered, be liable to contribute to the assets of the company in respect of its debts and liabilities contracted before that time;
(b) where no persons who were members of the company at that time are existing members of the company, a person who, at that time, was a present or past member thereof shall, subject to paragraph (a) of section 218 and to paragraph (a) of this subsection, but notwithstanding paragraph (c) of section 218, be liable to contribute as aforesaid notwithstanding that the existing members have satisfied the contributions required to be made by them in pursuance of this Act;
(c) notwithstanding paragraphs (d) and (e) of section 218, there shall be no limit on the amount which a person who, at that time, was a past or present member of the company is liable to contribute as aforesaid.
24.
Penalty for false statement
Any
person who knowingly makes any statement which is false or which he does not
believe to be true for the purpose of obtaining any
permit or approval of the
Minister under this Act shall be liable on conviction to a fine not exceeding VT
200,000 or to a term of
imprisonment not exceeding 12 months or to
both.
25.
Penalty for falsification of memorandum or other
document
Any person who, without
lawful authority, makes any material alteration to a memorandum or other
document after the Minister has granted
a permit in relation thereto or has
otherwise signified his approval thereto shall be liable on conviction to a fine
not exceeding
VT 200,000 or to a term of imprisonment not exceeding 12 months or
to both.
Provisions with respect to Names of Companies
26.
Restriction on name of company
(1)
No company shall be permitted to be registered by a name which in the opinion of
the Minister is undesirable.
(2)
Without prejudice to the generality of subsection (1), no company shall be
permitted to be registered by a name which –
(a) is identical with the name by which a company is registered under this Act or under which a company has at any time been incorporated in Vanuatu (whether or not that company has been dissolved) or so nearly resembles such name as to be in the opinion of the Minister calculated or likely to deceive or mislead;
(b) suggests or is likely to suggest connection with the government of any country or with any public international organisation or with any public board or statutory corporation or any municipal or other local authority;
(c) contains the words "co-operative" or "building society".
(3)
A person may apply in writing to the registrar for the reservation of a name of
a company for the incorporation of which a permit
is to be sought, a name to
which a company proposes to change its name or a name under which an oversea
company proposes to apply
for a permit to be registered, either originally or on
change of name.
(4) If the
registrar is satisfied as to the bona fides of the application and that the
proposed name is a name by which an intended
company, company or oversea company
could be registered without contravention of subsection (1) or subsection (2),
he shall, upon
payment of the fee prescribed by Schedule 7, reserve the proposed
name for a period of 6 months from the date of the lodging of the
application.
(5) During a period
for which a name is reserved, no company, oversea company, person, firm or
society (other than the applicant for
reservation of the name) shall be
registered under this Act or any other Act, whether originally or on change of
name, under the
reserved name or under any other name which, in the opinion of
the registrar, so closely resembles the reserved name as to be calculated
or
likely to be mistaken for that
name.
(6) The reservation of a
name under this section in respect of an intended company, company or oversea
company shall not in itself
entitle the intended company, company, or oversea
company to be registered by that name, either originally or on change of
name.
27.
Change of name
(1) A company may
by special resolution and with the approval of the registrar signified in
writing change its name.
(2) If,
through inadvertence or otherwise, a company on its first registration or on its
registration by a new name is registered
by a name which, in the opinion of the
registrar, is too like the name by which a company in existence is previously
registered,
the first-mentioned company may change its name with the sanction of
the registrar and, if he so directs within 12 months of its
being registered by
that name, shall change it within a period of 6 weeks from the date of the
direction or such longer period as
the registrar may think fit to
allow.
If a company makes default
in complying with a direction under this subsection, it shall be liable to a
fine not exceeding VT 1,000
for every day during which the default
continues.
(3) Where a company
changes its name under this section, the registrar shall enter the new name on
the register in place of the former
name, and shall issue a certificate of
incorporation altered to meet the circumstances of the
case.
(4) A change of name by a
company under this section shall not affect any rights or obligations of the
company or render defective
any legal proceedings by or against the company, 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.
28. Power
of registrar to require company to abandon misleading
name
(1) If, in the opinion of the
registrar, the name by which a company is registered gives so misleading an
indication of the nature
of its activities as to be likely to cause harm to the
public, he may direct it to change its
name.
(2) A direction given under
this section to a company must, if not duly made the subject of an application
under subsection (3) to
the court, be complied with within a period of 6 weeks
from the date of the direction or such longer period as the registrar may
think
fit to allow.
(3) A company to
which a direction is given under this section may, within a period of 3 weeks
from the date of the direction, apply
to the court to set the direction aside,
and the court may set it aside or confirm it; and, if it confirms it, it shall
specify a
period within which it must be complied
with.
(4) If a company makes
default in complying with a direction under this section, it shall be liable to
a fine not exceeding VT 1,000
for every day during which the default
continues.
(5) The provisions of
subsection (3) and subsection (4) of section 27 shall apply to a change of name
under this
section.
29.
Power to dispense with "limited" in name of charitable and other
companies
(1) Where it is proved
to the satisfaction of the Minister that an association about to be formed as a
limited company is to be formed
for promoting commerce, art, science, religion,
charity or any other useful object, and intends to apply its profits, if any, or
other income in promoting its objects, and to prohibit the payment of any
dividend to its members, the Minister may by licence direct
that the association
may be registered as a company with limited liability, without the addition of
the word "limited" to its name,
and the association may be registered
accordingly and shall, on registration, enjoy all the privileges and (subject to
the provisions
of this section) be subject to all the obligations of limited
companies.
(2) Where it is proved
to the satisfaction of the Minister –
(a) that the objects of a company registered under this Act as a limited company are restricted to those specified in the subsection (1) and to objects incidental or conducive thereto; and
(b) that by its constitution the company is required to apply its profits, if any, or other income in promoting its objects and is prohibited from paying any dividend to its members;
the
Minister may by licence authorise the company to make by special resolution a
change in its name including or consisting of the
omission of the word
"limited", and subsections (3) and (4) of section 27 shall apply to a change of
name under this subsection as
they apply to a change of name under that
section.
(3) A licence by the
Minister under this section may be granted on such conditions and subject to
such regulations as the Minister
thinks fit, and those conditions and
regulations shall be binding on the body to which the licence is granted, and
(where the grant
is under subsection (1)) shall, if the Minister so directs, be
inserted in the memorandum and articles, or in one of those
documents.
(4) A body to which a
licence is granted under this section shall be excepted from the provisions of
this Act relating to the use
of the word "limited" as any part of its name, the
publishing of its name and the sending of lists of members to the registrar of
companies.
(5) A licence under
this section may at any time be revoked by the Minister, and upon revocation the
registrar shall enter the word
"limited" at the end of the name upon the
register of the body to which it was granted, and the body shall cease to enjoy
the exemptions
and privileges or, as the case may be, the exemptions granted by
this section:
Provided that,
before a licence is so revoked, the Minister shall give to the body notice in
writing of his intention, and shall afford
it an opportunity of being heard in
opposition to the revocation.
(6)
Where a body in respect of which a licence under this section is in force alters
the provisions of its memorandum with respect
to its objects, the Minister may
(unless he sees fit to revoke the licence) vary the licence by making it subject
to such conditions
and regulations as the Minister thinks fit, in lieu of or in
addition to the conditions and regulations, if any, to which the licence
was
formerly subject.
General Provisions with respect to Memorandum and Articles
30.
Effect of memorandum and
articles
(1) Subject to the
provisions of this Act, the memorandum and articles shall, when registered, bind
the company and the members thereof
to the same extent as if they respectively
had been signed and sealed by each member, and contained covenants on the part
of each
member to observe all the provisions of the memorandum and of the
articles.
(2) All money payable by
any member to the company under the memorandum or articles shall be a debt due
from him to the company, and
shall be of the nature of a specialty
debt.
31.
Provision as to memorandum and articles of companies limited by
guarantee
(1) In the case of a
company limited by guarantee every provision in the memorandum or articles or in
any resolution of the company
purporting to give any person a right to
participate in the divisible profits of the company otherwise than as a member
shall be
void.
(2) For the purpose
of the provisions of this Act relating to the memorandum of a company limited by
guarantee and of this section,
every provision in the memorandum or articles, or
in any resolution, of a company limited by guarantee, purporting to divide the
undertaking of the company into shares or interests shall be treated as a
provision for a share capital, notwithstanding that the
nominal amount or number
of the shares or interests is not specified
thereby.
32.
Alterations in memorandum or articles increasing liability to contribute to
share capital not to bind existing members without
consent
Notwithstanding anything
in the memorandum or articles of a company, no member of the company shall be
bound by an alteration made
in the memorandum or articles after the date on
which he became a member, if and so far as the alteration requires him to take
or
subscribe for more shares than the number held by him at the date on which
the alteration is made, or in any way increases his liability
as at that date to
contribute to the share capital of, or otherwise to pay money to, the
company:
Provided that this
section shall not apply in any case where the member agrees in writing, either
before or after the alteration is
made, to be bound
thereby.
33.
Power to alter conditions in memorandum which could have been contained in
articles
(1) Subject to the
provisions of section 32 and of section 216, any condition contained in a
company's memorandum which could lawfully
have been contained in articles of
association instead of in the memorandum may, subject to the provisions of this
section, be altered
by the company by special
resolution:
Provided that if an
application is made to the court for the alteration to be cancelled, it shall
not have effect except in so far
as it is confirmed by the
court.
(2) This section shall not
apply where the memorandum itself provides for or prohibits the alteration of
all or any of the said conditions,
and shall not authorise any variation or
abrogation of the special rights of any class of
members.
(3) Subsections (3), (4),
(5), (6), (7) and (8) of section 8 (except that subsection (4) shall only apply
to applications to the court
by any member of a private company and as provided
in paragraph (b)(i) of the said subsection (4)) shall apply in relation to any
alteration and to any application made under this section as they apply in
relation to alterations and to applications made under
that
section.
(4) This section shall
apply to a company's memorandum whether registered before or after the
commencement of this Act (27 October
1986).
34.
Copies of memorandum and articles to be given to
members
A company shall, on being
so required by any member, send to him a copy of the memorandum and of the
articles, if any, subject to
payment, in the case of a copy of the memorandum
and of the articles, of VT 2,000 or such less sum as the company may
prescribe.
35.
Issued copies of memorandum to embody
alterations
(1) Where an
alteration is made in the memorandum of a company, every copy of the memorandum
issued after the date of the alteration
shall be in accordance with the
alteration.
(2) If, where any such
alteration has been made, the company at any time after the date of the
alteration issues any copies of the
memorandum which are not in accordance with
the alteration, it shall be liable to a fine not exceeding VT 1,000, and every
officer
of the company who is in default shall be liable to the like
penalty.
Membership of company
36.
Definition of member
(1) The
subscribers of the memorandum of a company shall be deemed to have agreed to
become members of the company, and on its registration
shall be entered as
members in its register of
members.
(2) Every other person
who agrees to become a member of a company, and whose name is entered in its
register of members, shall be
a member of the
company.
37.
Membership of holding company
(1)
Except in the cases hereafter in this section mentioned, a body corporate cannot
be a member of a company which is its holding
company, and any allotment or
transfer of shares in a company to its subsidiary shall be
void.
(2) Nothing in this section
shall apply where the subsidiary is concerned as personal representative, or
where it is concerned as
trustee, unless the holding company or a subsidiary
thereof is beneficially interested under the trust and is not so interested only
by way of security for the purposes of a transaction entered into by it in the
ordinary course of a business which includes the lending
of
money.
(3) This section shall not
prevent a subsidiary which is, at the commencement of this Act, a member of its
holding company, from continuing
to be a member but, subject to subsection (2),
the subsidiary shall have no right to vote at meetings of the holding company or
any
class of members thereof.
(4)
Subject to subsection (2) of this section, subsections (1) and (3) thereof shall
apply in relation to a nominee for a body corporate
which is a subsidiary, as if
references in the said subsections (1) and (3) to such a body corporate included
references to a nominee
for
it.
(5) In relation to a company
limited by guarantee or unlimited which is a holding company, the reference in
this section to shares
shall be construed as including a reference to the
interest of its members as such, whatever the form of that
interest.
Private
Companies
38.
Meaning of "private company"
(1)
For the purposes of this Act, subject to subsection (3), the expression "private
company" means a company which by its articles
–
(a) restricts the right to transfer its shares; and
(b) limits the number of its members to fifty, not including persons who are in the employment of the company and persons who, having been formerly in the employment of the company, were while in that employment, and have continued after the determination of that employment to be, members of the company; and
(c) prohibits any invitation to the public to subscribe for any shares or debentures of the company.
(2)
Where two or more persons hold one or more shares in a company jointly, they
shall, for the purposes of this section, be treated
as a single
member.
(3) Notwithstanding
subsection (1), in the case of an exempted private company which is not of a
class specified in Schedule 3, the
expression "private company" means a company
which by its articles prohibits any invitation to the public to subscribe for
any shares
or debentures of the
company.
39.
Consequences of default in complying with conditions constituting a company a
private company
Where the articles
of a company include the provisions which, under section 38, are required to be
included in the articles of a company
in order to constitute it a private
company but default is made in complying with any of those provisions, the
company shall cease
to be entitled to the privileges and exemptions conferred on
private companies under the provisions contained in section 42, paragraph
(d) of
section 224 and paragraph (i) of proviso (a) to subsection (1) of section 226
and thereupon the provisions contained in those
enactments shall apply to the
company as if it were not a private
company:
Provided that the court,
on being satisfied that the failure to comply with the conditions was accidental
or due to inadvertence or
to some other sufficient cause, or that on other
grounds it is just and equitable to grant relief, may, on the application of the
company or any other person interested and on such terms and conditions as seem
to the court just and expedient, order that the company
be relieved from such
consequences as
aforesaid.
40.
Restriction on alteration of
articles
(1) A company, being a
private company, may not alter its articles in such manner and for the purpose
that the company shall cease
to be a private company except in accordance with
the provisions of subsection
(2).
(2) A company, being a
private company, which seeks to alter the provisions of its articles in order
that the company shall cease
to be a private company shall submit to the
Minister details of the alteration and of the reasons therefor together with
such further
information as the Minister in his discretion may require, for the
approval of the Minister and, unless the approval of the Minister
thereof is
signified in writing, any resolution purporting to alter such provisions shall
be null and
void.
41.
Passing of resolutions by entries in minute book
etc.
(1) Anything which may be
done by a company registered under Part 2 by resolution, special resolution, or
extraordinary resolution
passed at a meeting of the company may, subject to any
special provisions in that behalf in the articles of the company, be done
by a
private company in the same manner or by resolution passed, without a meeting or
any previous notice being required, by means
of an entry in its minute book
signed by at least three-fourths of the members having the right to vote on that
resolution, holding
in the aggregate at least three-fourths in nominal value of
the shares giving that right.
(2)
It shall not be necessary for a private company to hold an annual general
meeting if everything required to be done at that meeting
by resolution, special
resolution, or extraordinary resolution (including the adoption or approval of
every balance sheet or other
document required to be laid before the meeting)
is, within the time prescribed for the holding of the meeting, done by means of
an entry in its minute book in accordance with this
section.
(3) Any such entry may be
signed on behalf of a member by his agent duly authorised in
writing.
(4) For the purposes of
this section a memorandum pasted or otherwise permanently affixed in the minute
book and purporting to have
been signed for the purpose of becoming an entry
therein shall be deemed to be an entry accordingly, and any such entry may
consist
of several documents in like form, each signed by or on behalf of one or
more members.
(5) The company
shall within 7 days after any resolution is passed by means of an entry in its
minute book in accordance with this
section send to every member by or on behalf
of whom the entry has not been signed a copy thereof, including the
signatures.
(6) If default is made
in complying with subsection (5), the company and every officer of the company
who is in default shall be liable
to a default
fine.
(7) The provisions of
section 144 shall apply to resolutions which have been passed by means of
entries in the minute book of a private
company in accordance with the foregoing
provisions of this section to the same extent as if those resolutions had been
passed at
a meeting of the
company.
(8) Where a private
company passes a resolution for a creditors' voluntary winding up by means of an
entry in its minute book in accordance
with the foregoing provisions of this
section, the company, instead of complying with the requirements of subsection
(1) of section
289, shall cause a meeting of the creditors of the company to be
summoned for a day not later than the tenth day after the day on
which the
resolution is passed, and shall cause notice of the said meeting to be sent by
post to the creditors at least 7 days before
the day on which the meeting is to
be held. In every such case all references in this Act to subsection (1) of the
said section 289
shall be read as references to this
subsection.
(9) Where a private
company passes a resolution for a creditors' voluntary winding up by means of an
entry in its minute book in accordance
with the foregoing provisions of this
section, the company may at the same time, or at any subsequent time before the
date of the
meeting of creditors to be summoned as provided in subsection (8),
appoint the official receiver to be the provisional liquidator
of the company;
and thereupon the official receiver shall become the provisional liquidator and
shall continue to act as such until
he or another person becomes liquidator and
is capable of acting as such.
Reduction of Number of Members below Legal Minimum
42.
Members severally liable for debts where business carried on with fewer than
seven, or in case of private company two,
members
If at any time the number
of members of a company is reduced, in the case of a private company, below two,
or, in the case of any
other company, below seven, and it carries on business
for more than 6 months while the number is so reduced, every person who is
a
member of the company during the time that it so carries on business after those
6 months and is cognisant of the fact that it
is carrying on business with fewer
than two members, or seven members, as the case may be, shall be severally
liable for the payment
of the whole debts of the company contracted during that
time, and may be severally sued therefore.
Contracts, etc.
43.
Pre-incorporation contracts
(1)
Any person who purports to enter into a contract in the name of or on behalf of
a company before it comes into existence shall
be personally bound by the
contract and entitled to the benefits thereof, except as provided in this
section.
(2) A company may within
a reasonable time after it comes into existence, expressly, or by any action or
conduct signifying its intention
to be bound thereby, adopt a written contract
made before it came into existence in its name or on its behalf, and upon such
adoption,
subject to subsection (3) –
(a) the company shall for all purposes be bound by the contract and entitled to the benefits thereof as if the company had been in existence at the date of such contract and had been a party thereto; and
(b) the person who purported to act in the name of or on behalf of the company shall, except as provided in subsection (3), cease to be bound by or entitled to the benefits of the contract.
(3)
Except as provided in subsection (4), whether or not a contract made before the
coming into existence of a company is adopted
by the company, the other party to
the contract may apply to the court for an order fixing obligations under the
contract as joint
or joint and several, or apportioning liability between or
among the company and the person who purported to act in the name of or
on
behalf of the company, and upon such application the court may make any order it
thinks fit.
(4) If expressly so
provided in the written contract, the person who purported to act in the name of
or on behalf of the company before
it came into existence shall not in any event
be bound by the contract nor entitled to the benefits
thereof.
44.
Capacity of company
A company
shall have and shall be deemed always to have had the capacity of a natural
person of full capacity, subject only to such
limitations as are inherent in its
corporate
nature.
45.
Unauthorised acts
(1) A company
shall not carry on any business or pursue any object or exercise any power that
it is restricted by its memorandum or
articles from carrying on or pursuing or
exercising, nor exercise any of its powers in a manner inconsistent with its
memorandum
or articles:
Provided
that (subject to subsections (2), (3) and (4)) no act of a company and no
transfer of property to or by a company shall be
invalid by reason only that the
act or transfer may contravene or have contravened this
subsection.
(2) On the application
of –
(a) any member of the company; or
(b) the holder of any debenture secured by a floating charge over all or any of the company's property or by a trustee for the holders of any such debentures,
the
court may prohibit by injunction the doing of any act or the conveyance or
transfer of any property in breach of subsection
(1).
(3) Where the act or
transaction sought to be prohibited in any proceedings under subsection (2) is
being or is to be performed or
made under a contract to which the company is a
party, all parties to the contract shall be made parties to the proceedings, and
the court may make any order as to compensation or otherwise as it may consider
equitable.
(4) Any breach of
subsection (1) may be asserted in any proceedings under section 216 or 224 and
in any action against a director
or other officer of the company for breach of
duty or breach of
trust.
46. Form
of contracts
(1) Contracts on
behalf of a company may be made as follows –
(a) a contract which if made between private persons would be by law required to be in writing and under seal shall be made on behalf of the company in writing under the common seal of the company;
(b) a contract which if made between private persons would be by law required to be in writing, signed by the parties to be charged therewith, may be made on behalf of the company in writing signed by any person acting under its authority, express or implied;
(c) a contract which if made between private persons would by law be valid although made by parol only, and not reduced into writing, may be made by parol on behalf of the company by any person acting under its authority, express or implied.
(2)
A contract made according to this section shall be effectual in law, and shall
bind the company and its successors and all other
parties
thereto.
(3) A contract made
according to this section may be varied or discharged in the same manner in
which it is authorised by this section
to be
made.
47. Bills
of exchange and promissory notes
A
bill of exchange or promissory note shall be deemed to have been made, accepted
or endorsed on behalf of a company if made, accepted
or endorsed in the name of,
or by or on behalf or on account of, the company by any person acting under its
authority.
48.
Execution of deeds abroad
(1) A
company may, by writing under its common seal, empower any person, either
generally or in respect of any specified matters,
as its attorney, to execute
deeds on its behalf in any place not situated in
Vanuatu.
(2) A deed signed by such
an attorney on behalf of the company and under his seal shall bind the company
and have the same effect
as if it were under its common
seal.
49. Power
for a company to have official seal for use
abroad
(1) A company whose objects
require or comprise the transaction of business in foreign countries may, if
authorised by its articles,
have for use in any territory, district, or place
not situated in Vanuatu, an official seal, which shall be a facsimile of the
common
seal of the company, with the addition on its face of the name of every
territory, district or place where it is to be
used.
(2) A deed or other document
to which an official seal is duly affixed shall bind the company as if it had
been sealed with the common
seal of the
company.
(3) A company having an
official seal for use in any such territory, district or place may, by writing
under its common seal, authorise
any person appointed for the purpose in that
territory, district or place to affix the official seal to any deed or other
document
to which the company is party in that territory, district or
place.
(4) The authority of any
such agent shall, as between the company and any person dealing with the agent,
continue during the period,
if any, mentioned in the instrument conferring the
authority, or if no period is there mentioned, then until notice of the
revocation
or determination of the agent's authority has been given to the
person dealing with him.
(5) The
person affixing any such official seal shall, by writing under his hand, certify
on the deed or other instrument in which
the seal is affixed the date on which
and the place at which it is affixed.
Authentication of Documents
50.
Authentication of documents
A
document or proceeding requiring authentication by a company may be signed by a
director, secretary or other authorised officer
of the company, and need not be
under its common seal.
PART 3 – SHARE CAPITAL AND DEBENTURES
Prospectus
51.
Prospectus to be approved by
Minister
No prospectus shall be
issued by or on behalf of a company or in relation to an intended company unless
the Minister has first given
his
approval.
52.
Matters to be stated and reports to be set out in
prospectus
(1) Subject to the
provisions of section 53, every prospectus issued by or on behalf of a company,
or by or on behalf of any person
who is or has been engaged or interested in the
formation of the company, must be dated, and must state the matters specified in
Part 1 of Schedule 4 and set out the reports specified in Part 2 of that
Schedule, and the said Parts 1 and 2 shall have effect subject
to the provisions
contained in Part 3 of that
Schedule.
(2) A condition
requiring or binding an applicant for shares in or debentures of a company to
waive compliance with any requirement
of this section, or purporting to affect
him with notice of any contract, document or matter not specifically referred to
in the
prospectus, shall be
void.
(3) Subject to the
provisions of section 53, it shall not be lawful to issue any form of
application for shares in or debentures of
a company unless the form is issued
with a prospectus which complies with the requirements of this
section:
Provided that this
subsection shall not apply if it is shown that the form of application was
issued either –
(a) in connection with a bona fide invitation to a person to enter into an underwriting agreement with respect to the shares or debentures; or
(b) in relation to shares or debentures which were not offered to the public.
If
any person acts in contravention of the provisions of this subsection, he shall
be liable to a fine not exceeding VT
1,000,000.
(4) In the event of
non-compliance with or contravention of any of the requirements of this section,
a director or other person responsible
for the prospectus shall not incur any
liability by reason of the non-compliance or contravention, if
–
(a) as regards any matter not disclosed, he proves that he was not cognisant thereof; or
(b) he proves that the non-compliance or contravention arose from an honest mistake of fact on his part; or
(c) the non-compliance or contravention was in respect of matters which in the opinion of the court were immaterial or was otherwise such as ought, in the opinion of the court, having regard to all the circumstances of the case, reasonably to be excused:
Provided
that, in the event of failure to include in a prospectus a statement with
respect to the matters specified in paragraph 16
of Schedule 4, no director or
other person shall incur any liability in respect of the failure unless it be
proved that he had knowledge
of the matters not
disclosed.
(5) This section shall
not apply –
(a) to the issue to existing members or debenture holders of a company of a prospectus or form of application relating to shares in or debentures of the company, whether an applicant for shares or debentures will or will not have the right to renounce in favour of other persons; or
(b) to the issue of a prospectus or form of application relating to shares or debentures which are or are to be in all respects uniform with shares or debentures previously issued and for the time being dealt in or quoted on an approved stock exchange;
but,
subject as aforesaid, this section shall apply to a prospectus or a form of
application whether issued on or with reference to
the formation of a company or
subsequently.
(6) Nothing in this
section shall limit or diminish any liability which any person may incur under
the general law or this Act apart
from this
section.
53.
Exclusion of section 52 and relaxation of Schedule 4 in case of certain
prospectuses
(1) Where
–
(a) it is proposed to offer any shares in or debentures of a company to the public by a prospectus issued generally (that is to say, issued to persons who are not existing members or debenture holders of the company); and
(b) application is made to an approved stock exchange for permission for those shares or debentures to be dealt in or quoted on that stock exchange:
there
may, on the request of the applicant, be given by or on behalf of that stock
exchange a certificate of exemption, that is to
say, a certificate that, having
regard to the proposals (as stated in the request) as to the size and other
circumstances of the
issue of shares or debentures and as to any limitations on
the number and class of persons to whom the offer is to be made, compliance
with
the requirements of Schedule 4 would be unduly
burdensome.
(2) If a certificate
of exemption is given, and if the proposals aforesaid are adhered to and the
particulars and information required
to be published in connection with the
application for permission made to the stock exchange are so published, then
–
(a) a prospectus giving the particulars and information aforesaid in the form in which they are so required to be published shall be deemed to comply with the requirements of Schedule 4; and
(b) section 52 shall not apply to any issue, after the permission applied for is granted, of a prospectus or form of application relating to the shares or debentures.
54.
Expert's consent to issue of prospectus containing statement by
him
(1) A prospectus inviting
persons to subscribe for shares in or debentures of a company and including a
statement purporting to be
made by an expert shall not be issued unless
–
(a) he has given and has not, before delivery of a copy of the prospectus for registration, withdrawn his written consent to the issue thereof with the statement included in the form and context in which it is included; and
(b) a statement that he has given and has not withdrawn his consent as aforesaid appears in the prospectus.
(2)
If any prospectus is issued in contravention of this section the company and
every person who is knowingly a party to the issue
thereof shall be liable to a
fine not exceeding VT
1,000,000.
(3) In this section the
expression "expert" includes engineer, valuer, accountant and any other person
whose profession gives authority
to a statement made by
him.
55.
Registration of prospectus
(1) No
prospectus shall be issued by or on behalf of a company or in relation to an
intended company unless, on or before the date
of its publication, there has
been delivered to the registrar of companies for registration a copy thereof
signed by every person
who is named therein as a director or proposed director
of the company, or by his agent authorised in writing, and having endorsed
thereon or attached thereto –
(a) any consent to the issue of the prospectus required by section 54 from any person as an expert; and
(b) in the case of a prospectus issued generally, also –
(i) a copy of any contract required by paragraph 14 of Schedule 4 to be stated in the prospectus or, in the case of a contract not reduced into writing, a memorandum giving full particulars thereof or, if in the case of a prospectus deemed by virtue of a certificate granted under section 53 to comply with the requirements of that Schedule a contract or a copy thereof or a memorandum of a contract is required to be available for inspection in connection with the application made under that section to the stock exchange, a copy or, as the case may be, a memorandum of that contract; and
(ii) where the persons making any report required by Part 2 of that Schedule have made therein, or have, without giving the reasons, indicated therein, any such adjustments as are mentioned in paragraph 29 of that Schedule, a written statement signed by those persons setting out the adjustments and giving the reasons therefor.
The
references in subparagraph (i) of paragraph (b) of this subsection to the copy
of a contract required thereby to be endorsed on
or attached to a copy of the
prospectus shall, in the case of a contract wholly or partly in a foreign
language, be taken as references
to a copy of a translation of the contract in
English or French or a copy embodying a translation into English or French of
the parts
in a foreign language, as the case may be, being a translation
certified in the prescribed manner to be a correct translation, and
the
reference to a copy of a contract required to be available for inspection shall
include a reference to a copy of a translation
thereof or a copy embodying a
translation of parts thereof.
(2)
Every prospectus shall, on the face of it –
(a) state that a copy has been delivered for registration as required by this section; and
(b) specify, or refer to statements included in the prospectus which specify, any documents required by this section to be endorsed on or attached to the copy so delivered.
(3)
The registrar shall not register a prospectus unless it is dated and the copy
thereof signed in manner required by this section
and unless it has endorsed
thereon or attached thereto the documents (if any) specified as
aforesaid.
(4) If a prospectus is
issued without a copy thereof being delivered under this section to the
registrar or without the copy so delivered
having endorsed thereon or attached
thereto the required documents, the company, and every person who is knowingly a
party to the
issue of the prospectus, shall be liable to a fine not exceeding VT
1,000 for every day from the day of the issue of the prospectus
until a copy
thereof is so delivered with the required documents endorsed thereon or attached
thereto.
56.
Civil liability for mis-statements in
prospectus
(1) Subject to the
provisions of this section, where a prospectus invites persons to subscribe for
shares in or debentures of a company,
the following persons shall be liable to
pay compensation to all persons who subscribe for any shares or debentures on
the faith
of the prospectus for the loss or damage they may have sustained by
reason of any untrue statement included therein, that is to say
–
(a) every person who is a director of the company at the time of the issue of the prospectus;
(b) every person who has authorised himself to be named and is named in the prospectus as a director or as having agreed to become a director either immediately or after an interval of time;
(c) every person being a promoter of the company; and
(d) every person who has authorised the issue of the prospectus:
Provided
that where, under section 54, the consent of a person is required to the issue
of a prospectus and he has given that consent,
he shall not by reason of his
having given it be liable under this subsection as a person who has authorised
the issue of the prospectus
except in respect of an untrue statement purporting
to be made by him as an
expert.
(2) No person shall be
liable under subsection (1) of this section if he proves –
(a) that, having consented to become a director of the company, he withdrew his consent before the issue of the prospectus, and that it was issued without his authority or consent; or
(b) that the prospectus was issued without his knowledge or consent, and that on becoming aware of its issue he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or
(c) that, after the issue of the prospectus and before allotment thereunder, he, on becoming aware of any untrue statement therein, withdrew his consent thereto and gave reasonable public notice of the withdrawal and of the reason therefor; or
(d) that –
(i) as regards every untrue statement not purporting to be made on the authority of an expert or of a public official document or statement, he had reasonable grounds to believe, and did up to the time of the allotment of the shares or debentures, as the case may be, believe, that the statement was true; and
(ii) as regards every untrue statement purporting to be a statement by an expert or contained in what purports to be a copy of or extract from a report or valuation of an expert, it fairly represented the statement, or was a correct and fair copy of or extract from the report or valuation, and he had reasonable grounds to believe and did up to the time of the issue of the prospectus believe that the person making the statement was competent to make it and that person had given the consent required by section 54 to the issue of the prospectus and had not withdrawn that consent before delivery of a copy of the prospectus for registration or, to the defendant's knowledge, before allotment thereunder; and
(iii) as regards every untrue statement purporting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official document, it was a correct and fair representation of the statement or copy of or extract from the document:
Provided
that this subsection shall not apply in the case of a person liable, by reason
of his having given a consent required of
him by the said section 54, as a
person who has authorised the issue of the prospectus in respect of an untrue
statement purporting
to be made by him as an
expert.
(3) A person who, apart
from this subsection would under subsection (1) be liable, by reason of his
having given the consent required
of him by section 54, as a person who has
authorised the issue of a prospectus in respect of an untrue statement
purporting to be
made by him as an expert shall not be so liable if he proves
–
(a) that, having given his consent under the said section 54 to the issue of the prospectus, he withdrew it in writing before delivery of a copy of the prospectus for registration; or
(b) that, after delivery of a copy of the prospectus for registration and before allotment thereunder, he, on becoming aware of the untrue statement, withdrew his consent in writing and gave reasonable public notice of the withdrawal, and of the reason therefor; or
(c) that he was competent to make the statement and that he had reasonable grounds to believe and did up to the time of the allotment of the shares or debentures, as the case may be, believe that the statement was true.
(4)
Where –
(a) the prospectus contains the name of a person as a director of the company, or as having agreed to become a director thereof, and he has not consented to become a director, or has withdrawn his consent before the issue of the prospectus, and has not authorised or consented to the issue thereof; or
(b) the consent of a person is required under section 54 to the issue of the prospectus and he either has not given that consent or has withdrawn it before the issue of the prospectus;
the
directors of the company, except any without whose knowledge or consent the
prospectus was issued, and any other person who authorised
the issue thereof
shall be liable to indemnify the person named as aforesaid or whose consent was
required as aforesaid, as the case
may be, against all damages, costs and
expenses to which he may be made liable by reason of his name having been
inserted in the
prospectus or of the inclusion therein of a statement purporting
to be made by him as an expert, as the case may be, or in defending
himself
against any action or legal proceeding brought against him in respect
thereof:
Provided that a person
shall not be deemed for the purposes of this subsection to have authorised the
issue of a prospectus by reason
only of his having given the consent required by
section 54 to the inclusion therein of a statement purporting to be made by him
as an expert.
(5) For the purposes
of this section –
(a) the expression "promoter" means a promoter who was a party to the preparation of the prospectus, or of the portion thereof containing the untrue statement, but does not include any person by reason of his acting in a professional capacity for persons engaged in procuring the formation of the company; and
(b) the expression "expert" has the same meaning as in section 54.
57.
Criminal liability for mis-statements in
prospectus
(1) Where a prospectus
issued after the commencement of this Act (27 October 1986) includes any untrue
statement, any person who authorised
the issue of the prospectus shall be liable
to imprisonment for a term not exceeding 2 years, or a fine not exceeding VT
1,000,000,
or both, unless he proves either that the statement was immaterial or
that he had reasonable grounds to believe and did, up to the
time of the issue
of the prospectus, believe that the statement was
true.
A person shall not be deemed
for the purposes of this section to have authorised the issue of a prospectus by
reason only of his having
given the consent required by section 54 to the
inclusion therein of a statement purporting to be made by him as an
expert.
58.
Document containing offer of shares or debentures for sale to be deemed
prospectus
(1) Where a company
allots or agrees to allot any shares in or debentures of the company with a view
to all or any of those shares
or debentures being offered for sale to the
public, any document by which the offer for sale to the public is made shall for
all
purposes be deemed to be a prospectus issued by the company, and all
enactments and rules of law as to the contents of prospectuses
and to liability
in respect of statements in and omissions from prospectuses, or otherwise
relating to prospectuses, shall apply
and have effect accordingly, as if the
shares or debentures had been offered to the public for subscription and as if
persons accepting
the offer in respect of any shares or debentures were
subscribers for those shares or debentures, but without prejudice to the
liability,
if any, of the persons by whom the offer is made, in respect of
mis-statements contained in the document or otherwise in respect
thereof.
(2) For the purposes of
this Act, it shall, unless the contrary is proved, be evidence that an allotment
of, or an agreement to allot,
shares or debentures was made with a view to the
shares or debentures being offered for sale to the public if it is shown
–
(a) that an offer of the shares or debentures or of any of them for sale to the public was made within 6 months after the allotment or agreement to allot; or
(b) that at the date when the offer was made the whole consideration to be received by the company in respect of the shares or debentures had not been so received.
(3)
Section 52 as applied by this section shall have effect as if it required a
prospectus to state in addition to the matters required
by that section to be
stated in a prospectus –
(a) the net amount of the consideration received or to be received by the company in respect of the shares or debentures to which the offer relates; and
(b) the place and time at which the contract under which the said shares or debentures have been or are to be allotted may be inspected;
and
section 55 as applied by this section shall have effect as though the persons
making the offer were persons named in a prospectus
as directors of a
company.
(4) Where a person making
an offer to which this section relates is a company or a firm, it shall be
sufficient if the document aforesaid
is signed on behalf of the company or firm
by two directors of the company or not less than half of the partners, as the
case may
be, and any such director or partner may sign by his agent authorised
in writing.
59.
Interpretation of provisions relating to
prospectuses
For the purposes of
the foregoing provisions of this Part of this Act –
(a) a statement included in a prospectus shall be deemed to be untrue if it is misleading in the form and context in which it is included; and
(b) a statement shall be deemed to be included in a prospectus if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein or issued therewith.
Allotment
60.
Prohibition of allotment unless minimum subscription
received
(1) No allotment shall be
made of any share capital of a company offered to the public for subscription
unless the amount stated in
the prospectus as the minimum amount which, in the
opinion of the directors, must be raised by the issue of share capital in order
to provide for the matters specified in paragraph 4 of Schedule 4 has been
subscribed, and the sum payable on application for the
amount so stated has been
paid to and received by the
company.
For the purposes of this
subsection, a sum shall be deemed to have been paid to and received by the
company if a cheque for that sum
has been received in good faith by the company
and the directors of the company have no reason for suspecting that the cheque
will
not be paid.
(2) The amount
so stated in the prospectus shall be reckoned exclusively of any amount payable
otherwise than in cash and is in this
Act referred to as "the minimum
subscription".
(3) The amount
payable on application on each share shall not be less than 5 per cent of the
nominal amount of the share.
(4)
If the conditions aforesaid have not been complied with on the expiration of 40
days after the first issue of the prospectus,
all money received from applicants
for shares shall be forthwith repaid to them without interest, and, if any such
money is not so
repaid within 48 days after the issue of the prospectus, the
directors of the company shall be jointly and severally liable to repay
that
money with interest at the rate of 10 per cent per annum from the expiration of
the forty-eighth day:
Provided
that a director shall not be liable if he proves that the default in the
repayment of the money was not due to any misconduct
or negligence on his
part.
(5) Any condition requiring
or binding any applicant for shares to waive compliance with any requirement of
this section shall be
void.
(6)
This section, except subsection (3) thereof, shall not apply to any allotment of
shares subsequent to the first allotment of shares
offered to the public for
subscription.
61.
Effect of irregular allotment
(1)
An allotment made by a company to an applicant in contravention of the
provisions of section 60 shall be voidable at the instance
of the applicant
within one month after the date of the allotment, and not later, and shall be so
voidable notwithstanding that the
company is in the course of being wound
up.
(2) If any director of a
company knowingly contravenes, or permits or authorises the contravention of,
any of the provisions of the
said section with respect to allotment, he shall be
liable to compensate the company and the allottee, respectively, for any loss,
damages or costs which the company or the allottee may have sustained or
incurred thereby:
Provided that
proceedings to recover any such loss, damages, or costs shall not be commenced
after the expiration of 2 years from
the date of the
allotment.
62.
Applications for, and allotment of, shares and
debentures
(1) No allotment shall
be made of any shares in or debentures of a company in pursuance of a prospectus
issued generally and no proceedings
shall be taken on applications made in
pursuance of a prospectus so issued, until the beginning of the third day after
that on which
the prospectus is first so issued or such later time (if any) as
may be specified in the
prospectus.
The beginning of the
said third day or such later time as aforesaid is hereafter in this Act referred
to as "the time of the opening
of the subscription
lists".
(2) The validity of an
allotment shall not be affected by any contravention of the foregoing provisions
of this section but, in the
event of any such contravention, the company and
every officer of the company who is in default shall be liable to a fine not
exceeding
VT 100,000.
(3) In the
application of this section to a prospectus offering shares or debentures for
sale, subsections (1) and (2) shall have
effect with the substitution of
references to sale for references to allotment, and with the substitution for
the reference to the
company and every officer of the company who is in default
of a reference to any person by or through whom the offer is made and
who
knowingly and wilfully authorises or permits the
contravention.
(4) An application
for shares in or debentures of a company which is made in pursuance of a
prospectus issued generally shall not
be revocable until after the expiration of
the third day after the time of the opening of the subscription lists, or the
giving before
the expiration of the said third day, by some person responsible
under section 56 of this Act for the prospectus, of a public notice
having the
effect under that section of excluding or limiting the responsibility of the
person giving it.
(5) In reckoning
for the purposes of this section and section 63, the third day after another
day, any intervening day which is a
Saturday or Sunday or which is a public
holiday in Vanuatu shall be disregarded, and if the third day (as so reckoned)
is itself
a Saturday or Sunday or such a public holiday there shall for the said
purposes be substituted the first day thereafter which is
none of
them.
(6) This section shall not
apply in relation to a prospectus to which paragraph (a) or (b) of subsection
(2) of section 53
applies.
63.
Allotment of shares and debentures to be dealt in on stock
exchange
(1) Where a prospectus,
whether issued generally or not, states that application has been or will be
made for permission for the shares
or debentures offered thereby to be dealt in
on any stock exchange, any allotment made on an application in pursuance of the
prospectus
shall, whenever made, be void if the permission has not been applied
for before the third day after the first issue of the prospectus
or if the
permission has been refused before the expiration of 3 weeks from the date of
the closing of the subscription lists or
such longer period not exceeding 6
weeks as may, within the said 3 weeks, be notified to the applicant for
permission by or on behalf
of the stock
exchange.
(2) Where the permission
has not been applied for as aforesaid, or has been refused as aforesaid, the
company shall forthwith repay
without interest all money received from
applicants in pursuance of the prospectus, and, if any such money is not repaid
within 8
days after the company becomes liable to repay it, the directors of the
company shall be jointly and severally liable to repay that
money with interest
at the rate of 10 per cent per annum from the expiration of the eighth day:
Provided that a director shall
not be liable if he proves that the default in the repayment of the money was
not due to any misconduct
or negligence on his
part.
(3) All money received as
aforesaid shall be kept in a separate bank account so long as the company may
become liable to repay it
under subsection (2); and, if default is made in
complying with this subsection, the company and every officer of the company who
is in default shall be liable to a fine not exceeding VT
500,000.
(4) Any condition
requiring or binding any applicant for shares or debentures to waive compliance
with any requirement of this section
shall be
void.
(5) For the purposes of this
section, permission shall not be deemed to be refused if it is intimated that
the application for it,
though not at present granted, will be given further
consideration.
(6) This section
shall have effect –
(a) in relation to any shares or debentures agreed to be taken by a person underwriting an offer thereof by a prospectus as if he had applied therefor in pursuance of the prospectus; and
(b) in relation to a prospectus offering shares for sale with the following modifications, that is to say –
(i) references to sale shall be substituted for references to allotment;
(ii) the persons by whom the offer is made, and not the company, shall be liable under subsection (2) to repay money received from applicants, and references to the company's liability under that subsection shall be construed accordingly; and
(iii) for the reference in subsection (3) to the company and every officer of the company who is in default there shall be substituted a reference to any person by or through whom the offer is made and who knowingly and wilfully authorises or permits the default.
64.
Return as to allotments
(1)
Whenever a company limited by shares makes any allotment of its shares, the
company shall within one month thereafter deliver
to the registrar of companies
for registration –
(a) a return of the allotments, stating the number and nominal amount of the shares comprised in the allotment, the names, addresses and descriptions of the allottees, and the amount, if any, paid or due and payable on each share; and
(b) in the case of shares allotted as fully or partly paid up otherwise than in cash, a contract in writing constituting the title of the allottee to the allotment together with any contract of sale, or for services or other consideration in respect of which that allotment was made, such contracts being duly stamped if so required, and a return stating the number and nominal amount of shares so allotted, the extent to which they are to be treated as paid up, and the consideration for which they have been allotted.
(2)
Where such a contract as above mentioned is not reduced to writing, the company
shall within 1 month after the allotment deliver
to the registrar of companies
for registration the prescribed particulars of the contract stamped with the
same stamp duty (if any)
as would have been payable if the contract had been
reduced to writing, and those particulars shall be deemed to be an instrument
within the meaning of the Stamp Duties Act, Cap. 68, and the registrar may, as a
condition of filing the particulars, require that
the duty payable thereon be
assessed under section 9 of that
Act.
(3) If default is made in
complying with this section, every officer of the company who is in default
shall be liable to a fine not
exceeding VT 1,000 for every day during which the
default continues:
Provided that,
in case of default in delivering to the registrar of companies within 1 month
after the allotment any document required
to be delivered by this section, the
company, or any officer liable for the default, may apply to the court for
relief, and the court,
if satisfied that the omission to deliver the document
was accidental or due to inadvertence or that it is just and equitable to
grant
relief, may make an order extending the time for delivery of the document for
such period as the court may think proper.
Commissions and Discounts, etc.
65.
Power to pay certain commissions, and prohibition of payment of all other
commissions, discounts, etc.
(1)
It shall be lawful for a company to pay a commission to any person in
consideration of his subscribing or agreeing to subscribe,
whether absolutely or
conditionally, for any shares in the company, or procuring or agreeing to
procure subscriptions, whether absolute
or conditional, for any shares in the
company if –
(a) the payment of the commission is authorised by the articles; and
(b) the commission paid or agreed to be paid does not exceed 10 per cent of the price at which the shares are issued or the amount or rate authorised by the articles, whichever is the less; and
(c) the amount or rate per cent of the commission paid or agreed to be paid is –
(i) in the case of shares offered to the public for subscription, disclosed in the prospectus; or
(ii) in the case of shares not offered to the public for subscription, disclosed in a statement signed by at least two directors of the company and delivered before the payment of the commission to the registrar of companies for registration, and, where a circular or notice, not being a prospectus, inviting subscription for the shares is issued, also disclosed in that circular or notice; and
(d) the number of shares which persons have agreed for a commission to subscribe absolutely is disclosed in manner aforesaid.
(2)
Save as aforesaid, no company shall apply any of its shares or capital money
either directly or indirectly in payment of any commission,
discount or
allowance to any person in consideration of his subscribing or agreeing to
subscribe, whether absolutely or conditionally,
for any shares in the company,
or procuring or agreeing to procure subscriptions, whether absolute or
conditional, for any shares
in the company, whether the shares or money be so
applied by being added to the purchase money of any property acquired by the
company
or to the contract price of any work to be executed for the company, or
the money be paid out of the nominal purchase money or contract
price, or
otherwise.
(3) Nothing in this
section shall affect the power of any company to pay such brokerage as it has
heretofore been lawful for a company
to
pay.
(4) A vendor to, promoter of,
or other person who receives payment in money or shares from, a company shall
have and shall be deemed
always to have had power to apply any part of the money
or shares so received in payment of any commission, the payment of which,
if
made directly by the company, would have been legal under this
section.
(5) If default is made in
complying with the provisions of this section relating to the delivery to the
registrar of the statement,
the company and every officer of the company who is
in default shall be liable to a fine not exceeding VT
5,000.
66.
Prohibition of provision of financial assistance by company for purchase of or
subscription for its own, or its holding company's,
shares
(1) Subject as provided in
this section, it shall not be lawful for a company to give, whether directly or
indirectly, and whether
by means of a loan, guarantee, the provision of security
or otherwise, any financial assistance for the purpose of or in connection
with
a purchase or subscription made or to be made by any person of or for any shares
in the company, or, where the company is a
subsidiary company, in its holding
company:
Provided that nothing in
this section shall be taken to prohibit –
(a) where the lending of money is part of the ordinary business of a company, the lending of money by the company in the ordinary course of its business;
(b) the provision by a company, in accordance with any scheme for the time being in force, of money for the purchase of, or subscription for, fully-paid shares in the company or its holding company, being a purchase or subscription by trustees of or for shares to be held by or for the benefit of employees of the company, including any director holding a salaried employment or office in the company;
(c) the making by a company of loans to persons, other than directors, bona fide in the employment of the company with a view to enabling those persons to purchase or subscribe for fully-paid shares in the company or its holding company to be held by themselves by way of beneficial ownership.
(2)
If a company acts in contravention of this section, the company and every
officer of the company who is in default shall be liable
to a fine not exceeding
VT 500,000.
Construction of References to Offering Shares or Debentures to the Public
67.
Construction of references to offering shares or debentures to the
public
(1) Any reference in this
Act to offering shares or debentures to the public shall, subject to any
provision to the contrary contained
therein, be construed as including a
reference to offering them to any section of the public, whether selected as
members or debenture
holders of the company concerned or as clients of the
person issuing the prospectus or in any other manner, and references in this
Act
or in a company's articles to invitations to the public to subscribe for shares
or debentures shall, subject as aforesaid, be
similarly
construed.
(2) Subsection (1)
shall not be taken as requiring any offer or invitation to be treated as made to
the public if it can properly
be regarded, in all the circumstances, as not
being calculated to result, directly or indirectly, in the shares or debentures
becoming
available for subscription or purchase by persons other than those
receiving the offer or invitation, or otherwise as being a domestic
concern of
the persons making and receiving it, and in particular –
(a) a provision in a company's articles prohibiting invitations to the public to subscribe for shares or debentures shall not be taken as prohibiting the making to members or debenture holders of an invitation which can properly be regarded as aforesaid; and
(b) the provisions of this Act relating to private companies shall be construed accordingly.
Issue of Shares at Premium and Discount and Redeemable Preference Shares
68.
Application of premiums received on issue of
shares
(1) Where a company issues
shares at a premium, whether for cash or otherwise, a sum equal to the aggregate
amount or value of the
premiums on those shares shall be transferred to an
account, to be called "the share premium account", and the provisions of this
Act relating to the reduction of the share capital of a company shall, except as
provided in this section, apply as if the share
premium account were paid up
share capital of the company.
(2)
The share premium account may, notwithstanding anything in subsection (1), be
applied by the company in paying up unissued shares
of the company to be issued
to members of the company as fully paid bonus shares, in writing off
–
(a) the preliminary expenses of the company; or
(b) the expenses of, or the commission paid or discount allowed on, any issue of shares or debentures of the company;
or
in providing for the premium payable on redemption of any redeemable preference
shares or of any debentures of the
company.
(3) Where a company has
before the commencement of this Act (27 October 1986), issued any shares at a
premium, this section shall
apply as if the shares had been issued on or after
that date:
Provided that any part
of the premiums which has been so applied that it does not at the commencement
of this Act (27 October 1986),
form an identifiable part of the company's
reserves within the meaning of Schedule 6 shall be disregarded in determining
the sum
to be included in the share premium
account.
69.
Prohibition on allotment of shares at a
discount
(1) It shall not be
lawful for a company to allot or issue shares at a
discount.
(2) Where shares are
allotted in contravention of subsection (1), the allottee shall be liable to pay
to the company an amount equal
to the discount, together with interest at the
rate of 10 per cent per annum, and the directors who were privy to the making of
the
allotment shall be jointly and severally liable to the company for any loss
it
sustains.
70.
Power to issue redeemable preference
shares
(1) Subject to the
provisions of this section, a company limited by shares may, if so authorised by
its articles, issue preference
shares which are, or at the option of the company
are to be liable, to be
redeemed:
Provided that
–
(a) no such shares shall be redeemed except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption;
(b) no such shares shall be redeemed unless they are fully paid;
(c) the premium, if any, payable on redemption, must have been provided for out of the profits of the company or out of the company's share premium account before the shares are redeemed;
(d) where any such shares are redeemed otherwise than out of the proceeds of a fresh issue, there shall out of profits which would otherwise have been available for dividend be transferred to a reserve fund, to be called "the capital redemption reserve fund", a sum equal to the nominal amount of the shares redeemed, and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the capital redemption reserve fund were paid-up capital of the company.
(2)
Subject to the provisions of this section, the redemption of preference shares
thereunder may be effected on such terms and in
such manner as may be provided
by the articles of the
company.
(3) The redemption of
preference shares under this section by a company shall not be taken as reducing
the amount of the company's
authorised share
capital.
(4) Where in pursuance of
this section a company has redeemed or is about to redeem any preference shares,
it shall have power to
issue shares up to the nominal amount of the shares
redeemed or to be redeemed as if those shares had never been issued, and
accordingly
the share capital of the company shall not for the purposes of any
enactments relating to stamp duty be deemed to be increased by
the issue of
shares in pursuance of this
subsection:
Provided that, where
new shares are issued before the redemption of the old shares, the new shares
shall not, so far as relates to
stamp duty, be deemed to have been issued in
pursuance of this subsection unless the old shares are redeemed within 1 month
after
the issue of the new
shares.
(5) The capital redemption
reserve fund may, notwithstanding anything in this section, be applied by the
company in paying up unissued
shares of the company to be issued to members of
the company as fully paid bonus shares.
Miscellaneous Provisions As To Share Capital
71.
Power of company to arrange for different amounts being paid on
shares
A company, if so authorised
by its articles, may do any one or more of the following things
–
(a) make arrangements on the issue of shares for a difference between the shareholders in the amounts and times of payment of calls on their shares;
(b) accept from any member the whole or a part of the amount remaining unpaid on any shares held by him, although no part of that amount has been called up;
(c) pay dividend in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others.
72.
Power of company limited by shares to alter its share
capital
(1) A company limited by
shares, if so authorised by its articles, may alter the conditions of its
memorandum as follows, that is
to say, it may –
(a) increase its share capital by new shares of such amount as it thinks expedient;
(b) consolidate and divide all or any of its share capital into shares of larger amount than its existing shares;
(c) convert all or any of its paid-up shares into stock, and reconvert that stock into paid-up shares of any denomination;
(d) subdivide its shares, or any of them, into shares of smaller amount than is fixed by the memorandum, so, however, that in the subdivision 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;
(e) cancel shares which, at the date of the passing of the resolution in that behalf, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.
(2)
The powers conferred by this section must be exercised by the company in general
meeting.
(3) A cancellation of
shares in pursuance of this section shall not be deemed to be a reduction of
share capital within the meaning
of this
Act.
73. Notice
to registrar of consolidation of share capital, conversion of shares into stock,
etc.
(1) If a company having a
share capital has –
(a) consolidated and divided its share capital into shares of larger amount than its existing shares; or
(b) converted any shares into stock; or
(c) re-converted stock into shares; or
(d) subdivided its shares or any of them; or
(e) redeemed any redeemable preference shares; or
(f) cancelled any shares, otherwise than in connection with a reduction of share capital under section 75,
it
shall within 1 month after so doing give notice thereof to the registrar of
companies specifying, as the case may be, the shares
consolidated, divided,
converted, sub-divided, redeemed or cancelled, or the stock
re-converted.
(2) If default is
made in complying with this section, the company and every officer of the
company who is in default shall be liable
to a default
fine.
74.
Notice of increase of share
capital
(1) Where a company having
a share capital, whether its shares have or have not been converted into stock,
has increased its share
capital beyond the registered capital, it shall, within
15 days after the passing of the resolution authorising the increase, give
to
the registrar of companies notice of the increase, and the registrar shall
record the increase.
(2) The
notice to be given as aforesaid shall include such particulars as may be
prescribed with respect to the classes of shares
affected and the conditions
subject to which the new shares have been or are to be issued, and there shall
be forwarded to the registrar
of companies together with the notice a printed
copy, or a copy in some other form approved by the registrar, of the resolution
authorising
the increase.
(3) If
default is made in complying with this section, the company and every officer of
the company who is in default shall be liable
to a default fine.
Reduction of Share Capital
75.
Special resolution for reduction of share
capital
(1) Subject to
confirmation by the court, a company limited by shares may, if so authorised by
its articles, by special resolution
reduce its share capital in any way, and in
particular, without prejudice to the generality of the foregoing power, may
–
(a) extinguish or reduce the liability on any of its shares in respect of share capital not paid up; or
(b) either with or without extinguishing or reducing liability on any of its shares, cancel any paid-up share capital which is lost or unrepresented by available assets; or
(c) either with or without extinguishing or reducing liability on any of its shares, pay off any paid-up share capital which is in excess of the wants of the company;
and
may, if and so far as is necessary, alter its memorandum by reducing the amount
of its share capital and of its shares
accordingly.
(2) A special
resolution under this section is in this Act referred to as "a resolution for
reducing share
capital".
76.
Application to court for confirming order, objections by creditors, and
settlement of list of objecting
creditors
(1) Where a company has
passed a resolution for reducing share capital, it may apply to the court for an
order confirming the
reduction.
(2) Where the proposed
reduction of share capital involves either diminution of liability in respect of
unpaid share capital or the
payment to any shareholder of any paid-up share
capital, and in any other case if the court so directs, the following provisions
shall have effect, subject nevertheless to subsection (3) –
(a) every creditor of the company who at the date fixed by the court is entitled to any 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, shall be entitled to object to the reduction;
(b) the court shall settle a list of creditors so entitled to object, and for that purpose 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 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;
(c) where 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, if it thinks fit, dispense with the consent of that creditor, on the company securing payment of his debt or claim by appropriating, as the court may direct, the following amount –
(i) 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;
(ii) 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 the like enquiry and adjudication as if the company were being wound up by the court.
(3)
Where a proposed reduction of share capital involves either the diminution of
any liability in respect of unpaid share capital
or the payment to any
shareholder of any paid-up share capital, the court may, if, having regard to
any special circumstances of
the case, it thinks proper so to do, direct that
subsection (2) shall not apply as regards any class or any classes of
creditors.
77.
Order confirming reduction and powers of court on making such
order
The court, if satisfied,
with respect to every creditor of the company who under section 76 is entitled
to object to the reduction,
that either his consent to the reduction has been
obtained or his 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.
78.
Registration of order and minute of
reduction
(1) The registrar of
companies, on production to him of an order of the court confirming the
reduction of the share capital of a company,
and the delivery to him of a copy
of the order and of a minute approved by the court showing, with respect to the
share capital of
the company as altered by the order, the amount of the share
capital, the number of shares into which it is to be divided, and the
amount of
each share, and the amount, if any, at the date of the registration deemed to be
paid up on each share, shall register
the order and
minute.
(2) On the registration of
the order and minute, and not before, the resolution for reducing share capital
as confirmed by the order
so registered shall take
effect.
(3) Notice of the
registration shall be published in such manner as the court may
direct.
(4) The registrar shall
certify under his hand the registration of the order and minute, and his
certificate shall be conclusive evidence
that all the requirements of this Act
with respect to reduction of share capital have been complied with, and that the
share capital
of the company is such as is stated in the
minute.
(5) The minute when
registered shall be deemed to be substituted for the corresponding part of the
memorandum, and shall be valid
and alterable as if it had been originally
contained therein.
(6) The
substitution of any such minute as aforesaid for part of the memorandum of the
company shall be deemed to be an alteration
of the memorandum within the meaning
of section
35.
79.
Liability of members in respect of reduced
shares
(1) In the case of a
reduction of share capital, a member of the company, past or present, shall not
be liable in respect of any share
to any 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, or the reduced amount, if any, which is to be deemed
to have been paid, on the share, as the case may
be:
Provided that, if any
creditor, entitled in respect of any debt or claim to object to the reduction of
share capital, is, by reason
of his ignorance of the proceedings for reduction,
or of their nature and effect with respect to his claim, not entered on the list
of creditors, and, after the reduction, the company is unable, within the
meaning of the provisions of this Act with respect to winding
up by the court,
to pay the amount of his debt or claim, then –
(a) every person, who was a member of the company at the date of the registration of the order for reduction and minute, shall be liable to contribute for the payment of that debt or claim an amount not exceeding the amount which he would have been liable to contribute if the company had commenced to be wound up on the day before the said date; and
(b) if the company is wound up, the court, on the application of any such creditor and proof of his ignorance as aforesaid, may, if it thinks fit, 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.
(2)
Nothing in this section shall affect the rights of the contributories among
themselves.
80.
Penalty for concealing name of creditor,
etc.
If any officer of the company
–
(a) wilfully conceals the name of any creditor entitled to object to the reduction; or
(b) wilfully misrepresents the nature or amount of the debt or claim of any creditor; or
(c) aids, abets or is privy to any such concealment or misrepresentation as aforesaid, he shall be liable to a fine not exceeding VT 100,000.
Variation of Shareholders, Rights
81.
Rights of holders of special classes of
shares
(1) If, in the case of a
company the share capital of which is divided into different classes of shares,
provision is made by the
memorandum or articles for authorising the variation of
the rights attached to any class of shares in the company, subject to the
consent of any specified proportion of the holders of the issued shares of that
class or the sanction of a resolution passed at a
separate meeting of the
holders of those shares, and in pursuance of the said provision the rights
attached to any such class of
shares are at any time varied, the holders of not
less in the aggregate than 15 per cent of the issued shares of that class, being
persons who did not consent to or vote in favour of the resolution for the
variation, may apply to the court to have the variation
cancelled, and, where
any such application is made, the variation shall not have effect unless and
until it is confirmed by the
court.
(2) An application under
this section must be made within 21 days after the date on which the consent was
given or the resolution
was passed, as the case may be, and may be made on
behalf of the shareholders entitled to make the application by such one or more
of their number as they may appoint in writing for the
purpose.
(3) On any such
application the court, after hearing the applicant and any other persons who
apply to the court to be heard and appear
to the court to be interested in the
application, may, if it is satisfied, having regard to all the circumstances of
the case, that
the variation would unfairly prejudice the shareholders of the
class represented by the applicant, disallow the variation and shall,
if not so
satisfied, confirm the
variation.
(4) The decision of the
court on any such application shall be
final.
(5) The company shall
within 15 days after the making of an order by the court on any such application
forward a copy of the order
to the registrar of companies, and, if default is
made in complying with this provision, the company and every officer of the
company
who is in default shall be liable to a default
fine.
(6) The expression
"variation" in this section includes abrogation and the expression "varied"
shall be construed accordingly.
Transfer of Shares and Debentures, Evidence of Title, etc.
82.
Numbering of shares
Each share in
a company having a share capital shall be distinguished by its appropriate
number:
Provided that, if at any
time all the issued shares in a company, or all the issued shares therein of a
particular class, are fully
paid up and rank pari passu for all purposes, none
of those shares need thereafter have a distinguishing number so long as it
remains
fully paid up and ranks pari passu for all purposes with all shares of
the same class for the time being issued and fully paid
up.
83.
Transfer not to be registered except on production of instrument of
transfer
Notwithstanding anything
in the articles of a company, it shall not be lawful for the company to register
a transfer of shares in
or debentures of the company unless a proper instrument
of transfer has been delivered to the
company:
Provided that nothing in
this section shall prejudice any power of the company to register as shareholder
or debenture holder any
person to whom the right to any shares in or debentures
of the company has been transmitted by operation of
law.
84.
Transfer by personal
representative
A transfer of the
share or other interest of a deceased member of a company made by his personal
representative shall, although the
personal representative is not himself a
member of the company, be as valid as if he had been such a member at the time
of the execution
of the instrument of
transfer.
85.
Registration of transfer at request of
transferor
On the application of
the transferor of any 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.
86.
Notice of refusal to register
transfer
(1) If a company refuses
to register a transfer of any shares or debentures, the company shall, within 2
months after the date on
which the transfer was lodged with the company, send to
the transferee notice of the
refusal.
(2) If default is made in
complying with this section, the company and every officer of the company who is
in default shall be liable
to a default
fine.
87.
Certification of transfers
(1) The
certification by a company of any instrument of transfer of shares in or
debentures of the 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 the face of them 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.
(2) Where
any person acts on the faith of a false certification by a company made
negligently, the company shall be under the same
liability to him as if the
certification had been made
fraudulently.
(3) For the purposes
of this section –
(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 of an instrument of transfer shall be deemed to be made by a company if –
(i) the person issuing the instrument is a person authorised to issue certificated instruments of transfer on the company's behalf; and
(ii) the certification is signed by a person authorised to certificate transfers on the company's behalf or by any officer or servant either of the company or of a body corporate so authorised;
(c) a certification shall be deemed to be signed by any person if –
(i) it purports to be authenticated by his signature or initials (whether hand written or not); and
(ii) it is not shown that the signature or initials was or were placed there neither by himself nor by any person authorised to use the signature or initials for the purpose of certificating transfers on the company's behalf.
88.
Duties of company with respect to issue of
certificates
(1) Every company
shall, within 2 months after the allotment of any of its shares, debentures or
debenture stock and within 2 months
after the date on which a transfer of any
such shares, debentures or debenture stock is lodged with the company, complete
and have
ready for delivery the certificates of all shares, the debentures and
the certificates of all debenture stock allotted or transferred,
unless the
conditions of issue of the shares, debentures or debenture stock otherwise
provide.
The expression "transfer"
for the purpose of this subsection means a transfer duly stamped and otherwise
valid, and does not include
such a transfer as the company is for any reason
entitled to refuse to register and does not
register.
(2) If default is made
in complying with this section, the company and every officer of the company who
is in default shall be liable
to a default
fine.
(3) If any company on whom a
notice has been served requiring the company to make good any default in
complying with the provisions
of subsection (1) fails to make good the default
within 10 days after the service of the notice, the court may, on the
application
of the person entitled to have the certificates or the debentures
delivered to him, make an order directing the company and any officer
of the
company to make good the default within such time as may be specified in the
order, and any such order may provide that all
costs of and incidental to the
application shall be borne by the company or by any officer of the company
responsible for the
default.
89.
Certificate to be evidence of
title
A certificate, under the
common seal of the company, specifying any shares held by any member, shall be
prima facie evidence of the
title of the member to the
shares.
90.
Evidence of grant of probate
The
production to a company of any document which is by law sufficient evidence of
probate of the will, or letters of administration
of the estate, or confirmation
as executor, of a deceased person having been granted to some person shall be
accepted by the company,
notwithstanding anything in its articles, as sufficient
evidence of the
grant.
91.
Issue and effect of share warrants to
bearer
(1) A company limited by
shares, if so authorised by its articles, may, with respect to any fully paid-up
shares, issue under its
common seal a warrant stating that the bearer of the
warrant is entitled to the shares therein specified, and may provide, by coupons
or otherwise, for the payment of the future dividends on the shares included in
the warrant.
Such a warrant as
aforesaid is in this Act termed a "share
warrant".
(3) A share warrant
shall entitle the bearer thereof to the shares therein specified, and the shares
may be transferred by delivery
of the
warrant.
92.
Penalty for personation of
shareholder
If any person falsely
and deceitfully personates any owner of any share or interest in any company, or
of any share warrant or coupon,
issued in pursuance of this Act, and thereby
obtains or endeavours to obtain any such share or interest or share warrant or
coupon,
or receives or endeavours to receive any money due to any such owner, as
if the offender were the true and lawful owner, he shall
on conviction thereof
be liable to imprisonment for a term not exceeding 12 months or to a fine not
exceeding VT 200,000, or to both.
Special Provisions as to Debentures
93.
Register of debenture holders
(1)
A company which issues or has issued debentures in a series shall maintain a
register of the holders
thereof.
(2) The provisions of
sections 114 to 116 and 118 to 126 shall apply, with the appropriate
modifications, to the register of debenture
holders.
(3) A company shall, upon
the demand of any trustee for debenture holders, within 7 days furnish to him
the names, addresses and other
particulars of such debenture holders appearing
on such register, without
charge.
(4) If a company
contravenes subsection (3), the company and every officer of the company who is
in default shall be liable to a default
fine.
94.
Rights of inspection of register of debenture holders and to copies of register
and trust deed
(1) Every register
of holders of debentures of a company shall, except when duly closed (but
subject to such reasonable restrictions
as the company may in general meeting
impose, so that not less than 2 hours in each day shall be allowed for
inspection), be open
to the inspection of the registered holder of any such
debentures or any holder of shares in the company without fee, and of any
other
person on payment of a fee of VT 100 or such less sum as may be prescribed by
the company.
(2) Any such
registered holder of debentures or holder of shares as aforesaid or any other
person may require a copy of the register
of the holders of debentures of the
company or any part thereof on payment of VT 50, or such less sum as may be
prescribed by the
company, for every 100 words or fractional part thereof
required to be copied.
(3) A copy
of any trust deed for securing any issue of debentures shall be forwarded to
every holder of any such debentures at his
request on payment of VT 50, or such
less sum as may be prescribed by the company, for every 100 words or fractional
part thereof
required to be
copied.
(4) If inspection is
refused, or a copy is refused or not forwarded, the company and every officer of
the company who is in default
shall be liable to a default
fine.
(5) Where a company is in
default as aforesaid, the court may by order compel an immediate inspection of
the register or direct that
the copies required shall be sent to the person
requiring them.
(6) For the
purposes of this section, a register shall be deemed to be duly closed if closed
in accordance with provisions contained
in the articles or in the debentures or,
in the case of debenture stock, in the stock certificates, or in the trust deed
or other
document securing the debentures or debenture stock, during such period
or periods, not exceeding in the whole 30 days in any year,
as may be therein
specified.
95.
Liability of trustees for debenture
holders
(1) Subject to the
following provisions of this section, any provision contained in a trust deed
for securing an issue of debentures,
or in any contract with the holders of
debentures secured by a trust deed, shall be void in so far as it would have the
effect of
exempting a trustee thereof from or indemnifying him against liability
for breach of trust where he fails to show the degree of care
and diligence
required of him as trustee, having regard to the provisions of the trust deed
conferring on him any powers, authorities
or
discretions.
(2) Subsection (1)
shall not invalidate –
(a) any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release; or
(b) any provision enabling such a release to be given –
(i) on the agreement thereto of a majority of not less than three-fourths in value of the debenture holders present and voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose; and
(ii) either with respect to specific acts or omissions or on the trustee dying or ceasing to act.
96.
Perpetual debentures
A condition
contained in any debentures or in any deed for securing any debentures, whether
issued or executed before or after the
commencement of this Act (27 October
1986), shall not be invalid by reason only that the debentures are thereby made
irredeemable
or redeemable only on the happening of a contingency, however
remote, or on the expiration of a period, however long, any rule of
equity to
the contrary
notwithstanding.
97.
Power to re-issue redeemed debentures in certain
cases
(1) Where either before, on
or after the commencement of this Act (27 October 1986), a company has redeemed
any debentures previously
issued, then –
(a) unless any provision to the contrary, whether express or implied, is contained in the articles or in any contract entered into by the company; or
(b) unless the company has, by passing a resolution to that effect or by some other act, manifested its intention that the debentures shall be cancelled;
the
company shall have, and shall be deemed always to have had, power to re-issue
the debentures, either by re-issuing the same debentures
or by issuing other
debentures in their place.
(2)
Subject to the provisions of section 98, on a re-issue of redeemed debentures
the person entitled to the debentures shall have,
and shall be deemed always to
have had, the same priorities as if the debentures had never been
redeemed.
(3) Where a company has
either before, on or after the commencement of this Act (27 October 1986),
deposited any of its debentures
to secure advances from time to time on current
account or otherwise, the debentures shall not be deemed to have been redeemed
by
reason only of the account of the company having ceased to be in debit whilst
the debentures remained so
deposited.
(4) The re-issue of a
debenture or the issue of another debenture in its place under the power by this
section given to, or deemed
to have been possessed by, a company, whether the
re-issue or issue was made before, on or after the commencement of this Act (27
October 1986), shall be treated as the issue of a new debenture for the purposes
of stamp duty, but it shall not be so treated for
the purposes of any provision
limiting the amount or number of debentures to be
issued:
Provided that any person
lending money on the security of a debenture re-issued under this section which
appears to be duly stamped
may give the debenture in evidence in any proceedings
for enforcing his security without payment of the stamp duty or any penalty
in
respect thereof, unless he had notice or, but for his negligence, might have
discovered, that the debenture was not duly stamped,
but in any such case the
company shall be liable to pay the proper stamp duty and
penalty.
98.
Specific performance of contracts to subscribe for
debentures
A contract with a
company to take up and pay for any debentures of the company may be enforced by
an order for specific
performance.
99.
Payment of certain debts out of assets subject to floating charge in priority to
claims under the charge
(1) Where
either a receiver is appointed on behalf of the holders of any debentures of a
company secured by a floating charge, or
possession is taken by or on behalf of
those debenture holders of any property comprised in or subject to the charge,
then, if the
company is not at the time in course of being wound up, the debts,
which in every winding up are under the provisions of Part 6 relating
to
preferential payments to be paid in priority to all other debts, shall be paid
out of any assets coming to the hands of the receiver
or other person taking
possession as aforesaid in priority to any claim for principal or interest in
respect of the debentures.
(2) In
the application of the said provisions, section 308 shall be construed as if the
provision for payment of accrued holiday remuneration
becoming payable on the
termination of employment before or by the effect of the winding up order or
resolution were a provision
for payment of such remuneration becoming payable on
the termination of employment before or by the effect of the appointment of
the
receiver or possession being taken as
aforesaid.
(3) The periods of time
mentioned in the said provisions of Part 6 shall be reckoned from the date of
the appointment of the receiver
or of possession being taken as aforesaid, as
the case may be.
(4) Any payments
made under this section shall be recouped as far as may be out of the assets of
the company available for payment
of general creditors.
PART 4 – REGISTRATION OF CHARGES
Registration of Charges with Registrar of Companies
100.
Registration of charges created by
companies
(1) Subject to the
provisions of this Part of this Act, every charge created by a company and being
a charge to which this section
applies shall, so far as any security on the
company's property or undertaking is conferred thereby, be void against the
liquidator
and any creditor of the company, unless the prescribed particulars of
the charge together with the instrument, if any, by which the
charge is created
or evidenced, are delivered to or received by the registrar of companies for
registration in manner required by
this Act within 21 days after the date of its
creation, but without prejudice to any contract or obligation for repayment of
the
money thereby secured and when a charge becomes void under this section the
money secured thereby shall immediately become
payable.
(2) This section applies
to the following charges –
(a) a charge for the purpose of securing any issue of debentures;
(b) a charge on uncalled share capital of the company;
(c) a charge created or evidenced by an instrument which, if executed by an individual, would require registration as a bill of sale;
(d) a charge on land, wherever situate, or any interest therein, but not including a charge for any rent or other periodical sum issuing out of land;
(e) a charge on book debts of the company;
(f) a floating charge on the undertaking or property of the company;
(g) a charge on calls made but not paid;
(h) a charge on a ship or any share in a ship;
(i) a charge on goodwill, on a patent or a licence under a patent, on a trademark or on a copyright or a licence under a copyright.
(3)
In the case of a charge created out of Vanuatu comprising property situate
outside Vanuatu, the delivery to and the receipt by
the registrar of a copy
verified in the prescribed manner of the instrument by which the charge is
created or evidenced shall have
the same effect for the purposes of this section
as the delivery and receipt of the instrument itself, and 21 days after the date
on which the instrument or copy could, in due course of post, and if despatched
with due diligence, have been received in Vanuatu
shall be substituted for 21
days after the date of the creation of the charge as the time within which the
particulars and instrument
or copy are to be delivered to the
registrar.
(4) Where a charge is
created in Vanuatu but comprises property outside Vanuatu, the instrument
creating or purporting to create the
charge may be sent for registration under
this section notwithstanding that further proceedings may be necessary to make
the charge
valid or effectual according to the law of the country in which the
property is situate.
(5) Where a
negotiable instrument has been given to secure the payment of any book debts of
a company the deposit of the instrument
for the purpose of securing an advance
to the company shall not, for the purposes of this section, be treated as a
charge on those
book debts.
(6)
The holding of debentures entitling the holder to a charge on land shall not for
the purposes of this section be deemed to be
an interest in
land.
(7) Where a series of
debentures containing, or giving by reference to any other instrument, any
charge to the benefit of which the
debenture holders of that series are entitled
pari passu is created by a company, it shall, for the purposes of this section,
be
sufficient if there are delivered to or received by the registrar, within 21
days after the execution of the deed containing the
charge or, if there is no
such deed, after the execution of any debentures of the series, the following
particulars –
(a) the total amount secured by the whole series; and
(b) the dates of the resolutions authorising the issue of the series and the date of the covering deed, if any, by which the security is created or defined; and
(c) a general description of the property charged; and
(d) the names of the trustees, if any, for the debenture holders;
together
with the deed containing the charge, or, if there is no such deed, one of the
debentures of the series:
Provided
that, where more than one issue is made of debentures in the series, there shall
be sent to the registrar for entry in the
register particulars of the date and
amount of each issue, but an omission to do this shall not affect the validity
of the debentures
issued.
(8)
Where any commission, allowance or discount has been paid or made either
directly or indirectly by a company to any person in
consideration of his
subscribing or agreeing to subscribe, whether absolutely or conditionally, for
any debentures of the company,
or procuring or agreeing to procure
subscriptions, whether absolute or conditional, for any such debentures, the
particulars required
to be sent for registration under this section shall
include particulars as to the amount or rate per cent of the commission,
discount
or allowance so paid or made, but omission to do this shall not affect
the validity of the debentures
issued:
Provided that the deposit
of any debentures as security for any debt of the company shall not, for the
purposes of this subsection,
be treated as the issue of the debentures at a
discount.
101.
Charges to secure fluctuating
amounts
Where a charge,
particulars of which require registration under section 100, is expressed to
secure all sums due or to become due
or some other uncertain or fluctuating
amount, the particulars required under paragraph (a) of subsection (7) of the
said section
100 shall state the maximum sum deemed to be secured by such
charge, being the maximum capital sum covered by the stamp duty paid
by the
grantee, and such charge shall be void, so far as any security on the property
of the company is thereby conferred, as respects
any excess over the stated
maximum:
Provided that if
–
(a) additional stamp duty is subsequently paid on such charge or the grantee shall certify in writing that the maximum sum secured thereby has been increased; and
(b) at any time thereafter prior to the commencement of the winding up of the company amended particulars of the said charge stating the increased maximum sum deemed to be secured thereby, together with the original instrument by which the charge was created or evidenced, are delivered to the registrar for registration,
then,
as from the date of such delivery the charge, if otherwise valid, shall be
effective to the extent of such increased maximum
sum except as regards any
person who, prior to the date of such delivery, has acquired any proprietary
rights in, or a fixed or floating
charge on, the property subject to the
charge.
102.
Duty of company to register charges created by the
company
(1) It shall be the duty
of a company to send to the registrar of companies for registration the
particulars of every charge created
by the company and of the issues of
debentures of a series requiring registration under the said section 100, but
registration of
any such charge may be effected on the application of any person
interested therein.
(2) If any
company makes default in sending to the registrar for registration the
particulars of any charge created by the company
or of the issues of debentures
of a series requiring registration as aforesaid, then, unless the registration
has been effected on
the application of some other person, the company and every
officer of the company who is in default shall be liable to a default
fine of VT
10,000.
103.
Duty of company to register charges existing on property
acquired
(1) Where a company
acquires any property which is subject to a charge of any such kind as would, if
it had been created by the company
after the acquisition of the property, have
been required to be registered under this Part, the company shall cause the
prescribed
particulars of the charge, together with a copy (certified in the
prescribed manner to be a correct copy) of the instrument, if any,
by which the
charge was created or is evidenced, to be delivered to the registrar of
companies for registration in manner required
by this Act within 21 days after
the date on which the acquisition is
completed:
Provided that, if the
property is situate and the charge was created outside Vanuatu, 21 days after
the date on which the copy of
the instrument could in due course of post, and if
despatched with due diligence, have been received in Vanuatu shall be
substituted
for 21 days after the completion of the acquisition as the time
within which the particulars and the copy of the instrument are to
be delivered
to the registrar.
(2) If default
is made in complying with this section, the company and every officer of the
company who is in default shall be liable
to a default fine of VT
10,000.
104.
Register of charges to be kept by
registrar
(1) The registrar shall
keep, with respect to each company, a register in the prescribed form of all the
charges requiring registration
under this Part of this Act, and shall enter in
the register with respect to such charges the following particulars
–
(a) in the case of a charge to the benefit of which the holders of a series of debentures are entitled, such particulars as are specified in section 100(7);
(b) in the case of any other charge –
(i) if the charge is a charge created by the company, the date of its creation, and if the charge was a charge existing on property acquired by the company, the date of the acquisition of the property; and
(ii) the amount secured by the charge; and
(iii) short particulars of the property charged; and
(iv) the persons entitled to the charge.
(2)
The registrar shall give a certificate under his hand or seal of the
registration of any charge registered in pursuance of this
Part, stating the
amount thereby secured, and the certificate shall be conclusive evidence that
the requirements of this Part as
to registration have been complied
with.
(3) The register kept in
pursuance of this section shall be open to inspection by any person on payment
of such fee, not exceeding
VT 100 for each inspection, as may be prescribed by
rules made by the
Minister.
105.
Endorsement of certificate of registration on
debentures
(1) The company shall
cause a copy of every certificate of registration given under section 104 to be
endorsed on every debenture
or certificate of debenture stock which is issued by
the company and the payment of which is secured by the charge so
registered:
Provided that nothing
in this subsection shall be construed as requiring a company to cause a
certificate of registration of any charge
so given to be endorsed on any
debenture or certificate of debenture stock issued by the company before the
charge was created.
(2) If any
person knowingly and wilfully authorises or permits the delivery of any
debenture or certificate of debenture stock which
under the provisions of this
section is required to have endorsed on it a copy of a certificate of
registration without the copy
being so endorsed upon it, he shall, without
prejudice to any other liability, be liable to a fine not exceeding VT
20,000.
106.
Entries of satisfaction and release of property from
charge
The registrar of companies,
on evidence being given to his satisfaction with respect to any registered
charge –
(a) that the debt for which the charge was given has been paid or satisfied in whole or in part; or
(b) that part of the property or undertaking charged has been released from the charge or has ceased to form part of the company's property or undertaking;
may
enter on the register a memorandum of satisfaction in whole or in part, or of
the fact that part of the property or undertaking
has been released from the
charge or has ceased to form part of the company's property or undertaking, as
the case may be, and where
he enters a memorandum of satisfaction in whole he
shall, if required, furnish the company with a copy
thereof.
107.
Rectification of register of
charges
The court, on being
satisfied that the omission to register a charge within the time required by
this Act or that the omission or
mis-statement of any particular with respect to
any such charge or in a memorandum of satisfaction was accidental, or due to
inadvertence
or to some other sufficient cause, or is not of a nature to
prejudice the position of creditors or shareholders of the company, or
that on
other grounds it is just and equitable to grant relief, may, on the application
of the company or any person interested,
and on such terms and conditions as
seem to the court just and expedient, order that the time for registration shall
be extended,
or, as the case may be, that the omission or mis-statement shall be
rectified.
108.
Registration of enforcement of
security
(1) If any person obtains
an order for the appointment of a receiver or manager of the property of a
company, or appoints such a receiver
or manager under any powers contained in
any instrument, he shall, within 7 days from the date of the order or of the
appointment
under the said powers, give notice of the fact to the registrar of
companies, and the registrar shall enter the fact in the register
of
charges.
(2) Where any person
appointed receiver or manager of the property of a company under the powers
contained in any instrument ceases
to act as such receiver or manager, he shall,
on so ceasing, give the registrar of companies notice to that effect, and the
registrar
shall enter the notice in the register of
charges.
(3) If any person makes
default in complying with the requirements of this section, he shall be liable
to a fine not exceeding VT
1,000 for every day during which the default
continues.
Provisions as to Copies of Instruments Creating Charges
109.
Copies of instruments creating charges to be kept by
company
Every company shall cause
a copy of every instrument creating any charge requiring registration under this
Part of this Act to be
kept at the registered office of the
company:
Provided that, in the
case of a series of uniform debentures, a copy of one debenture of the series
shall be
sufficient.
110.
Right to inspect copies of instruments creating
charges
(1) The copies of
instruments creating any charge requiring registration under this Part shall be
open during business hours (but
subject to such reasonable restrictions as the
company in general meeting may impose, so that not less than 2 hours in each day
shall
be allowed for inspection) to the inspection of any creditor or member of
the company without fee.
(2) If
inspection of the said copies is refused, every officer of the company who is in
default shall be liable to a default
fine.
(3) Upon any such refusal,
the court may by order compel an immediate inspection of the copies or
register.
Application of Part 4 to Companies Incorporated Outside Vanuatu
111.
Application of Part 4 to charges created, and property subject to charge
acquired, by company incorporated outside
Vanuatu
The provisions of this
Part shall extend to charges on property in Vanuatu which are created, and to
charges on property in Vanuatu
which is acquired, by a company (whether a
company within the meaning of this Act or not) incorporated outside Vanuatu
which has
an established place of business in Vanuatu.
PART 5 – MANAGEMENT AND ADMINISTRATION
Registered Office and Name
112.
Registered office of company
(1) A
company shall, as from the day on which it begins to carry on business or as
from the fourteenth day after the date of its incorporation,
whichever is the
earlier, have a registered office in Vanuatu, to which all communications and
notices must be addressed.
(2)
Notice of the situation of the registered office, and of any change therein,
shall be given within 14 days after the date of the
incorporation of the company
or of the change, as the case may be, to the registrar of companies, who shall
record the same.
The inclusion in
the annual return of a company of a statement as to the address of its
registered office shall not be taken to satisfy
the obligation imposed by this
subsection.
(3) Where under any
provision of this Act any register, book of account or other document required
by this Act to be kept by a company
may be kept at a place other than the
registered office of the company, the same shall be kept at some other premises
situated in
Vanuatu.
(4) If
default is made in complying with this section, the company and every officer of
the company who is in default shall be liable
to a default
fine.
113.
Publication of name by company
(1)
Every company –
(a) shall paint or affix, and keep painted or affixed, its name on the outside of every office or place in which its business is carried on, in a conspicuous position, in letters easily legible;
(b) shall have a common seal bearing its name in legible characters;
(c) shall have its name mentioned in legible characters in all business letters of the company and in all notices and other official publications of the company, and in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company, and in all invoices, receipts and letters of credit of the company.
(2)
If a company does not paint or affix its name in the manner directed by this
Act, the company and every officer of the company
who is in default shall be
liable to a fine not exceeding VT 10,000 and if a company does not keep its name
painted or affixed in
manner so directed, the company and every officer of the
company who is in default shall be liable to a default
fine.
(3) If a company fails to
comply with paragraph (b) or paragraph (c) of subsection (1), the company shall
be liable to a fine not
exceeding VT
10,000.
(4) If an officer of a
company or any person on its behalf –
(a) uses or authorises the use of any seal purporting to be a seal of the company which does not bear its name as aforesaid; or
(b) issues or authorises the issue of any business letter of the company or any notice or other official publication of the company, or signs or authorises to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods wherein its name is not mentioned in manner aforesaid; or
(c) issues or authorises the issue of any invoice, receipt or letter of credit of the company wherein its name is not mentioned in manner aforesaid;
he
shall be liable to a fine not exceeding VT 10,000, and shall further be
personally liable to the holder of the bill of exchange,
promissory note, cheque
or order for money or goods for the amount thereof unless it is duly paid by the
company.
Register of Members
114.
Register of members
(1) Every
company shall keep a register of its members and enter therein the following
particulars –
(a) the names and addresses of the members, and in the case of a company having a share capital a statement of the shares held by each member, distinguishing each share by its number so long as the share has a number, and of the amount paid or agreed to be considered as paid on the shares of each member;
(b) the date at which each person was entered in the register as a member;
(c) the date at which any person ceased to be a member:
Provided
that, where the company has converted any of its shares into stock and given
notice of the conversion to the registrar of
companies, the register shall show
the amount of stock held by each member instead of the amount of shares and the
particulars relating
to shares specified in paragraph
(a).
(2) The register of members
shall be kept at the registered office of the company;
Provided that
–
(a) if the work of making it up is done at another office of the company, it may be kept at that other office; and
(b) if the company arranges with some other person for the making up of the register to be undertaken on behalf of the company by that other person, it may be kept at the office of that other person at which the work is done;
so,
however, that it shall not be kept at a place outside
Vanuatu.
(3) Every company shall
send notice to the registrar of companies of the place where its register of
members is kept and of any change
in that
place:
Provided that a company
shall not be bound to send notice under this subsection where the register has,
at all times since it came
into existence or, in the case of a register in
existence at the commencement of this Act (27 October 1986), at all times since
then,
been kept at the registered office of the
company.
(4) Where a company makes
default in complying with subsection (1) or makes default for 14 days in
complying with subsection (3),
the company and every officer of the company who
is in default shall be liable to a default
fine.
115.
Index of members
(1) Every company
having more than fifty members shall, unless the register of members is in such
a form as to constitute in itself
an index, keep an index of the names of the
members of the company and shall, within 14 days after the date on which any
alteration
is made in the register of members, make any necessary alteration in
the index.
(2) The index shall in
respect of each member contain a sufficient indication to enable the account of
that member in the register
to be readily
found.
(3) The index shall be at
all times kept at the same place as the register of
members.
(4) If default is made in
complying with this section, the company and every officer of the company who is
in default shall be liable
to a default
fine.
116.
Provisions as to entries in register in relation to share
warrants
(1) On the issue of a
share warrant the company shall strike out of its register of members the name
of the member then entered therein
as holding the shares specified in the
warrant as if he had ceased to be a member, and shall enter in the register the
following
particulars, namely –
(a) the fact of the issue of the warrant;
(b) a statement of the shares included in the warrant, distinguishing each share by its number so long as the share has a number; and
(c) the date of the issue of the warrant.
(2)
The bearer of a share warrant shall, subject to the articles of the company, be
entitled, on surrendering it for cancellation,
to have his name entered as a
member in the register of
members.
(3) The company shall be
responsible for any loss incurred by any person by reason of the company
entering in the register the name
of a bearer of a share warrant in respect of
the shares therein specified without the warrant being surrendered and
cancelled.
(4) Until the warrant
is surrendered, the particulars specified in subsection (1) shall be deemed to
be the particulars required by
this Act to be entered in the register of
members, and, on the surrender, the date of the surrender must be
entered.
(5) Subject to the
provisions of this Act, the bearer of a share warrant may, if the articles of
the company so provide, be deemed
to be a member of the company within the
meaning of this Act either to the full extent or for any purposes defined in the
articles.
117.
Inspection of register and
index
(1) Except when the register
of members is closed under the provisions of this Act, the register, and index
of the names, of the members
of a company shall during business hours (subject
to such reasonable restrictions as the company in general meeting may impose, so
that not less than 2 hours in each day be allowed for inspection) be open to the
inspection of any member without charge and of any
other person on payment of VT
100, or such less sum as the company may prescribe, for each
inspection.
(2) Any member or
other person may require a copy of the register, or of any part thereof, on
payment of VT 50, or such less sum as
the company may prescribe, for every 100
words or fractional part thereof required to be
copied.
The company shall cause
any copy so required by any person to be sent to that person within a period of
10 days commencing on the
day next after the day on which the requirement is
received by the company.
(3) If
any inspection required under this section is refused or if any copy required
under this section is not sent within the proper
period, the company and every
officer of the company who is in default shall be liable in respect of each
offence to a default fine.
(4) In
the case of any such refusal or default, the court may by order compel an
immediate inspection of the register and index or
direct that the copies
required shall be sent to the persons requiring
them.
118.
Consequences of failure to comply with requirements as to register owing to
agent's default
Where, by virtue
of proviso (b) to section 114(2), the register of members is kept at the office
of some person other than the company,
and by reason of any default of his the
company fails to comply with subsection (3) of that section, section 115(3), or
section 117
or with any requirements of this Act as to the production of the
register, that other person shall be liable to the same penalties
as if he were
an officer of the company who was in default, and the power of the court under
subsection (4) of section 117 shall
extend to the making of orders against that
other person and his officers and
servants.
119.
Power to close register
A company
may, on giving notice by advertisement in some newspaper circulating in the
district in which the registered office of the
company is situate, close the
register of members for any time or times not exceeding in the whole 30 days in
each year.
120.
Power of court to rectify
register
(1) If
–
(a) the name of any person is, without sufficient cause, entered in or omitted from the register of members of a company; or
(b) default is made or unnecessary delay takes place in entering on the register the fact of any person having ceased to be a member;
the
person aggrieved, or any member of the company, or the company, may apply to the
court for rectification of the
register.
(2) Where an application
is made under this section, the court may either refuse the application or may
order rectification of the
register and payment by the company of any damages
sustained by any party
aggrieved.
(3) On an application
under this section the court may decide any question relating to the title of
any person who is a party to the
application to have his name entered in or
omitted from the register, whether the question arises between members or
alleged members,
or between members or alleged members on the one hand and the
company on the other hand, and generally may decide any question necessary
or
expedient to be decided for rectification of the
register.
(4) The court, when
making an order for rectification of the register, shall by its order direct
notice of the rectification to be
given to the
registrar.
121.
Trusts not to be entered on
register
No notice of any trust,
expressed, implied or constructive, shall be entered on the register, or be
receivable by the
registrar.
122.
Register to be evidence
The
register of members shall be prima facie evidence of any matters by this Act
directed or authorised to be inserted therein.
Branch Register
123.
Power for company to keep branch
register
(1) A company having a
share capital may, if so authorised by its articles, cause to be kept in any
country outside Vanuatu a branch
register of members resident in that country or
in any other country outside Vanuatu (in this Act called a "branch
register").
(2) The company shall
give to the registrar of companies notice of the situation of the office where
any branch register is kept and
of any change in its situation, and if it is
discontinued of its discontinuance, and any such notice shall be given within 14
days
of the opening of the office or of the change or discontinuance, as the
case may be.
(3) If default is
made in complying with subsection (2), the company and every officer of the
company who is in default shall be liable
to a default
fine.
124.
Regulations as to branch
register
(1) A branch register
shall be deemed to be part of the company's register of members (in this section
called "the principal
register").
(2) It shall be kept
in the same manner in which the principal register is by this Act required to be
kept, except that the advertisement
before closing the register shall be
inserted in some newspaper circulating in the district where the branch register
is kept.
(3) The company shall
–
(a) transmit to its registered office in Vanuatu a copy of every entry in its branch register as soon as may be after the entry is made; and
(b) cause to be kept at the place where the company's principal register is kept a duplicate of its branch register duly entered up from time to time.
Every
such duplicate shall for all the purposes of this Act be deemed to be part of
the principal register.
(4)
Subject to the provisions of this section with respect to the duplicate
register, the shares registered in a branch register shall
be distinguished from
the shares registered in the principal register, and no transaction with respect
to any shares registered in
a branch register shall, during the continuance of
that registration, be registered in any other
register.
(5) A company may
discontinue to keep a branch register, and thereupon all entries in that
register shall be transferred to some other
branch register kept by the company
or to the principal register.
(6)
Subject to the provisions of this Act, any company may, by its articles, make
such provisions as it may think fit respecting the
keeping of branch
registers.
(7) If default is made
in complying with subsection (3), the company and every officer of the company
who is in default shall be liable
to a default fine; and where by virtue of
proviso (b) to section 114(2), the principal register is kept at the office of
some person
other than the company and by reason of any default of his the
company fails to comply with subsection (3)(b), he shall be liable
to the same
penalty as if he were an officer of the company who was in
default.
125.
Stamp duty in case of shares registered in branch
registers
(1) An instrument of
transfer of a share in an exempted company registered in a branch register shall
be deemed to be a transfer of
property situate out of Vanuatu, and, unless
executed in any part of Vanuatu, shall be exempt from stamp duty chargeable in
Vanuatu.
(2) An instrument of
transfer of a share in a local company registered in a branch register (other
than a share in a public company
traded on such stock exchange as may be
approved by the Minister) shall, for the purposes of the Stamp Duties Act [Cap.
68], be deemed
to be a transfer of property situate in
Vanuatu.
126.
Provisions as to branch registers kept in
Vanuatu
If by virtue of the law in
force in any country companies incorporated under that law have power to keep in
Vanuatu branch registers
of their members resident in Vanuatu, the Minister may
by rules direct that sections 117 and 120 shall, subject to any modifications
and adaptations specified in such rules, apply to and in relation to any such
branch registers kept in Vanuatu as they apply to and
in relation to the
registers of companies within the meaning of this Act.
Annual Return
127.
Duty to deliver annual returns
(1)
Every company, other than an exempted private company not being a company of a
class specified in Schedule 3, shall each year
deliver to the registrar a return
made up to the company’s return
date.
(2) Each return shall
–
(a) be in the prescribed form;
(b) contain such information as may be prescribed;
(c) be signed by a director and the secretary of the company;
(d) have annexed thereto such certificates as may be prescribed,
and
shall be delivered to the registrar within 28 days after the return
date.
(3) If a company fails to
deliver an annual return in accordance with this section before the end of the
period of 28 days after a
return date, the company and every officer of the
company who is in default shall be liable to a default
fine.
(4) For the purpose of
subsection (1), a company’s return date shall be –
(a) in the case of a company registered under Part 2 or Part 12, the anniversary of the company’s incorporation; and
(b) in the case of a company registered under Part 9 or Part 10, the anniversary of the company’s registration.
(5)
For the purposes of subsection (3) and section 400, the period of default
continues until such time as an annual return made up
to that return date and
complying with the requirements of subsection (2) (except as to date of
delivery) is delivered by the company
to the
registrar.
(6) For the purposes of
this section the expression "officer" shall include any person in accordance
with whose directions or instructions
the directors of the company are
accustomed to
act.
128.
(Repealed)
129.
(Repealed)
130.
(Repealed)
131.
(Repealed)
Meetings and Proceedings
132.
Annual general meeting
(1) Every
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 notices calling it; and not more than 15 months shall elapse between
the date
of one annual general meeting of a company and that of the
next:
Provided that, 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:
And provided that
in any case where a company has held an annual general meeting later than the
time prescribed by this subsection,
the said period of 15 months within which
the next following annual general meeting shall be held shall be calculated from
the last
day upon which such annual general meeting might lawfully have been
held within the time prescribed as
aforesaid.
(2) If default is made
in holding a meeting of the company in accordance with subsection (1), the
registrar may, on the application
of any 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 registrar thinks expedient, including directions
modifying or supplementing, in relation to the calling, holding
and conducting
of the meeting, the operation of the company's articles; and it is hereby
declared that the directions that may be
given under this subsection include a
direction that one member of the company present in person, or by proxy shall be
deemed to
constitute a
meeting.
(3) The registrar may,
upon application on the ground that the obligation imposed by subsection (1) to
hold an annual general meeting
cannot for good reason be complied with within
the time prescribed thereby, and on payment of the prescribed fee, grant such
extension
of time as he may think expedient and direct the calling of such
annual general meeting within the time as extended, subject to any
conditions he
may in his discretion
impose:
Provided that in any case
where a company has by leave of the registrar granted under the foregoing
provisions of this subsection
held an annual general meeting later than the time
prescribed by subsection (1), the period of 15 months within which the next
following
annual general meeting shall be held shall be calculated from the last
day upon which such annual general meeting might lawfully
have been held within
the time prescribed as aforesaid without the application of this
subsection.
(4) A general meeting
held in pursuance of subsection (2) shall, subject to any directions of the
registrar, 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.
(5) Where a company
resolves that a meeting shall be so treated, a copy of the resolution shall,
within 15 days after the passing
thereof, be forwarded to the registrar and
recorded by him.
(6) If default is
made in holding a meeting of the company in accordance with subsection (1), or
in complying with any directions
of the registrar under subsection (2), the
company and every officer of the company who is in default shall be liable to a
fine not
exceeding VT 10,000, and if default is made in complying with
subsection (5), the company and every officer of the company who is
in default
shall be liable to a default
fine.
133.
Convening of extraordinary general meeting on
requisition
(1) The directors of a
company, notwithstanding anything in its articles, shall, on the requisition of
members of the company holding
at the date of the deposit of the requisition not
less than one-tenth of such of the paid-up capital of the company as at the date
of the deposit carries the right of voting at general meetings of the company,
or, in the case of a company not having a share capital,
members of the company
representing not less than one-tenth of the total voting rights of all the
members having at the said date
a right to vote at general meetings of the
company, forthwith proceed duly to convene an extraordinary general meeting of
the company.
(2) The requisition
must state the objects of the meeting, and must be signed by the requisitionists
and deposited at the registered
office of the company, and may consist of
several documents in like form each signed by one or more
requisitionists.
(3) If the
directors do not within 21 days from the date of the deposit of the requisition
proceed duly to convene a meeting, the
requisitionists, or any of them
representing more than one half of the total voting rights of all of them, may
themselves convene
a meeting, but any meeting so convened shall not be held
after the expiration of 3 months from the said
date.
(4) A meeting convened under
this section by the requisitionists shall be convened in the same manner, as
nearly as possible, as that
in which meetings are to be convened by
directors.
(5) Any reasonable
expenses incurred by the requisitionists by reason of the failure of the
directors duly to convene a meeting shall
be repaid to the requisitionists by
the company, and any sum so repaid shall be retained by the company out of any
sums due or to
become due from the company by way of fees or other remuneration
in respect of their services to such of the directors as were in
default.
(6) For the purposes of
this section the directors shall, in the case of a meeting at which a resolution
is to be proposed as a special
resolution, be deemed not to have duly convened
the meeting if they do not give such notice thereof as is required by section
142.
134.
Length of notice for calling
meetings
(1) Any provision of a
company's articles shall be void in so far as it provides for the calling of a
meeting of the company (other
than an adjourned meeting) by a shorter notice
than –
(a) in the case of the annual general meeting, 21 days' notice in writing; and
(b) in the case of a meeting other than an annual general meeting or a meeting for the passing of a special resolution, 14 days' notice in writing in the case of a company other than an unlimited company and 7 days' notice in writing in the case of an unlimited company.
(2)
Save in so far as the articles of a company make other provision in that behalf
(not being a provision avoided by subsection (1))
a meeting of the company
(other than an adjourned meeting) may be called –
(a) in the case of the annual general meeting, by 21 days' notice in writing; and
(b) in the case of a meeting other than an annual general meeting or a meeting for the passing of a special resolution, by 14 days' notice in writing in the case of a company other than an unlimited company and by 7 days' notice in writing in the case of an unlimited company.
(3)
A meeting of a company shall, notwithstanding that it is called by shorter
notice than that specified in subsection (2) or in
the company's articles, as
the case may be, be deemed to have been duly called if it is 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) in the case of any other meeting, by a majority in number of the members having a right to attend and vote at the meeting, being a majority together holding not less than 95 per cent in nominal value of the shares giving a right to attend and vote at the meeting, or, in the case of a company not having a share capital, together representing not less than 95 per cent of the total voting rights at that meeting of all the members.
135.
General provisions as to meetings and
votes
The following provisions
shall have effect in so far as the articles of the company do not make other
provision in that behalf –
(a) notice of the meeting of a company shall be served on every member of the company in the manner in which notices are required to be served by Table A, and for the purpose of this paragraph the expression "Table A" means that Table as for the time being in force;
(b) two or more members holding not less than one-tenth of the issued share capital or, if the company has not a share capital, not less than 5 per cent in number of the members of the company may call a meeting;
(c) in the case of a private company two members, and in the case of any other company three members, personally present shall be a quorum;
(d) any member elected by the members present at a meeting may be chairman thereof;
(e) in the case of a company originally having a share capital, every member shall have one vote in respect of each share or each VT 2,000 (or the equivalent in foreign currency) of stock held by him, and in any other case every member shall have one vote.
136.
Power of court to order
meeting
(1) If for any reason it
is impracticable to call a meeting of a company in any manner in which meetings
of that company may be called,
or to conduct the meeting of the company in
manner prescribed by the articles or this Act, the court may, either of its own
motion
or on the application of any director of the company or of any member of
the company who would be entitled to vote at the meeting,
order a meeting of the
company to be called, held and conducted in such manner as the court thinks fit,
and where any such order
is made may give such ancillary or consequential
directions as it thinks expedient; and it is hereby declared that the directions
which may be given under this subsection include a direction that one member of
the company present in person or by proxy shall be
deemed to constitute a
meeting.
(2) Any meeting called,
held and conducted in accordance with an order under subsection (1) shall for
all purpose be deemed to be
a meeting of the company duly called, held and
conducted.
137.
Proxies
(1) Any member of a
company entitled to attend and vote at a meeting of the company shall be
entitled to appoint another person (whether
a member or not) as his proxy to
attend and vote instead of him, and a proxy appointed to attend and vote instead
of a member of
a private company shall also have the same right as the member to
speak at the meeting:
Provided
that, unless the articles otherwise provide –
(a) this subsection shall not apply in the case of a company not having a share capital; and
(b) a member of a private company shall not be entitled to appoint more than one proxy to attend on the same occasion; and
(c) a proxy shall not be entitled to vote except on a poll.
(2)
In every notice calling a meeting of a company having a share capital 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 him, and that a proxy need not also
be a member; and if default is made in complying with this subsection as
respects any meeting, every officer of the company who is in default shall be
liable to a fine not exceeding VT
10,000.
(3) Any provision
contained in a company's articles shall be 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 more than 48 hours
before a meeting or adjourned meeting in order that the appointment
may be
effective thereat.
(4) If for the
purpose of any 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 sent a notice of
the meeting and
to vote thereat by proxy, every officer of the company who
knowingly and wilfully authorises or permits their issue as aforesaid
shall be
liable to a fine not exceeding VT
20,000:
Provided that an officer
shall not be liable under this subsection by reason only of the issue to a
member at his request in writing
of a form of appointment naming the proxy or of
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.
(5) This section shall
apply to meetings of any class of members of a company as it applies to general
meetings of the
company.
138.
Right to demand a poll
(1) Any
provision contained in a company's articles shall be void in so far as it would
have the effect either –
(a) of excluding the right to demand a poll at a general meeting on any 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 five members having the right to vote at the meeting; or
(ii) by a member or members representing not less than one-tenth of the total voting rights of all the members having the right to vote at the meeting; or
(iii) by a member or members holding shares in the company conferring a right to vote at the meeting, being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all the shares conferring that right.
(2)
The instrument appointing a proxy to vote at a meeting of a company shall be
deemed also to confer authority to demand or join
in demanding a poll, and for
the purposes of subsection (1) a demand by a person as proxy for a member shall
be the same as a demand
by the
member.
139.
Voting on a poll
On a poll taken
at a meeting of a company or a meeting of any class of members of a company, a
member entitled to more than one vote
need not, if he votes, use all his votes
or cast all the votes he uses in the same
way.
140.
Representation of corporations at meetings of companies and of
creditors
(1) A corporation,
whether a company within the meaning of this Act or not, may
–
(a) if it is a member of another corporation, being a company within the meaning of this Act, by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the company or at any meeting of any class of members of the company;
(b) if it is a creditor (including a holder of debentures) of another corporation, being a company within the meaning of this Act, by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of any creditors of the company held in pursuance of this Act or of any rules made thereunder, or in pursuance of the provisions contained in any debenture or trust deed, as the case may be.
(2)
A person authorised as aforesaid shall be entitled to exercise the same powers
on behalf of the corporation which he represents
as that corporation could
exercise if it were an individual shareholder, creditor or holder of debentures
of that other
company.
141.
Circulation of members’ resolutions,
etc.
(1) Subject to the following
provisions of this section it shall be the duty of a company, on the requisition
in writing of such number
of members as is hereinafter specified and (unless the
company otherwise resolves) at the expense of the requisitionists
–
(a) to give to members of the company entitled to receive notice of the next annual general meeting notice of any resolution which may properly be moved and is intended to be moved at that meeting;
(b) to circulate to members entitled to have notice of any general meeting sent to them any statement of not more than 1,000 words with respect to the matter referred to in any proposed resolution or the business to be dealt with at that meeting.
(2)
The number of members necessary for a requisition under subsection (1) shall be
–
(a) any number of members representing not less than one-twentieth of the total voting rights of all the members having at the date of the requisition a right to vote at the meeting to which the requisition relates; or
(b) not less than one hundred members holding shares in the company on which there has been paid up an average sum, per member, of not less than VT 20,000.
(3)
Notice of any such resolution shall be given, and any such statement shall be
circulated, to members of the company entitled to
have notice of the meeting
sent to them by serving a copy of the resolution or statement on each such
member in any manner permitted
for service of notice of the meeting, and notice
of any such resolution shall be given to any other member of the company by
giving
notice of the general effect of the resolution in any manner permitted
for giving him notice of meetings of the
company:
Provided that the copy
shall be served, or notice of the effect of the resolution shall be given, as
the case may be, in the same
manner and, so far as practicable, at the same time
as notice of the meeting and, where it is not practicable for it to be served
or
given at that time, it shall be served or given as soon as practicable
thereafter.
(4) A company shall
not be bound under this section to give notice of any resolution or to circulate
any statement unless –
(a) a copy of the requisition signed by the requisitionists (or 2 or more copies which between them contain the signatures of all the requisitionists) is deposited at the registered office of the company –
(i) in the case of a requisition requiring notice of a resolution, not less than 6 weeks before the meeting; and
(ii) in the case of any other requisition, not less than 1 week before the meeting; and
(b) there is deposited or tendered with the requisition a sum reasonably sufficient to meet the company's expenses in giving effect thereto:
Provided
that if, after a copy of a requisition requiring notice of a resolution has been
deposited at the registered office of the
company, an annual general meeting is
called for a date 6 weeks or less after the copy has been deposited, the copy
though not deposited
within the time required by this subsection shall be deemed
to have been properly deposited for the purposes
thereof.
(5) The company shall
also not be bound under this section to circulate any statement if, on the
application either of the company
or of any other person who claims to be
aggrieved, the court is satisfied that the rights conferred by this section are
being abused
to secure needless publicity for defamatory matter; and the court
may order the company's costs on an application under this section
to be paid in
whole or in part by the requisitionists, notwithstanding that they are not
parties to the application.
(6)
Notwithstanding anything in the company's articles, the business which may be
dealt with at an annual general meeting shall include
any resolution of which
notice is given in accordance with this section, and for the purposes of this
subsection notice shall be
deemed to have been so given notwithstanding the
accidental omission, in giving it, of one or more
members.
(7) In the event of any
default in complying with the provisions of this section, every officer of the
company who is in default shall
be liable to a fine not exceeding VT
100,000.
142.
Extraordinary and special
resolutions
(1) A resolution shall
be an extraordinary resolution when it has been passed by a majority of not less
than three-fourths of such
members as, being entitled so to do, vote in person
or, where proxies are allowed, by proxy, at a general meeting of which notice
specifying the intention to propose the resolution as an extraordinary
resolution has been duly
given.
(2) A resolution shall be a
special resolution when it has been passed by such a majority as is required for
the passing of an extraordinary
resolution and at a general meeting of which not
less than 21 days' notice, specifying the intention to propose the resolution as
a special resolution, has been duly
given:
Provided that, if it is so
agreed by a majority in number of the members having the right to attend and
vote at any such meeting,
being a majority together holding not less than 95 per
cent in nominal value of the shares giving that right, or, in the case of
a
company not having a share capital, together representing not less than 95 per
cent of the total voting rights at that meeting
of all the members, a resolution
may be proposed and passed as a special resolution at a meeting of which less
than 21 days' notice
has been
given.
(3) At any meeting at which
an extraordinary resolution or a special resolution is submitted to be passed, a
declaration of the chairman
that the resolution is carried shall, unless a poll
is demanded, be 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 an extraordinary resolution or
a special resolution be passed,
reference shall be had to the number of votes
cast for and against the
resolution.
(5) For the purposes
of this section, notice of a meeting shall be deemed to be duly given and the
meeting to be duly held when the
notice is given and the meeting held in manner
provided by this Act or the
articles.
143.
Resolutions requiring special
notice
Where by any provision
hereafter contained in this Act special notice is required of a resolution, the
resolution shall not be effective
unless notice of the intention to move it has
been given to the company not less than 28 days before the meeting at which it
is moved,
and the company shall give its members notice of any such resolution
at the same time and in the same manner as it gives notice of
the meeting or, if
that is not practicable, shall give them notice thereof, either by advertisement
in a newspaper having an appropriate
circulation or in any other mode allowed by
the articles, not less than 21 days before the
meeting:
Provided that if, after
notice of the intention to move such a resolution has been given to the company,
a meeting is called for a
date 28 days or less after the notice has been given,
the notice though not given within the time required by this subsection shall
be
deemed to have been properly given for the purposes
thereof.
144.
Registration and copies of certain resolutions and
agreements
(1) A printed copy, or
a copy in some other form approved by the registrar, of every resolution or
agreement to which this section
applies shall, within 15 days after the passing
or making thereof, be forwarded to the registrar of companies and recorded by
him.
(2) Where articles have been
registered, a copy of every such resolution or agreement for the time being in
force shall be embodied
in or annexed to every copy of the articles issued after
the passing of the resolution or the making of the
agreement.
(3) Where articles have
not been registered, a printed copy, or a copy in some other form approved by
the registrar, of every such
resolution or agreement shall be forwarded to any
member at his request on payment of VT 100 or such less sum as the company may
direct.
(4) This section shall
apply to –
(a) special resolutions;
(b) extraordinary resolutions;
(c) resolutions passed as special resolutions or as extraordinary resolutions by entry in the minute book pursuant to section 41(1);
(d) resolutions 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, as the case may be, they had been passed as special resolutions or as extraordinary resolutions;
(e) resolutions or agreements which have been agreed to by all the members of some class of shareholders but which, if not so agreed to, would not have been effective for their purpose unless they had been passed by some particular majority or otherwise in some particular manner, and all resolutions or agreements which effectively bind all the members of any class of shareholders though not agreed to by all those members;
(f) resolutions requiring a company to be wound up voluntarily, passed under section 274(1)(a).
(5)
If a company fails to comply with subsection (1), the company and every officer
of the company who is in default shall be liable
to a default
fine.
(6) If a company fails to
comply with subsection (2) or subsection (3), the company and every officer of
the company who is in default
shall be liable to a default
fine.
(7) For the purposes of
subsections (5) and (6), a liquidator of the company shall be deemed to be an
officer of the
company.
145.
Resolutions passed at adjourned
meetings
Where a resolution is
passed at an adjourned meeting of –
(a) a company;
(b) the holders of any class of shares in a company;
(c) the directors of a company;
the
resolution shall for all purposes be treated as having been passed on the date
on which it was in fact passed, and shall not be
deemed to have been passed on
any earlier
date.
146.
Minutes of proceedings of meetings of company and of directors and
managers
(1) Every company shall
cause minutes of all proceedings of general meetings, all proceedings at
meetings of its directors and, where
there are managers, all proceedings at
meetings of its managers to be entered in books kept for that
purpose.
(2) Any such minute if
purporting to be signed by the chairman of the meeting at which the proceedings
were had, or by the chairman
of the next succeeding meeting, shall be evidence
of the proceedings.
(3) Where
minutes have been made in accordance with the provisions of this section of the
proceedings at any general meeting of the
company or meeting of directors or
managers, then, until the contrary is proved, the meeting shall be deemed to
have been duly held
and convened, and all proceedings had thereat to have been
duly had, and all appointments of directors, managers or liquidators shall
be
deemed to be valid.
(4) If a
company fails to comply with subsection (1), the company and every officer of
the company who is in default shall be liable
to a default
fine.
147.
Inspection of minute books
(1) The
books containing the minutes of proceedings of any general meeting of a company
shall be kept at the registered office of
the company, and shall during business
hours (subject to such reasonable restrictions as the company may by its
articles or in general
meeting impose, so that not less than 2 hours in each day
be allowed for inspection) be open to the inspection of any member without
charge.
(2) Any member shall be
entitled to be furnished within 7 days after he has made a request in that
behalf to the company with a copy
of any such minutes as aforesaid at a charge
not exceeding VT 50 for every 100
words.
(3) If any inspection
required under this section is refused or if any copy required under this
section is not sent within the proper
time, the company and every officer of the
company who is in default shall be liable in respect of each offence to a
default fine.
(4) In the case of
any such refusal or default, the court may by order compel an immediate
inspection of the books in respect of all
proceedings of general meetings or
direct that the copies required shall be sent to the persons requiring
them.
Accounts and Audit
148.
Keeping of books of account
(1)
Every company shall cause to be kept proper books of account with respect to
–
(a) all sums of money received and expended by the company and the matters in respect of which the receipt and expenditure takes place;
(b) all sales and purchases of goods by the company;
(c) the assets and liabilities of the company.
(2)
For the purposes of subsection (1), proper books of account shall not be deemed
to be kept with respect to the matters aforesaid
if there are not kept such
books as are necessary to give a true and fair view of the state of the
company's affairs and to explain
its
transactions.
(3) The books of
account may be kept either by making entries in bound volumes, or, subject to
compliance with section 396(2) and
section 396(3), by a system of mechanical
recording or otherwise.
(4) The
books of account shall be kept at the registered office of the company or at
such other place as the directors think fit,
and shall at all times be open to
inspection by the
directors:
Provided that if books
of account are kept at a place outside Vanuatu there shall be sent to, and kept
at a place in Vanuatu and be
at all times open to inspection by the directors
such accounts and returns with respect to the business dealt with in the books
of
account so kept as will disclose with reasonable accuracy the financial
position of that business at intervals not exceeding 12 months
and will enable
to be prepared in accordance with this Act (where applicable) the company's
balance sheet, its profit and loss account
or income and expenditure account,
and any document annexed to any of those documents giving information which is
required by this
Act and is thereby allowed to be so
given.
(5) The books of account,
or the accounts and returns, shall be kept and preserved as provided by
subsection (4) for a period not
less than 5 years from the date they were made,
or received in Vanuatu, as the case may
be.
(6) If any person being a
director of a company fails to take all reasonable steps to secure compliance by
the company with the requirements
of this section, or has by his own wilful act
been the cause of any default by the company thereunder, he shall, in respect of
each
offence, be liable to imprisonment for a term not exceeding 6 months or to
a fine not exceeding VT 100,000 or to
both:
Provided that
–
(a) in any proceedings against a person in respect of an offence under this section consisting of a failure to take reasonable steps to secure compliance by the company with the requirements of this section, it shall be a defence to prove that he had reasonable grounds to believe and did believe that a competent and reliable person was charged with the duty of seeing that those requirements were complied with and was in a position to discharge that duty; and
(b) a person shall not be sentenced to imprisonment for such an offence unless, in the opinion of the court dealing with the case, the offence was committed wilfully.
149.
Financial year
(1) Every company
shall have a financial year to be determined in accordance with this
section.
(2) A company’s
first financial year shall begin with the first day of its first accounting
reference period and shall end with
the last day of that
period.
(3) Each subsequent year
shall begin with the day immediately following the end of the company’s
previous financial year and
end with the last day of its next accounting
reference
period.
149A.
Accounting reference periods and accounting reference
dates
(1) A company’s
accounting reference periods shall be determined according to its accounting
reference date.
(2) A company may,
at any time before the end of the period of 9 months beginning with the date of
its incorporation, or in the case
of a company registered under Part 10, its
registration, by giving notice to the registrar in the prescribed form, specify
its accounting
reference date, being the date upon which its accounting
reference period ends in each calendar
year.
(3) If a company does not
give notice to the registrar in accordance with subsection (2), a
company’s accounting reference date
shall be –
(a) the last day of the month in which the anniversary of its incorporation or registration falls;
(b) in the case of a company incorporated or registered before 1st January, 1992 which has at any time on or after 1st January, 1989 filed an audited balance sheet with the registrar, the date up to which the last such balance sheet filed was made up;
(c) in the case of a company incorporated or registered before 1st January, 1992 which has not at any time on or after 1st January, 1989 filed an audited balance sheet with the registrar and in the case of a company incorporated or registered on or after 1st January, 1992, the last day of the month in which the anniversary of its incorporation or registration falls.
(4)
A company’s first accounting reference period is the period of more than
six months, but not more than eighteen months,
beginning with the date of its
incorporation or registration and ending with its accounting reference
date.
(5) A company’s
subsequent accounting reference periods are successive periods of twelve months
beginning immediately after
the end of the previous accounting reference period
and ending with its accounting reference
date.
149B.
Alteration of accounting reference
date
(1) A company may, by giving
notice in the prescribed form to the registrar, specify a new accounting
reference date having effect
in relation to the company’s current and
subsequent accounting reference
periods.
(2) A notice given under
subsection (1) shall state whether the current accounting reference period
–
(a) is to be shortened, so as to come to an end on the first occasion on which the new accounting reference date falls or fell after the beginning of the period; or
(b) is to be extended, so as to come to an end on the second occasion on which that date falls or fell after the beginning of the period.
(3)
A notice given under subsection (1) stating that the current accounting
reference period is to be extended shall be ineffective
if given less than 5
years after the end of an earlier accounting reference period of the company
which was extended by virtue of
this section or if given after the period
allowed for laying and delivering accounts and reports has already
expired.
(4) An accounting
reference period may not in any case be extended so as to exceed 18 months and a
notice under this section shall
be ineffective if the current accounting
reference period as extended in accordance with the notice would exceed that
limit.
149C.
Profit and loss account and balance
sheet
(1) The directors of every
company to which this section applies shall prepare for each financial year of
the company –
(a) a balance sheet as at the last day of the year; and
(b) a profit and loss account.
(2)
The directors of every company to which this section applies shall in respect of
each financial year lay before the company in
general meeting and deliver to the
registrar copies of the company’s annual accounts, the directors’
report and the auditors’
report on those
accounts.
(3) If any document
comprised in the annual accounts or reports is in a language other than French
or English, the directors shall
annex to the copy of the accounts and reports
delivered to the registrar, a translation of the document into French or English
certified,
in such manner as is acceptable to the registrar, to be a correct
translation.
(4) The period
allowed for laying and delivering accounts and reports in accordance with this
section is –
(a) if the relevant accounting reference period is the company’s first and is a period of more than 12 months, 8 months from the first anniversary of the incorporation or registration of the company or 3 months from the end of the accounting reference period, whichever expires last;
(b) in any other case 8 months after the end of the relevant accounting reference period.
(5)
The registrar may, upon application being made before the expiration of the
period allowed by this section, by notice in writing
extend that period by such
further period up to a maximum of 4 months as shall be specified in the
notice.
(6) If the relevant
accounting period is treated as shortened by virtue of a notice given under
section 149B, the period allowed for
laying and delivering the accounts and
reports is that applicable in accordance with the above provisions or 3 months
from the date
of the notice under that section, whichever expires
last.
(7) If any person being a
director of a company fails to take all reasonable steps to comply with the
provisions of this section,
he shall in respect of each offence, be liable to
imprisonment for a term not exceeding 6 months or to a fine not exceeding VT
100,000
or to both such imprisonment or
fine:
Provided that in any
proceedings against a person in respect of an offence under this section, it
shall be a defence to prove that
he had reasonable grounds to believe and did
believe that a competent and reliable person was charged with the duty of seeing
that
the provisions of this section were complied with and was in a position to
discharge that duty.
(8) This
section shall apply to every company that is not a private company, to every
company of a class specified in Schedule 3 and
to every private local company
which has a turnover in excess of VT 20,000,000 in the relevant financial year
or if the financial
year is less than 12 months, a turnover which, calculated as
an average for the financial year, exceeds VT 1,600,000 per
month.
150.
General provisions as to contents and form of
accounts
(1) Every balance sheet
of a company shall give a true and fair view of the state of affairs of the
company as at the end of its financial
year, and every profit and loss account
of a company shall give a true and fair view of the profit or loss of the
company for the
financial
year.
(2) A company's balance
sheet and profit and loss account shall comply with the requirements of Schedule
6, so far as applicable
thereto.
(3) Save as expressly
provided in the following provisions of this section or in Part 3 or the said
Schedule 6, the requirements of
subsection (2) and the said Schedule 6 shall be
without prejudice either to the general requirements of subsection (1) or to any
other requirements of this
Act.
(4) The registrar may, on the
application or with the consent of a company's directors, modify in relation to
that company any of
the requirements of this Act as to the matters to be stated
in a company's balance sheet or profit and loss account (except the requirements
of subsection (1)) for the purpose of adapting them to the circumstances of the
company.
(5) Subsections (1) and
(2) shall not apply to a company's profit and loss account if
–
(a) the company has subsidiaries; and
(b) the profit and loss account is framed as a consolidated profit and loss account dealing with all or any of the company's subsidiaries as well as the company and –
(i) complies with the requirements of this Act relating to consolidated profit and loss accounts; and
(ii) shows how much of the consolidated profit or loss for the financial year is dealt with in the accounts of the company.
(6)
If any person being a director of a company fails to take all reasonable steps
to secure compliance as respects any accounts laid
before the company at its
annual general meeting with the provisions of this section and with the other
requirements of this Act
as to the matters to be stated in accounts, he shall,
in respect of each offence, be liable to imprisonment for a term not exceeding
6
months or to a fine not exceeding VT
100,000:
Provided that
–
(a) in any proceedings against a person in respect of an offence under this section, it shall be a defence to prove that he had reasonable ground to believe and did believe that a competent and reliable person was charged with the duty of seeing that the said provisions or the said other requirements, as the case may be, were complied with and was in a position to discharge that duty; and
(b) a person shall not be sentenced to imprisonment for any such offence unless, in the opinion of the court dealing with the case, the offence was committed wilfully.
(7)
For the purposes of this section and the following provisions of this Act,
except where the context otherwise requires –
(a) any reference to a balance sheet or profit and loss account shall include any notes thereon or document annexed thereto giving information which is required by this Act and is thereby allowed to be so given; and
(b) any reference to a profit and loss account shall be taken, in the case of a company not trading for profit, as referring to its income and expenditure account, and references to profit or to loss and, if the company has subsidiaries, references to a consolidated profit and loss account shall be construed accordingly.
151.
Statement in holding company's accounts of identities and places of
incorporation of subsidiaries, and particulars of shareholdings
therein
(1) Subject to the
provisions of this section, where, at the end of its financial year, a company
has subsidiaries, there shall, in
the case of each subsidiary, be stated in, or
in a note on, or statement annexed to, the company's accounts laid before it at
its
annual general meeting –
(a) the subsidiary's name;
(b) its place of incorporation; and
(c) in relation to shares of each class of the subsidiary held by the company, the identity of the class and the proportion of the nominal value of the issued shares of that class represented by the shares held.
(2)
For the purposes of subsection (1), shares of a body corporate shall be treated
as being held, or as not being held, by another
such body if they would, by
virtue of section 158(3), be treated as being held or, as the case may be, as
not being held by that
other body for the purpose of determining whether the
first-mentioned body is its subsidiary; and the particulars required by
subsection
(1) shall include, with reference to the proportion of the nominal
value of the issued shares of a class represented by shares held
by a company a
statement of the extent (if any) to which it consists in shares held by, or by a
nominee for, a subsidiary of the
company and the extent (if any) to which it
consists in shares held by, or by a nominee for, the company
itself.
(3) Subsection (1) shall
not require the disclosure of information with respect to a body corporate which
is the subsidiary of another
and is incorporated outside Vanuatu or, being
incorporated in Vanuatu, carries on business outside Vanuatu if the disclosure
would,
in the opinion of the directors of that other, be harmful to the business
of that other or of any of its subsidiaries and the registrar
agrees that the
information need not be
disclosed.
(4) If, in the opinion
of the directors of a company having, at the end of its financial year,
subsidiaries, the number of them is
such that compliance with subsection (1)
would result in particulars of excessive length being given, compliance with
that subsection
shall not be requisite except in the case of the subsidiaries
carrying on the businesses the results of the carrying on of which,
in the
opinion of the directors, principally affected the amount of the profit or loss
of the company and its subsidiaries or the
amount of the assets of the company
and its subsidiaries.
(5) Where,
in the case of a company, advantage is taken of subsection (4)
–
(a) there must be included in the statement required by this section the information that it deals only with the subsidiaries carrying on such businesses as are referred to in that subsection; and
(b) the particulars given in compliance with subsection (1), together with those which, but for the fact that advantage is so taken, would have to be so given, shall be annexed to the annual return first made by the company after its accounts have been laid before it at its annual general meeting.
(6)
If a company fails to satisfy an obligation imposed on it by subsection (5) to
annex particulars to a return, the company and
every officer of the company who
is in default shall be liable to a default
fine.
152.
Statement in company's accounts of identities and places of incorporation of
companies not subsidiaries whose shares it holds,
and particulars of those
shares
(1) Subject to the
provisions of this section, if, at the end of its financial year, a company
holds shares of any class comprised
in the equity share capital of another body
corporate (not being its subsidiary) exceeding in nominal value one-tenth of the
nominal
value of the issued shares of that class, there shall be stated in, or
in a note on, or statement annexed to, the accounts of the
company laid before
it at its annual general meeting –
(a) the name of that other body corporate and its place of incorporation;
(b) the identity of the class and the proportion of the nominal value of the issued shares of that class represented by the shares held; and
(c) if the company also holds shares in that other body corporate of another class (whether or not comprised in its equity share capital), or of other classes (whether or not so comprised), the like particulars as respects that other class or, as the case may be, each of those other classes.
(2)
If, at the end of its financial year, a company holds shares in another body
corporate (not being its subsidiary) and the amount
of all the shares therein
which it holds (as stated or included in its accounts laid before it at its
annual general meeting) exceeds
one-tenth of the amount of its assets (as so
stated), there shall be stated in, or in a note on, or statement annexed to,
those accounts
–
(a) the name of that other body corporate and its place of incorporation;
(b) in relation to shares in that other body corporate of each class held, the identity of the class and the proportion of the nominal value of the issued shares of that class represented by the shares held.
(3)
Neither of subsections (1) and (2) shall require the disclosure by a company of
information with respect to another body corporate
if that other body is
incorporated outside Vanuatu or, being incorporated in Vanuatu, carries on
business outside Vanuatu if the
disclosure would, in the opinion of the
directors of the company, be harmful to the business of the company or of that
other body
and the registrar agrees that the information need not be
disclosed.
(4) If, at the end of
its financial year a company falls within subsection (1) in relation to more
bodies corporate than one, and
the number of them is such that, in the opinion
of the directors, compliance with that subsection would result in particulars of
excessive length being given, compliance with that subsection shall not be
requisite except in the case of the bodies carrying on
the businesses the
results of the carrying on of which, in the opinion of the directors,
principally affected the amount of profit
or loss of the company or the amount
of its assets.
(5) Where, in the
case of a company, advantage is taken of subsection (4) –
(a) there must be included in the statement dealing with the bodies last mentioned in that subsection the information that it deals only with them; and
(b) the particulars given in compliance with subsection (1), together with those which, but for the fact that advantage is so taken, would have to be given, shall be annexed to the annual return first made by the company after its accounts have been laid before it at its annual general meeting.
(6)
If a company fails to satisfy an obligation imposed on it by subsection (5) to
annex particulars to a return, the company and
every officer of the company who
is in default shall be liable to a default
fine.
(7) For the purposes of this
section, shares of a body corporate shall be treated as being held, or as not
being held, by another
such body if they would, by virtue of section 158(3) (but
on the assumption that paragraph (b)(ii) had been omitted therefrom), be
treated
as being held or, as the case may be, as not being held by that other body for
the purpose of determining whether the first-mentioned
body is its
subsidiary.
(8) In this section
"equity share capital" has the meaning assigned to it by section
158(5).
153.
Statement in subsidiary company's accounts of name and place of incorporation of
its ultimate holding company
(1)
Subject to subsection (2), where, at the end of its financial year, a company is
the subsidiary of another body corporate, there
shall be stated in, or in a note
on, or statement annexed to, the company's accounts laid before it at its annual
general meeting
the name of the body corporate regarded by the directors as
being the company's ultimate holding company and, if known to them, the
country
in which it is incorporated.
(2)
Subsection (1) shall not require the disclosure by a company which carries on
business outside Vanuatu of information with respect
to the body corporate
regarded by the directors as being its ultimate holding company if the
disclosure would, in their opinion,
be harmful to the business of that holding
company or of the first-mentioned company or any other of that holding company's
subsidiaries
and the registrar agrees that the information need not be
disclosed.
154.
Obligation to lay group accounts before holding
company
(1) Where at the end of
its financial year a company has subsidiaries, accounts or statements (in this
Act referred to as "group accounts")
dealing as hereinafter mentioned with the
state of affairs and profit or loss of the company and the subsidiaries shall,
subject
to subsection (2), be laid before the company at its annual general
meeting when the company's own balance sheet and profit and loss
account are so
laid.
(2) Notwithstanding anything
in subsection (1) –
(a) group accounts shall not be required where the company is at the end of its financial year the wholly owned subsidiary of another body corporate incorporated in Vanuatu; and
(b) group accounts need not deal with a subsidiary of the company if the company's directors are of the opinion that –
(i) it is impracticable, or would be of no real value to members of the company, in view of the insignificant amounts involved, or would involve expense or delay out of proportion to the value to members of the company; or
(ii) the result would be misleading, or harmful to the business of the company or any of its subsidiaries; or
(iii) the business of the holding company and that of the subsidiary are so different that they cannot reasonably be treated as a single undertaking;
and, if the directors are of such an opinion about each of the company's subsidiaries, group accounts shall not be required:
Provided that the approval of the registrar shall be required for not dealing in group accounts with a subsidiary on the ground that the result would be harmful or on the ground of the difference between the business of the holding company and that of the subsidiary.
(3)
If any person being a director of a company fails to take all reasonable steps
to secure compliance as respects the company with
the provisions of this
section, he shall, in respect of each offence, be liable to imprisonment for a
term not exceeding six months
or to a fine not exceeding VT 100,000 or to
both:
Provided that
–
(a) in any proceedings against a person in respect of an offence under this section, it shall be a defence to prove that he had reasonable ground to believe and did believe that a competent and reliable person was charged with the duty of seeing that the requirement of this section were complied with and was in a position to discharge that duty; and
(b) a person shall not be sentenced to imprisonment for an offence under this section unless, in the opinion of the court, the offence was committed wilfully.
(4)
For the purposes of this section a body corporate shall be deemed to be the
wholly owned subsidiary of another if it has no members
except that other and
that other's wholly owned subsidiaries and it or their
nominees.
155.
Form of group accounts
(1) Subject
to subsection (2), the group accounts laid before a holding company shall be
consolidated accounts comprising –
(a) a consolidated balance sheet dealing with the state of affairs of the company and all the subsidiaries to be dealt with in group accounts;
(b) a consolidated profit and loss account dealing with the profit or loss of the company and those subsidiaries.
(2)
If the company's directors are of opinion that it is better for the purpose
–
(a) of presenting the same or equivalent information about the state of affairs and profit or loss of the company and those subsidiaries; and
(b) of so presenting it that it may be readily appreciated by the company's members;
the
group accounts may be prepared an a form other than that required by subsection
(1), and in particular may consist of more than
one set of consolidated accounts
dealing respectively with the company and one group of subsidiaries and with
other groups of subsidiaries
or of separate accounts dealing with each of the
subsidiaries, or of statements expanding the information about the subsidiaries
in the company's own accounts, or any combination of those
forms.
(3) The group accounts may
be wholly or partly incorporated in the company's own balance sheet and profit
and loss
account.
156.
Contents of group accounts
(1) The
group accounts laid before a company shall give a true and fair view of the
state of affairs and profit or loss of the company
and the subsidiaries dealt
with thereby as a whole, so far as concerns members of the
company.
(2) Where the financial
year of a subsidiary does not coincide with that of the holding company, the
group accounts shall, unless
the registrar on the application or with the
consent of the holding company's directors otherwise direct, deal with the
subsidiary's
state of affairs as at the end of its financial year ending with or
last before that of the holding company, and with the subsidiary's
profit or
loss for that financial year.
(3)
Without prejudice to subsection (1), the group accounts, if prepared as
consolidated accounts, shall comply with the requirements
of Schedule 6, so far
as applicable thereto, and if not so prepared shall give the same or equivalent
information:
Provided that the
registrar may on the application or with the consent of a company's directors,
modify the said requirements in relation
to that company for the purpose of
adapting them to the circumstances of the
company.
157.
Financial year of holding company and
subsidiary
(1) A holding company's
directors shall secure that except where in their opinion there are good reasons
against it, the financial
year of each of its subsidiaries shall coincide with
the company's own financial
year.
(2) Where it appears to the
registrar desirable for a holding company or a holding company's subsidiary to
extend its financial year
so that the subsidiary's financial year may end with
that of the holding company, and for that purpose to postpone the submission
of
the relevant accounts to an annual general meeting from one calendar year to the
next, the registrar may on the application or
with the consent of the directors
of the company whose financial year is to be extended direct that, in the case
of that company,
the submission of accounts to an annual general meeting, the
holding of an annual general meeting or the making of an annual return
shall not
be required in the earlier of the said calendar
years.
158.
Meaning of "holding company" and
"subsidiary"
(1) For the purposes
of this Act, a company shall, subject to the provisions of subsection (3), be
deemed to be a subsidiary of another
if, but only if –
(a) that other either –
(i) is a member of it and controls the composition of its board of directors; or
(ii) holds more than half in nominal value of its equity share capital; or
(b) the first-mentioned company is a subsidiary of any company which is that other's subsidiary.
(2)
For the purposes of subsection (1), the composition of a company's board of
directors shall be deemed to be controlled by another
company if, but only if,
that other company by the exercise of some power exercisable by it without the
consent or concurrence of
any other person can appoint or remove the holders of
all or a majority of the directorships; but for the purposes of this provision
that other company shall be deemed to have power to appoint to a directorship
with respect to which any of the following conditions
is satisfied, that is to
say –
(a) that a person cannot be appointed thereto without the exercise in his favour by that other company of such a power as aforesaid; or
(b) that a person's appointment thereto follows necessarily from his appointment as director of that other company; or
(c) that the directorship is held by that other company itself or by a subsidiary of it.
(3)
In determining whether one company is a subsidiary of another
–
(a) any shares held or power exercisable by that other in a fiduciary capacity shall be treated as not held or exercisable by it;
(b) subject to the two following paragraphs any shares held or power exercisable–
(i) by any person as a nominee for that other (except where that other is concerned only in a fiduciary capacity); or
(ii) by, or by a nominee for, a subsidiary of that other, not being a subsidiary which is concerned only in a fiduciary capacity;
shall be treated as held or exercisable by that other;
(c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned company or of a trust deed for securing any issue of such debentures shall be disregarded;
(d) any shares held or power exercisable by, or by a nominee for, that other or its subsidiary (not being held or exercisable as mentioned in the last foregoing paragraph) shall be treated as not held or exercisable by that other if the ordinary business of that other or its subsidiary, as the case may be, includes the lending of money and the shares are held or power is exercisable as aforesaid by way of security only for the purposes of a transaction entered into in the ordinary course of that business.
(4)
For the purposes of this Act, a company shall be deemed to be another's holding
company if, but only if, that other is its
subsidiary.
(5) In this section
the expression "company"' includes any body corporate, and the expression
"equity share capital" means, in relation
to a company, its issued share capital
excluding any part thereof which, neither as respects dividends nor as respects
capital, carries
any right to participate beyond a specified amount in a
distribution.
159.
Signing of balance sheet
(1) Every
balance sheet of a company shall be signed on behalf of the board by two of the
directors of the company, or, if there is
only one director, by that
director.
(2) If any copy of a
balance sheet which has not been signed as required by this section is issued,
circulated or published, the company
and every officer of the company who is in
default shall be liable to a fine not exceeding VT
10,000.
160.
Accounts and auditors’ report to be annexed to balance
sheet
(1) The profit and loss
account and, so far as not incorporated in the balance sheet or profit and loss
account, any group accounts
laid before the company at its annual general
meeting, shall be annexed to the balance sheet, and the auditors' report, if
any, shall
be attached
thereto.
(2) Any accounts so
annexed shall be appropriated by the board of directors before the balance sheet
is signed on their behalf.
(3) If
any copy of a balance sheet is issued, circulated or published without having
annexed thereto a copy of the profit and loss
account or any group accounts
required by this section to be so annexed, or without having attached thereto a
copy of the auditors'
report, if any, the company and every officer of the
company who is in default shall be liable to a fine not exceeding VT
10,000.
161.
Directors' report
(1) The
directors of every company shall prepare for each financial year and lay before
the company at its annual general meeting
a directors’ report containing
such information as may be
prescribed.
(2) The
directors’ report shall be approved by resolution of the directors and
shall be signed on the directors’ behalf
by a
director.
(3) If any person being
a director of a company fails to take all reasonable steps to comply with the
provisions of this section,
he shall in respect of each offence, be liable to
imprisonment for a term not exceeding 6 months or to a fine not exceeding VT
100,000
or to both such imprisonment and
fine.
162.
Right to receive copies of balance sheets, auditors' report and directors'
report
(1) A copy of every balance
sheet, including every document required by law to be annexed thereto, which is
required to be laid before
a company at its annual general meeting, together
with a copy of the auditors' report, if any, and of the directors' report,
shall,
not less than 21 days before the date of the meeting, be sent to every
member of the company (whether he is or is not entitled to
receive notices of
general meetings of the company), if they shall so request the legal personal
representatives of any deceased
member of the company, every holder of
debentures of the company (whether he is or is not so entitled) and all other
persons so entitled:
Provided that
–
(a) in the case of a company not having a share capital this subsection shall not require the sending of a copy of the documents aforesaid to a member of the company who is not entitled to receive notices of general meetings of the company or to a holder of debentures of the company who is not so entitled;
(b) this subsection shall not require a copy of these documents to be sent –
(i) to a member of the company or a holder of debentures of the company, being in either case a person who is not entitled to receive notices of general meetings of the company and of whose address the company is unaware;
(ii) to more than one of the joint holders of any shares or debentures none of whom are entitled to receive such notices; or
(iii) in the case of joint holders of any shares or debentures some of whom are and some of whom are not entitled to receive such notices, to those who are not so entitled; and
(c) if the copies of the documents aforesaid are sent less than 21 days before the date of the meeting, they shall, notwithstanding that fact, be deemed to have been duly sent if it is so agreed by all the members entitled to attend and vote at the meeting.
(2)
Any member of a company, whether he is or is not entitled to have sent to him
copies of the company's balance sheets, any holder
of debentures of the company,
whether he is or is not so entitled, and the legal personal representatives of
any deceased member
of the company, whether or not such member would have been
so entitled, shall be entitled to be furnished on demand without charge
with a
copy of the last balance sheet of the company, including every document required
by law to be annexed thereto, together with
a copy of the auditors' report on
the balance sheet, if any, and of the directors'
report.
(3) If default is made in
complying with subsection (1), the company and every officer of the company who
is in default shall be liable
to a fine not exceeding VT 5,000, and if, when any
person makes a demand for any document with which he is by virtue of subsection
(2) entitled to be furnished, default is made in complying with the demand
within 7 days after the making thereof, the company and
every officer of the
company who is in default shall be liable to a default fine, unless it is proved
that that person has already
made a demand for and been furnished with a copy of
the
document.
163.
Appointment and remuneration of
auditors
(1) Every company to
which section 149C applies shall at each annual general meeting appoint an
auditor or auditors to hold office
from the conclusion of that, until the
conclusion of the next, annual general
meeting.
(2) The directors of
every private local company which is not of a class specified in Schedule 3 or
the company at a general meeting
shall upon the turnover of the company
exceeding VT 20,000,000 in any financial year, or if the financial year is less
than 12 months,
if the turnover, calculated as an average for the financial year
exceeds VT 1,600,000 per month, appoint an auditor or auditors to
hold office
for the period commencing from the last balance date or the last annual general
meeting at which any auditor held appointment,
whatever is the later, until the
conclusion of the next annual general
meeting.
(3) At any annual general
meeting a retiring auditor, however appointed, shall be reappointed without any
resolution being passed
unless –
(a) he is not qualified for reappointment; or
(b) a resolution has been passed at that meeting appointing somebody instead of him or providing expressly that he shall not be reappointed; or
(c) he has given the company notice in writing of his unwillingness to be reappointed:
Provided
that where notice is given of an intended resolution to appoint some person or
persons in place of a retiring auditor, and
by reason of the death, incapacity
or disqualification of that person or of all those persons, as the case may be,
the resolution
cannot be proceeded with, the retiring auditor shall not be
automatically reappointed by virtue of this
subsection.
(4) Where at an annual
general meeting no auditors are appointed or re-appointed, the registrar may
appoint a person to fill the
vacancy.
(5) The company shall,
within 1 week of the registrar's power under subsection (4) becoming
exercisable, give him notice of that fact,
and, if a company fails to give
notice as required by this subsection, the company and every officer of the
company who is in default
shall be liable to a default
fine.
(6) Subject as hereinafter
provided, the first auditors of a company may be appointed by the directors at
any time before the first
annual general meeting, and auditors so appointed
shall hold office until the conclusion of that
meeting:
Provided that
–
(a) the company may at a general meeting remove any such auditors and appoint in their place any other persons who have been nominated for appointment by any member of the company and of whose nomination notice has been given to the members of the company not less than 14 days before the date of the meeting; and
(b) if the directors fail to exercise their powers under this subsection, the company in general meeting may appoint the first auditors, and thereupon the said powers of the directors shall cease.
(7)
The directors or the company at a general meeting may fill any casual vacancy in
the office of the auditor, but while any such
vacancy continues, the surviving
or continuing auditor or auditors, if any, may
act.
(8) The remuneration of the
auditors of a company –
(a) in the case of an auditor appointed by the directors or by the registrar, may be fixed by the directors or by the registrar, as the case may be;
(b) subject to paragraph (a), shall be fixed by the company in general meeting or in such manner as the company in general meeting may determine.
For
the purposes of this subsection, any sums paid by the company in respect of the
auditors expenses shall be deemed to be included
in the expression
"remuneration".
164.
Appointment of auditor optional for certain private
companies
(1) The directors or
members of every company other than a company specified in section 163(1) and
which is not of a class specified
in Schedule 3 may by ordinary resolution
appoint an auditor or auditors to hold office for such period as is specified in
the resolution
and may by ordinary resolution terminate such appointment at any
time.
(2) For a private local
company with a turnover not exceeding VT 20,000,000 in any year, the registrar
may, at any time if he thinks
fit, on the application of any member or creditor
of the company or of his own motion, apply to the Supreme Court to appoint an
auditor
to hold office until the conclusion of the next annual general
meeting.
165.
Provisions as to resolutions relating to appointment and removal of
auditors
(1) Special notice shall
be required for a resolution at a company's annual general meeting appointing as
auditor a person other than
a retiring auditor or providing expressly that a
retiring auditor shall not be
reappointed.
(2) On receipt of
notice of such an intended resolution as aforesaid, the company shall forthwith
send a copy thereof to the retiring
auditor (if
any).
(3) Where notice is given of
such an intended resolution as aforesaid and the retiring auditor makes with
respect to the intended
resolution representations in writing to the company
(not exceeding a reasonable length) and requests their notification to members
of the company, the company shall, unless the representations are received by it
too late for it to do so –
(a) in any notice of the resolution given to members of the company, state the fact of the representations having been made; and
(b) send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company);
and
if a copy of the representations is not sent as aforesaid because received too
late or because of the company's default, the auditor
may (without prejudice to
his right to be heard orally) require that the representations shall be read out
at the meeting:
Provided that
copies of the representations need not be sent out and the representations need
not be read out at the meeting if, on
the application either of the company or
of any other person who claims to be aggrieved, the court is satisfied that the
rights conferred
by this section are being abused to secure needless publicity
for defamatory matter; and the court may order the company's costs
on an
application under this section, to be paid in whole or in part by the auditor,
notwithstanding that he is not a party to the
application.
(4) Subsection (3)
shall apply to a resolution to remove the first auditors by virtue of section
163(6) as it applies in relation
to a resolution that a retiring auditor shall
not be reappointed.
(5) A company
may by special resolution at any extraordinary meeting remove an auditor
provided that where such company is a company
to which section 163 applies such
resolution shall be invalid unless there is passed at the same meeting an
ordinary resolution appointing
an auditor to replace the one so
removed.
(6) Subsections (2) and
(3) shall apply to any notice of special resolution given under subsection (5)
and reference to retiring auditor
shall be construed as reference to the auditor
sought to be
removed.
166.
Disqualification for appointment as
auditor
(1) A person shall not be
qualified for appointment as auditor of a company unless
either–
(a) he is a member of a body of accountants established in Vanuatu or any overseas country and for the time being recognised for the purposes of this provision by the Minister; or
(b) he is for the time being authorised by the Minister to be so appointed either as having similar qualifications obtained elsewhere or as having obtained adequate knowledge and experience in the course of his employment by a member of a body of accountants recognised for the purposes of paragraph (a).
(2)
None of the following persons shall be qualified for appointment as auditor of a
company –
(a) an officer or servant of the company;
(b) a person who is a partner of or in the employment of an officer or servant of the company;
(c) a body corporate.
References
in this subsection to an officer or servant shall be construed as not including
references to an auditor.
(3) A
person shall also not be qualified for appointment as auditor of a company if he
is, by virtue of subsection (2), disqualified
for appointment as auditor of any
other company which is that company's subsidiary or holding company or a
subsidiary of that company's
holding
company.
(4) Notwithstanding the
provisions of subsections (1), (2) and (3), a person shall not be qualified for
appointment as auditor of
a local company if he does not hold a valid business
licence issued under the Business Licence Act, Cap.
249.
(5) A person who acts as
auditor of a company without being qualified under this section for appointment
shall be liable to a fine
not exceeding VT
100,000.
167.
Auditor's report and right of access to books and to attend and be heard at
meetings
(1) The auditors of a
company shall make report to the members on the accounts examined by them, and
on every balance sheet, every
profit and loss account, and all group accounts
laid before the company at its annual general meeting during their tenure of
office.
(2) The auditors' report
shall be read before the company at its annual general meeting and shall be open
to inspection by any member.
(3)
The report shall state whether in the auditors' opinion the company's balance
sheet and profit and loss account and (if it is
a holding company submitting
group accounts) the group accounts have been properly prepared in accordance
with the provisions of
this Act and whether in their opinion a true and fair
view is given –
(i) in the case of the balance sheet, of the state of the company's affairs as at the end of its financial year;
(ii) in the case of the profit and loss account (if it is not framed as a consolidated profit and loss account), of the company's profit or loss for its financial year;
(iii) in the case of group accounts submitted by a holding company, of the state of affairs and profit or loss of the company and its subsidiaries dealt with thereby, so far as concerns members of the company.
(4)
The report shall contain a statement by the auditor stating that he is qualified
under section 166.
(5) It shall be
the duty of the auditors of a company, in preparing their report under this
section, to carry out such investigations
as will enable them to form an opinion
as to the following matters, that is to say –
(a) whether proper books of account have been kept by the company and proper returns adequate for their audit have been received from branches not visited by them; and
(b) whether the company's balance sheet and (unless it is framed as a consolidated profit and loss account) profit and loss account are in agreement with the books of account and returns;
and
if the auditors are of opinion that proper books of account have not been kept
by the company or that proper returns adequate
for their audit have not been
received from branches not visited by them, or if the balance sheet and (unless
it is framed as a consolidated
profit and loss account) profit and loss account
are not in agreement with the books of account and returns the auditors shall
state
that fact in their
report.
(6) Every auditor of a
company shall have a right of access at all times to the books and accounts and
vouchers of the company, and
shall be entitled to require from the officers of
the company such information and explanation as he thinks necessary for the
performance
of the duties of the
auditors.
(7) If the auditors fail
to obtain all the information and explanations which, to the best of their
knowledge and belief, are necessary
for the purposes of their audit, they shall
state that fact in their
report.
(8) The auditors of a
company shall be entitled to attend any general meeting of the company and to
receive all notices of, and other
to communications relating to, any general
meeting which any member of the company is entitled to receive, and to be heard
at any
general meeting which they attend on any part of the business of the
meeting which concerns them as
auditors.
168.
Construction of references to documents annexed to
accounts
References in this Act to
a document annexed or required to be annexed to a company's accounts or any of
them shall not include the
Directors' report or the auditors'
report:
Provided that any
information which is required by this Act to be given in accounts, and is
thereby allowed to be given in a statement
annexed, may be given in the
directors' report instead of in the accounts and, if any such information is so
given, the report shall
be annexed to the accounts and this Act shall apply in
relation thereto accordingly, except that the auditors shall report thereon
only
so far as it gives the information.
Inspection
169.
Investigation of company's
affairs
(1) The Minister may
appoint one or more competent inspectors to investigate the affairs of a company
and to report thereon in such
manner as he may direct if it appears to him that
there are circumstances suggesting –
(a) that its business is being or has been conducted with intent to defraud its creditors or the creditors of any other person or otherwise for a fraudulent or unlawful purpose or in a manner oppressive of any part of its members or that it was formed for any fraudulent or unlawful purpose; or
(b) that persons concerned with its formation or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards it or towards its members.
(2)
The power of the Minister shall be exercisable with respect to a body corporate
notwithstanding that it is in course of being
voluntarily wound
up.
170. Power
of inspectors to carry investigation into affairs of related
companies
If an inspector
appointed under section 169 to investigate the affairs of a company thinks it
necessary for the purposes of his investigation
to investigate also the affairs
of any other body corporate which is or has at any relevant time been the
company's subsidiary or
holding company or a subsidiary of its holding company
or a holding company of its subsidiary, he shall have power so to do, and
shall
report on the affairs of the other body corporate so far as he thinks the
results of his investigation thereof are relevant
to the investigation of the
affair of the first-mentioned
company.
171.
Power of inspector to inform Minister of matters tending to show commission of
offence
An inspector appointed
under section 169 may at any time in the course of his investigation, without
the necessity of making an interim
report, inform the Minister of matters coming
to his knowledge as a result of the investigation tending to show that an
offence has
been
committed.
172.
Production of documents, and evidence, on
investigation
(1) It shall be the
duty of all officers and agents of the company and of all officers and agents of
any other body corporate whose
affairs are investigated by virtue of section 170
to produce to the inspectors all books and documents of or relating to the
company
or, as the case may be, the other body corporate which are in their
custody or power, to attend before the inspectors when required
so to do and
otherwise to give to the inspectors all assistance in connection with the
investigation which they are reasonably able
to
give.
(2) An inspector may examine
on oath the officers and agents of the company or other body corporate in
relation to its business, and
may administer an oath
accordingly.
(3) If any officer or
agent of the company or other body corporate refuses to produce to the
inspectors any book or document which
it is his duty under this section so to
produce, refuses to attend before the inspectors when required so to do or
refuses to answer
any question which is put to him by the inspectors with
respect to the affairs of the company or other body corporate, as the case
may
be, the inspectors may certify the refusal under their hand to the court, and
the court may thereupon inquire into the case,
and after hearing any witnesses
who may be produced against or on behalf of the alleged offender and after
hearing any statement
which may be offered in defence, punish the offender in
like manner as if he had been guilty of contempt of the
court.
(4) If an inspector thinks
it necessary for the purpose of his investigation that a person whom he has no
power to examine on oath
should be so examined, he may apply to the court and
the court may if it sees fit order that person to attend and be examined on
oath
before it on any matter relevant to the investigation, and on any such
examination –
(a) the inspector may take part therein either personally or by legal practitioner;
(b) the court may put such questions to the person examined as the court thinks fit;
(c) the person examined shall answer all such questions as the court may put or allow to be put to him, but may at his own cost employ legal practitioner who shall be at liberty to put to him such questions as the court may deem just for the purpose of enabling him to explain or qualify any answers given by him;
and
notes of the examination shall be taken down in writing, and shall be read over
to or by, and signed by, the person examined,
and may thereafter be used in
evidence against him:
Provided
that, notwithstanding anything in paragraph (c), the court may allow the person
examined such costs as in its discretion
it may think fit, and any costs so
allowed shall be paid as part of the expenses of the
investigation.
(5) An answer given
by a person to a question put to him in exercise of the powers conferred by this
section may be used in evidence
against
him.
(6) In this section, any
reference to officers or to agents shall include past, as well as present,
officers or agents, as the case
may be, and for the purposes of this section the
expression "agents", in relation to a company or other body corporate, shall
include
the bankers and legal practitioners of the company or other body
corporate and any persons employed by the company or other body
corporate as
auditors, whether those persons are or are not officers of the company or other
body
corporate.
173.
Inspectors' report
The inspectors
may, and, if so directed by the Minister, shall, make interim reports to the
Minister, and on the conclusion of the
investigation shall make a final report
to the Minister.
Any such report
shall be written or printed, as the Minister directs, and the Minister may, if
he thinks it in the public interest
to do so, cause it to be
published.
174.
Power of Minister to present winding-up petition or petition under section 217
in consequence of investigation,
etc.
(1) If, in the case of any
body corporate liable to be wound up under this Act, it appears to the Minister
from any report made under
section 173 or from any information or document
obtained under sections 183 to 188 (inclusive) that it is expedient in the
public
interest that the body should be wound up, the Minister may, unless the
body is already being wound up by the court, present a petition
for it to be so
wound up if the court thinks it just and equitable for it to be so wound
up.
(2) If, in the case of any
such body corporate as aforesaid, it appears to the Minister from any report
made or information or document
obtained as aforesaid that its business is being
conducted in a manner oppressive to any part of its members, the Minister may
(in
addition to, or instead of, presenting a petition under subsection (1))
present a petition for an order under section
216.
175. Power
of Minister to bring civil proceedings on behalf of body
corporate
(1) If, from any report
made under section 173 or from any information or document obtained under
sections 183 to 188 (inclusive)
it appears to the Minister that any civil
proceedings ought in the public interest to be brought by any body corporate, he
may himself
bring such proceedings in the name and on behalf of the body
corporate.
(2) The Minister shall
indemnify the body corporate against any costs or expenses incurred by it in or
in connection with any proceedings
brought by virtue of subsection
(1).
176.
Expenses of investigation of company's
affairs
(1) The expenses of and
incidental to an investigation by an inspector appointed by the Minister under
the preceding provisions of
this Act shall be defrayed in the first instance by
the Minister, but the following persons shall, to the extent mentioned, be
liable
to repay the Minister –
(a) any person, who is convicted on a prosecution instituted as a result of the investigation or who is ordered to pay damages or restore any property in proceedings brought by virtue of section 175(1), may in the same proceedings be ordered to pay the said expenses to such extent as may be specified in the order; and
(b) any body corporate in whose name proceedings are brought as aforesaid shall be liable to the amount or value of any sums or property recovered by it as a result of those proceedings;
and
any amount for which a body corporate is liable by virtue of paragraph (b) of
this subsection shall be a first charge on the sums
or property mentioned in
that paragraph.
(2) For the
purposes of this section, any costs or expenses incurred by the Minister in or
in connection with proceedings brought
by virtue of section 175(1) (including
expenses incurred by virtue of section 175(2)) shall be treated as expenses of
the investigation
giving rise to the
proceedings.
177.
Inspectors' report to be
evidence
A copy of any report of
any inspectors appointed under the foregoing provisions of this Act shall be
admissible in any legal proceeding
as evidence of the opinion of the inspectors
in relation to any matter contained in the
report.
178.
Appointment and powers of inspectors to investigate ownership of
company
(1) Where it appears to
the Minister that there is good reason so to do, he may appoint one or more
competent inspectors to investigate
and report on the membership of any company
and otherwise with respect to the company for the purpose of determining the
true persons
who are or have been financially interested in the success or
failure (real or apparent) of the company or able to control or materially
to
influence the policy of the
company.
(2) The appointment of an
inspector under this section may define the scope of his investigation, whether
as respects the matter or
the period to which it is to extend or otherwise, and
in particular may limit the investigation to matters connected with particular
shares or debentures.
(3) Subject
to the terms of an inspector's appointment his powers shall extend to the
investigation of any circumstances suggesting
the existence of an arrangement or
understanding which, though not legally binding, is or was observed or likely to
be observed in
practice and which is relevant to the purposes of his
investigation.
(4) For the
purposes of any investigation under this section, sections 170 to 173
(inclusive), shall apply with the necessary modifications
of references to the
affairs of the company or to those of any other body corporate, so, however,
that –
(a) the said sections shall apply in relation to all persons who are or have been, or whom the inspector has reasonable cause to believe to be or have been, financially interested in the success or failure or the apparent success or failure of the company or any other body corporate whose membership is investigated with that of the company, or able to control or materially to influence the policy thereof, including persons concerned only on behalf of others, as they apply in relation to officers and agents of the company or of the other body corporate, as the case may be; and
(b) the Minister shall not be bound to furnish the company or any other person with a copy of any report by an inspector appointed under this section or with a complete copy thereof if he is of opinion that there is good reason for not divulging the contents of the report or of parts thereof, but shall cause to be kept by the registrar a copy of any such report or, as the case may be, the parts of any such report, as respects which he is not of that opinion.
(5)
The expenses of any investigation under this selection shall be defrayed by the
Minister out of the Public
Fund.
(6) This section shall not
apply to an exempted private company which is not of a category specified in
Schedule
3.
179. Power
to require information as to persons interested in shares or
debentures
(1) Where it appears to
the Minister that there is good reason to investigate the ownership of any
shares in or debentures of a company
and that it is unnecessary to appoint an
inspector for the purpose, he may require any person whom he has reasonable
cause to believe
–
(a) to be or to have been interested in those shares or debentures; or
(b) to act or to have acted in relation to those shares or debentures as the legal practitioner or agent of someone interested therein;
to
give him any information which he has or can reasonably be expected to obtain as
to the present and past interests in those shares
or debentures and the names
and addresses of the persons interested and of any persons who act or have acted
on their behalf in relation
to the shares or
debentures.
(2) For the purposes
of this section, a person shall be deemed to have an interest in a share or
debenture if he has any right to
acquire or dispose of the share or debenture or
any interest therein or to vote in respect thereof, or if his consent is
necessary
for the exercise of any of the rights of other persons interested
therein, or if other persons interested therein can be required
or are
accustomed to exercise their rights in accordance with his
instructions.
(3) Any person who
fails to give any information required of him under this section, or who in
giving any such information makes any
statement which he knows to be false in a
material particular, or recklessly makes any statement which is false in a
material particular,
shall be liable to imprisonment for a term not exceeding 6
months or to a fine not exceeding VT 100,000 or to
both.
(4) This section shall not
apply to an exempted private company which is not of a class specified in
Schedule
3.
180. Power
to impose restrictions on shares or
debentures
(1) Where in connection
with an investigation under either of sections 178 and 179 it appears to the
Minister that there is difficulty
in finding out the relevant facts about any
shares (whether issued or to be issued), and that the difficulty is due wholly
or mainly
to the unwillingness of the persons concerned or any of them to assist
the investigation as required by this Act, the Minister may
by order direct that
the shares shall until further order be subject to the restrictions imposed by
this section.
(2) So long as any
shares are directed to be subject to the restrictions imposed by this section
–
(a) any transfer of those shares, or in the case of unissued shares any transfer of the right to be issued therewith and any issue thereof, shall be void;
(b) no voting rights shall be exercisable in respect of those shares;
(c) no further shares shall be issued in right of those shares or in pursuance of any offer made to the holder thereof;
(d) except in a liquidation, no payment shall be made of any sums due from the company on those shares, whether in respect of capital or otherwise.
(3)
Where the Minister makes an order directing that shares shall be subject to the
said restrictions, or refuses to make an order
directing that shares shall cease
to be subject thereto, any person aggrieved thereby may apply to the court, and
the court may,
if it sees fit, direct that the shares shall cease to be subject
to the said restrictions.
(4) Any
order (whether of the Minister or of the court) directing that shares shall
cease to be subject to the said restrictions which
is expressed to be made with
a view to permitting a transfer of those shares may continue the restrictions
mentioned in subsections
(2)(c) and (d), either in whole or in part, so far as
they relate to any right acquired or offer made before the
transfer.
(5) Any person who
–
(a) exercises or purports to exercise any right to dispose of any shares which, to his knowledge, are for the time being subject to the said restrictions or of any right to be issued with any such shares; or
(b) votes in respect of any such shares, whether as holder or proxy, or appoints a proxy to vote in respect thereof; or
(c) being the holder of any such shares, fails to notify of their being subject to the said restrictions any person whom he does not know to be aware of that fact but does know to be entitled, apart from the said restrictions, to vote in respect of those shares whether as holder or proxy;
shall
be liable to imprisonment for a term not exceeding 6 months or to a fine not
exceeding VT 100,000 or to
both.
(6) Where shares in any
company are issued in contravention of the said restrictions, the company and
every officer of the company
who is in default shall be liable to a fine not
exceeding VT 100,000.
(7) A
prosecution shall not be instituted under this section except by or with the
consent of the Attorney
General.
(8) This section shall
apply in relation to debentures as it applies in relation to
shares.
181.
Saving for legal practitioners and
bankers
Nothing in the preceding
provisions of this Part shall require disclosure to the Minister or to an
inspector appointed by him –
(a) by a legal practitioner of any privileged communication made to him in that capacity, except as respects the name and address of his client; or
(b) by a company's bankers as such of any information as to the affairs of any of their customers other than the company.
182.
Extension of Minister's powers of investigation to certain bodies incorporated
outside Vanuatu
Sections 169 to
177 (inclusive) and 181 shall apply to all bodies corporate incorporated outside
Vanuatu which are carrying on business
in Vanuatu or have at any time carried on
business therein as if they were companies registered under this Act, but
subject to such
(if any) adaptations and modifications as may be specified by
rules made by the Minister.
Inspection of Company’s Books and Papers
183.
Power of Minister to require production of
documents
(1) The Minister may at
any time, if he thinks there is good reason so to do, give directions to any
such body as follows, namely
–
(a) a company formed and registered under this Act;
(b) an existing company;
(c) a body corporate incorporated outside Vanuatu which is carrying on business in Vanuatu or has at any time carried on business therein;
requiring
the body, at such time and place as may be specified in the directions, to
produce such books or papers as may be so specified,
or may at any time, if he
thinks there is good reason so to do, authorise any officer of his, on producing
(if required so to do)
evidence of his authority, to require any such body as
aforesaid to produce to him forthwith any books or papers which the officer
may
specify.
(2) Where by virtue of
subsection (1) the Minister has power to require the production of any books or
papers from any body, the Minister
shall have the like power to require
production of those books or papers from any person who appears to the Minister
to be in possession
of them; but where any such person claims a lien on books or
papers produced by him, the production shall be without prejudice to
the
lien.
Any power conferred by or by
virtue of this section to require a body or other person to produce books or
papers shall include power
–
(a) if the books or papers are produced –
(i) to take copies of them or extracts from them; and
(ii) to require that person, or any other person who is a present or past officer of, or is or was at any time employed by, the body in question, to provide an explanation of any of them;
(b) if the books or papers are not produced, to require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.
(4)
If a requirement to produce books or papers or provide an explanation or make a
statement which is imposed by virtue of this section
is not complied with, the
body or other person on whom the requirement was so imposed shall be guilty of
an offence and liable to
imprisonment for a term not exceeding 3 months or to a
fine not exceeding VT 50,000, or to both; but where a person is charged with
an
offence under this subsection in respect of a requirement to produce any books
or papers, it shall be a defence to prove that
they were not in his possession
or under his control and that it was not reasonably practicable for him to
comply with the requirement.
(5) A
statement made by a person in compliance with a requirement imposed by virtue of
this section may be used in evidence against
him.
(6) This section shall not
apply to an exempted private company which is not of a class specified in
Schedule
3.
184. Entry
and search of premises
(1) If a
magistrate is satisfied by information on oath laid by a police officer, that
there are reasonable grounds for suspecting
that there are on any premises any
books or papers of which production has been required by virtue of section 183
and which have
not been produced in compliance with that requirement, the
magistrate may issue a warrant authorising any police officer, together
with any
other persons named in the warrant and any other police officers, to enter the
premises specified in the information (using
such force as is reasonably
necessary for the purpose) and to search the premises and take possession of any
books or papers appearing
to be such books or papers as aforesaid, or to take,
in relation to any books or papers so appearing, any other steps which may
appear
necessary for preserving them and preventing interference with
them.
(2) Every warrant issued
under this section shall continue in force until the end of the period of 1
month after the date on which
it is
issued.
(3) Any books or papers of
which possession is taken under this section may be retained for a period of 6
months or, if within that
period there are commenced any such criminal
proceedings as are mentioned in section 185(1)(a) (being proceedings to which
the books
or papers are relevant) until the conclusion of those
proceedings.
(4) A person who
obstructs the exercise of a right of entry or search conferred by virtue of a
warrant issued under this section,
or who obstructs the exercise of a right so
conferred to take possession of any books or papers, shall be guilty of an
offence and
liable to imprisonment for a term not exceeding 3 months, or to a
fine not exceeding VT 50,000, or to
both.
185.
Provision for security of
information
(1) No information or
document relating to a body, which has been obtained under section 183 or
section 184, shall, without the previous
consent in writing of that body, be
published or disclosed, except to a competent authority, unless the publication
or disclosure
is required –
(a) with a view to the institution of, or otherwise for the purposes of, any criminal proceedings, pursuant to, or arising out of this Act or any criminal proceedings for an offence entailing misconduct in connection with the management of the body's affairs or misapplication or wrongful retainer of any of its property;
(b) for the purpose of complying with any requirement or exercising any power, imposed or conferred by this Act with respect to reports made by inspectors appointed thereunder by the Minister;
(c) with a view to the institution by the Minister under section 175 of proceedings with reference to the body or otherwise for the purposes of such proceedings instituted by them under that section;
(d) with a view to the institution by the Minister of proceedings for the winding up under this Act of the body or otherwise for the purposes of proceedings instituted by him for that purpose; or
(e) for the purposes of proceedings under section 184.
(2)
A person who publishes or discloses any information or document in contravention
of this section shall be liable on conviction
to imprisonment for a term not
exceeding 2 years or to a fine not exceeding VT 500,000, or to
both.
(3) For the purposes of this
section in relation to information or a document relating to a body which has
been obtained under section
183 or section 184, each of the following shall be a
competent authority, namely, the Minister, an inspector appointed under this
Act
by the Minister, the registrar or the Attorney
General.
186.
Penalization of destruction, mutilation, etc., of company
documents
(1) A person, being an
officer of any such body as is mentioned in section 183(1)(a) to (c), who
destroys, mutilates or falsifies,
or is privy to the destruction, mutilation or
falsification of a document affecting or relating to the property or affairs of
the
body, or makes or is privy to the making of a false entry in such a
document, shall, unless he proves that he had no intention to
conceal the state
of affairs of the body or to defeat the law, be guilty of an
offence.
(2) Such a person as
aforesaid who fraudulently either parts with, alters or makes an omission in any
such document, or who is privy
to fraudulent parting with, fraudulent altering
or fraudulent making of an omission in, any such document, shall be guilty of an
offence.
(3) A person guilty of an
offence under this section shall be liable on conviction to imprisonment for a
term not exceeding 2 years
or to a fine not exceeding VT 500,000, or to
both.
187.
Penalization of furnishing false
information
A person who, in
purported compliance with a requirement imposed under section 183 of this Act to
provide an explanation or make a
statement, provides or makes an explanation or
statement which he knows to be false in a material particular or recklessly
provides
or makes an explanation or statement which is so false shall be liable
on conviction to imprisonment for a term not exceeding 2 years
or to a fine not
exceeding VT 500,000, or to
both.
188.
Saving for legal practitioners and
bankers
(1) Nothing in this Part
of this Act shall compel the production by a legal practitioner of a document
containing a privileged communication
made by or to him in that capacity or
authorise the taking of possession of any such document which is in his
possession.
(2) The Minister shall
not, under section 183, require, or authorise an officer to require, the
production by a person carrying on
the business of banking of a document
relating to the affairs of a customer of his unless either it appears to him
that it is necessary
so to do for the purpose of investigating the affairs of
the first-mentioned person or the customer is a person on whom a requirement
has
been imposed by virtue of that section.
Directors and other Officers
189.
Directors
(1) A company (other
than a private company) shall have at least two directors, and a private company
shall have at least one
director.
(2) Every company shall
have at least one director who is a person resident in
Vanuatu.
(3) The first directors,
or director, of a company shall be the persons, or person, named in the
memorandum of
association.
190.
Secretary
(1) Every company shall
have a secretary and a sole director shall not also be
secretary.
(2) Anything required
or authorised 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
any assistant or deputy secretary or, if there is no assistant or deputy
secretary
capable of acting, by or to any officer of the company authorised
generally or specially in that behalf by the
directors.
191.
Prohibition of certain persons being sole director or
secretary
(1) No company shall
–
(a) have as secretary to the company a corporation the sole director of which is a sole director of the company; or
(b) have as sole director of the company a corporation the sole director of which is secretary to the company.
(2)
No company shall be qualified to be appointed as a director of another company
which is a director of the first-mentioned
company.
192.
Avoidance of acts done by person in dual capacity as director and
secretary
A provision requiring or
authorising a thing to be done by or to a director and the secretary shall not
be satisfied by its being
done by or to the same person acting both as director
and as or in place of the
secretary.
193.
Validity of acts of directors
The
acts of a director or manager shall be valid notwithstanding any defect that may
afterwards be discovered in his appointment or
qualification.
194.
Restrictions on appointment or advertisement of
director
(1) A person shall not be
capable of being appointed director of a company, and shall not be named as a
director or proposed director
of a company in the memorandum of association, or
in a prospectus issued by or on behalf of the company, or as proposed director
of an intended company in a prospectus issued in relation to that intended
company, unless, before the registration of the memorandum
or the publication of
the prospectus, as the case may be, he has by himself or by his agent authorised
in writing –
(a) signed and delivered to the registrar of companies for registration a consent in writing to act as such director; and
(b) either –
(i) signed the memorandum for a number of shares not less than his qualification, if any; or
(ii) taken from the company and paid or agreed to pay for his qualification shares, if any; or
(iii) signed and delivered to the registrar for registration an undertaking in writing to take from the company and pay for his qualification shares, if any; or
(iv) made and delivered to the registrar for registration a statutory declaration to the effect that a number of shares, not less than his qualification, if any, are registered in his name.
(2)
Where a person has signed and delivered as aforesaid an undertaking to take and
pay for his qualification shares, he shall as
regards those shares, be in the
same position as if he had signed the memorandum for that number of
shares.
(3) References in this
section to the share qualification of a director or proposed director shall be
construed as including only
a share qualification required on appointment or
within a period determined by reference to the time of appointment, and
references
therein to qualification shares shall be construed
accordingly.
(4) On the
application for registration of the memorandum and articles of a company, the
applicant shall deliver to the registrar
a list of the persons who have
consented to be directors of the company, and, if this list contains the name of
any person who has
not so consented, the applicant shall be liable to a fine not
exceeding VT 100,000.
(5) This
section shall not apply to –
(a) a company not having a share capital; or
(b) a prospectus issued by or on behalf of a company after the expiration of one year from the date on which the company was entitled to commence business.
195.
Share qualifications of
directors
(1) Without prejudice to
the restrictions imposed by section 194, it shall be the duty of every director
who is by the articles of
the company required to hold a specified share
qualification, and who is not already qualified, to obtain his qualification
within
2 months after his appointment, or such shorter time as may be fixed by
the articles.
(2) For the purpose
of any provision in the articles requiring a director or manager to hold a
specified share qualification, the
bearer of a share warrant shall not be deemed
to be the holder of the shares specified in the
warrant.
(3) The office of
director of a company shall be vacated if the director does not within 2 months
from the date of his appointment,
or within such shorter time as may be fixed by
the articles, obtain his qualification, or if after the expiration of the said
period
or shorter time he ceases at any time to hold his
qualification.
(4) A person
vacating office under this section shall be incapable of being reappointed
director of the company until he has obtained
his
qualification.
(5) If after the
expiration of the said period or shorter time any unqualified person acts as a
director of the company, he shall
be liable to a fine not exceeding VT 1,000 for
every day between the expiration of the said period or shorter time or the day
on
which he ceased to be qualified, as the case may be, and the last day on
which it is proved that he acted as a
director.
196.
Removal of directors
(1) A company
may by ordinary resolution remove a director before the expiration of his period
of office, notwithstanding anything
its articles or in any agreement between it
and him:
Provided that this
subsection shall not, in the case of a private company, authorise the removal of
a director holding office for
life on the commencement of this Act, whether or
not subject to retirement under an age limit by virtue of the articles or
otherwise.
(2) Special notice
shall be required of any resolution to remove a director under this section or
to appoint somebody instead of a
director so removed at the meeting at which he
is removed, and on receipt of notice of an intended resolution to remove a
director
under this section the company shall forthwith send a copy thereof to
the director concerned, and the director (whether or not he
is a member of the
company) shall be entitled to be heard on the resolution at the
meeting.
(3) Where notice is given
of an intended resolution to remove a director under this section and the
director concerned makes with
respect thereto representations in writing to the
company (not exceeding a reasonable length) and requests their notification to
members of the company, the company shall, unless the representations are
received by it too late for it to do so –
(a) in any notice of the resolution given to members of the company state the fact of the representations having been made; and
(b) send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company);
and
if a copy of the representations is not sent as aforesaid because received too
late or because of the company's default, the director
may (without prejudice to
his right to be heard orally) require that the representations shall be read out
at the meeting:
Provided that
copies of the representations need not be sent out and the representations need
not be read out at the meeting if, on
the application either of the company or
of any other person who claims to be aggrieved, the court is satisfied that the
rights conferred
by this section are being abused to secure needless publicity
for defamatory matter; and the court may order the company's costs
on an
application under this section to be paid in whole or in part by the director,
notwithstanding that he is not a party to the
application.
(4) A vacancy created
by the removal of a director under this section, if not filled at the meeting at
which he is removed, may be
filled as a casual
vacancy.
(5) A person appointed
director in place of a person removed under this section shall be treated, for
the purpose of determining the
time at which he or any other director is to
retire, as if he had become director on the day on which the person in whose
place he
is appointed was last appointed a
director.
(6) Nothing in this
section shall be taken as depriving a person removed thereunder of compensation
or damages payable to him in respect
of the termination of his appointment as
director or of any appointment terminating with that as director or as
derogating from any
power to remove a director which may exist apart from this
section.
197.
Alternate directors
(1) Unless
prohibited by the articles a director may either generally or in respect of any
period in which he is absent from Vanuatu
or unable for any reason to act as a
director, appoint another director, or any other person approved by a resolution
of the board
of directors, as an alternate director. Such appointment shall be
in writing signed by the appointor and appointee and lodged with
the
company.
(2) Every alternate
director so appointed shall during the currency of such appointment be deemed
for all purposes to be a director
and officer of the company and not the agent
of his appointor but he shall not be required to hold any share qualification
notwithstanding
that, under the articles, directors may be so required, nor
shall he be entitled to appoint an alternate
director.
(3) The company shall
not be liable to pay additional remuneration by reason of the appointment of an
alternate director. The articles
may provide that the alternate director shall
be entitled to receive from the company during the currency of his appointment
the
remuneration to which his appointor, but for such appointment, would have
been entitled and that his appointor shall not be entitled
to such remuneration,
but, in the absence of such provision in the articles the alternate shall not be
entitled to be remunerated
otherwise than by the director appointing
him.
(4) An alternate director who
is himself a director shall have an additional vote for each director for whom
he acts as alternate
at every meeting of the
directors.
(5) The appointment of
an alternate director shall cease at the expiration of the period, if any, for
which he was appointed, or if
his appointor gives written notice to that effect
to the company, or if his appointor ceases for any reason to be a director, or
if the alternate resigns by notice in writing to the
company.
(6) Until cessation of
the appointment of an alternate director both the appointor and appointee shall
be and may act as directors
of the company, but no alternate, unless a director
in his own right, shall attend or vote at any meeting of the directors or any
committee of directors at which his appointor is
present.
198.
Resolution in lieu of meeting
(1)
Except where this Act or the articles expressly require a meeting to be held, a
resolution in writing, signed by or on behalf
of all the directors entitled to
vote on that resolution at a meeting of directors or committee of directors,
shall be as valid as
if it had been passed at a meeting of directors or
committee of directors.
(2) A copy
of every resolution referred to in subsection (1) shall be kept with the minutes
of the proceedings of the directors or
committee of
directors.
199.
Provisions as to undischarged bankrupts acting as
directors
(1) If any person being
in any country an undischarged bankrupt acts as director of, or directly or
indirectly takes part in or is
concerned in the management of, any company
except with the leave of the court, he shall be liable on conviction to
imprisonment
for a term not exceeding 2 years or to a fine not exceeding VT
500,000 or to both such imprisonment and
fine.
(2) The leave of the court
for the purposes of this section shall not be given unless notice of intention
to apply therefor has been
served on the Minister, and the Minister may, if he
is of opinion that it is contrary to the public interest that any such
application
should be granted, attend on the hearing of and oppose the granting
of the application.
(3) In this
section the expression "company" includes a company incorporated outside Vanuatu
which has an established place of business
within
Vanuatu.
200.
Power to restrain fraudulent persons from managing
companies
(1) Where
–
(a) a person is convicted of any offence in connection with the promotion, formation or management of a company; or
(b) in the course of winding up a company it appears that a person –
(i) has been guilty of any offence for which he is liable (whether he has been convicted or not) under section 319; or
(ii) has otherwise been guilty, while an officer of the company, of any fraud in relation to the company or of any breach of his duty to the company;
the
court may make an order that that person shall not, without the leave of the
court, be a director of or in any way, whether directly
or indirectly, be
concerned or take part in the management of a company for such period not
exceeding 5 years as may be specified
in the
order.
(2) In subsection (1) the
expression "the court" in relation to the making of an order against any person
by virtue of paragraph (a),
thereof, includes the court before which he is
convicted, as well as the court in its jurisdiction to wind up the company, and
in
relation to the granting of leave means the court in its jurisdiction to wind
up the company as respects which leave is
sought
(3) A person intending to
apply for the making of an order under this section by the court in its
jurisdiction to wind up a company
shall give not less than 10 days' notice of
his intention to the person against whom the order is sought, and on the hearing
of the
application the last-mentioned person may appear and himself give
evidence or call witnesses.
(4) An
application for the making of an order under this section by the court in its
jurisdiction to wind up a company may be made
by the Minister, or by the
liquidator of the company or by any person who is or has been a member or
creditor of the company; and
on the hearing of any application for an order
under this section by the Minister or the liquidator, or of any application for
leave
under this section by a person against whom an order has been made on the
application of the Minister or the liquidator, the Minister
or liquidator shall
appear and call the attention of the court to any matters which seem to him to
be relevant, and may himself give
evidence or call
witnesses.
(5) An order may be
made by virtue of sub-paragraph (ii) of paragraph (b) of subsection (1)
notwithstanding that the person concerned
may be criminally liable in respect of
the matters on the ground of which the order is to be made, and for the purposes
of the said
sub-paragraph (ii) the expression "officer" shall include any person
in accordance with whose directions or instructions the directors
of the company
have been accustomed to act.
(6)
If any person acts in contravention of an order made under this section, he
shall, in respect of each offence, be liable on conviction
to imprisonment for a
term not exceeding 2 years or to a fine not exceeding VT 500,000, or to
both.
201.
Loans to directors
(1) It shall
not be lawful for a company, other than a private exempted company which is not
a subsidiary of a public company, to
make a loan to any person who is its
director or a director of its holding company, or to enter into any guarantee or
provide any
security in connection with a loan made to such a person as
aforesaid by any other
person:
Provided that nothing in
this section shall apply either –
(a) to anything done by a subsidiary, where the director is its holding company; or
(b) subject to subsection (2), to anything done to provide any such person as aforesaid with funds to meet expenditure incurred or to be incurred by him for the purposes of the company or for the purpose of enabling him properly to perform his duties as an officer of the company; or
(c) in the case of a company whose ordinary business includes the lending of money or the giving of guarantees in connection with loans made by other persons, to anything done by the company in the ordinary course of that business.
(2)
Proviso (b) to subsection (1) shall not authorise the making of any loan, or the
entering into any guarantee, or the provision
of any security, except either
–
(a) with the prior approval of the company given at a general meeting at which the purposes of the expenditure and the amount of the loan or the extent of the guarantee or security, as the case may be, are disclosed; or
(b) on condition that, if the approval of the company is not given as aforesaid at or before the next following annual general meeting, the loan shall be repaid or the liability under the guarantee or security shall be discharged, as the case may be, within 6 months from the conclusion of that meeting.
(3)
Where the approval of the company is not given as required by any such
condition, the directors authorising the making of the
loan, or the entering
into the guarantee, or the provision of the security, shall be jointly and
severally liable to indemnify the
company against any loss arising
therefrom.
(4) It shall be lawful
for a private exempted company which is not a subsidiary of a public company to
make a loan to any person who
is its director or a director of its holding
company, or to enter into any guarantee or provide any security in connection
with a
loan made to such person as aforesaid by another person, if
–
(a) the loan or the amount guaranteed or the value of the security provided does not exceed VT 1,000,000; and
(b) particulars of the loan, or the guarantee or the security, as the case may be, have been disclosed to the members of the company and the members have by special resolution approved the making of the loan, or the entering into the guarantee or the provision of the security, as the case may be; and
(c) the company is able to pay its debts in full as and when they become due out of its own monies.
(5)
Any director authorising a loan, or authorising the giving of a guarantee or
authorising the provision of a security in breach
of subsection (4) shall be
guilty of an offence and liable on conviction to imprisonment for a term not
exceeding 6 months or to
a fine not exceeding VT 100,000, or to both; and such a
director shall in addition be liable to indemnify the company against any
loss
arising
therefrom.
202.
Approval of company requisite for payment by it to director for loss of office,
etc.
It shall not be lawful for a
company to make to any director of the company any payment by way of
compensation for loss of office,
or as consideration for or in connection with
his retirement from office, without particulars with respect to the proposed
payment
(including the amount thereof) being disclosed to members of the company
and the proposal being approved by the
company.
203.
Approval of company requisite for any payment, in connection with transfer of
its property, to director for loss of office,
etc.
(1) It is hereby declared
that it is not lawful in connection with the transfer of the whole or any part
of the undertaking or property
of a company for any payment to be made to any
director of the company by way of compensation for loss of office, or as
consideration
for or in connection with his retirement from office, unless
particulars with respect to the proposed payment (including the amount
thereof)
have been disclosed to the members of the company and the proposal approved by
the company.
(2) Where a payment
which is hereby declared to be illegal is made to a director of the company, the
amount received shall be deemed
to have been received by him in trust for the
company.
204.
Duty of director to disclose payment for loss of office, etc., made in
connection with transfer of shares in
company
(1) Where, in connection
with the transfer to any persons of all or any of the shares in a company, being
a transfer resulting from
–
(a) an offer made to the general body of shareholders;
(b) an offer made by or on behalf of some other body corporate with a view to the company becoming its subsidiary or a subsidiary of its holding company;
(c) an offer made by or on behalf of an individual with a view to his obtaining the right to exercise or control the exercise of not less than one third of the voting power at any general meeting of the company; or
(d) any other offer which is conditional on acceptance to a given extent;
a
payment is to be made to a director of the company by way of compensation for
loss of office, or as consideration for or in connection
with his retirement
from office, it shall be the duty of that director to take all reasonable steps
to secure that particulars with
respect to the proposed payment (including the
amount thereof) shall be included in or sent with any notice of the offer made
for
their shares which is given to any
shareholders.
(2) If
–
(a) any such director fails to take reasonable steps as aforesaid; or
(b) any person who has been properly required by any such director to include the said particulars in or send them with any such notice as aforesaid fails so to do;
he
shall be liable to a fine not exceeding VT
5,000.
(3) If
–
(a) the requirements of subsection (1) are not complied with in relation to any such payment as is therein mentioned; or
(b) the making of the proposed payment is not, before the transfer of any shares in pursuance of the offer, approved by a meeting summoned for the purpose of the holders of the shares to which the offer relates and of other holders of shares of the same class as any of the said shares;
any
sum received by the director on account of the payment shall be deemed to have
been received by him in trust for any persons who
have sold their shares as a
result of the offer made, and the expenses incurred by him in distributing that
sum amongst those persons
shall be borne by him and not retained out of that
sum.
(4) Where the shareholders
referred to in paragraph (b) of subsection (3) are not all the members of the
company and no provision
is made by the articles for summoning or regulating
such a meeting as is mentioned in that paragraph, the provisions of this Act
and
of the company's articles relating to general meetings of the company shall, for
that purpose, apply to the meeting either without
modification or with such
modifications as the Minister on the application of any person concerned may
direct for the purpose of
adapting them to the circumstances of the
meeting.
(5) If at a meeting
summoned for the purpose of approving any payment as required by subsection
(3)(b) of this section a quorum is
not present and, after the meeting has been
adjourned to a later date, a quorum is again not present, the payment shall be
deemed
for the purposes of that subsection to have been
approved.
205.
Provisions supplementary to sections 202 to
204
(1) Where in proceedings for
the recovery of any payment as having, by virtue of sections 203(1) and (2) or
of sections 204(1) and
(3), been received by any person in trust it is shown
that –
(a) the payment was made in pursuance of any arrangement entered into as part of the agreement for the transfer it question, or within 1 year before or 2 years after that agreement or the offer leading thereto; and
(b) the company or any person to whom the transfer was made was privy to that arrangement;
the
payment shall be deemed, except in so far as the contrary is shown, to be one to
which the subsections apply.
(2)
If in connection with any such transfer as is mentioned in either section 203 or
section 204 –
(a) the price to be paid to a director of the company whose office is to be abolished or who is to retire from office for any shares in the company held by him is in excess of the price which could at the time have been obtained by other holders of the like shares; or
(b) any valuable consideration is given to any such director;
the
excess or the money value of the consideration, as the case may be, shall, for
the purposes of that section, be deemed to have
been a payment made to him by
way of compensation for loss of office or as consideration for or in connection
with his retirement
from
office.
(3) It is hereby declared
that references in sections 202, 203 and 204 to payments made to any director of
a company by way of compensation
for loss of office, or as consideration for or
in connection with his retirement from office, do not include any bona fide
payment
by way of damages for breach of contract or by way of pension in respect
of past services, and for the purposes of this subsection
the expression
"pension" includes any superannuation allowance, superannuation gratuity or
similar payment.
(4) Nothing in
sections 203 and 204 shall be taken to prejudice the operation of any rule of
law requiring disclosure to be made with
respect to any such payments as are
therein mentioned or with respect to any other like payments made or to be made
to the directors
of a
company.
206.
Particulars in accounts of loans to officers,
etc.
(1) The accounts which, in
pursuance of this Act, are required to be laid before a company at its annual
general meeting shall, subject
to the provisions of this section, contain
particulars showing –
(a) the amount of any loans made during the company's financial year to –
(i) any officer of the company; or
(ii) any person who, after the making of the loan, became during that year an officer of the company;
by the company or a subsidiary thereof or by any other person under a guarantee from or on a security provided by the company or a subsidiary thereof (including any such loans which were repaid during that year); and
(b) the amount of any loans made in manner aforesaid to any such officer or person as aforesaid at any time before the company's financial year and outstanding at the expiration thereof.
(2)
Subsection (1) shall not require the inclusion in accounts of particulars of
–
(a) a loan made in the ordinary course of its business by the company or a subsidiary thereof, where the ordinary business of the company or, as the case may be, the subsidiary, includes the lending of money; or
(b) a loan made by the company or a subsidiary thereof to an employee of the company or subsidiary, as the case may be, if the loan does not exceed VT 500,000 and is certified by the directors of the company or subsidiary, as the case may be, to have been made in accordance with any practice adopted or about to be adopted by the company or subsidiary with respect to loans to its employees;
not
being, in either case, a loan made by the company under a guarantee from or on a
security provided by a subsidiary thereof or
a loan made by a subsidiary of the
company under a guarantee from or on a security provided by the company or any
other subsidiary
thereof.
(3) If
in the case of any such accounts as aforesaid the requirements of this section
are not complied with, it shall be the duty
of the auditors of the company by
whom the accounts are examined to include in their report on the balance sheet
of the company,
so far as they are reasonably able to do so, a statement giving
the required particulars.
(4)
References in this section to a subsidiary shall be taken as referring to a
subsidiary at the end of the company's financial year
(whether or not a
subsidiary at the date of the
loan).
207.
General duty to make disclosure for purposes of section
206
(1) It shall be the duty of
any director of a company to give notice to the company of such matters relating
to himself as may be
necessary for the purposes of section 206 except so far as
it relates to loans made, by the company or by any other person under
a
guarantee from or on a security provided by the company, to an officer
thereof.
(2) Subsection (1) shall
apply –
(a) in relation to officers other than directors; and
(b) in relation to persons who are or have at any time during the preceding 5 years been officers;
as
it applies in relation to
directors.
(3) Any person who
makes default in complying with the provisions of this section shall be liable
to a fine not exceeding VT
10,000.
208.
Disclosure by directors of interests in
contracts
(1) Subject to the
provisions of this section, it shall be the duty of a director of a company who
is in any way, whether directly
or indirectly, interested in a contract or
proposed contract with the company to declare the nature of his interest at a
meeting
of the directors of the
company.
(2) In the case of a
proposed contract the declaration required by this section to be made by a
director shall be made at the meeting
of the directors at which the question of
entering into the contract is first taken into consideration, or if the director
was not
at the date of that meeting interested in the proposed contract, at the
next meeting of the directors held after he became so interested,
and in a case
where the director becomes interested in a contract after it is made, the said
declaration shall be made at the first
meeting of the directors held after the
director becomes so
interested.
(3) For the purpose of
this section, a general notice given to the directors of a company by a director
to the effect that he is a
member of a specified company or firm and is to be
regarded as interested in any contract which may, after the date of the notice,
be made with that company or firm, shall be deemed to be a sufficient
declaration of interest in relation to any contract so
made:
Provided that no such notice
shall be of effect unless either it is given at a meeting of the directors or
the director takes reasonable
steps to secure that it is brought up and read at
the next meeting of the directors after it is
given.
(4) Any director who fails
to comply with the provisions of this section shall be liable to a fine not
exceeding VT 50,000.
(5) Nothing
in this section shall be taken to prejudice the operation of any rule of law
restricting directors of a company from having
any interest in contracts with
the
company.
209.
Register of directors and
secretaries
(1) Every company
shall keep at its registered office a register of its directors and
secretaries.
(2) The said register
shall contain the following particulars with respect to each director, that is
to say –
(a) in the case of an individual, his present full names, any former names, his usual residential address, his nationality, his business occupation, if any, particulars of any other directorships held by him; and
(b) in the case of a corporation, its corporate name and registered or principal office:
Provided that it shall not be necessary for the register to contain particulars of directorships held by a director in companies of which the company is the wholly-owned subsidiary, or which are the wholly-owned subsidiaries either of the company or of another company of which the company is the wholly-owned subsidiary, and for the purposes of this proviso –
(i) the expression "company" shall include any body corporate incorporated in Vanuatu; and
(ii) a body corporate shall be deemed to be the wholly-owned subsidiary of another if it has no members except that other and that other's wholly-owned subsidiaries and its or their nominees.
(3)
The said register shall contain the following particulars with respect to the
secretary or, where there are joint secretaries,
in respect to each of them,
that is to say –
(a) in the case of an individual, his present full names, any former names and his usual residential address; and
(b) in the case of a corporation, its corporate name and registered or principal office.
(4)
The company shall, within the periods respectively mentioned in subsection (5),
send to the registrar of companies a return in
the prescribed form containing
the particulars specified in the said register and a notification in the
prescribed form of any change
among its directors or in its secretary or in any
of the particulars contained in the register, specifying the date of the
change.
(5) The periods referred
to in subsection (4) are the following, namely –
(a) the period within which the said return is to be sent shall be a period of 14 days from the appointment of the first directors of the company; and
(b) the period within which the said notification of a change is to be sent shall be 14 days from the happening thereof.
(6)
The register to be kept under this section shall during business hours (subject
to such reasonable restrictions as the company
may by its articles or in general
meeting impose, so that not less than 2 hours in each day be allowed for
inspection) be open to
the inspection of any member of the company without
charge and of any other person on payment of VT 100, or such less sum as the
company may prescribe, for each
inspection.
(7) If any inspection
required under this section is refused or if default is made in complying with
subsections (1), (2), (3) or
(4), the company and every officer of the company
who is in default shall be liable to a default
fine.
(8) In the case of any such
refusal, the court may by order compel an immediate inspection of the
register.
(9) For the purposes of
this section a person in accordance with whose directions or instructions the
directors of a company are accustomed
to act shall be deemed to be a director
and officer of the
company.
210.
Provisions as to assignment of office by
directors
If in the case of any
company provision is made by the articles or by any agreement entered into
between any person and the company
for empowering a director or manager of the
company to assign his office as such to another person, any assignment of office
made
in pursuance of the said provision shall, notwithstanding anything to the
contrary contained in the said provision, be of no effect
unless and until it is
approved by a special resolution of the company.
Avoidance of Provisions in Articles or Contracts relieving Officers from Liability
211.
Provisions as to liability of officers and
auditors
Subject as hereinafter
provided, any provision, whether contained in the articles of a company or in
any contract with a company or
otherwise, for exempting any officer of the
company or any person (whether an officer of the company or not) employed by the
company
as auditor from, or indemnifying him against, any liability which by
virtue of any rule of law would otherwise attach to him in respect
of any
negligence, default, breach of duty or breach of trust of which he may be guilty
in relation to the company shall be
void:
Provided that
–
(a) nothing in this section shall operate to deprive any person of any exemption or right to be indemnified in respect of anything done or omitted to be done by him while any such provision was in force; and
(b) notwithstanding anything in this section, a company may, in pursuance of any such provision as aforesaid, indemnify any such officer or auditor against any liability incurred by him in defending any proceedings, whether civil or criminal in which judgment is given in his favour or in which he is acquitted or in connection with any application under section 404 in which relief is granted to him by the court.
Arrangements and Reconstructions
212.
Power to compromise with creditors and
members
(1) Where a compromise or
arrangement is proposed between a company and its creditors or any class of them
or between the company
and its members or any class of them, the court may, on
the application in a summary way of the company or of any creditor or member
of
the company, or, in the case of a company being wound up, of the liquidator,
order a meeting of the creditors or class of creditors,
or of the members of the
company or class of members, as the case may be, to be summoned in such manner
as the court directs.
(2) If a
majority in number representing three fourths in value of the creditors or class
of creditors or members or class of members,
as the case may be, present and
voting either in person or by proxy at the meeting, agree to any compromise or
arrangement, the compromise
or arrangement shall, if sanctioned by the court, be
binding on all the creditors or the class of creditors, or on the members or
class of members, as the case may be, and also on the company or, in the case of
a company in the course of being wound up, on the
liquidator and contributories
of the company.
(3) An order made
under subsection (2) shall have no effect until an office copy of the order has
been delivered to the registrar
of companies for registration, and a copy of
every such order shall be annexed to every copy of the memorandum of the company
issued
after the order has been made, or, in the case of a company not having a
memorandum, of every copy so issued of the instrument constituting
or defining
the constitution of the
company.
(4) If a company makes
default in complying with subsection (3), the company and every officer of the
company who is in default shall
be liable to a fine not exceeding VT 1,000 for
each copy in respect of which default is
made.
(5) In this and the next
following section the expression "company" means any company liable to be wound
up under this Act, and the
expression "arrangement" includes a re-organisation
of the share capital of the company by the consolidation of shares of different
classes or by the division of shares into shares of different classes or by both
those
methods.
213.
Information as to compromises with creditors and
members
(1) Where a meeting of
creditors or any class of creditors or of members or any class of members is
summoned under section 212 there
shall –
(a) with every notice summoning the meeting which is sent to a creditor or member, be sent also a statement explaining the effect of the compromise or arrangement and in particular stating any material interests of the directors of the company, whether as directors or as members or as creditors of the company or otherwise, and the effect thereon of the compromise or arrangement, in so far as it is different from the effect on the like interests of other persons; and
(b) in every notice summoning the meeting which is given by advertisement, be included either such a statement as aforesaid or a notification of the place at which and the manner in which creditors or members entitled to attend the meeting may obtain copies of such a statement as aforesaid.
(2)
Where the compromise or arrangement affects the rights of debenture holders of
the company, the said statement shall give the
like explanation as respects the
trustees of any deed for securing the issue of the debentures as it is required
to give as respects
the company's
directors.
(3) Where a notice
given by advertisement includes a notification that copies of a statement
explaining the effect of the compromise
or arrangement proposed can be obtained
by creditors or members entitled to attend the meeting, every such creditor or
member shall,
on making the application in the manner indicated by the notice,
be furnished by the company free of charge with a copy of the
statement.
(4) Where a company
makes default in complying with any requirement of this section, the company and
every officer of the company
who is in default shall be liable to a fine not
exceeding VT 100,000, and for the purpose of this subsection any liquidator of
the
company and any trustee of a deed for securing the issue of debentures of
the company shall be deemed to be an officer of the
company:
Provided that a person
shall not be liable under this subsection if that person shows that the default
was due to the refusal of any
other person, being a director or trustee for
debenture holders, to supply the necessary particulars as to his
interests.
(5) It shall be the
duty of any director of the company and of any trustee for debenture holders of
the company to give notice to
the company of such matters relating to himself as
may be necessary for the purposes of this section, and any person who makes
default
in complying with this subsection shall be liable to a fine not
exceeding VT
10,000.
214.
Provisions for facilitating reconstruction and amalgamation of
companies
(1) Where an application
is made to the court under section 212 for the sanctioning of a compromise or
arrangement proposed between
a company and any such persons as are mentioned in
that section, and it is shown to the court that the compromise or arrangement
has been proposed for the purposes of or in connection with a scheme for the
reconstruction of any company or companies or the amalgamation
of any two or
more companies, and that under the scheme the whole or any part of the
undertaking or the property of any company concerned
in the scheme (in this
section referred to as "a transferor company") is to be transferred to another
company (in this section referred
to as "the transferee company"), the court
may, either by the order sanctioning the compromise or arrangement or by any
subsequent
order, make provision for all or any of the following matters
–
(a) the transfer to the transferee company of the whole or any part of the undertaking and of the property or liabilities of any transferor company;
(b) the allotting or appropriation by the transferee company of any shares, debentures, policies or other like interests in that company which under the compromise or arrangement are to be allotted or appropriated by that company to or for any person;
(c) the continuation by or against the transferee company of any legal proceedings pending by or against any transferor company;
(d) the dissolution, without winding up, of any transferor company;
(e) the provision to be made for any persons, who within such time and in such manner as the court directs, dissent from the compromise or arrangement;
(f) such incidental, consequential and supplemental matters as are necessary to secure that the reconstruction or amalgamation shall be fully and effectively carried out.
(2)
Where an order under this section provides for the transfer of property or
liabilities, that property shall, by virtue of the
order, be transferred to and
vest in, and those liabilities shall, by virtue of the order, be transferred to
and become the liabilities
of, the transferee company, and in the case of any
property, if the order so directs, freed from any charge which is by virtue of
the compromise or arrangement to cease to have
effect.
(3) Where an order is made
under this section, every company in relation to which the order is made shall
cause an office copy thereof
to be delivered to the registrar of companies for
registration within 7 days after the making of the order, and if default is made
in complying with this subsection, the company and every officer of the company
who is in default shall be liable to a default
fine.
(4) In this section the
expression "property" includes property, rights and powers of every description,
and the expression "liabilities"
includes
duties.
(5) Notwithstanding the
provisions of section 212(5), the expression "company" in this section does not
include any company other
than a company within the meaning of this
Act.
215. Power
to acquire shares of shareholders dissenting from scheme or contract approved by
majority
(1) Where a scheme or
contract involving the transfer of shares or any class of shares in a company
(in this section referred to as
"the transferor company") to another company,
whether a company within the meaning of this Act or not (in this section
referred to
as "the transferee company"), has, within 4 months after the making
of the offer in that behalf by the transferee company, been approved
by the
holders of not less than nine tenths in value of the shares whose transfer is
involved (other than shares already held at
the date of the offer by, or by a
nominee for, the transferee company or its subsidiary), the transferee company
may, at any time
within 2 months after the expiration of the said 4 months, give
notice in the prescribed manner to any dissenting shareholder that
it desires to
acquire his shares, and when such a notice is given the transferee company
shall, unless on an application made by
the dissenting shareholder within 1
month from the date on which the notice was given the court thinks fit to order
otherwise, be
entitled and bound to acquire those shares on the terms on which,
under the scheme or contract, the shares of the approving shareholders
are to be
transferred to the transferee
company:
Provided that where
shares in the transferor company of the same class or classes as the shares
whose transfer is involved are already
held as aforesaid to a value greater than
one tenth of the aggregate of their value and that of the shares (other than
those already
held as aforesaid) whose transfer is involved, the foregoing
provisions of this subsection shall not apply unless –
(a) the transferee company offers the same terms to all holders of the shares (other than those already held as aforesaid) whose transfer is involved, or, where those shares include shares of different classes, of each class of them; and
(b) the holders who approve the scheme or contract, besides holding not less than nine tenths in value of the shares (other than those already held as aforesaid) whose transfer is involved, are not less than three fourths in number of the holders of those shares.
(2)
Where, in pursuance of any such scheme or contract as aforesaid, shares in a
company are transferred to another company or its
nominee, and those shares
together with any other shares in the first-mentioned company held by, or by a
nominee for, the transferee
company or its subsidiary at the date of the
transfer comprise or include nine tenths in value of the shares in the
first-mentioned
company or of any class of those shares, then -
(a) the transferee company shall within one month from the date of the transfer (unless on a previous transfer in pursuance of the scheme or contract it has already complied with this requirement) give notice of that fact in the prescribed manner to the holders of the remaining shares or of the remaining shares of that class, as the case may be, who have not assented to the scheme or contract; and
(b) any such holder may within 3 months from the giving of the notice to him require the transferee company to acquire the shares in question;
and
where a shareholder gives notice under paragraph (b) of this subsection with
respect to any shares, the transferee company shall
be entitled and bound to
acquire those shares on the terms on which under the scheme or contract the
shares of the approving shareholders
were transferred to it, or on such other
terms as may be agreed or as the court on the application of either the
transferee company
or the shareholder thinks fit to
order.
(3) Where a notice has been
given by the transferee company under subsection (1) and the court has not, on
an application made by
the dissenting shareholder, ordered to the contrary, the
transferee company shall, on the expiration of 1 month from the date on
which
the notice has been given, or, if an application to the court by the dissenting
shareholder is then pending, after that application
has been disposed of,
transmit a copy of the notice to the transferor company together with an
instrument of transfer executed on
behalf of the shareholder by any person
appointed by the transferee company and on its own behalf by the transferee
company, and
pay or transfer to the transferor company the amount or other
consideration representing the price payable by the transferee company
for the
shares which by virtue of this section that company is entitled to acquire, and
the transferor company shall thereupon register
the transferee company as the
holder of those shares:
Provided
that an instrument of transfer shall not be required for any share for which a
share warrant is for the time being
outstanding.
(4) Any sums received
by the transferor company under this section shall be paid into a separate bank
account, and any such sums and
any other consideration so received shall be held
by that company on trust for the several persons entitled to the shares in
respect
of which the said sums or other consideration were respectively
received.
(5) In this section the
expression "dissenting shareholder" includes a shareholder who has not assented
to the scheme or contract
and any shareholder who has failed or refused to
transfer his shares to the transferee company in accordance with the scheme or
contract.
(6) In relation to an
offer made by the transferee company to shareholders of the transferor company
before the commencement of this
Act, this section shall have effect
–
(a) with the substitution, in subsection (1), for the words "the shares whose transfer is involved (other than shares already held at the date of the offer by, or by a nominee for, the transferee company or its subsidiary)", of the words "the shares affected" and with the omission of the proviso to that subsection;
(b) with the omission of subsection (2); and
(c) with the omission, in subsection (3), of the words "together with an instrument of transfer executed on behalf of the shareholder by any person appointed by the transferee company and on its own behalf by the transferee company" and of the proviso to that subsection.
Minorities
216.
Alternative remedy to winding-up in cases of
oppression
(1) Any member of a
company who complains that the affairs of the company are being conducted in a
manner oppressive to some part
of the members (including himself) or, in a case
falling within section 174(2), the Minister, may make an application to the
court
by petition for an order under this
section.
(2) If on any such
petition the court is of opinion –
(a) that the company's affairs are being conducted as aforesaid; and
(b) that to wind up the company would unfairly prejudice that part of the members, but otherwise the facts would justify the making of a winding-up order on the ground that it was just and equitable that the company should be wound up;
the
court may, with a view to bringing to an end the matters complained of, make
such order as it thinks fit, whether for regulating
the conduct of the company's
affairs in future, or for the purchase of the shares of any members of the
company by other members
of the company or by the company and, in the case of a
purchase by the company, for the reduction accordingly of the company's capital,
or otherwise.
(3) Where an order
under this section makes any alteration in or addition to any company's
memorandum or articles, then, notwithstanding
anything in any other provision of
this Act but subject to the provisions of the order, the company concerned shall
not have power
without the leave of the court to make any further alteration in
or addition to the memorandum or articles inconsistent with the
provisions of
the order; but, subject to the foregoing provisions of this subsection, the
alterations or additions made by the order
shall be of the same effect as if
duly made by resolution of the company and the provisions of this Act shall
apply to the memorandum
or articles as so altered or added to
accordingly.
(4) An office copy of
any order under this section altering or adding to, or giving leave to alter or
add to, a company's memorandum
or articles shall, within 14 days after the
making thereof, be delivered by the company to the registrar of companies for
registration;
and if a company makes default in complying with this subsection,
the company and every officer of the company who is in default
shall be liable
to a default fine.
(5) In relation
to a petition under this section, section 334 shall apply as it applies in
relation to a winding-up petition.
PART 6 – WINDING-UP
(i) PRELIMINARY
Modes of Winding-up
217.
Modes of winding-up
(1) The
winding up of a company may be either –
(a) by the court; or
(b) voluntary.
(2)
The provisions of this Act with respect to winding up apply, unless the contrary
appears, to the winding up of a company in either
of those modes.
Contributories
218.
Liability as contributories of present and past
members
In the event of a company
being wound up, every present and past member shall be liable to contribute to
the assets of the company
to an amount sufficient for payment of its debts and
liabilities, and the costs, charges and expenses of the winding up, and for
the
adjustment of the rights of the contributories among themselves, subject to the
following qualifications –
(a) a past member shall not be liable to contribute if he has ceased to be a member for one year or upwards before the commencement of the winding-up;
(b) a past member shall not be liable to contribute in respect of any debt or liability of the company contracted after he ceased to be a member;
(c) a past member shall not be liable to contribute unless it appears to the court that the existing members are unable to satisfy the contributions required to be made by them in pursuance of this Act;
(d) in the case of a company limited by shares, no contribution shall be required from any member exceeding the amount, if any, unpaid on the shares in respect of which he is liable as a present or past member:
(e) in the case of a company limited by guarantee, no contribution shall, subject to the provisions of subsection (3), be required from any member exceeding the amount undertaken to be contributed by him to the assets of the company in the event of its being wound up;
(f) nothing in this Act shall invalidate any provision contained in any policy of insurance or other contract whereby the liability of individual members on the policy or contract is restricted, or whereby the funds of the company are alone made liable in respect of the policy or contract;
(g) a sum due to any member of a company, in his character of a member, by way of dividends, profits or otherwise shall not be deemed to be a debt of the company, payable to that member in a case of competition between himself and any other creditor not a member of the company, but any such sum may be taken into account for the purpose of the final adjustment of the rights of the contributories among themselves.
219.
Definition of "contributory"
The
term "contributory" means every person liable to contribute to the assets of a
company in the event of its being wound up, and
for the purposes of all
proceedings for determining, and all proceedings prior to the final
determination of, the persons who are
to be deemed contributories, includes any
person alleged to be a
contributory.
220.
Nature of liability of
contributory
The liability of a
contributory shall create a debt of the nature of a specialty accruing due from
him at the time when his liability
commenced, but payable at the times when
calls are made for enforcing the
liability.
221.
Contribution in case of death of
member
(1) If a contributory dies
either before or after he has been placed on the list of contributories, his
personal representatives shall
be liable in a due course of administration to
contribute to the assets of the company in discharge of his liability and shall
be
contributories accordingly.
(2)
If the personal representatives make default in paying any money ordered to be
paid by them, proceedings may be taken for administering
the estate of the
deceased contributory and for compelling payment thereout of the money
due.
222.
Contributories in case of bankruptcy of
member
If a contributory becomes
bankrupt, either before or after he has been placed on the list of
contributories –
(a) his trustee in bankruptcy shall represent him for all the purposes of the winding up, and shall be a contributory accordingly, and may be called on to admit to proof against the estate of the bankrupt, or otherwise to allow to be paid out of his assets in due course of law, any money due from the bankrupt in respect of his liability to contribute to the assets of the company; and
(b) there may be proved against the estate of the bankrupt the estimated value of his liability to future calls as well as calls already made.
(ii) WINDING-UP BY THE COURT
Jurisdiction
223.
Jurisdiction to wind-up companies registered in
Vanuatu
The Supreme Court shall
have jurisdiction to wind up any company registered in Vanuatu.
Cases in which a Company may be Wound up by the Court
224.
Circumstances in which a company may be wound up by the
court
A company may be wound up by
the court if –
(a) the company has by special resolution resolved that the company be wound up by the court;
(b) default is made in delivering the statutory report to the registrar or in holding the statutory meeting;
(c) the company does not commence its business within a year from its incorporation or suspends its business for a whole year;
(d) the number of members is reduced, in the case of a private company, below two, or, in the case of any other company, below seven;
(e) the company is unable to pay its debts;
(f) the court is of opinion that it is just and equitable that the company should be wound up;
(g) the company is in persistent breach of any of its duties or obligations under this Act;
(h) the company has failed, within the specified time provided by this Act –
(i) to appoint a secretary in accordance with section 190; or
(ii) to appoint the minimum number of directors in accordance with section 189; or
(iii) to pay the annual fee to the registrar of companies in accordance with section 392; or
(iv) to have a registered office or to keep the registers, books and other documents, where so required by the provisions of this Act, at its registered office;
(i) the company is being carried on for an unlawful purpose (which expression shall include a purpose lawful in itself but which cannot lawfully be carried out by a registered company).
225.
Definition of inability to pay
debts
A company shall be deemed to
be unable to pay its debts –
(a) if a creditor, by assignment or otherwise to whom the company is indebted in a sum exceeding VT 10,000 then due, has served on the company, by leaving it at the registered office of the company, a demand under his hand requiring the company to pay the sum so due and the company has for weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor; or
(b) if execution or other process issued on a judgement, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; or
(c) if it is proved to the satisfaction of the court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company.
Petition for Winding-up and Effects Thereof
226.
Provisions as to application for winding
up
(1) An application to the court
for the winding up of a company shall be by petition presented, subject to the
provisions of this
section, either by the company or by any creditor or
creditors (including any contingent or prospective creditor or creditors),
contributory
or contributories, or by all or any of those parties, together or
separately:
Provided that
–
(a) a contributory shall not be entitled to press a winding-up petition unless –
(i) either the number of members is reduced in the case of a private company, below two, or, in the case of any other company, below seven; or
(ii) the shares in respect of which he is a contributory, or some of them, either were originally allotted to him or have been held by him, and registered in his name, for at least 6 months during the 18 months before the commencement of the winding up, or have devolved on him through the death of a former holder; and
(b) a winding-up petition shall not, if the ground of the petition is default in delivering the statutory report to the registrar or in holding the statutory meeting, be presented by any person except a shareholder, nor before the expiration of 14 days after the last day on which the meeting ought to have been held; and
(c) the court shall not give a hearing to a winding-up petition presented by a contingent or prospective creditor until such security for costs has been given as the court thinks reasonable and until a prima facie case for winding up has been established to the satisfaction of the court; and
(d) in a case falling within section 174(1) of this Act, a winding-up petition may be presented by the Minister.
(2)
Where a company is being wound up voluntarily, a winding-up petition may be
presented by the official receiver attached to the
court as well as by any other
person authorised in that behalf under the other provisions of this section, but
the court shall not
make a winding-up order on the petition unless it is
satisfied that the voluntary winding up cannot be continued with due regard
to
the interests of the creditors or
contributories.
(3) A winding-up
petition upon any ground provided by paragraphs (g), (h), or (i) of section 224
of this Act, shall be presented by
the registrar of
companies.
227.
Powers of court on hearing
petition
(1) On hearing a
winding-up petition the court may dismiss it, or adjourn the hearing
conditionally or unconditionally, or make any
interim order, or any other order
that it thinks fit, but the court shall not refuse to make a winding-up order on
the ground only
that the assets of the company have been mortgaged to an amount
equal to or in excess of those assets or that the company has no
assets.
(2) Where the petition is
presented by members of the company as contributories on the ground that it is
just and equitable that the
company should be wound up, the court, if it is of
opinion –
(a) that the petitioners are entitled to relief either by winding up the company or by some other means; and
(b) that in the absence of any other remedy it would be just and equitable that the company should be wound up;
shall
make a winding-up order, unless it is also of the opinion both that some other
remedy is available to the petitioners and that
they are acting unreasonably in
seeking to have the company wound up instead of pursuing that other
remedy.
(3) Where the petition is
presented on the ground of default in delivering the statutory report to the
registrar or in holding the
statutory meeting, the court may
–
(a) instead of making a winding-up order, direct that the statutory report shall be delivered or that a meeting shall be held; and
(b) order the costs to be paid by any persons who, in the opinion of the court, are responsible for the default.
228.
Power to stay or restrain proceedings against
company
At any time after the
presentation of a winding-up peti