|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
[Report an error]
[F.A.Q.]
Vanuatu Consolidated Legislation |
Commencement: 27 October 1986
LAWS
OF THE REPUBLIC OF
VANUATU
REVISED
EDITION 1988
CHAPTER 191
COMPANIES
Act 12 of 1986
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary Provisions
1.
Interpretation
PART II
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 III
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 fist 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 IV
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 IV to Companies Incorporated Outside Vanuatu
111. Application of Part
IV to charges created, and property subject to charge acquired, by company
incorporated outside Vanuatu
PART V
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. Annual return to be
made by company having a share
capital
128. Annual return to be made
by company not having a share
capital
129. Time for completion of
annual return
130. Documents to be
annexed to annual return
131.
Certificates to be sent by private company with annual return
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. 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 to be
laid before the company at annual general
meeting
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 Companies 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
189. Directors
Directors and other Officers
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 VI
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
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
323. 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 VII
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 VIII
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 VIII cumulative
PART IX
Companies Incorporated Outside Vanuatu
Provisions as to Establishment of Place of Business in Vanuatu
358. Application of Part
IX
359. Oversea companies to apply for
permit to be registered under Part
IX
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 X
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 XI
Exempted Companies
376. Certain companies may
be registered as exempted
companies
377. Annual return of
compliance with Part XI
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 XII
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 XIII
Provision with respect to Partnerships
390. Prohibition of
associations, etc., with more than twenty members
PART XIV
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
IV of the Act granted to ship-owning
companies
408. Minister may delegate
powers to the registrar
409. Exercise
of Minister's discretion under certain sections not to be questioned in any
court proceedings
410.
Rules
SCHEDULES
SCHEDULE 1 (Section 3) - Application for a permit to form an incorporated company with or without limited liability in Vanuatu
SCHEDULE 2 (Sections 1, 15) - Tables A, B, C and D
SCHEDULE 3 (Sections 38, 130, 163, 164, 178, 179, 183, 377, 382) - Companies not entitled to the full privileges accorded to private companies by this Act
SCHEDULE 4 (Sections 52, 53, 55, 60, 367, 368, 370) - Matters to be specified in prospectus and reports to be set out therein
SCHEDULE 5 (Section 127) - Contents and form of annual return of a company having a share capital
SCHEDULE 6 (Sections 68, 150, 156, 161) - Accounts
SCHEDULE 7 (Sections 26, 392, 393) - Fees
----------------------
CHAPTER 191
COMPANIES
To
enact a consolidated company law.
PART I
PRELIMINARY PROVISIONS
INTERPRETATION
1.
(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, in the case of a company having a share capital, under section 127, and in the case of a company not having a share capital, under section 128;
"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" means, in relation to any body corporate, the period in respect of which any profit and loss account of the body corporate laid before it at its annual general meeting, in compliance with the requirements of section 132 and section 149, is made up, whether that period is a year or not;
"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 IX 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 II
CONSTITUTION AND INCORPORATION OF COMPANIES
INCORPORATION BY REGISTRATION UPON PERMIT OF MINISTER
APPLICATION
FOR PERMIT TO FORM A
COMPANY
2.
(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.
FORM OF
APPLICATION
3.
(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.
POWER
TO OBTAIN FURTHER
PARTICULARS
4.
(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.
REQUIREMENTS
WITH RESPECT TO
MEMORANDUM
5.
(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 them- selves, 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.
SIGNATURE
OF
MEMORANDUM
6.
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.
RESTRICTION
ON ALTERATION OF
MEMORANDUM
7.
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.
ALTERATION
OF AUTHORISED BUSINESS OR
OBJECTS
8.
(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.
OBJECTS
OF EXISTING
COMPANIES
9.
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
PRESCRIBING REGULATIONS FOR
COMPANIES
10.
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.
REGULATIONS
REQUIRED IN CASE OF UNLIMITED COMPANY OR COMPANY LIMITED BY
GUARANTEE
11.
(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.
ADOPTION
AND APPLICATION OF TABLE
A
12.
(1) Articles of association may adopt all or any of the regulations contained in
Table A.
(2) 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.
PRINTING
AND SIGNATURE OF
ARTICLES
13.
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.
ALTERATION
OF ARTICLES BY SPECIAL
RESOLUTION
14.
(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 STATUTORY FORMS OF MEMORANDUM AND
ARTICLES
15.
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
POWERS OF MINISTER ON
APPLICATION
16.
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.
ENDORSEMENT
OF PERMIT ON ORIGINAL
MEMORANDUM
17.
(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.
FILING
OF
MEMORANDUM
18.
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.
DUTIES
OF REGISTRAR BEFORE ACCEPTING
MEMORANDUM
19.
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.
CERTIFICATE
OF INCORPORATION, EFFECT OF
REGISTRATION
20.
(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.
CONCLUSIVENESS
OF CERTIFICATE OF
INCORPORATION
21.
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 a lid duly registered under this Act.
RE-REGISTRATION OF COMPANIES
LIMITED
COMPANIES MAY APPLY FOR PERMIT TO BE RE-REGISTERED AS
UNLIMITED
22.
(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.
UNLIMITED
COMPANIES MAY APPLY FOR PERMIT TO BE RE-REGISTERED AS
LIMITED
23.
(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.
PENALTY
FOR FALSE
STATEMENT
24.
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
VT200,000 or to a term
of imprisonment not exceeding 12 months or to
both.
PENALTY
FOR FALSIFICATION OF MEMORANDUM OR OTHER
DOCUMENT
25.
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 VT200,000 or to a term of imprisonment not
exceeding 12 months or to both.
PROVISIONS WITH RESPECT TO NAMES OF COMPANIES
RESTRICTION
ON NAME OF
COMPANY
26.
(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, re- serve 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.
CHANGE OF
NAME
27.
(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 VT1,000
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.
POWER OF
REGISTRAR TO REQUIRE COMPANY TO ABANDON MISLEADING
NAME
28.
(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 VT1,000
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.
POWER
TO DISPENSE WITH "LIMITED" IN NAME OF CHARITABLE AND OTHER
COMPANIES
29.
(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
EFFECT
OF MEMORANDUM AND
ARTICLES
30.
(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.
PROVISION
AS TO MEMORANDUM AND ARTICLES OF COMPANIES LIMITED BY
GUARANTEE
31.
(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.
ALTERATIONS
IN MEMORANDUM OR ARTICLES INCREASING LIABILITY TO CONTRIBUTE TO SHARE CAPITAL
NOT TO BIND EXISTING MEMBERS WITHOUT
CONSENT
32.
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.
POWER
TO ALTER CONDITIONS IN MEMORANDUM WHICH COULD HAVE BEEN CONTAINED IN
ARTICLES
33.
(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 an