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[F.A.Q.]
Vanuatu Sessional Legislation |
Commencement: 18 May 1993
REPUBLIC OF VANUATU
INTERNATIONAL COMPANIES
ACT
No. 32 of 1992
ARRANGEMENT OF SECTIONS
SECTION
Part 1
Preliminary
1. Interpretation
Part 2
Company formation and constitution
2. Formation
3. Constitution
4. Names
5.
Incorporation
6. Incorporators to be first members
7. Amendment of
constitution
8. Copies of constitution
Part 3
Company powers, restrictions and
liabilities
9. Powers
10. Restrictions on international
companies
11. Validity of acts of company
12. Power of directors to bind
company
13. No duty to enquire as to capacity of company or authority of
directors
14. Change of status
Part 4
Capital and dividends
15. Nature of shares
16. Types of shares
17.
Alterations of capital
18. Fractional shares
19. Rights of holders of
classes of shares
20. Allotment of shares
21. Consideration for
shares
22. Issue and effect of bearer shares
23. Issue and effect of share
warrants
24. Share certificates
25. Transfer of registered shares
26.
Transfer of bearer shares and share warrants
27. Forfeiture of shares
28.
Seizure
29. Distributions
30. Dividends
31. Acquisition of own
shares
32. Shares disabled in respect of voting and dividends
33. Increase
or reduction of capital
Part 5
Registered Office and agent
34. Registered office
35. Registered agent
Part 6
Directors and officers
36. Management by directors
37. Appointment, term and
removal of directors
38. Number of directors
39. Power of directors
40.
Emoluments of directors
41. Committee of directors
42. Meetings of
directors
43. Notice of meetings of directors
44. Quorum for meetings of
directors
45. Resolutions of directors
46. Alternate directors
47.
Officers and agents
48. Standard of care
49. Reliance on records and
reports
50. Conflict of interests
51. Indemnification
52. Personal
liability
Part 7
Company administration
53. Meetings of members
54. Notice of meetings of
members
55. Quorum for meeting of members
56. Voting by members
57.
Service of notice on members
58. Register of members
59. Particulars in
register in relation to bearer shares
60. Particulars in register in relation
to share warrants
61. Rectification of register of members
62. Service of
documents on company
63. Books and records
64. Seal
65. Inspection of
books and records
66. Execution of contracts
67. Pre-Incorporation
contracts
68. Notes and bills of exchange
69. Appointment of agents
70.
Authentication or attestation
71. Corporate representative at
meetings
Part 8
Registration of Charges
72. Filing of charges
73. Validity of charges in
certain circumstances
74. Register of charges
75. Endorsement of
certificate of registration on debentures
76. Satisfaction and release of
charges
77. Extensions and rectifications
78. Documents made outside
Vanuatu
Part 9
Debentures
79. Power to issue debentures
80. Company to maintain
register of debentures
81. Perpetual debentures
82. Reissue of redeemed
debentures
Part 10
Merger, consolidation, sale of assets
forced redemptions, arrangements and dissenters
83. Interpretation for purposes of Part 9
84. Merger
and consolidation
85. Merger with subsidiary
86. Effect of merger or
consolidation
87. Merger or consolidation with foreign company
88.
Disposition of assets
89. Redemption of minority shares
90.
Arrangements
91. Rights of dissenters
Part 11
Continuation
92. Continuation
93. Certificate of continuation
94.
Effect of continuation
95. Continuation under foreign law
Part 12
Winding up, dissolution and
striking-off
96. Winding-up by expiry of time
97. Members voluntary
winding-up and dissolution
98. Powers of directors in a members voluntary
winding-up and dissolution
99. Duties of liquidator in a members voluntary
winding up
100. Powers of liquidator
101. Procedure on winding-up and
dissolution
102. Rescission of winding-up and dissolution
103. Winding-up
and dissolution of company unable to pay its claims, etc.
104. Winding-up and
dissolution by the court
105. Receivers and managers
106. Striking
off
107. Restoration to register
108. Effect of striking-off
109.
Appointment of official liquidator
110. Dissolution of company struck
off
Part 13
Fees and penalties
111. Fees
112. Annual fees
113. Penalties payable to
registrar
114. Recovery of penalties etc.
115. Company struck off liable
for fees, etc.
116. Fees and penalties to be paid into revenue fund
117.
Fees payable to registrar
Part 14
Exemptions
118. Exemptions from certain taxes, duties and exchange
control restrictions
Part 15
Miscellaneous
119. Registrar of companies and deputies
120.
Documents
121. Prescribed forms
122. Certificate of good standing
123.
Replacement of documents
124. Inspection of documents
125. Secrecy
126.
Jurisdiction
127. Penalty for false statements
128. Production and
inspection of books where offence suspected
129. Declaration by court
130.
Judge in chambers
131. Regulations
132. Minister may vary fees
133.
Commencement
--------------------
Assent:
16/12/92
Commencement:
18/05/93
INTERNATIONAL COMPANIES ACT
NO. 32 OF
1992.
An Act to provide for the incorporation, registration and operation of International Companies.
BE IT ENACTED by the President and Parliament as
follows:
PART 1
PRELIMINARY
INTERPRETATION
1.(1) In this Act unless the context otherwise requires:-
"absolute majority" means more than half of all votes entitled to be cast;
"Certified copy" means a copy of an original document certified as a true copy thereof by such person as the Registrar shall deem acceptable;
"Companies Act" means the Companies Act [Cap. 191];
"company" means an international company incorporated or continued under this Act;
"Company limited by guarantee" means a company having the liability of its members limited by its constitution to such amount as the members undertake to contribute to the assets of the company in the event of it being wound up;
"Company limited by shares" means a company having the liability of its members limited by its constitution to the amount, if any, unpaid on the shares respectively held by them;
"Company limited both by shares and by guarantee" means a company having the liability of its members limited by its constitution:
(a) in the case of members who have given a guarantee, to such amount as they have respectively undertaken to contribute to the assets of the company in the event of it being wound up; and
(b) in the case of members who are shareholders, to the amount, if any, unpaid on the shares respectively held by them.
"court" means the Supreme Court of Vanuatu;
"director" includes any person occupying the position of director of a company by whatever name called and any person held out by the company to be a director;
"distribution" means a direct or indirect transfer of money or other property (except the company's own shares) or incurrence of indebtedness by a company to or for the benefit of a shareholder in respect of any of its shares, and maybe in the form of a declaration or payment of a dividend, a purchase, redemption or other acquisition of shares, a distribution of indebtedness, or otherwise;
"dollars" and "$" means dollars of the currency of the United States of America;
"First Schedule debenture" means the debenture set out in the First Schedule hereto;
"Gazette" means the Official Gazette;
"incorporator" means any person who has signed a constitution as an incorporator pursuant to section 2;
"member" means any person:-
(a) who agrees to become a member of a company and whose name is entered in the Register of Members; or
(b) who from time to time is the holder of any bearer shares in the company; or
(c) who is deemed to be a member pursuant to section 6;
"Minister" means the Minister for the time being responsible for finance;
"model constitution" means a constitution prescribed by the Minister pursuant to Section 3(4);
"person resident in Vanuatu" means a person who ordinarily resides in Vanuatu or carries on business from an office or other fixed place of business within Vanuatu, and includes a company incorporated under this Act or the Companies Act;
"Registered share" means any share issued by an international company standing in the register of members of the company in the name of a member;
"Register" means the Register of International Companies maintained by the Registrar in accordance with section 5(2);
"Registrar" means the Registrar of International Companies or such other person empowered under section 119 of this Act to carry out the duties of the Registrar;
"resolution" in relation to a resolution of directors means -
(a) a resolution approved at a duly constituted meeting of directors or of a committee of directors by affirmative vote of a simple majority, or such larger majority as may be specified in the constitution, of the directors present at the meeting who voted; or
(b) a resolution, notice of which has been given to all directors entitled to receive notice of meetings, which has been consented to in writing by an absolute majority, or such larger majority as may be specified in the constitution, of all the directors or of all members of a committee of directors, as the case may be; and, where a director is given more than one vote in any circumstances, he shall be counted for the purposes of establishing a majority by the number of votes he is entitled to cast;
"resolution" in relation to a resolution of members’ means:-
(a) a resolution approved at a duly constituted meeting of the members by the affirmative vote of a simple majority, or such larger majority as may be specified in the constitution either generally or in respect of certain matters, of the votes of the members present at the meeting and entitled to vote thereon and who voted; or
(b) a resolution, notice of which has been given to all members entitled to receive notice of meetings, which is consented to in writing by an absolute majority or such larger majority as may be specified in the constitution either generally or in respect of certain matters of all the members who are entitled to vote thereon.
"seal", in relation to a company, means the common or corporate seal referred to in section 64;
"securities" includes shares and debt obligations of every kind, and options, warrants and rights to acquire shares or debt obligations;
"simple majority" means more than half of all votes validly cast;
"solvency test" has the meaning attributed to it in subsection (3);
"treasury shares" means shares of a company that were previously issued but were repurchased or otherwise acquired by the company and not cancelled;
"writing" includes printing, typewriting, photography, telex, cable, telefax and any other method of representing or reproducing words on paper or a similar medium.
Words and expressions importing the masculine gender shall include the feminine and vice versa.
Words and expressions in the singular, shall include the plural and vice versa.
(2) Subject to any limitations in the constitution, shares that a company purchases, redeems or otherwise acquires may be cancelled or held as treasury shares.
(3)(a) A company satisfies the solvency test if
(i) it is able to pay its debts as they become due in the normal course of business; and
(ii) the realisable value of the company's assets is greater than the aggregate of the present value of its liabilities, whether contingent or otherwise.
(b) In determining whether a company satisfies the solvency test regard may be had either to financial statements prepared on the basis of accounting practices and principles that are reasonable in the circumstances, or a fair valuation or other method that is reasonable in the circumstances.
(c) In this subsection, "realisable value", in relation to any asset, means the price that would be paid for that asset by a purchaser in an "at arms length" transaction.
PART 2
COMPANY FORMATION AND
CONSTITUTION
FORMATION
2.(1) Subject to the requirements of this Act, one or more persons may for any lawful purpose, by signing a constitution as an incorporator, form an international company under this Act.
(2) Every international company incorporated under this Act shall be:-
(a) a company limited by shares;
(b) a company limited by guarantee; or
(c) a company limited both by shares and by guarantee.
CONSTITUTION
3.(1) The constitution of every company shall state: -
(a) the name of the company;
(b) the address within Vanuatu of the first registered office of the company;
(c) the name and address within Vanuatu of the first registered agent of the company;
(d) the objects or purposes for which the company is to be incorporated;
(e) whether the company is a company limited by shares, a company limited by guarantee or a company limited both by shares and by guarantee;
(f) in the case of a company limited by guarantee, that each member undertakes to contribute to the assets of the company in the event of it being wound up while he is a member or within 3 months, or such longer period as may be specified in the constitution, 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 amongst themselves, such amount as may be required, not exceeding a specified amount.
(g) in the case of a company limited both by shares and by guarantee, that each member giving a guarantee undertakes to contribute to the assets of the company in the event of it being wound up while he is a member or within 3 months, or such longer period as may be specified in the constitution, 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 amongst themselves, such amount as may be required, not exceeding a specified amount.
(2) For the purposes of subsections (1)(d), the constitution may contain a statement either alone or with other objects or purposes that the objects or purposes of the company are unrestricted.
(3) The constitution may name the first directors of the company.
(4) The Minister shall, by Order, prescribe model constitutions for each of the types of company specified in section 2(2).
(5) The constitution of every company shall prescribe regulations for the company and the company may in its constitution adopt all or any of the regulations contained in the model constitution appropriate for its type.
(6) In so far as the constitution does not exclude or modify them, the regulations contained in the model constitution appropriate for its type 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 its duly registered constitution.
(7) The constitution of every company shall be:-
(a) printed
(b) divided into paragraphs numbered consecutively; and
(c) signed by each incorporator.
(8) Subject to the provisions of this Act, the constitution, when registered, shall bind the company and its members from time to time to the same extent as if each member had signed his name and affixed his seal thereto and as if there were contained in the constitution, on the part of himself, his heirs, executors and administrators, a covenant to observe the provisions of the constitution.
NAMES
4.(1) Subject to subsection (2), an international company shall have as part of and at the end of its name:-
(a) the word "Corporation" or the abbreviation "Corp";
(b) the word "Incorporated" or the abbreviation "Inc.";
(c) the word "Limited" or the abbreviation "Ltd";
(d) the words "Sendirian Berhad" or the abbreviation "Sdn Bhd";
(e) the words "Société a Responsabilité Limitée" or the abbreviation "SARL";
(f) the words "Besloten Vennootschap" or the abbreviation "B.V."; or
(g) the words "Gesellschaft mit beschrankter Haftung" or the abbreviation "GmbH".
(2) Notwithstanding the provisions of subsection (1), a company may, in lieu of any of the words or abbreviations specified therein, have as part of its name any other words or popular abbreviations of those words in any language being any words or abbreviations which a registered agent can satisfy the Registrar connotes the existence of a body corporate as distinct from any other person or entity and such words or abbreviation may appear at the beginning, the end or elsewhere in the name of the company in accordance with common practice.
(3) No company shall have a name that:-
(a) is identical with the name of a company registered under this Act or the Companies Act or under which a company has at any time in the previous 20 years been so registered or so nearly resembles such name as to be in the opinion of the Registrar calculated or likely to deceive or mislead;
(b) contains any word or expression that, in the opinion of the Registrar, suggests the patronage of or any connection with the Government of Vanuatu, a department thereof, a statutory corporation or board or a local or municipal authority;
(c) is, in the opinion of the Registrar, undesirable; or
(d) contains other than characters or numerals of any language or such other symbols as may be approved by the Registrar.
(4) If the name of a company is to contain other than Romanised characters or Arabic numerals, a certified translation of the name in either the English or French languages shall be provided to the Registrar whose prior approval to the use of the name shall be obtained.
(5) A company may, by resolution and with the written approval of the Registrar, change its name.
(6) Where a company is registered with a name that contravenes subsections (1), (2), (3) or (4) the Registrar may give notice to the, company to change its name and if it fails to do so within 60 days from the date of the notice the Registrar shall change the name of the company to such name as he deems appropriate and he shall publish a notice of the change in the Gazette.
(7) Where the name of a company is changed the Registrar shall enter the new name in the Register in place of the former name and shall issue a certificate of change of name.
(8) The change of name of a company shall take effect from the date of the certificate issued under subsection (6) and shall not affect any rights or obligations of the company or render defective any legal proceedings by or against it, and any legal proceedings that may have been commenced by or against it in its former name may be continued by or against it in its new name.
(9) Subject to the Business Names Act No. 6 of 1990, where a company carries on, business under any name other than its registered name or continues to use its former name after it has been changed, the company and every officer who knowingly permits the use of the former name shall be liable on conviction to a daily default fine of $10.
(10) A change of name of a company shall be deemed not to be an amendment to its constitution;
(11) The Registrar shall, upon a request made by any person, reserve for six months, and any name under which a company could be registered. The Registrar may extend the period for which a name is reserved for further periods of six months.
(12) During a period for which a name is reserved no company, other than the company or intended company for which the name is reserved, shall be registered by that name.
INCORPORATION
5. (1) A person wishing to incorporate a company shall file its constitution with the Registrar.
(2)Where he is satisfied that all the requirements of this Act in respect of incorporation and all matters precedent and incidental thereto have been complied with, the Registrar shall:-
(a) register the constitution in a register to be maintained by him and to be known as the Register of International Companies;
(b) issue a certificate stating that the company is incorporated with limited liability and that the company is entitled to commence business; and
(c) sign the certificate or authenticate it by his official seal.
(3) A company shall, from the date of incorporation shown on the certificate, be a body corporate with perpetual succession being a person distinct from its members.
(4) A certificate of incorporation issued by the Registrar shall be conclusive evidence that the requirements of this Act in respect of incorporation have been complied with and that the company has been incorporated under this Act on and from the date stated in the certificate, under the name contained in its constitution.
INCORPORATORS TO BE FIRST MEMBERS
6. Each incorporator shall, from the date of
incorporation, be deemed to be a member of the company equally with any other
incorporator
until the allotment of any shares in the company at which time,
unless shares are allotted to him, he shall cease to be a member.
AMENDMENT OF CONSTITUTION
7.(1) Subject to any limitations therein, a company may amend its constitution by a resolution of members or, where permitted by its constitution, by a resolution of directors
(2) (a) A company that amends its constitution shall within 14 days of the date of the resolution being passed file with the Registrar a certified copy of the resolution amending the constitution;
(b) The copy of the resolution filed in accordance with this subsection shall be certified by –
(i) the lawyer engaged in advising the company, or
(ii) the registered agent of the company.
(3) An amendment to a constitution shall have effect from the time the amendment is passed.
(4) A company that contravenes subsection (2) shall be liable on conviction to a daily default fine of $50.
(5) A director who knowingly permits the contravention of subsection (2) shall be liable on conviction to a daily default fine of $50.
COPIES OF CONSTITUTION
8.(1) A company shall, when requested by any member, send or provide to him a copy of its constitution being in accordance with any amendments thereto subject to payment of such amount not exceeding $50 as the directors may determine to be reasonably necessary to defray the costs of preparing and furnishing it.
(2) Where an amendment is made to a company's constitution, every copy of the constitution issued after the date of the amendment shall be in accordance with the amendment.
(3) A company that contravenes this section shall be liable on conviction to a fine of $500.
(4) A director of a company who knowingly permits the contravention of this section shall be liable on conviction to a fine of $500.
PART 3
COMPANY POWERS,
RESTRICTIONS AND LIABILITIES
9.(1) Subject to any limitations in its constitution or this Act, a company shall, irrespective, of corporate benefit, have the capacity, rights, powers and privileges of a natural person who is sui juris including but not limited to the powers to:-
(a) guarantee a liability or obligation of any person and to secure any of its obligations by mortgage, pledge or other charge of or over any of its assets for that purpose;
(b) protect the assets of the company for the benefit of the company, its creditors and its members and, at the discretion of the directors, for any, person having a direct or indirect interest in the company; and
(c) make gifts of any of the property of the company, provided that it will, after making any such gift, satisfy the solvency test.
(2) For the purpose of subsection (1)(b), notwithstanding any other provision of this Act or of any other enactment or rule of law for the time being in force in Vanuatu to the contrary, save the law as to fraudulent preference and the law as to dispositions made with intent to defraud creditors, the directors may cause the company to transfer any of its assets, business or liabilities in trust to one or more trustees and, with respect to such transfer, the directors may provide that the company, its creditors, its members, partners or any person having a direct or indirect interest in the company, or any of them, may be the beneficiaries.
RESTRICTIONS ON INTERNATIONAL COMPANIES
10. (1) An international company shall not:-
(a) carry on the business in Vanuatu;
(b) acquire or own an interest in immovable property situate in Vanuatu other than a lease referred to in subsection (2)(b);
(c) carry on banking business as defined by the Banking Act [Cap. 63];
(d) carry on trust business as defined by the Trust Companies Act [Cap. 69];
(e) carry on insurance business as defined by the Insurance Act [Cap. 82]; or
(f) carry on company management business;
(g) at any time have less than one member;
(h) make any invitation to the public to -
(i) subscribe for any shares or debentures in the company; or
(ii) deposit money with or lend money to the company.
(2) For the purposes of subsection (1) (a) an international company shall not be treated as carrying on business in Vanuatu by reason only that it:-
(a) carries on business with another company incorporated under this Act or in furtherance of the business of the company carried on outside Vanuatu;
(b) leases premises from which to carry on its business as permitted by this Act;
(c) makes or maintains deposits with a person licensed to carry on banking business pursuant to the Banking Act [Cap. 63];
(d) obtains professional services from its registered agent, counsel, attorneys, accountants, bookkeepers, trust companies, management companies, investment advisers, insurance brokers or agents or other similar persons carrying on business within Vanuatu;
(e) prepares or maintains its books and records within Vanuatu;
(f) holds meetings within Vanuatu of its directors or members;
(g) holds shares, debt obligations or other securities in a company incorporated under this Act or under the Companies Act; or
(h) issues shares, debt obligations or other securities to any person resident in Vanuatu or any company incorporated under this Act or under the Companies Act.
(3) A company may be wound up by the court upon a petition presented by the Registrar if it contravenes any of the provisions of subsection (1).
(4) A company that contravenes subsection (1) shall be liable on conviction to a daily default fine of $100.
(5) A director who knowingly permits the contravention of subsection (1) shall be liable on conviction to a daily default fine of $100.
VALIDITY OF ACTS OF COMPANY
11. (1) The validity of an act done by a company shall not be called into question on the ground of lack of capacity by reason of anything in the company's constitution.
(2) A member of a company may bring proceedings to restrain the doing of an act which, but for subsection (1), would be beyond the company's capacity provided that no such proceedings shall lie in respect of an act to be done in fulfilment of a legal obligation arising from a previous act of the company.
POWER OF DIRECTORS TO BIND COMPANY
12. (1) The power of the directors to bind the company, or authorise others to do so, in favour of a person dealing with a company in good faith, shall be deemed to be free of any limitation deriving from -
(a) the company's constitution; or
(b) any resolution of the members or of any class thereof.
(2) For the purposes of this section -
(a) a person deals with a company if he is a party to any transaction or other act to which the company is a party;
(b) a person shall not be regarded as acting in bad faith by reason only of his knowing that an act is beyond the powers of the directors as derived from the company's constitution or any resolution of the members or of any class thereof.
(3) It remains the duty of the directors of a company to observe any limitations on their powers flowing from the company's constitution or from any resolution of members or any class thereof and subsection (1) does not affect -
(a) any right of a member of the company to bring proceedings to restrain the doing of an act which is beyond the powers of the directors provided that no such proceedings shall lie in respect of an act to be done in fulfilment of a legal obligation arising from a previous act of the company; or
(b) any liability incurred by the directors of the company or any other person, by reason of the directors exceeding their powers.
NO DUTY TO ENQUIRE AS TO CAPACITY OF COMPANY OR AUTHORITY OF DIRECTORS
13. (1) A party to a transaction with a company is not bound to enquire as to whether it is permitted by the company's constitution or as to any limitation on the powers of the directors to bind the company or authorise others to do so.
(2) A person having dealings with a company is, subject to subsection (4), entitled to make, in relation to those dealings, the assumptions referred to in subsection (3) and, in any proceedings in relation to those dealings, any assertion by the company that the matters that the person is so entitled to assume were not correct shall be disregarded.
(3) The assumptions that a person is, by virtue of subsection (2), entitled to make in relation to dealings, transactions or acts with a company are -
(a) that, at all relevant times, the constitution of the company have been complied with;
(b) that a person who appears, from the register of directors of the company, to be a director of that company has been duly appointed and has authority to bind the company, and authorise others to do so, free of any limitation under the constitution of the company;
(c) that a person who is held out by the company to be an officer or an agent of the company has been duly appointed and has authority to exercise the powers and perform the duties customarily exercisable or performed by an officer or agent of the kind concerned;
(d) that a document has been duly authorised and executed by the company in accordance with sections 66 and 70, whether or not the common seal of the company has been affixed and without the need to enquire as to whether or not a valid meeting of the relevant officers was, in fact, properly held; and
(e) that the officers of the company properly perform their duties to the company.
(4) Notwithstanding subsection (2), a person is not entitled to make an assumption referred to in subsection (3) in relation to dealings with the company if at the relevant time he had actual knowledge, or suspected, that such assumption was not correct.
CHANGE OF STATUS
14. (1) Every company incorporated (or continued) under this Act may, unless its constitution otherwise provides, change its status from any of the types of companies specified in paragraphs (a) to (c) of section 2(2) to any other type of company specified therein in accordance with this section and such change may be effected notwithstanding that at some earlier time the company has been any other (or the same) type of company as provided under that subsection.
(2) A company may change its status only if all of the following requirements are complied with:
(a) the proposed change is specifically authorised by a special resolution of the members of the company and is given effect to, as provided by subsection (3) within six months from the date of such resolution: and
(b) the directors make a statutory declaration which is lodged with the Registrar that:
(i) the change of status will, in their honest belief, not result in the company thereby being incapable of meeting its obligations to its creditors as they fall due; and
(ii) the company has complied with all the provisions of this Act (including the payment of any fees due to the Registrar); and
(iii) the constitution will be duly amended within three days to reflect the change of status.
(3) The change of status of a company shall take effect upon the day upon which it files a copy of the amended constitution with the Registrar.
(4) Where:
(a) any member of a company did not vote in favour of the members' special resolution to change the status of the company; and
(b) the change of status may have the effect of increasing the liability of that member; -
then except in so far as that change was made in accordance with the rights of that member as were specified in the constitution of the company at the time that person became a member, that member may exercise the rights of a dissenter pursuant to Section 91.
(5) A member who has forfeited his membership interest pursuant to subsection (4) shall receive from the company such amount as may be specified in the articles or as may be agreed or, failing that such amount as may be determined by the Registrar (or a chartered accountant approved by the Registrar, whose costs are to be paid by the company) as representing that members' proportional interest in the realisable net tangible assets of the company save however that any such amount shall be paid only to the extent to which the company would not otherwise be rendered insolvent.
(6) A certificate of change of status, in the form of a certificate of incorporation issued by the Registrar shall be conclusive evidence that all the requirements of this Act with respect to the change of status have been complied with and that the company is henceforth of the type stated in that certificate, being a company validly incorporated pursuant to this Act.
(7) Any change in status of a company pursuant to this section shall not operate to:-
(a) create a new legal entity;
(b) prejudice or affect the identity of the body corporate, or its continuity;
(c) affect the property or rights or obligations of the company; or
(d) render defective any legal proceedings whatsoever.
Part 4
CAPITAL AND DIVIDENDS
NATURE OF SHARES
15. (1) A share is a form of personal property which represents an entitlement in respect of the capital, income or control of a company and confers on the holder all or any of the following rights:
(a) the right to share in the distribution of income of the company;
(b) the right to share in the distribution of the surplus assets of the company upon its liquidation;
(c) the right to vote at meetings of the company;
(d) the right to repayment at a future date of any suns in consideration of which the share was issued;
(e) the right to be paid a return at a specified rate on the sum in consideration of which the share was issued
together with such other rights and privileges and subject to such limitations or conditions as may be provided for in the constitution of the company or upon the issue of the share.
(2) Unless otherwise specified in its constitution or upon the issue of the share, each share has attached to it the following:
(a) the right to one vote at any meeting of the company (other than a meeting of a class of members of which the holder of the share is not a member) which is held to do any one or more of the following:
(i) to appoint or remove a director;
(ii) to approve any alteration to the constitution;
(b) the right to an equal share in dividends authorised by the directors in respect of its class or series,
(c) the right to an equal share in the distribution of the surplus assets of the company.
TYPES OF SHARES
16. (1) Subject to any limitations in its constitution a company shall have the power to issue:-
(a) registered or bearer shares;
(b) shares having special, conditional, enhanced, limited or no voting rights;
(c) shares with or without par value;
(d) numbered or unnumbered shares;
(e) convertible common, ordinary, preferential or redeemable shares;
(f) shares that entitle participation only in certain assets;
(g) shares, the holders of which are entitled to forfeit them;
(h) shares in any one or more currencies;
(i) options, warrants or rights, or instruments of a similar nature, to acquire any securities of the company;
(j) securities that, at the option of the holder thereof or of the company or upon the happening of a specified event, are convertible into, or exchangeable for, other securities in the company or any property then owned or to be owned by the company;
or any combination thereof.
(2) Without limiting subsection (1) shares may carry the right to suspend the voting rights of other shares.
(3) A registered share shall be transferable unless otherwise specified in its constitution or upon the issue of the share.
ALTERATIONS OF CAPITAL
17. Subject to its constitution a company may by
resolution of members or, where permitted by its constitution, by resolution of
its
directors:-
(a) purchase, redeem or otherwise acquire and hold its own shares;
(b) increase or reduce the number of its shares;
(c) exchange registered shares for shares issued to bearer and shares issued to bearer for shares which are registered or are to be registered;
(d) change the currency in which any of its shares are denominated;
(e) change par value shares to no par value and change no par value shares to par value;
(f) increase or decrease the par value of any of its shares;
(g) divide any shares into a larger number of shares of the same class or series or combine any of its shares into a smaller number of shares of the same class or series, provided where shares with par value are divided or combined the aggregate par value of the new shares shall be equal to the aggregate par value of the old shares;
(h) determine the number of classes and series of shares and the number of shares of each such class and series, the par value of shares with par value and the value at which shares with no par value are to be issued; and
(i) determine the designations, powers, preferences, rights, qualifications, limitations or restrictions of each class and series of shares;
or any combination or variation thereof.
FRACTIONAL SHARES
18. Subject to any limitations in its constitution, a
company may issue fractions of a share and unless and to the extent otherwise
provided in the constitution, a fractional share has the corresponding
fractional liabilities, limitations, preferences, privileges,
qualifications,
restrictions, rights and other attributes of a whole share of the same class or
series.
RIGHTS OF HOLDERS OF CLASSES OF SHARES
19. (1) If the share capital of a company is divided into different classes of shares and provision is made in its constitution for authorising the variation or abrogation of the rights attached to any class of shares in the company, and 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 holders of those shares, the rights attached to any class of shares are at any time varied or abrogated in pursuance of the said provisions, the holders of not less in the aggregate than 10 per centum of the issued shares of that class, being persons who did not consent to or vote in favour of the resolution for the variation or abrogation, may apply to the court to have the variation or abrogation cancelled and if any such application is made, the variation or abrogation shall not have effect until confirmed by the court.
(2) An applicant shall be deemed not to have consented to or voted in favour of the resolution for the variation or abrogation if any relevant fact was not disclosed by the company to the member before he so consented or voted.
(3) The application under this section shall be made within 28 days after the date on which consent was given or the resolution was passed or within such further time as the court may allow.
(4) Upon hearing an application under this section, the court shall make an order confirming or setting aside the variation or abrogation on such terms as appear to it to be just.
(5) The issue by a company of:
(a) a First Schedule debenture; or
(b) shares limiting or affecting any rights previously conferred on the holders of any existing shares or class or series of shares,
shall be deemed to be a variation of the rights of any other shares issued by the company to which the holders of those shares may object and the provisions of this section shall apply mutatis mutandis to such deemed variation.
ALLOTMENT OF SHARES
20. Subject to any limitations in its constitution, the
unissued shares and treasury shares of a company shall be at the disposal
of the
directors who may offer, allot, grant options over or otherwise dispose of such
shares to such persons, at such times and
upon such terms as they may, by
resolution, determine.
CONSIDERATION FOR SHARES
21. (1) Each share in a company shall be issued for valuable consideration which, subject to any limitations in its constitution, may include money, services rendered, personal property (including other shares, debt obligations and other securities in the company), an interest in real property, a promissory note or other binding obligation to contribute money or property, or any combination thereof.
(2) Subject to any limitations in its constitution, a company may issue shares for such amount as may be determined from time to time by the directors, except that in the case of shares with par value, the amount shall not be less than the par value and, in the absence of fraud, the decision of the directors as to the value of the consideration received by the company in respect of the issue shall be conclusive, unless a question of law is involved.
(3) A share issued by a company upon conversion of or in exchange for another share or a debt obligation or other security in the company, shall be treated for all purposes as having been issued for money equal to the consideration received or deemed to have been received by the company in respect of the other share, debt obligation or security.
ISSUE AND EFFECT OF BEARER SHARES
22. (1) No bearer share in a company may be issued until the consideration in respect of the share is fully paid.
(2) A share certificate endorsed with the word "Bearer" shall be issued in respect of every bearer share issued.
(3) Subject to any limitations in its constitution or the terms upon which the share is issued, a company shall, at the request of a holder of any bearer share and upon the surrender of the certificate of the bearer share, convert the share to a registered share.
(4) Subject to any limitations in its constitution or the terms upon which the share is issued, a company shall, at the request of a holder of any fully paid up registered share and upon the surrender of the certificate of the registered share, if any, convert the share to a bearer share and the company shall issue a new certificate bearing the same number (if any) as the certificate so surrendered and endorsed with the word "Bearer".
(5) Any bearer share issued by a company may carry coupons or other certificates for the payment of dividends and in respect of any other rights determined in accordance with the constitution, and subject to any limitations in the constitution or in the terms of its issue, such coupons or certificates may be divisible from any other rights attaching to that share.
(6) The conversion of any registered share to a bearer share or vice versa in accordance with subsections (3) or (4) shall not constitute a cancellation of the existing share and the issue of a fresh share.
ISSUE AND EFFECT OF SHARE WARRANTS
23. (1) Subject to any limitations in its constitution or upon the terms which the share is issued, a company shall at the request of a holder of any fully paid up registered or bearer share and upon surrender of the certificate of the registered share, if any, or the bearer share, issue a share warrant which shall, where applicable, bear the same number as any certificate surrendered. A share warrant shall constitute conclusive evidence of the right to the title to the share specified in that share warrant.
(2) Subject to any limitations in its constitution or upon the terms which the share is issued, a company shall at the request of a holder of any share warrant, in exchange for that share warrant, issue a share certificate or share certificates in respect of the shares specified in the share warrant.
(3) The holder of a share warrant issued by a company shall be deemed not to be a member of that company and, subject to subsection (4), shall not be entitled to exercise any of the rights or receive any of the benefits of membership of the company unless and until such time as the share warrant is surrendered.
(4) Any share warrant issued by a company may carry coupons or other certificates for the payment of dividends and, in respect of any other rights determined in accordance with the constitution or the terms of issue of the share warrant, such coupons or certificates may be divisible from any other rights attaching to that share.
(5) The exchange of any share certificate for a share warrant or vice versa in accordance with subsections (1) or (2) shall not constitute a cancellation of the existing share and the issue of a new share.
SHARE CERTIFICATES
24. (1) Subject to any provisions in the constitution of a company, the directors shall resolve whether or not share certificates shall be issued and in respect of which classes of its shares they shall be issued.
(2) A share certificate issued by a company shall be -
(a) signed by at least two directors of the company or, if the company only has one director, by that director; or
(b) under the common seal of the company, with or without the signature of any director of the company;
and the constitution may provide for the signatures or common seal to be facsimiles.
(3) A share certificate issued by a company specifying a share held by a member of that company shall be prima facie evidence of the title of the member to the share specified therein.
TRANSFER OF REGISTERED SHARES
25. (1) Subject to any limitations in the constitution:-
(a) registered shares which are transferable may be transferred by a written instrument of transfer signed by the transferor and containing the name and address of the transferee.
(b) a company shall on the application of the transferor or on receipt from the transferee of a transfer as aforesaid of a registered share in the company enter in its Register of Members the name of the transferee of the share.
(c) In the absence of a written instrument of transfer as aforesaid the directors may accept such evidence of a transfer of shares as they consider appropriate.
(2) A company shall not be required to treat a transferee of a registered share in the company as a member until the transferee's name has been entered in the Register of Members.
(3) A transfer of registered shares of a deceased, or bankrupt member of a company made by his personal representative, guardian or trustee, as the case may be, or a transfer of registered shares owned by a person as a result of a transfer from a member by operation of law, shall be as valid as if the personal representative, guardian, trustee or transferee had been the registered holder of the shares at the time of the execution of the instrument of transfer.
TRANSFER OF BEARER SHARES AND SHARE WARRANTS
26. A share issued to bearer and a share warrant shall be
transferable by delivery of the certificate relating thereto.
FORFEITURE OF SHARES
27. When a holder of a share, being so entitled, forfeits
that share, his liability in respect of the share shall be limited to the
amount
of any calls of amounts, if any, unpaid on those shares where the call is made
within a period of three months after the date
of forfeiture provided that a
forfeiture, or where there have been previous forfeitures, the last forfeiture
shall not be effective
if the forfeiture by itself or in combination with any
other forfeiture results in the reduction of the number of members of the
company to less than one.
SEIZURE
28. (1) Where a governmental authority, whether it is legally constituted or not, in any jurisdiction outside Vanuatu by or in connection with:-
(a) any nationalisation, expropriation, confiscation, coercion, force or duress, or similar action; or
(b) the imposition of any tax, assessment or other governmental charge, takes or seizes any shares or other interest in a company incorporated under this Act,
the company itself or a person holding shares or any other interest in a company, including an interest as a creditor, may apply to the court for an order that the company disregard the taking or seizure and continue to treat the person who would have held shares or any other interest in the company but for the taking or seizure of the shares or other interest as continuing to hold the shares or other interest.
(2) Without affecting subsection (1), where a person whose shares or other interest have been taken or seized as referred to in subsection (1) is other than a natural person, the person making the application under subsection (1) or the company itself, may apply to the court for an additional order for the company to treat the persons believed by the company to have held the direct or indirect beneficial interests in the shares or other interests in the company as the holder of those shares or other interest.
(3) The court may, upon application made to it under subsection (1) or (2) grant such relief as it considers just, equitable and proper and may order that any shares of or other interest in the company vest in the company as trustee or in such other trustees as the court may appoint upon such trusts and for such purposes as the court may determine.
DISTRIBUTIONS
29. (1) Subject to any limitations in its constitution, the directors of a company may by resolution authorise a distribution by the company at such time and of such amount and to such members as they think fit, provided that they are satisfied that the company will, after the distribution, satisfy the solvency test.
(2) In applying the solvency test for the purposes of this section,
(a) "debts" shall include fixed preferential returns on shares ranking ahead of those in respect of which a distribution is made; and
(b) "liabilities" shall include the amount that would be required, if the company was to be wound up immediately after the distribution, to satisfy the fixed entitlements of all members or other persons at that time;
except to the extent where that fixed preferential return or entitlement is by virtue of the constitution or the terms upon which any shares were issued, subject to the power of the directors to make the distribution.
DIVIDENDS
30. (1) Subject to any limitations in its constitution and to Section 29 a company may, by a resolution of directors, declare and pay dividends in money, shares or other property.
(2) Any person entitled to receive a dividend of shares may elect not to receive such shares.
(3) A division of the shares of a class or series into a larger number of shares of the same class or series, having in the case of shares with par value a proportionately smaller par value, shall not constitute a dividend of shares.
ACQUISITION OF OWN SHARES
31. (1) Subject to any limitations in its constitution and to Section 29 a company may purchase, redeem or otherwise acquire and hold its own shares provided that such transaction does not result in the company being the sole member.
(2) Subject to any provision to the contrary in its constitution, a company may provide financial assistance, whether directly or indirectly, and whether by way of loan, guarantee, or otherwise, for the purpose of, or in connection with, the purchase or subscription of its own shares, the shares of any subsidiary or of any holding company.
(3) There shall be no requirement to meet the solvency test where shares are purchased, redeemed or otherwise acquired -
(a) pursuant to a right of a member to have his shares redeemed or to have his shares exchanged for money or other property of the company;
(b) in exchange for newly issued shares in the company;
(c) by virtue of the provisions of section 89; or
(d) pursuant to an order of the court.
(4) Subject to any limitations in the constitution, shares that a company purchases, redeems or otherwise acquires may be cancelled or held as treasury shares.
SHARES DISABLED IN RESPECT OF VOTING AND DIVIDENDS
32. Where shares in a company are held:-
(1) by the company as treasury shares those shares are not entitled to vote or to have dividends paid thereon; and
(2) by another company of which the first company holds, directly or indirectly, shares having more than 50 per cent of the votes in the election of directors of that other company, the shares of the first company held by that other company are not entitled to vote or to have dividends paid thereon and the shares shall not be treated as outstanding for any purpose under this Act except for the purpose of determining the capital of the first company.
INCREASE OR REDUCTION OF CAPITAL
33. (1) Subject to any limitations in the constitution the capital of a company may by resolution of directors, be -
(a) increased; or
(b) reduced by -
(i) returning to members any amount received by the company upon the issue of any of its shares;
(ii) cancelling any capital that is lost or not represented by assets having e realisable value.
(2) A company may if so authorised by its constitution and with the consent of the members affected, convert any amount of the capital of the company to debt obligations owed by the company to the holder of those shares (whether by repayment or by direct conversion to an instrument).
(3) A reduction of capital is a distribution and shall be subject to Section 29.
(4) Any capital reduction transaction effected otherwise than in accordance with the provisions of this section shall be void at the absolute discretion of a liquidator or any creditor of the company.
PART 5
REGISTERED OFFICE AND
AGENT
REGISTERED OFFICE
34. (1) A company shall at all times have a registered office in Vanuatu.
(2) Upon incorporation the address of the registered office set out in the constitution shall be the first registered office of the company.
(3) The directors of a company may by resolution change the address of the registered office of the company, which change shall be notified by the company in writing to the Registrar within 14 days of the change occurring.
(4) A company that wilfully fails to notify the Registrar of the change of address of the registered office of the company shall be liable on conviction to a daily default fine of $25.
(5) A director who knowingly permits the failure to notify the Registrar of the change of registered office address of a company shall be liable on conviction to a daily default fine of $25.
REGISTERED AGENT
35. (1) A company shall at all times have a registered agent in Vanuatu.
(2) Upon incorporation the person named in the constitution as the registered agent shall be the first registered agent of the company.
(3) The directors of a company may by resolution change the registered agent of the company which change shall be notified in writing to the Registrar within 14 days of the change occurring.
(4) Being a registered agent shall not by itself make the registered agent an officer of the company.
PART 6
DIRECTORS AND OFFICERS
MANAGEMENT BY DIRECTORS
36. Subject to any limitations in its constitution, the
business and affairs of a company shall be managed by or under the direction
of
a board of directors that consists of one or more persons who may be natural
persons or bodies corporate.
APPOINTMENT, TERM AND REMOVAL OF DIRECTORS
37. (1) The first directors of a company shall and any subsequent directors may be appointed by the members for such term as the members may determine or where permitted by its constitution, the directors may also appoint directors for such term as they may determine.
(2) A director shall cease to hold office on the expiry of his term or on his death, resignation or removal or, in the case of a corporate director, upon its entering liquidation or upon its ceasing to be a body corporate.
(3) Subject to any limitations in the constitution -
(a) a director shall cease to hold office if the other directors, being not less than the majority thereof, request his resignation in writing;
(b) a director may resign his office by giving written notice of his resignation to the company and the resignation shall have effect from the date the notice is received by the company or from such later date as may be specified in the notice;
(c) if a director shall cease to hold office before the expiry of his term of office the remaining directors may by resolution appoint a new director in his place to complete his term;
(d) a director shall not be required to hold shares in the company;
(e) the members may at any time remove a director from office.
NUMBER OF DIRECTORS
38. The number of directors being not less than one may be
fixed by the constitution or, if not so fixed may be fixed by the
members.
POWER OF DIRECTORS
39. The directors shall have all the powers of the company
that are not reserved to its members in its constitution or under this
Act.
EMOLUMENTS OF DIRECTORS
40. Subject to any limitations in the constitution, the
emoluments of any director in respect of services to be rendered by him as
a
director may be determined by a resolution of directors.
COMMITTEE OF DIRECTORS
41. (1) The directors may, by resolution, designate one or more committees, each consisting of one or more directors.
(2) Subject to any limitations in the constitution, each committee shall have such powers and authority as are set forth in the resolution establishing the committee, except that no committee shall have power or authority to appoint or remove directors.
MEETINGS OF DIRECTORS
42. (1) Subject to any limitations in the constitution, the directors of a company may meet at such times and in such manner and places within or outside Vanuatu as they may determine to be necessary or desirable.
(2) A director shall be deemed to be present at a meeting of directors if -
(a) he participates by telephone or other real time electronic means of audio interactive communication time; and
(b) all directors participating in the meeting are able to hear each other and recognise each other's voice.
NOTICE OF MEETINGS OF DIRECTORS
43. (1) Subject to any requirement in the constitution to give longer notice, each director shall be given not less than 2 days notice of meetings of directors.
(2) Subject to any limitations in the constitution, a meeting of directors held otherwise than in accordance with subsection (1) shall be valid if all the directors, or such majority thereof entitled to vote at the meeting as may be specified in the constitution, have waived the notice of the meeting; and for this purpose, the presence of a director at the meeting shall be deemed to constitute waiver on his part.
(3) The inadvertent failure to give notice of a meeting to a director, or the fact that a director has not received the notice, shall not invalidate the meeting.
QUORUM FOR MEETINGS OF DIRECTORS
44. The quorum for a meeting of directors may be fixed by
the constitution, but where no quorum is so fixed a meeting of directors
shall
be properly constituted for all purposes if at the commencement of the meeting
two directors are present in person or by alternate,
provided that if a company
has only one director that director shall constitute a quorum.
RESOLUTION OF DIRECTORS
45. Where any action is required or permitted to be made
or done by the directors of a company it may be made or done by a resolution
of
directors.
ALTERNATIVE DIRECTORS
46. (1) Subject to any limitations in the constitution, a director may by written instrument appoint an alternate who need not be another director.
(2) An alternate appointed under subsection (1) shall be entitled to attend meetings in the absence of the director who appointed him and to vote and act in his place.
(3) An alternate director shall be responsible as a director for all his acts or omissions when acting in the place of the director who appointed him.
OFFICERS AND AGENTS
47. (1) The directors may, by resolution, appoint any person, including a person who is a director, to be an officer or agent of the company.
(2) Subject to any limitations in the constitution, any officer or agent may be given such powers and authority of the directors, including the power and authority to affix the common seal of the company, as are set forth in the constitution or in the resolution appointing him, except that no officer or agent may be given any power or authority with respect to the matters requiring a resolution of directors under this Act.
(3) The directors may remove an officer or agent appointed under subsection (1) and may revoke or vary a power conferred on him under subsection (2).
STANDARD OF CARE
48. Every director, officer and agent of a company, in
performing his functions, shall act in good faith and in the best interests
of
the company and shall exercise the care, diligence and skill that a reasonably
prudent person would exercise in comparable circumstances.
RELIANCE ON RECORDS AND REPORTS
49. Every director, officer and agent of a company, in
performing his functions, is entitled to rely upon the Register of Members
kept
under section 58, the books of accounts and records and the minutes and copies
of consents to resolutions kept under section
63 and any report made to the
company by any other director, officer, agent or by any person selected by the
company to make the
report.
CONFLICT OF INTERESTS
50. (1) Subject to subsection (2) and to any limitations in the constitution, no agreement or transaction between -
(a) a company; and
(b) one or more of its directors or connected persons , or any person in which any director or liquidator has a financial interest or to whom any director or liquidator is related, including as a director or liquidator of that other person,
shall be void or voidable by reason only that the director or connected person is present at the meeting of directors, or at the meeting of the committee of directors, that approves the agreement or transaction or that the vote or consent of the director or connected person is counted for that purpose.
(2) An agreement or transaction referred to in subsection (1) shall be valid if -
(a) the material facts of the interest of each director or connected person in the agreement or transaction and his interest in or relationship to any other party to the agreement or transaction are disclosed in good faith or are known by the members entitled to vote at a meeting of members; and
(b) the agreement or transaction is approved or ratified by a resolution of members.
(3) Subject to any limitations in the constitution, a director who has an interest in any particular business to be considered at a meeting of directors or members may be counted for purposes of determining whether the meeting is duly constituted in accordance with this Act.
INDEMNIFICATION
51. (1) Subject to subsection (2) and any limitation in its constitution, a company shall indemnify against all expenses, including legal fees, and against all judgements, fines and amounts paid in settlement and reasonably incurred in connection with legal, administrative or investigative proceedings any person who acted honestly and in good faith in the best interests of the company.
(2) In the case of criminal proceedings, the indemnities set out in subsection (1) shall only take effect where the person had no reasonable cause to believe that his conduct was unlawful, and who -
(a) is or was a party or is threatened to be made a party to any threatened, pending or completed proceedings, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director or an officer of the company; or
(b) is or was, at the request of the company, serving as a director or an officer of, or in any other capacity is or was acting for, another company or body corporate or a partnership, joint venture, trust or other enterprise.
PERSONAL LIABILITY
52. (1) The liability of a member of a company is limited to any amount expressly provided for in the constitution, including any amount unpaid on any share held by the member.
(2) Where a share is issued and the constitution or the terms of the issue applying hereto render the member liable to calls, or otherwise imposes a liability on its holder, that liability attaches to the holder of the share for the time being, and not to any prior holder of the share, whether or not the liability became enforceable before the share became the property of the current holder.
(3) Where all or part of the consideration for the issue of a share remains unsatisfied and the person to whom the share was issued no longer holds that share liability in respect of that unsatisfied consideration does not attach to subsequent holders of the share, but remains the liability of the person to whom the share was issued, or any other person who assumed that liability at the time of issue.
(4) Subsection (2) and (3) shall not apply to bearer shares.
(5) A member is not liable for any obligation of the company by virtue only of his status as a member.
(6) Nothing in this section shall affect a member's liability to the company on any contract (including a contract for the issue of shares) or for any tort or breach of fiduciary duty or other actionable wrong committed by him.
(7) Save as may be specified by this Act or by contract,, the members of a company do not owe any duty, liability or obligation to the company, any creditor of the company or any other company related to the company.
(8) Until such time as a company is dissolved pursuant to the provisions of this Act, the company shall continue its corporate existence (without rendering defective any legal or other proceedings instituted against the company or affecting any property, rights, powers, authorities, duties, functions, liabilities or obligations of the company or any other person).
PART 7
COMPANY
ADMINISTRATION
MEETINGS OF MEMBERS
53. (1) Subject to any limitations in the constitution, the directors of a company may convene meetings of the members of the company at such times and in such manner and places within or outside Vanuatu as the directors consider necessary or desirable.
(2) Subject to any provision in the constitution for a lesser percentage, upon the written request of members holding not less than 25 per cent of the votes of the outstanding voting shares in the company, the directors shall convene a meeting of members.
(3) Subject to any limitations in the constitution, a member shall be deemed to be present at a meeting of members if -
(a) he participates by telephone or other real time electronic means of audio interactive communication; and
(b) all members participating in the meeting are able to hear each other and recognise each other's voice.
(4) A member may be represented at a meeting of members by a proxy who may speak and vote on behalf of the member.
(5) Subject to there being no provisions to the contrary in the constitution, the following provisions shall apply in respect of joint ownership of shares:
(a) if 2 or more persons hold shares jointly each of them may be present in person or by proxy at a meeting of members and may each speak as a member;
(b) if only one of them is present in person or by proxy, he may vote on behalf of all of them; and
(c) if 2 or more are present in person or by proxy, the first of them named in the Register of Members in respect of the share shall vote on behalf of all of them.
NOTICE OF MEETINGS OF MEMBERS
54. (1) Subject to a requirement in the constitution to give longer notice, the directors shall give not less than 7 days notice of meetings of members to those persons whose names on the date the notice is given appear as members in the Register of Members and are entitled to vote at the meeting.
(2) Notwithstanding Subsection (1) but subject to any limitations in the constitution, a meeting of members called at shorter notice shall be valid if members, holding not less than a 90 per cent majority or such lesser majority as may be specified in the constitution of -
(a) the total number of the shares of the members entitled to vote on all the matters to be considered at the meeting; or
(b) the votes of each class or series of shares where members are entitled to vote thereon as a class or series,
have waived notice of the meeting and for this purpose, the presence of a member in person or by proxy at the meeting shall be deemed to constitute waiver on his part.
(3) The failure of a member to receive notice of a meeting or the inadvertent failure of the directors to give notice of a meeting to a member, shall not invalidate a meeting or any actions taken at such meeting.
QUORUM FOR MEETING OF MEMBERS
55. Except as otherwise provided in the constitution a
meeting of members shall be properly constituted for all purposes if at the
commencement of the meeting two members are present in person or by proxy,
provided that where a company only has one member that
member shall constitute a
quorum.
VOTING BY MEMBERS
56. (1) Except as otherwise provided in the constitution, all shares vote as one class and each whole share has one vote.
(2) The directors of a company may, in the notice of a meeting, fix any date being on or before the meeting as the record date for determining those shares that are entitled to vote at the meeting and unless, so fixed it shall be 7 days prior to the meeting.
SERVICE OF NOTICE ON MEMBERS
57. (1) Any notice, information or written statement required under this Act to be given to members by a company shall be served in the manner prescribed in its constitution, or in the absence of any such provision -
(a) in the case of members holding registered shares, by personal service or by mail addressed to each member at the address shown in the Register of Members; or
(b) in the case of members holding shares issued to bearer; by notice posted at the principal office of the company in Vanuatu.
(2) Subject to a requirement in the constitution to give a specific length of notice, the directors shall give sufficient notice of meetings of members to members holding shares issued to bearer to allow a reasonable opportunity for them to take action in order to secure or exercise the right or privilege, other than the right or privilege to vote, that is the subject of the notice.
(3) Notwithstanding any other provisions of this Act and subject to the constitution, notice to the person first named in the Register of Members for any share jointly held shall be deemed to be notice to all holders of that share.
REGISTER OF MEMBERS
58. (1) A company shall cause to be kept one or more registers to be known as the Register of Members containing -
(a) the names and addresses of the persons who hold registered ,shares in the company;
(b) the number of each class and series of registered shares held by each person;
(c) the date on which the name of each person was entered in the Register of Members;
(d) the date on which any person ceased to be a member;
(e) in the case of shares issued to bearer, the total number of each class and series of shares issued to bearer;
(f) with respect to each certificate for shares issued:-
(i) the identifying number of the certificate,
(ii) the number of each class or series of shares issued specified therein, and
(iii) the date of issue of the certificate;
provided that the company may delete from the Register of Members information relating to shares issued that have been cancelled.
(2) The Register of Members may be in such form as the directors may approve but if it is magnetic, electronic or other data storage form, the company must be able to produce legible evidence of its contents within a reasonable time when required by the Registrar.
(3) A copy of-the Register of Members, commencing from the date of the incorporation of the company, shall be kept at the registered office of the company.
(4) The Register of Members shall be prima facie evidence of any matters directed or authorised by this Act to be contained therein.
(5) A company that wilfully contravenes this section shall be liable on conviction to a daily default fine of $25.
(6) A director who knowingly permits the contravention of this section shall be liable on conviction to a daily default fine of $25.
PARTICULARS IN REGISTER IN RELATION TO BEARER SHARES
59. (1) Upon the issue of a bearer share or the conversion of a registered share to a bearer share, the company shall -
(a) in the case of a conversion strike out of its register of members and any branch register wherein the share is registered the name of the member entered therein as holding the share in respect of which the bearer share is issued; and
(b) enter in the register of members the following particulars:
(i) the fact of the issue of the bearer share or, the conversion of a registered share; and
(ii) the date of the issue of the bearer share or the conversion of a registered share.
(2) Upon the surrender of a certificate of a bearer share, the date of such surrender shall be entered as if it were the date on which the person ceased to be a member.
PARTICULARS IN REGISTER IN RELATION TO SHARE WARRANTS
60. (1) Upon the issue of a share warrant in respect of any share, the company shall -
(a) in the case of the surrender of a certificate of a registered share, strike out of its register of members and any branch register wherein the share is registered the name of the member entered therein as holding the share in respect of which the share warrant is issued; and
(b) enter in the register of members the following particulars:
(i) the fact of the issue of the share warrant and the surrender of the share certificate;
(ii) the date of the issue of the share warrant.
(2) Upon the surrender of a share warrant, the date of such surrender shall be entered as if it were the date on which the person ceased to be a member.