LAWS OF THE REPUBLIC OF VANUATU
COMPANIES [CAP. 191.
Commencement: 27 October 1986
LAWS OF THE REPUBLIC OF VANUATU
CONSOLIDATED EDITION 2004
Act 12 of 1986
Act 4 of 1990
Act 31 of 1992
Act 27 of 1993
Act 4 of 1997 Act 27 of 2000
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary Provisions
1. Interpretation
PART II
Constitution and Incorporation of Companies
Incorporation by Registration Upon Permit of Minister
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Provisions with respect to Names of Companies LAWS OF THE REPUBLIC OF VANUATU
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Membership of Company
Contracts, etc. LAWS OF THE REPUBLIC OF VANUATU
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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 |
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Annual Return
127. Duty to deliver annual returns
128. | (Repealed) |
129. | (Repealed) |
130. | (Repealed) |
131. | (Repealed) |
Meetings and Proceedings | |
132. | Annual general meeting |
133. | Convening of extraordinary general meeting on requisition |
134. | Length of notice for calling meetings |
135. | General provisions as to meetings and votes |
136. | Power of court to order meeting |
137. | Proxies |
138. | Right to demand a poll |
139. | Voting on a poll |
140. | Representation of corporations at meetings of companies and of creditors |
141. | Circulation of members' resolutions, etc. |
142. | Extraordinary and special resolutions |
143. | Resolutions requiring special notice |
144. | Registration and copies of certain resolutions and agreements |
145. | Resolutions passed at adjourned meetings |
146. | Minutes of proceedings of meetings of company and of directors and managers |
147. | Inspection of minute books |
Accounts and Audit | |
148. | Keeping of books of account |
149. | Financial year |
149A. | Accounting reference periods and accounting reference dates |
149B. | Alteration of accounting reference date |
149C. | Profit and loss account and balance sheet |
150. | General provisions as to contents and form of accounts |
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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 windingup 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 |
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215. Power to acquire shares of shareholders dissenting from scheme or contract approved by majority Minorities
216. Alternative remedy to windingup in cases of oppression
PART VI WindingUp
(i) Preliminary Modes of WindingUp
Contributories
220. | Nature of liability of contributory | |
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221. | Contributories in case of death of member | |
222. | Contributories in case of bankruptcy of member | |
(ii) | Windingup by the Court | |
Jurisdiction | ||
223. | Jurisdiction to windup companies registered in Vanuatu |
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Cases in which a Company may be woundup by the Court
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. |
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260. Power of court to make calls
261. | Payment into bank of moneys due to company | |
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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 WindingUp | |
Resolutions for, and Commencement of, Voluntary WindingUp | ||
274. | Circumstances in which company may be woundup voluntarily | |
275. | Notice of resolution to windup voluntarily | |
276. | Commencement of voluntary windingup |
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Consequences of Voluntary WindingUp
Declaration of Solvency LAWS OF THE REPUBLIC OF VANUATU
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Rules and Fees
338. Rules and fees PART VII Receivers and Managers
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 | |
WindingUp of Unregistered Companies | |
350. | Meaning of unregistered company |
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PART XI Exempted Companies
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 reregistered as exempted |
companies | |
384. | Exempted companies may apply to Minister to be reregistered as local |
companies | |
PART XII | |
French Companies | |
385. | Meaning of "French Company" |
386. | French companies to reregister under this Act |
387. | Effect of reregistration as regards company's constitution |
388. | French companies no longer to be formed in Vanuatu |
389. | French companies which have not been reregistered to be dissolved or woundup |
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. | |
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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 (WindingUp) Rules | |
406. | Application of Companies (WindingUp) Rules |
Miscellaneous | |
407. | Exemption from Part IV of the Act granted to shipowning companies |
408. | Minister may delegate powers |
409. | Exercise of Minister's discretion under certain sections not to be questioned in any |
court proceedings | |
410. | Rules |
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, 378, 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 (Repealed)
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SCHEDULE 6 (Sections 68, 150, 156, 161)Accounts
SCHEDULE 7 (Sections 26, 392, 393)Fees
SCHEDULE 8 (Section 308) – Preferential debts List of Acts referred to in section 308
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 under section 127 or under section 377;
“approved stock exchange” means any body of persons which is for the time being an approved stock exchange for the purposes of the Prevention of Fraud (Investments) Act, Cap 70;
“articles” means the articles of association of a company, as originally framed or as altered by special resolution, including, so far as they apply to the company, the regulations contained (as the case may be) in Table A in the First Schedule to the Companies Act, 1929, or in Table A in the First Schedule to the Companies Act, 1948, or in Table A in the Second Schedule to the Companies Regulation (Q.R. No. 9 of 1971), or in Table A in Schedule 2 to this Act;
“book and paper” and “book or paper” include accounts, deeds, writings and documents;
“branch register” has the meaning assigned to it by section 123(n( �/span>;
“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);
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“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 reregistered as an exempted company under section 376 or section 383, respectively;
“existing company” means a company formed and registered in Vanuatu under the Companies Act, 1929, or the Companies Act, 1948, or the New Hebrides Companies (Incorporation) Regulation, 1970, or the Companies Regulation (Q.R. No. 9 of 1971);
“financial year” has the meaning assigned to it by section 149;
“French company” has the meaning assigned to it by section 385;
“general rules” means general rules made under section 338, and includes forms; “group accounts” has the meaning assigned to it by section 154(n( �/span>;
“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;
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“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(n( �/span>;
“unlimited company” has the meaning assigned to it by section 2(2).
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. LAWS OF THE REPUBLIC OF VANUATU
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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
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.
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(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.
SIGNATURE OF MEMORANDUM
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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.
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OBJECTS OF EXISTING COMPANIES
ARTICLES OF ASSOCIATION
ARTICLES PRESCRIBING REGULATIONS FOR COMPANIES 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 | |||||
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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.
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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 –
ALTERATION OF ARTICLES BY SPECIAL RESOLUTION
14. | (1) | Subject to the provisions of this Act and to the conditions contained in its | |||||||||
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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
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
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(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
(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 woundup 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 and duly registered under this Act.
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REREGISTRATION OF COMPANIES
LIMITED COMPANIES MAY APPLY FOR PERMIT TO BE REREGISTERED 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 reregistered 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).
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UNLIMITED COMPANIES MAY APPLY FOR PERMIT TO BE REREGISTERED 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 reregistered as limited if a special resolution that it should so apply to be reregistered (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
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.
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status to be assumed by the company by virtue of this section; and upon the issue of the certificate
PENALTY FOR FALSE STATEMENT
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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; | ||
(b) contains the words "cooperative" or "building society". | ||
(3) | A person may apply in writing to the registrar for the reservation of a | |
name of a company for the incorporation of which a permit is to be | ||
sought, a name to which a company proposes to change its name or a | ||
name under which an oversea company proposes to apply for a permit to | ||
be registered, either originally or on change of name. | ||
(4) | If the registrar is satisfied as to the bona fides of the application and that | |
the proposed name is a name by which an intended company, company or | ||
oversea company could be registered without contravention of subsection | ||
(1) or subsection (2), he shall, upon payment of the fee prescribed by | ||
Schedule 7, reserve the proposed name for a period of 6 months from the | ||
date of the lodging of the application. | ||
(5) | During a period for which a name is reserved, no company, oversea | |
company, person, firm or society (other than the applicant for reservation | ||
of the name) shall be registered under this Act or any other Act, whether | ||
originally or on change of name, under the reserved name or under any | ||
other name which, in the opinion of the registrar, so closely resembles the | ||
reserved name as to be calculated or likely to be mistaken for that name. | ||
(6) | The reservation of a name under this section in respect of an intended | |
company, company or oversea company shall not in itself entitle the |
intended company, company, or oversea company to be registered by that name, either originally or on change of name.
CHANGE OF NAME
27. (1) A company may by special resolution and with the approval of the registrar signified in writing change its name.
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(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 firstmentioned 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.
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.
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 LAWS OF THE REPUBLIC OF VANUATU
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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 –
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.
GENERAL PROVISIONS WITH RESPECT TO MEMORANDUM AND ARTICLES
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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.
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COPIES OF MEMORANDUM AND ARTICLES TO BE GIVEN TO MEMBERS
ISSUED COPIES OF MEMORANDUM TO EMBODY ALTERATIONS copy of the memorandum issued after the date of the alteration shall be in accordance with the alteration.
(2) If, where any such alteration has been made, the company at any time after the date of the alteration issues any copies of the memorandum which are not in accordance with the alteration, it shall be liable to a fine not exceeding VT1,000, and every officer of the company who is in default shall be liable to the like penalty.
MEMBERSHIP OF COMPANY DEFINITION OF MEMBER
36. (1) The subscribers of the memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration shall be entered as members in its register of members.
(2) Every other person who agrees to become a member of a company, and whose name is entered in its register of members, shall be a member of the company.
MEMBERSHIP OF HOLDING COMPANY
37. (1) Except in the cases hereafter in this section mentioned, a body corporate cannot be a member of a company which is its holding company, and any allotment or transfer of shares in a company to its subsidiary shall be void.
(2) Nothing in this section shall apply where the subsidiary is concerned as personal representative, or where it is concerned as trustee, unless the holding company or a subsidiary thereof is beneficially interested under the trust and is not so interested only by way of \
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security for the purposes of a transaction entered into by it in the ordinary course of a business which includes the lending of money.
PRIVATE COMPANIES MEANING OF "PRIVATE COMPANY"
38. (1) For the purposes of this Act, subject to subsection (3), the expression "private company" means a company which by its articles
CONSEQUENCES OF DEFAULT IN COMPLYING WITH CONDITIONS CONSTITUTING A COMPANY A PRIVATE COMPANY
39 Where the articles of a company include the provisions which, under section 38, are required to be included in the articles of a company in order to constitute it a private company but default is made in complying with any of those provisions, the company shall cease to be entitled to the privileges and exemptions conferred on private companies under the provisions contained in section 42, paragraph (d) of section 224 and paragraph (i) of proviso (a) to subsection (1) of section 226 and
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thereupon the provisions contained in those enactments shall apply to the company as if it were not a private company:
Provided that the court, on being satisfied that the failure to comply with the conditions was accidental or due to inadvertence or to some other sufficient cause, or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any other person interested and on such terms and conditions as seem to the court just and expedient, order that the company be relieved from such consequences as aforesaid.
RESTRICTION ON ALTERATION OF ARTICLES
40. (1) A company, being a private company, may not alter its articles in such manner and for the purpose that the company shall cease to be a private company except in accordance with the provisions of subsection (2).
(2) A company, being a private company, which seeks to alter the provisions of its articles in order that the company shall cease to be a private company shall submit to the Minister details of the alteration and of the reasons therefor together with such further information as the Minister in his discretion may require, for the approval of the Minister and, unless the approval of the Minister thereof is signified in writing, any resolution purporting to alter such provisions shall be null and void.
PASSING OF RESOLUTIONS BY ENTRIES IN MINUTE BOOK ETC.
41. (1) Anything which may be done by a company registered under Part II by resolution, special resolution, or extraordinary resolution passed at a meeting of the company may, subject to any special provisions in that behalf in the articles of the company, be done by a private company in the same manner or by resolution passed, without a meeting or any previous notice being required, by means of an entry in its minute book signed by at least threefourths of the members having the right to vote on that resolution, holding in the aggregate at least threefourths in nominal value of the shares giving that right.
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summoned as provided in subsection (8), appoint the official receiver to be the provisional liquidator of the company; and thereupon the official receiver shall become the provisional liquidator and shall continue to act as such until he or another person becomes liquidator and is capable of acting as such.
REDUCTION OF NUMBER OF MEMBERS BELOW LEGAL MINIMUM
MEMBERS SEVERALLY LIABLE FOR DEBTS WHERE BUSINESS CARRIED ON WITH FEWER THAN SEVEN, OR IN CASE OF PRIVATE COMPANY TWO MEMBERS
42. If at any time the number of members of a company is reduced, in the case of a private company, below two, or, in the case of any other company, below seven, and it carries on business for more than 6 months while the number is so reduced, every person who is a member of the company during the time that it so carries on business after those 6 months and is cognisant of the fact that it is carrying on business with fewer than two members, or seven members, as the case may be, shall be severally liable for the payment of the whole debts of the company contracted during that time, and may be severally sued therefore.
CONTRACTS, ETC.
PREINCORPOPATION CONTRACTS
43. | (1) | Any person who purports to enter into a contract in the name of or on | ||||||||||||||
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behalf of | a | company before it | comes | into existence shall be personally | ||||||||||||
bound | by | the | contract | and | entitled | to | the | benefits | thereof, except | as | ||||||
provided in this section. | ||||||||||||||||
(2) | A company may within a reasonable time after it comes into existence, | |||||||||||||||
expressly, or by any action or conduct signifying its intention to be bound | ||||||||||||||||
thereby, adopt a written contract made |
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before it came into existence in its name or on its behalf, and upon such adoption, subject to subsection (3)
CAPACITY OF COMPANY
Provided that (subject to subsections (2), (3) and (4)) no act of a company and no transfer of property to or by a company shall be invalid by reason only that the act or transfer may contravene or have contravened this subsection.
the court may prohibit by injunction the doing of any act or the conveyance or transfer of any property in breach of subsection (1).
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parties to the contract shall be made parties to the proceedings, and the court may make any order as to compensation or otherwise as it may consider equitable.
(4) Any breach of subsection (1) may be asserted in any proceedings under section 216 or 224 and in any action against a director or other officer of the company for breach of duty or breach of trust.
FORM OF CONTRACTS
46. (1) Contracts on behalf of a company may be made as follows
BILLS OF EXCHANGE AND PROMISSORY NOTES
47. A bill of exchange or promissory note shall be deemed to have been made, accepted or endorsed on behalf of a company if made, accepted or endorsed in the name of, or by or on behalf or on account of, the company by any person acting under its authority.
EXECUTION OF DEEDS ABROAD
48. (1) A company may, by writing under its common seal, empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds on its behalf in any place not situated in Vanuatu.
(2) A deed signed by such an attorney on behalf of the company and under his seal shall bind the company and have the same effect as if it were under its common seal.
POWER FOR A COMPANY TO HAVE OFFICIAL SEAL FOR USE ABROAD
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49. (1) A company whose objects require or comprise the transaction of business in foreign countries may, if authorised by its articles, have for use in any territory, district, or place not situated in Vanuatu, an official seal, which shall be a facsimile of the common seal of the company, with the addition on its face of the name of every territory, district or place where it is to be used.
AUTHENTICATION OF DOCUMENTS
AUTHENTICATION OF DOCUMENTS
50. A document or proceeding requiring authentication by a company may be signed by a director, secretary or other authorised officer of the company, and need not be under its common seal.
PART III
SHARE CAPITAL AND DEBENTURES
PROSPECTUS
PROSPECTUS TO BE APPROVED BY MINISTER
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Provided that this subsection shall not apply if it is shown that the form of application was issued either
If any person acts in contravention of the provisions of this subsection, he shall be liable to a fine not exceeding VT1,000,000.
(4) In the event of noncompliance with or contravention of any of the requirements of this section, a director or other person responsible for the prospectus shall not incur any liability by reason of the noncompliance or contravention, if
Provided that, in the event of failure to include in a prospectus a statement with respect to the matters specified in paragraph 16 of Schedule 4, no director or other person shall incur any liability in respect of the failure unless it be proved that he had knowledge of the matters not disclosed.
(5) This section shall not apply
(a) to the issue to existing members or debenture holders of a company of a prospectus or form of application relating to shares in or debentures of the company, whether an applicant for shares or debentures will or will not have the right to renounce in favour of other persons; or
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(b) to the issue of a prospectus or form of application relating to shares or debentures which are or are to be in all respects uniform with shares or debentures previously issued and for the time being dealt in or quoted on an approved stock exchange;
but, subject as aforesaid, this section shall apply to a prospectus or a form of application whether issued on or with reference to the formation of a company or subsequently.
(6) Nothing in this section shall limit or diminish any liability which any person may incur under the general law or this Act apart from this section.
EXCLUSION OF SECTION 52 AND RELAXATION OF SCHEDULE 4 IN CASE OF CERTAIN PROSPECTUSES
53. (1) Where
there may, on the request of the applicant, be given by or on behalf of that stock exchange a certificate of exemption, that is to say, a certificate that, having regard to the proposals (as stated in the request) as to the size and other circumstances of the issue of shares or debentures and as to any limitations on the number and class of persons to whom the offer is to be made, compliance with the requirements of Schedule 4 would be unduly burdensome.
(2) If a certificate of exemption is given, and if the proposals aforesaid are adhered to and the particulars and information required to be published in connection with the application for permission made to the stock exchange are so published, then
EXPERT'S CONSENT TO ISSUE OF PROSPECTUS CONTAINING STATEMENT BY HIM
54. (1) A prospectus inviting persons to subscribe for shares in or debentures of a company and including a statement purporting to be made by an expert shall not be issued unless
(a) he has given and has not, before delivery of a copy of the prospectus for registration, withdrawn his written consent to the issue thereof with the statement included in the form and context in which it is included; and
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(b) a statement that he has given and has not withdrawn his consent as aforesaid appears in the prospectus.
REGISTRATION OF PROSPECTUS
55. (1) No prospectus shall be issued by or on behalf of a company or in relation to an intended company unless, on or before the date of its publication, there has been delivered to the registrar of companies for registration a copy thereof signed by every person who is named therein as a director or proposed director of the company, or by his agent authorised in writing, and having endorsed thereon or attached thereto
The references in subparagraph (i) of paragraph (b) of this subsection to the copy of a contract required thereby to be endorsed on or attached to a copy of the prospectus shall, in the case of a contract wholly or partly in a foreign language, be taken as references to a copy of a translation of the contract in English or French or a copy embodying a translation into English or French of the parts in a foreign language, as the case may be, being a translation certified in the prescribed manner to be a correct translation, and the reference to a copy of a contract required to be available for inspection shall include a reference to a copy of a translation thereof or a copy embodying a translation of parts thereof.
(2) Every prospectus shall, on the face of it
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CIVIL LIABILITY FOR MISSTATEMENTS IN PROSPECTUS
56. (1) Subject to the provisions of this section, where a prospectus invites persons to subscribe for shares in or debentures of a company, the following persons shall be liable to pay compensation to all persons who subscribe for any shares or debentures on the faith of the prospectus for the loss or damage they may have sustained by reason of any untrue statement included therein, that is to say
Provided that where, under section 54, the consent of a person is required to the issue of a prospectus and he has given that consent, he shall not by reason of his having given it be liable under this subsection as a person who has authorised the issue of the prospectus except in respect of an untrue statement purporting to be made by him as an expert.
(2) No person shall be liable under subsection (1) of this section if he proves
(a) that, having consented to become a director of the company, he withdrew his consent before the issue of the prospectus, and that it was issued without his authority or consent; or
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(d) | that | ||||||||||||||||||||||||||||||||||
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(i) | as | regards | every | untrue | statement | not | purporting | to | be | ||||||||||||||||||||||||||
made on the authority of an expert or of a public official | |||||||||||||||||||||||||||||||||||
document or statement, he had reasonable | |||||||||||||||||||||||||||||||||||
grounds to believe, and did up to the time of the allotment | |||||||||||||||||||||||||||||||||||
of the shares or debentures, | as | the | case | may be, believe, | |||||||||||||||||||||||||||||||
that the statement was true; an | |||||||||||||||||||||||||||||||||||
(ii) | as | regards | every | untrue | statement | purporting | to | be | a | ||||||||||||||||||||||||||
statement by an expert or contained in what purports to be a | |||||||||||||||||||||||||||||||||||
copy of or extract from a report or valuation of an expert, it | |||||||||||||||||||||||||||||||||||
fairly represented the statement, or was a correct and fair | |||||||||||||||||||||||||||||||||||
copy of or extract from the report or valuation, and he had | |||||||||||||||||||||||||||||||||||
reasonable grounds to believe and did up to the time of the | |||||||||||||||||||||||||||||||||||
issue of the prospectus believe that the person making the | |||||||||||||||||||||||||||||||||||
statement | was | competent to make it and that person had | |||||||||||||||||||||||||||||||||
given the consent required by section 54 to the issue of the | |||||||||||||||||||||||||||||||||||
prospectus | and | had | not | withdrawn | that | consent | before | ||||||||||||||||||||||||||||
delivery of a copy of the prospectus for registration or, to | |||||||||||||||||||||||||||||||||||
the | defendant's | knowledge, | before | allotment | thereunder; | ||||||||||||||||||||||||||||||
and |
(iii) as regards every untrue statement purporting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official document, it was a correct and fair representation of the statement or copy of or extract from the document:
Provided that this subsection shall not apply in the case of a person liable, by reason of his having given a consent required of him by the said section 54, as a person who has authorised the issue of the prospectus in respect of an untrue statement purporting to be made by him as an expert.
(3) A person who, apart from this subsection would under subsection (1) be liable, by reason of his having given the consent required of him by section 54, as a person who has authorised the issue of a prospectus in respect of an untrue statement purporting to be made by him as an expert shall not be so liable if he proves
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(c) that he was competent to make the statement and that he had reasonable grounds to believe and did up to the time of the allotment of the shares or debentures, as the case may be, believe that the statement was true.
(4) Where
the directors of the company, except any without whose knowledge or consent the prospectus was issued, and any other person who authorised the issue thereof shall be liable to indemnify the person named as aforesaid or whose consent was required as aforesaid, as the case may be, against all damages, costs and expenses to which he may be made liable by reason of his name having been inserted in the prospectus or of the inclusion therein of a statement purporting to be made by him as an expert, as the case may be, or in defending himself against any action or legal proceeding brought against him in respect thereof:
Provided that a person shall not be deemed for the purposes of this subsection to have authorised the issue of a prospectus by reason only of his having given the consent required by section 54 to the inclusion therein of a statement purporting to be made by him as an expert.
(5) For the purposes of this section
CRIMINAL LIABILITY FOR MISSTATEMENTS IN PROSPECTUS
57. (1) Where a prospectus issued after the commencement of this Act (27 October 1986) includes any untrue statement, any person who authorised the issue of the prospectus shall be liable to imprisonment for a term not exceeding 2 years, or a fine not exceeding VT1,000,000, or both, unless he proves either that the statement was immaterial or that he had reasonable grounds to believe and did, up to the time of the issue of the prospectus, believe that the statement was true. LAWS OF THE REPUBLIC OF VANUATU
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(2) A person shall not be deemed for the purposes of this section to have authorised the issue of a prospectus by reason only of his having given the consent required by section 54 to the inclusion therein of a statement purporting to be made by him as an expert.
DOCUMENT CONTAINING OFFER OF SHARES OR DEBENTURES FOR SALE TO BE DEEMED PROSPECTUS
58. (1) Where a company allots or agrees to allot any shares in or debentures of the company with a view to all or any of those shares or debentures being offered for sale to the public, any document by which the offer for sale to the public is made shall for all purposes be deemed to be a prospectus issued by the company, and all enactments and rules of law as to the contents of prospectuses and to liability in respect of statements in and omissions from prospectuses, or otherwise relating to prospectuses, shall apply and have effect accordingly, as if the shares or debentures had been offered to the public for subscription and as if persons accepting the offer in respect of any shares or debentures were subscribers for those shares or debentures, but without prejudice to the liability, if any, of the persons by whom the offer is made, in respect of misstatements contained in the document or otherwise in respect thereof.
and section 55 as applied by this section shall have effect as though the persons making the offer were persons named in a prospectus as directors of a company.
(4) Where a person making an offer to which this section relates is a company or a firm, it shall be sufficient if the document aforesaid is signed on behalf of the company or firm by two directors of the company or not less than half of the partners, as the case may be, and any such director or partner may sign by his agent authorised in writing.
INTERPRETATION OF PROVISIONS RELATING TO PROSPECTUSES
59. For the purposes of the foregoing provisions of this Part of this Act
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ALLOTMENT
PROHIBITION OF ALLOTMENT UNLESS MINIMUM SUBSCRIPTION RECEIVED
60. (1) No allotment shall be made of any share capital of a company offered to the public for subscription unless the amount stated in the prospectus as the minimum amount which, in the opinion of the directors, must be raised by the issue of share capital in order to provide for the matters specified in paragraph 4 of Schedule 4 has been subscribed, and the sum payable on application for the amount so stated has been paid to and received by the company.
For the purposes of this subsection, a sum shall be deemed to have been paid to and received by the company if a cheque for that sum has been received in good faith by the company and the directors of the company have no reason for suspecting that the cheque will not be paid.
EFFECT OF IRREGULAR ALLOTMENT
61. (1) An allotment made by a company to an applicant in contravention of the provisions of section 60 shall be voidable at the instance of the applicant within one month after the date of the allotment, and not later, and shall be so voidable notwithstanding that the company is in the course of being wound up. LAWS OF THE REPUBLIC OF VANUATU
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(2) If any director of a company knowingly contravenes, or permits or authorises the contravention of, any of the provisions of the said section with respect to allotment, he shall be liable to compensate the company and the allottee, respectively, for any loss, damages or costs which the company or the allottee may have sustained or incurred thereby:
Provided that proceedings to recover any such loss, damages, or costs shall not be commenced after the expiration of 2 years from the date of the allotment.
APPLICATIONS FOR, AND ALLOTMENT OF, SHARES AND DEBENTURES
62. (1) No allotment shall be made of any shares in or debentures of a company in pursuance of a prospectus issued generally and no proceedings shall be taken on applications made in pursuance of a prospectus so issued, until the beginning of the third day after that on which the prospectus is first so issued or such later time (if any) as may be specified in the prospectus.
The beginning of the said third day or such later time as aforesaid is hereafter in this Act referred to as "the time of the opening of the subscription lists".
(a) or (b) of subsection (2) of section 53 applies.
ALLOTMENT OF SHARES AND DEBENTURES TO BE DEALT IN ON STOCK
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63. | (1) | Where a prospectus, whether issued generally or not, states that |
application has been or will be made for permission for the shares or | ||
debentures offered thereby to be dealt in on any stock exchange, any | ||
allotment made on an application in pursuance of the prospectus shall, | ||
whenever made, be void if the permission has not been applied for before | ||
the third day after the first issue of the prospectus or if the permission has | ||
been refused before the expiration of 3 weeks from the date of the closing | ||
of the subscription lists or such longer period not exceeding 6 weeks as | ||
may, within the said 3 weeks, be notified to the applicant for permission | ||
by or on behalf of the stock exchange. | ||
(2) | Where the permission has not been applied for as aforesaid, or has been | |
refused as aforesaid, the company shall forthwith repay without interest all | ||
money received from applicants in pursuance of the prospectus, and, if | ||
any such money is not repaid within 8 days after the company becomes | ||
liable to repay it, the directors of the company shall be jointly and | ||
severally liable to repay that money with interest at the rate of 10 per cent | ||
per annum from the expiration of the eighth day: Provided that a director | ||
shall not be liable if he proves that the default in the repayment of the | ||
money was not due to any misconduct or negligence on his part. | ||
(3) | All money received as aforesaid shall be kept in a separate bank account | |
so long as the company may become liable to repay it under subsection | ||
(2); and, if default is made in complying with this subsection, the company | ||
and every officer of the company who is in default shall be liable to a fine | ||
not exceeding VT500,000. | ||
(4) | Any condition requiring or binding any applicant for shares or debentures | |
to waive compliance with any requirement of this section shall be void. | ||
(5) | For the purposes of this section, permission shall not be deemed to be | |
refused if it is intimated that the application for it, though not at present | ||
granted, will be given further consideration. | ||
(6) | This section shall have effect |
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RETURN AS TO ALLOTMENTS
64. (1) Whenever a company limited by shares makes any allotment of its shares, the company shall within one month thereafter deliver to the registrar of companies for registration
allotted, the extent to which they are to be treated as paid up, and the consideration for which they have been allotted.
Provided that, in case of default in delivering to the registrar of companies within 1 month after the allotment any document required to be delivered by this section, the company, or any officer liable for the default, may apply to the court for relief, and the court, if satisfied that the omission to deliver the document was accidental or due to inadvertance or that it is just and equitable to grant relief, may make an order extending the time for delivery of the document for such period as the court may think proper.
COMMISSIONS AND DISCOUNTS, ETC
POWER TO PAY CERTAIN COMMISSIONS, AND PROHIBITION OF PAYMENT OF ALL OTHER COMMISSIONS, DISCOUNTS, ETC.
65. (1) It shall be lawful for a company to pay a commission to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares in the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company if –
(a) the payment of the commission is authorised by the articles; and
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PROHIBITION OF PROVISION OF FINANCIAL ASSISTANCE BY COMPANY FOR PURCHASE OF OR SUBSCRIPTION FOR ITS OWN, OR ITS HOLDING COMPANY'S, SHARES
66. (1) Subject as provided in this section, it shall not be lawful for a company to give, whether directly or indirectly, and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of or in connection with a purchase or subscription made or to be made by any person of or for any shares in the company, or, where the company is a subsidiary company, in its holding company:
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Provided that nothing in this section shall be taken to prohibit
(2) If a company acts in contravention of this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding VT500,000.
CONSTRUCTION OF REFERENCES TO OFFERING SHARES OR DEBENTURES TO THE PUBLIC
CONSTRUCTION OF REFERENCES TO OFFERING SHARES OR DEBENTURES TO THE PUBLIC
67. (1) Any reference in this Act to offering shares or debentures to the public shall, subject to any provision to the contrary contained therein, be construed as including a reference to offering them to any section of the public, whether selected as members or debenture holders of the company concerned or as clients of the person issuing the prospectus or in any other manner, and references in this Act or in a company's articles to invitations to the public to subscribe for shares or debentures shall, subject as aforesaid, be similarly construed.
(2) Subsection (1) shall not be taken as requiring any offer or invitation to be treated as made to the public if it can properly be regarded, in all the circumstances, as not being calculated to result, directly or indirectly, in the shares or debentures becoming available for subscription or purchase by persons other than those receiving the offer or invitation, or otherwise as being a domestic concern of the persons making and receiving it, and in particular
ISSUE OF SHARES AT PREMIUM AND DISCOUNT AND REDEEMABLE PREFERENCE SHARES
APPLICATION OF PREMIUMS RECEIVED ON ISSUE OF SHARES
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68. (1) Where a company issues shares at a premium, whether for cash or otherwise, a sum equal to the aggregate amount or value of the premiums on those shares shall be transferred to an account, to be called "the share premium account", and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the share premium account were paid up share capital of the company.
(2) The share premium account may, notwithstanding anything in subsection (1), be applied by the company in paying up unissued shares of the
company to be issued to members of the company as fully paid bonus
shares, in writing off –
or in providing for the premium payable on redemption of any redeemable preference shares or of any debentures of the company.
(3) Where a company has before the commencement of this Act (27 October 1986), issued any shares at a premium, this section shall apply as if the shares had been issued on or after that date:
Provided that any part of the premiums which has been so applied that it does not at the commencement of this Act (27 October 1986), form an identifiable part of the company's reserves within the meaning of Schedule 6 shall be disregarded in determining the sum to be included in the share premium account.
PROHIBITION ON ALLOTMENT OF SHARES AT A DISCOUNT
69. (1) It shall not be lawful for a company to allot or issue shares at a discount.
(2) Where shares are allotted in contravention of subsection (1), the allottee shall be liable to pay to the company an amount equal to the discount, together with interest at the rate of 10 per cent per annum, and the directors who were privy to the making of the allotment shall be jointly and severally liable to the company for any loss it sustains.
POWER TO ISSUE REDEEMABLE PREFERENCE SHARES
70. (1) Subject to the provisions of this section, a company limited by shares may, if so authorised by its articles, issue preference shares which are, or at the option of the company are to be liable, to be redeemed:
Provided that
(a) no such shares shall be redeemed except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption;
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company to be issued to members of the company as fully paid bonus
shares.
MISCELLANEOUS PROVISIONS AS TO SHARE CAPITAL
POWER OF COMPANY TO ARRANGE FOR DIFFERENT AMOUNTS BEING PAID ON SHARES
71. A company, if so authorised by its articles, may do any one or more of the following things
(a) make arrangements on the issue of shares for a difference between the shareholders in the amounts and times of payment of calls on their shares;
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POWER OF COMPANY LIMITED BY SHARES TO ALTER ITS SHARE CAPITAL
72. (1) A company limited by shares, if so authorised by its articles, may alter the conditions of its memorandum as follows, that is to say, it may
it was in the case of the share from which the reduced share is
derived;
(e) cancel shares which, at the date of the passing of the resolution in that behalf, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.
NOTICE TO REGISTRAR OF CONSOLIDATION OF SHARE CAPITAL, CONVERSION OF SHARES INTO STOCK, ETC.
73. (1) If a company having a share capital has
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it shall within 1 month after so doing give notice thereof to the registrar of companies specifying, as the case may be, the shares consolidated, divided, converted, subdivided, redeemed or cancelled, or the stock reconverted.
(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.
NOTICE OF INCREASE OF SHARE CAPITAL
74. | (1) | Where a company having a share capital, whether its shares have or have | ||||||||||||||||||||||||||||
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not been converted into stock, has increased its share capital beyond the | ||||||||||||||||||||||||||||||
registered | capital, | it | shall, | within | 15 | days | after | the | passing | of | the | |||||||||||||||||||
resolution | authorising the | increase, give | to | the | registrar | of | companies | |||||||||||||||||||||||
notice of the increase, and the registrar shall record the increase. | ||||||||||||||||||||||||||||||
(2) | The notice to be given as aforesaid shall include such particulars as may | |||||||||||||||||||||||||||||
be | prescribed | with | respect | to | the | classes | of | shares | affected | and | the | |||||||||||||||||||
conditions subject to which the new shares have been or are to be issued, | ||||||||||||||||||||||||||||||
and there shall be forwarded to the registrar of companies together with | ||||||||||||||||||||||||||||||
the notice a printed copy, or a copy in some other form approved by the | ||||||||||||||||||||||||||||||
registrar, of the resolution authorising the increase. | ||||||||||||||||||||||||||||||
(3) | If default is made in complying with this section, the company and every | |||||||||||||||||||||||||||||
officer of the company who is in default shall be liable to a default fine. |
REDUCTION OF SHARE CAPITAL
SPECIAL RESOLUTION FOR REDUCTION OF SHARE CAPITAL
75. (1) Subject to confirmation by the court, a company limited by shares may, if so authorised by its articles, by special resolution reduce its share capital in any way, and in particular, without prejudice to the generality of the foregoing power, may
and may, if and so far as is necessary, alter its memorandum by reducing the amount of its share capital and of its shares accordingly.
(2) A special resolution under this section is in this Act referred to as "a resolution for reducing share capital".
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APPLICATION TO COURT FOR CONFIRMING ORDER, OBJECTIONS BY CREDITORS, AND SETTLEMENT OF LIST OF OBJECTING CREDITORS
76. (1) Where a company has passed a resolution for reducing share capital, it may apply to the court for an order confirming the reduction.
shareholder of any paidup share capital, the court may, if, having regard to any special circumstances of the case, it thinks proper so to do, direct that subsection (2) shall not apply as regards any class or any classes of creditors.
ORDER CONFIRMING REDUCTION AND POWERS OF COURT ON MAKING SUCH ORDER
77. The court, if satisfied, with respect to every creditor of the company who under section 76 is entitled to object to the reduction, that either his consent to the reduction has been obtained or his debt or claim has been discharged or has determined, or has been secured, may make an order confirming the reduction on such terms and conditions as it thinks fit.
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REGISTRATION OF ORDER AND MINUTE OF REDUCTION
78. | (1) | The registrar of companies, on production to him of an order of the court | ||||||||||||||||||||||||
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confirming | the | reduction | of | the | share | capital | of | a | company, | and | the | |||||||||||||||
delivery to him of a copy of the order and of a minute approved by the | ||||||||||||||||||||||||||
court showing, with respect to the share capital of the company as altered | ||||||||||||||||||||||||||
by the order, the amount of the share capital, the number of shares into | ||||||||||||||||||||||||||
which it is to be divided, and the amount of each share, and the amount, if | ||||||||||||||||||||||||||
any, at the date of the registration deemed to be paid up on each share, | ||||||||||||||||||||||||||
shall register the order and minute. | ||||||||||||||||||||||||||
(2) | On the registration of the order and minute, and not before, the resolution | |||||||||||||||||||||||||
for reducing share capital | as | confirmed by the order | so | registered shall | ||||||||||||||||||||||
take effect. | ||||||||||||||||||||||||||
(3) | Notice of the registration shall be published in such manner as the court | |||||||||||||||||||||||||
may direct. | ||||||||||||||||||||||||||
(4) | The registrar shall certify under his hand the registration of the order and | |||||||||||||||||||||||||
minute, | and | his | certificate | shall | be | conclusive | evidence | that | all | the | ||||||||||||||||
requirements of this Act with respect to reduction of share capital have | ||||||||||||||||||||||||||
been complied with, and that the share capital of the company is such as is | ||||||||||||||||||||||||||
stated in the minute. |
LIABILITY OF MEMBERS IN RESPECT OF REDUCED SHARES
79. (1) In the case of a reduction of share capital, a member of the company, past or present, shall not be liable in respect of any share to any call or contribution exceeding in amount the difference, if any, between the amount of the share as fixed by the minute and the amount paid, or the reduced amount, if any, which is to be deemed to have been paid, on the share, as the case may be:
Provided that, if any creditor, entitled in respect of any debt or claim to object to the reduction of share capital, is, by reason of his ignorance of the proceedings for reduction, or of their nature and effect with respect to his claim, not entered on the list of creditors, and, after the reduction, the company is unable, within the meaning of the provisions of this Act with respect to winding up by the court, to pay the amount of his debt or claim, then
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(2) Nothing in this section shall affect the rights of the contributories among themselves.
PENALTY FOR CONCEALING NAME OF CREDITOR, ETC.
80. If any officer of the company
VARIATION OF SHAREHOLDERS, RIGHTS
RIGHTS OF HOLDERS OF SPECIAL CLASSES OF SHARES
81. (1) If, in the case of a company the share capital of which is divided into different classes of shares, provision is made by the memorandum or articles for authorising the variation of the rights attached to any class of shares in the company, subject to the consent of any specified proportion of the holders of the issued shares of that class or the sanction of a resolution passed at a separate meeting of the holders of those shares, and in pursuance of the said provision the rights attached to any such class of shares are at any time varied, the holders of not less in the aggregate than 15 per cent of the issued shares of that class, being persons who did not consent to or vote in favour of the resolution for the variation, may apply to the court to have the variation cancelled, and, where any such application is made, the variation shall not have effect unless and until it is confirmed by the court.
expression "varied" shall be construed accordingly.
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TRANSFER OF SHARES AND DEBENTURES, EVIDENCE OF TITLE, ETC
NUMBERING OF SHARES
82. Each share in a company having a share capital shall be distinguished by its appropriate number:
Provided that, if at any time all the issued shares in a company, or all the issued shares therein of a particular class, are fully paid up and rank pari passu for all purposes, none of those shares need thereafter have a distinguishing number so long as it remains fully paid up and ranks pari passu for all purposes with all shares of the same class for the time being issued and fully paid up.
TRANSFER NOT TO BE REGISTERED EXCEPT ON PRODUCTION OF INSTRUMENT OF TRANSFER
83. Notwithstanding anything in the articles of a company, it shall not be lawful for the company to register a transfer of shares in or debentures of the company unless a proper instrument of transfer has been delivered to the company:
Provided that nothing in this section shall prejudice any power of the company to register as shareholder or debenture holder any person to whom the right to any shares in or debentures of the company has been transmitted by operation of law.
TRANSFER BY PERSONAL REPRESENTATIVE
NOTICE OF REFUSAL TO REGISTER TRANSFER
86. | (1) | If a company refuses to register a transfer of any shares or debentures, the |
company shall, within 2 months after the date on which the transfer was | ||
lodged with the company, send to the transferee notice of the refusal. | ||
(2) | If default is made in complying with this section, the company and every | |
officer of the company who is in default shall be liable to a default fine. |
CERTIFICATION OF TRANSFERS
87. (1) The certification by a company of any instrument of transfer of shares in or debentures of the company shall be taken as a representation by the company to any person acting on the faith of the certification that there have been produced to the company such documents as on the face of them show a prima facie title to the shares or debentures in the transferor named in the
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instrument of transfer, but not as a representation that the transferor has any title to the shares or debentures.
DUTIES OF COMPANY WITH RESPECT TO ISSUE OF CERTIFICATES
88. | (1) | Every company shall, within 2 months after the allotment of any of its |
shares, debentures or debenture stock and within 2 months after the date | ||
on which a transfer of any such shares, debentures or debenture stock is | ||
lodged with the company, complete and have ready for delivery the | ||
certificates of all shares, the debentures and the certificates of all | ||
debenture stock allotted or transferred, unless the conditions of issue of the | ||
shares, debentures or debenture stock otherwise provide. | ||
The expression "transfer" for the purpose of this subsection means a | ||
transfer duly stamped and otherwise valid, and does not include such a | ||
transfer as the company is for any reason entitled to refuse to register and | ||
does not register. | ||
(2) | If default is made in complying with this section, the company and every | |
officer of the company who is in default shall be liable to a default fine. | ||
(3) | If any company on whom a notice has been served requiring the company | |
to make good any default in complying with the provisions of subsection | ||
(1) fails to make good the default within 10 days after the service of the | ||
notice, the court may, on the application of the person entitled to have the | ||
certificates or the debentures delivered to him, make an order directing the | ||
company and any officer of the company to make good the default within | ||
such time as may be specified in the order, and any such order may | ||
provide that all costs of and incidental |
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(4) to the application shall be borne by the company or by any officer of the company responsible for the default.
CERTIFICATE TO BE EVIDENCE OF TITLE
PENALTY FOR PERSONATION OF SHAREHOLDER
92. If any person falsely and deceitfully personates any owner of any share or interest in any company, or of any share warrant or coupon, issued in pursuance of this Act, and thereby obtains or endeavours to obtain any such share or interest or share warrant or coupon, or receives or endeavours to receive any money due to any such owner, as if the offender were the true and lawful owner, he shall on conviction thereof be liable to imprisonment for a term not exceeding 12 months or to a fine not exceeding VT200,000, or to both.
SPECIAL PROVISIONS AS TO DEBENTURES
REGISTER OF DEBENTURE HOLDERS
93. (1) A company which issues or has issued debentures in a series shall maintain a register of the holders thereof.
(2) The provisions of sections 114 to 116 and 118 to 126 shall apply, with the appropriate modifications, to the register of debenture holders.
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RIGHTS OF INSPECTION OF REGISTER OF DEBENTURE HOLDERS AND TO COPIES OF REGISTER AND TRUST DEED
94. (1) Every register of holders of debentures of a company shall, except when duly closed (but subject to such reasonable restrictions as the company may in general meeting impose, so that not less than 2 hours in each day shall be allowed for inspection), be open to the inspection of the registered holder of any such debentures or any holder of shares in the company without fee, and of any other person on payment of a fee of VT100 or such less sum as may be prescribed by the company.
LIABILITY OF TRUSTEES FOR DEBENTURE HOLDERS
95. (1) Subject to the following provisions of this section, any provision contained in a trust deed for securing an issue of debentures, or in any contract with the holders of debentures secured by a trust deed, shall be void in so far as it would have the effect of exempting a trustee thereof from or indemnifying him against liability for breach of trust where he fails to show the
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degree of care and diligence required of him as trustee, having regard to the provisions of the trust deed conferring on him any powers, authorities or discretions.
(2) Subsection (1) shall not invalidate
PERPETUAL DEBENTURES
96. A condition contained in any debentures or in any deed for securing any debentures, whether issued or executed before or after the commencement of this Act (27 October 1986), shall not be invalid by reason only that the debentures are thereby made irredeemable or redeemable only on the happening of a contingency, however remote, or on the expiration of a period, however long, any rule of equity to the contrary notwithstanding.
POWER TO REISSUE REDEEMED DEBENTURES IN CERTAIN CASES
97. | (1) | Where | either | before, | on | or | after | the | commencement | of | this | Act | (27 | ||||||||||||||||||||||||||
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October | 1986), | a | company | has | redeemed | any | debentures | previously | |||||||||||||||||||||||||||||||
issued, then | |||||||||||||||||||||||||||||||||||||||
(a) | unless any provision to the contrary, whether express or implied, is | ||||||||||||||||||||||||||||||||||||||
contained in the articles | or | in any contract | entered into by the | ||||||||||||||||||||||||||||||||||||
company; or | |||||||||||||||||||||||||||||||||||||||
(b) | unless the company has, by passing a resolution to that effect or by | ||||||||||||||||||||||||||||||||||||||
some other act, manifested its intention that the debentures shall be | |||||||||||||||||||||||||||||||||||||||
cancelled; | |||||||||||||||||||||||||||||||||||||||
the company shall have, and shall be deemed always to have had, power to | |||||||||||||||||||||||||||||||||||||||
reissue the debentures, either by reissuing the | same | debentures | or | by | |||||||||||||||||||||||||||||||||||
issuing other debentures in their place. | |||||||||||||||||||||||||||||||||||||||
(2) | Subject | to | the | provisions | of | section | 98, on | a | reissue | of | redeemed | ||||||||||||||||||||||||||||
debentures the person entitled to the debentures shall have, and shall be | |||||||||||||||||||||||||||||||||||||||
deemed always to have had, the same priorities as if the debentures had | |||||||||||||||||||||||||||||||||||||||
never been redeemed. |
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(4) or issue was made before, on or after the commencement of this Act (27 October 1986), shall be treated as the issue of a new debenture for the purposes of stamp duty, but it shall not be so treated for the purposes of any provision limiting the amount or number of debentures to be issued:
Provided that any person lending money on the security of a debenture reissued under this section which appears to be duly stamped may give the debenture in evidence in any proceedings for enforcing his security without payment of the stamp duty or any penalty in respect thereof, unless he had notice or, but for his negligence, might have discovered, that the debenture was not duly stamped, but in any such case the company shall be liable to pay the proper stamp duty and penalty.
SPECIFIC PERFORMANCE OF CONTRACTS TO SUBSCRIBE FOR DEBENTURES
PART IV
REGISTRATION OF CHARGES
REGISTRATION OF CHARGES WITH REGISTRAR OF COMPANIES
REGISTRATION OF CHARGES CREATED BY COMPANIES
100. (1) Subject to the provisions of this Part of this Act, every charge created by a company and being a charge to which this section applies shall, so far as any security on the company's property or undertaking is conferred thereby, be void against the liquidator and any creditor LAWS OF THE REPUBLIC OF VANUATU
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of the company, unless the prescribed particulars of the charge together with the instrument, if any, by which the charge is created or evidenced, are delivered to or received by the registrar of companies for registration in manner required by this Act within 21 days after the date of its creation, but without prejudice to any contract or obligation for repayment of the money thereby secured and when a charge becomes void under this section the money secured thereby shall immediately become payable.
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containing the charge or, if there is no such deed, after the execution of any debentures of the series, the following particulars
together with the deed containing the charge, or, if there is no such deed, one of the debentures of the series:
Provided that, where more than one issue is made of debentures in the series, there shall be sent to the registrar for entry in the register particulars of the date and amount of each issue, but an omission to do this shall not affect the validity of the debentures issued.
(8) Where any commission, allowance or discount has been paid or made either directly or indirectly by a company to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any debentures of the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any such debentures, the particulars required to be sent for registration under this section shall include particulars as to the amount or rate per cent of the commission, discount or allowance so paid or made, but omission to do this shall not affect the validity of the debentures issued:
Provided that the deposit of any debentures as security for any debt of the company shall not, for the purposes of this subsection, be treated as the issue of the debentures at a discount.
CHARGES TO SECURE FLUCTUATING AMOUNTS
101. Where a charge, particulars of which require registration under section 100, is expressed to secure all sums due or to become due or some other uncertain or fluctuating amount, the particulars required under paragraph (a) of subsection (7) of the said section 100 shall state the maximum sum deemed to be secured by such charge, being the maximum capital sum covered by the stamp duty paid by the grantee, and such charge shall be void, so far as any security on the property of the company is thereby conferred, as respects any excess over the stated maximum:
Provided that if –
then, as from the date of such delivery the charge, if otherwise valid, shall be effective to the extent of such increased maximum sum except as regards any person who, prior to the date of such
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delivery, has acquired any proprietary rights in, or a fixed or floating charge on, the property subject to the charge.
DUTY OF COMPANY TO REGISTER CHARGES CREATED BY THE COMPANY
102. (1) It shall be the duty of a company to send to the registrar of companies for registration the particulars of every charge created by the company and of the issues of debentures of a series requiring registration under the said section 100, but registration of any such charge may be effected on the application of any person interested therein.
(2) If any company makes default in sending to the registrar for registration the particulars of any charge created by the company or of the issues of debentures of a series requiring registration as aforesaid, then, unless the registration has been effected on the application of some other person, the company and every officer of the company who is in default shall be liable to a default fine of VT10,000.
DUTY OF COMPANY TO REGISTER CHARGES EXISTING ON PROPERTY ACQUIRED
103. (l) Where a company acquires any property which is subject to a charge of any such kind as would, if it had been created by the company after the acquisition of the property, have been required to be registered under this Part, the company shall cause the prescribed particulars of the charge, together with a copy (certified in the prescribed manner to be a correct copy) of the instrument, if any, by which the charge was created or is evidenced, to be delivered to the registrar of companies for registration in manner required by this Act within 21 days after the date on which the acquisition is completed:
Provided that, if the property is situate and the charge was created outside Vanuatu, 21 days after the date on which the copy of the instrument could in due course of post, and if despatched with due diligence, have been received in Vanuatu shall be substituted for 21 days after the completion of the acquisition as the time within which the particulars and the copy of the instrument are to be delivered to the registrar.
(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine of VT10,000.
REGISTER OF CHARGES TO BE KEPT BY REGISTRAR
104. (1) The registrar shall keep, with respect to each company, a register in the prescribed form of all the charges requiring registration under this Part of this Act, and shall enter in the register with respect to such charges the following particulars
(i) if the charge is a charge created by the company, the date of its creation, and if the charge was a charge existing on property acquired by the company, the date of the acquisition of the property; and
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(ii) the amount secured by the charge; and
(iii) short particulars of the property charged; and
(iv) the persons entitled to the charge.
ENDORSEMENT OF CERTIFICATE OF REGISTRATION ON DEBENTURES
105. (1) The company shall cause a copy of every certificate of registration given under section 104 to be endorsed on every debenture or certificate of debenture stock which is issued by the company and the payment of which is secured by the charge so registered:
Provided that nothing in this subsection shall be construed as requiring a company to cause a certificate of registration of any charge so given to be endorsed on any debenture or certificate of debenture stock issued by the company before the charge was created.
(2) If any person knowingly and wilfully authorises or permits the delivery of any debenture or certificate of debenture stock which under the provisions of this section is required to have endorsed on it a copy of a certificate of registration without the copy being so endorsed upon it, he shall, without prejudice to any other liability, be liable to a fine not exceeding VT20,000.
ENTRIES OF SATISFACTION AND RELEASE OF PROPERTY FROM CHARGE
106. The registrar of companies, on evidence being given to his satisfaction with respect to any registered charge
may enter on the register a memorandum of satisfaction in whole or in part, or of the fact that part of the property or undertaking has been released from the charge or has ceased to form part of the company's property or undertaking, as the case may be, and where he enters a memorandum of satisfaction in whole he shall, if required, furnish the company with a copy thereof.
RECTIFICATION OF REGISTER OF CHARGES
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REGISTRATION OF ENFORCEMENT OF SECURITY
PROVISIONS AS TO COPIES OF INSTRUMENTS CREATING CHARGES
COPIES OF INSTRUMENTS CREATING CHARGES TO BE KEPT BY COMPANY
109. Every company shall cause a copy of every instrument creating any charge requiring registration under this Part of this Act to be kept at the registered office of the company:
Provided that, in the case of a series of uniform debentures, a copy of one debenture of the series shall be sufficient.
RIGHT TO INSPECT COPIES OF INSTRUMENTS CREATING CHARGES
110. (l) The copies of instruments creating any charge requiring registration under this Part shall be open during business hours (but subject to such reasonable restrictions as the company in general meeting may impose, so that not less than 2 hours in each day shall be allowed for inspection) to the inspection of any creditor or member of the company without fee.
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APPLICATION OF PART IV TO COMPANIES INCORPORATED OUTSIDE VANUATU
APPLICATION OF PART IV TO CHARGES CREATED, AND PROPERTY SUBJECT TO CHARGE ACQUIRED, BY COMPANY INCORPORATED OUTSIDE VANUATU
111. The provisions of this Part shall extend to charges on property in Vanuatu which are created, and to charges on property in Vanuatu which is acquired, by a company (whether a company within the meaning of this Act or not) incorporated outside Vanuatu which has an established place of business in Vanuatu.
PART V
MANAGEMENT AND ADMINISTRATION
REGISTERED OFFICE AND NAME
REGISTERED OFFICE OF COMPANY
112. (l) A company shall, as from the day on which it begins to carry on business or as from the fourteenth day after the date of its incorporation, whichever is the earlier, have a registered office in Vanuatu, to which all communications and notices must be addressed.
PUBLICATION OF NAME BY COMPANY
113. (1) Every company
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(c) shall have its name mentioned in legible characters in all business letters of the company and in all notices and other official publications of the company, and in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company, and in all invoices, receipts and letters of credit of the company.
he shall be liable to a fine not exceeding VT10,000, and shall further be personally liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods for the amount thereof unless it is duly paid by the company.
REGISTER OF MEMBERS
REGISTER OF MEMBERS
114. (1) Every company shall keep a register of its members and enter therein the following particulars
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held by each member instead of the amount of shares and the particulars relating to shares specified in paragraph (a).
(2) The register of members shall be kept at the registered office of the company;
Provided that
other person, it may be kept at the office of that other person at which the work is done;
so, however, that it shall not be kept at a place outside Vanuatu.
INDEX OF MEMBERS
115. (1) Every company having more than fifty members shall, unless the register of members is in such a form as to constitute in itself an index, keep an index of the names of the members of the company and shall, within 14 days after the date on which any alteration is made in the register of members, make any necessary alteration in the index.
PROVISIONS AS TO ENTRIES IN REGISTER IN RELATION TO SHARE WARRANTS
116. (1) On the issue of a share warrant the company shall strike out of its register of members the name of the member then entered therein as holding the shares specified in the warrant as if he had ceased to be a member, and shall enter in the register the following particulars, namely
(a) the fact of the issue of the warrant;
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INSPECTION OF REGISTER AND INDEX CONSEQUENCES OF FAILURE TO COMPLY WITH REQUIREMENTS AS TO REGISTER OWING TO AGENT'S DEFAULT
117. | (1) | Except when the register of members is closed under the provisions of this | ||||
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Act, the register, and index of the names, of the members of a company | ||||||
shall during business hours (subject to such reasonable restrictions as the | ||||||
company in general meeting may impose, so that not less than 2 hours in | ||||||
each day be allowed for inspection) be open | to | the inspection of any | ||||
member without charge and of any other person on payment of VT100, or | ||||||
such less sum as the company may prescribe, for each inspection. | ||||||
(2) | Any member or other person may require a copy of the register, or of any | |||||
part thereof, on payment of VT50, or such less sum as the company may | ||||||
prescribe, for every 100 words | or | fractional part thereof required to be | ||||
copied. | ||||||
The company shall cause any copy so required by any person to be sent to | ||||||
that person within a period of 10 days commencing on the day next after | ||||||
the day on which the requirement is received by the company. |
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POWER OF COURT TO RECTIFY REGISTER
120. | (1) | If | |
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(a) | the name of any person is, without sufficient cause, entered in or | ||
omitted from the register of members of a company; or | |||
(b) | default is made or unnecessary delay takes place in entering on the |
register the fact of any person having ceased to be a member;
the person aggrieved, or any member of the company, or the company, may apply to the court for rectification of the register.
TRUSTS NOT TO BE ENTERED ON REGISTER
121. No notice of any trust, expressed, implied or constructive, shall be entered on the register, or be receivable by the registrar.
REGISTER TO BE EVIDENCE
122. The register of members shall be prima facie evidence of any matters by this Act directed or authorised to be inserted therein. LAWS OF THE REPUBLIC OF VANUATU
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BRANCH REGISTER
POWER FOR COMPANY TO KEEP BRANCH REGISTER
123. (l) A company having a share capital may, if so authorised by its articles, cause to be kept in any country outside Vanuatu a branch register of members resident in that country or in any other country outside Vanuatu (in this Act called a "branch register").
REGULATIONS AS TO BRANCH REGISTER
124. (l) A branch register shall be deemed to be part of the company's register of members (in this section called "the principal register").
Every such duplicate shall for all the purposes of this Act be deemed to be part of the principal register.
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(7) If default is made in complying with subsection (3), the company and every officer of the company who is in default shall be liable to a default fine; and where by virtue of proviso (b) to section 114(2), the principal register is kept at the office of some person other than the company and by reason of any default of his the company fails to comply with subsection (3)(b), he shall be liable to the same penalty as if he were an officer of the company who was in default.
STAMP DUTY IN CASE OF SHARES REGISTERED IN BRANCH REGISTERS
125. (1) An instrument of transfer of a share in an exempted company registered in a branch register shall be deemed to be a transfer of property situate out of Vanuatu, and, unless executed in any part of Vanuatu, shall be exempt from stamp duty chargeable in Vanuatu.
(2) An instrument of transfer of a share in a local company registered in a branch register (other than a share in a public company traded on such stock exchange as may be approved by the Minister) shall, for the purposes of the Stamp Duties Act [CAP. 68], be deemed to be a transfer of property situate in Vanuatu.
PROVISIONS AS TO BRANCH REGISTERS KEPT IN VANUATU
126. If by virtue of the law in force in any country companies incorporated under that law have power to keep in Vanuatu branch registers of their members resident in Vanuatu, the Minister may by rules direct that sections 117 and 120 shall, subject to any modifications and adaptations specified in such rules, apply to and in relation to any such branch registers kept in Vanuatu as they apply to and in relation to the registers of companies within the meaning of this Act.
ANNUAL RETURN
DUTY TO DELIVER ANNUAL RETURNS and shall be delivered to the registrar within 28 days after the return date.
127. | (1) | Every company, other than | an | exempted private company not | being | a | |
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company of a class specified in Schedule 3, shall each year deliver to the | |||||||
registrar a return made up to the company’s “return date”. | |||||||
(2) | Each return shall – | ||||||
(a) | be in the prescribed form; | ||||||
(b) | contain such information as may be prescribed; | ||||||
(c) | be signed by a director and the secretary of the company; | ||||||
(d) | have annexed thereto such certificates as may be prescribed, |
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MEETINGS AND PROCEEDINGS
ANNUAL GENERAL MEETING
132. (1) Every company shall in each year hold a general meeting as its annual general meeting in addition to any other meetings in that year, and shall specify the meeting as such in the notices calling it; and not more than 15 months shall elapse between the date of one annual general meeting of a company and that of the next:
Provided that, so long as a company holds its first annual general meeting within 18 months of its incorporation, it need not hold it in the year of its incorporation or in the following year:
And provided that in any case where a company has held an annual general meeting later than the time prescribed by this subsection, the said period of 15 months within which the next following annual general meeting shall be held shall be calculated from the last day upon which such annual general meeting might lawfully have been held within the time prescribed as aforesaid.
(2) If default is made in holding a meeting of the company in accordance with the subsection (1), the registrar may, on the application of any member of the company, call, or direct the calling of, a general meeting of the company and give such ancillary or consequential directions as the registrar thinks expedient, including directions modifying or supplementing, in relation to the calling, holding and conducting of the meeting, the operation of the company's articles; and it is hereby declared that the directions that may be given under this subsection include a direction that one member of the company present in person, or by proxy shall be deemed to constitute a meeting.
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CONVENING OF EXTRAORDINARY GENERAL MEETING ON REQUISITION
133. | (1) | The directors of a company, notwithstanding anything in its articles, shall, | |||||||||||||||||||
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on the requisition of members of the company holding at the date of the | |||||||||||||||||||||
deposit of the requisition not less than onetenth of such of the paidup | |||||||||||||||||||||
capital of the company as at the date of the deposit carries the right of | |||||||||||||||||||||
voting at general meetings of the company, or, in the case of a company | |||||||||||||||||||||
not having a share capital, members of the company representing not less | |||||||||||||||||||||
than onetenth of the total voting rights of all the members having at the | |||||||||||||||||||||
said date a right to vote at general meetings of the company, forthwith | |||||||||||||||||||||
proceed | duly | to | convene | an | extraordinary | general | meeting | of | the | ||||||||||||
company. | |||||||||||||||||||||
(2) | The requisition must state the objects of the meeting, and must be signed | ||||||||||||||||||||
by | the | requisitionists | and | deposited | at | the | registered | office | of | the | |||||||||||
company, and may consist of several documents in like form each signed | |||||||||||||||||||||
by one or more requisitionists. | |||||||||||||||||||||
(3) | If the directors do not within 21 days from the date of the deposit of the | ||||||||||||||||||||
requisition proceed duly to convene a meeting, the requisitionists, or any | |||||||||||||||||||||
of them representing more than one half of the total voting rights of all of | |||||||||||||||||||||
them, may themselves convene a meeting, but any meeting so convened | |||||||||||||||||||||
shall not be held after the expiration of 3 months from the said date. |
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[CAP. 191.
LENGTH OF NOTICE FOR CALLING MEETINGS
134. (1) Any provision of a company's articles shall be void in so far as it provides for the calling of a meeting of the company (other than an adjourned meeting) by a shorter notice than
GENERAL PROVISIONS AS TO MEETINGS AND VOTES
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135. The following provisions shall have effect in so far as the articles of the company do not make other provision in that behalf
POWER OF COURT TO ORDER MEETING
136. (l) If for any reason it is impracticable to call a meeting of a company in any manner in which meetings of that company may be called, or to conduct the meeting of the company in manner prescribed by the articles or this Act, the court may, either of its own motion or on the application of any director of the company or of any member of the company who would be entitled to vote at the meeting, order a meeting of the company to be called, held and conducted in such manner as the court thinks fit, and where any such order is made may give such ancillary or consequential directions as it thinks expedient; and it is hereby declared that the directions which may be given under this subsection include a direction that one member of the company present in person or by proxy shall be deemed to constitute a meeting.
(2) Any meeting called, held and conducted in accordance with an order under subsection (1) shall for all purpose be deemed to be a meeting of the company duly called, held and conducted.
PROXIES
137. (l) Any member of a company entitled to attend and vote at a meeting of the company shall be entitled to appoint another person (whether a member or not) as his proxy to attend and vote instead of him, and a proxy appointed to attend and vote instead of a member of a private company shall also have the same right as the member to speak at the meeting:
Provided that, unless the articles otherwise provide
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(c) a proxy shall not be entitled to vote except on a poll.
RIGHT TO DEMAND A POLL
138. (1) Any provision contained in a company's articles shall be void in so far as it would have the effect either
(iii) by a member or members holding shares in the company conferring a right to vote at the meeting, being shares on which an aggregate sum has been paid up equal to not less than onetenth of the total sum paid up on all the shares conferring that right.
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(2) The instrument appointing a proxy to vote at a meeting of a company shall be deemed also to confer authority to demand or join in demanding a poll, and for the purposes of subsection (1) a demand by a person as proxy for a member shall be the same as a demand by the member.
VOTING ON A POLL
(2) A person authorised as aforesaid shall be entitled to exercise the same powers on behalf of the corporation which he represents as that corporation could exercise if it were an individual shareholder, creditor or holder of debentures of that other company.
CIRCULATION OF MEMBERS’ RESOLUTIONS, ETC.
141. (1) Subject to the following provisions of this section it shall be the duty of a company, on the requisition in writing of such number of members as is hereinafter specified and (unless the company otherwise resolves) at the expense of the requisitionists
(2) The number of members necessary for a requisition under subsection (1) shall be
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Provided that if, after a copy of a requisition requiring notice of a resolution has been deposited at the registered office of the company, an annual general meeting is called for a date 6 weeks or less after the copy has been deposited, the copy though not deposited within the time required by this subsection shall be deemed to have been properly deposited for the purposes thereof.
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EXTRAORDINARY AND SPECIAL RESOLUTIONS
142. | (1) | A resolution shall be an extraordinary resolution when it has been passed |
by a majority of not less than threefourths of such members as, being | ||
entitled so to do, vote in person or, where proxies are allowed, by proxy, at | ||
a general meeting of which notice specifying the intention to propose the | ||
resolution as an extraordinary resolution has been duly given. | ||
(2) | A resolution shall be a special resolution when it has been passed by such | |
a majority as is required for the passing of an extraordinary resolution and | ||
at a general meeting of which not less than 21 days' notice, specifying the | ||
intention to propose the resolution as a special resolution, has been duly | ||
given: | ||
Provided that, if it is so agreed by a majority in number of the members | ||
having the right to attend and vote at any such meeting, being a majority | ||
together holding not less than 95 per cent in nominal value of the shares | ||
giving that right, or, in the case of a company not having a share capital, | ||
together representing not less than 95 per cent of the total voting rights at | ||
that meeting of all the members, a resolution may be proposed and passed | ||
as a special resolution at a meeting of which less than 21 days' notice has | ||
been given. |
RESOLUTIONS REQUIRING SPECIAL NOTICE
143. Where by any provision hereafter contained in this Act special notice is required of a resolution, the resolution shall not be effective unless notice of the intention to move it has been given to the company not less than 28 days before the meeting at which it is moved, and the company shall give its members notice of any such resolution at the same time and in the same manner as it gives notice of the meeting or, if that is not practicable, shall give them notice thereof, either by advertisement in a newspaper having an appropriate circulation or in any other mode allowed by the articles, not less than 21 days before the meeting:
Provided that if, after notice of the intention to move such a resolution has been given to the company, a meeting is called for a date 28 days or less after the notice has been given, the notice though not given within the time required by this subsection shall be deemed, to have been properly given for the purposes thereof.
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REGISTRATION AND COPIES OF CERTAIN RESOLUTIONS AND AGREEMENTS
144. (1) A printed copy, or a copy in some other form approved by the registrar, of every resolution or agreement to which this section applies shall, within 15 days after the passing or making thereof, be forwarded to the registrar of companies and recorded by him.
effectively bind all the members of any class of shareholders
though not agreed to by all those members;
(f) resolutions requiring a company to be wound up voluntarily, passed under section 274(l)(a).
RESOLUTIONS PASSED AT ADJOURNED MEETINGS
145. Where a resolution is passed at an adjourned meeting of –
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(c) the directors of a company;
the resolution shall for all purposes be treated as having been passed on the date on which it was in fact passed, and shall not be deemed to have been passed on any earlier date.
MINUTES OF PROCEEDINGS OF MEETINGS OF COMPANY AND OF DIRECTORS AND MANAGERS
146. | (l) | Every | company | shall | cause | minutes | of | all | proceedings | of | general | ||||||||||||
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meetings, all proceedings at meetings of its directors and, where there are | |||||||||||||||||||||||
managers, all proceedings at meetings of its managers to be entered in | |||||||||||||||||||||||
books kept for that purpose. | |||||||||||||||||||||||
(2) | Any such minute if purporting to be signed by the chairman of the meeting | ||||||||||||||||||||||
at | which | the | proceedings | were | had, | or | by | the | chairman | of | the | next | |||||||||||
succeeding meeting, shall be evidence of the proceedings. |
INSPECTION OF MINUTE BOOKS
147. (l) The books containing the minutes of proceedings of any general meeting of a company shall be kept at the registered office of the company, and shall during business hours (subject to such reasonable restrictions as the company may by its articles or in general meeting impose, so that not less than 2 hours in each day be allowed for inspection) be open to the inspection of any member without charge.
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ACCOUNTS AND AUDIT
KEEPING OF BOOKS OF ACCOUNT
148. | (1) | Every company shall cause to be kept proper books of account with |
respect to – | ||
(a) all sums of money received and expended by the company and the | ||
matters in respect of which the receipt and expenditure takes place; | ||
(b) all sales and purchases of goods by the company; | ||
(c) the assets and liabilities of the company. | ||
(2) | For the purposes of subsection (1), proper books of account shall not be | |
deemed to be kept with respect to the matters aforesaid if there are not | ||
kept such books as are necessary to give a true and fair view of the state of | ||
the company's affairs and to explain its transactions. | ||
(3) | The books of account may be kept either by making entries in bound | |
volumes, or, subject to compliance with section 396(2) and section 396(3), | ||
by a system of mechanical recording or otherwise. | ||
(4) | The books of account shall be kept at the registered office of the company | |
or at such other place as the directors think fit, and shall at all times be | ||
open to inspection by the directors: | ||
Provided that if books of account are kept at a place outside Vanuatu there | ||
shall be sent to, and kept at a place in Vanuatu and be at all times open to | ||
inspection by the directors such accounts and returns with respect to the | ||
business dealt with in the books of account so kept as will disclose with | ||
reasonable accuracy the financial position of that business at intervals not | ||
exceeding 12 months and will enable to be prepared in accordance with | ||
this Act (where applicable) the company's balance sheet, its profit and loss | ||
account or income and expenditure account, and any document annexed to | ||
any of those documents giving information which is required by this Act | ||
and is thereby allowed to be so given. | ||
(5) | The books of account, or the accounts and returns, shall be kept and | |
preserved as provided by subsection (4) for a period not less than 5 years | ||
from the date they were made, or received in Vanuatu, as the case may be. | ||
(6) | If any person being a director of a company fails to take all reasonable | |
steps to secure compliance by the company with the requirements of this | ||
section, or has by his own wilful act been the cause of any default by the | ||
company thereunder, he shall, in respect of each offence, be liable to | ||
imprisonment for a term not exceeding 6 months or to a fine not exceeding | ||
VT100,000 or to both: |
Provided that
(a) in any proceedings against a person in respect of an offence under this section consisting of a failure to take reasonable steps to secure compliance by the company
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with the requirements of this section, it shall be a defence to prove that he had reasonable grounds to believe and did believe that a competent and reliable person was charged with the duty of seeing that those requirements were complied with and was in a position to discharge that duty; and
(b) a person shall not be sentenced to imprisonment for such an offence unless, in the opinion of the court dealing with the case, the offence was committed wilfully.
FINANCIAL YEAR
149. (1) Every company shall have a “financial year” to be determined in accordance with this section.
ACCOUNTING REFERENCE PERIODS AND ACCOUNTING REFERENCE DATES
149A. (1) A company’s accounting reference periods shall be determined according to its accounting reference date.
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ALTERATION OF ACCOUNTING REFERENCE DATE
149B. (1) A company may, by giving notice in the prescribed form to the registrar, specify a new accounting reference date having effect in relation to the company’s current and subsequent accounting reference periods.
PROFIT AND LOSS ACCOUNT AND BALANCE SHEET
149C. (1) The directors of every company to which this section applies shall prepare for each financial year of the company –
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GENERAL PROVISIONS AS TO CONTENTS AND FORM OF ACCOUNTS
150. (l) Every balance sheet of a company shall give a true and fair view of the state of affairs of the company as at the end of its financial year, and every profit and loss account of a company shall give a true and fair view of the profit or loss of the company for the financial year.
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Provided that –
(7) For the purposes of this section and the following provisions of this Act, except where the context otherwise requires
STATEMENT IN HOLDING COMPANY'S ACCOUNTS OF IDENTITIES AND PLACES OF INCORPORATION OF SUBSIDIARIES, AND PARTICULARS OF SHAREHOLDINGS THEREIN
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151. (l) Subject to the provisions of this section, where, at the end of its financial year, a company has subsidiaries, there shall, in the case of each subsidiary, be stated in, or in a note on, or statement annexed to, the company's accounts laid before it at its annual general meeting
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(6) If a company fails to satisfy an obligation imposed on it by subsection (5) to annex particulars to a return, the company and every officer of the company who is in default shall be liable to a default fine.
STATEMENT IN COMPANY'S ACCOUNTS OF IDENTITIES AND PLACES OF INCORPORATION OF COMPANIES NOT SUBSIDIARIES WHOSE SHARES IT HOLDS, AND PARTICULARS OF THOSE SHARES
152. (l) Subject to the provisions of this section, if, at the end of its financial year, a company holds shares of any class comprised in the equity share capital of another body corporate (not being its subsidiary) exceeding in nominal value onetenth of the nominal value of the issued shares of that class, there shall be stated in, or in a note on, or statement annexed to, the accounts of the company laid before it at its annual general meeting
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STATEMENT IN SUBSIDIARY COMPANY'S ACCOUNTS OF NAME AND PLACE OF INCORPORATION OF ITS ULTIMATE HOLDING COMPANY
153. (1) Subject to subsection (2), where, at the end of its financial year, a company is the subsidiary of another body corporate, there shall be stated in, or in a note on, or statement annexed to, the company's accounts laid before it at its annual general meeting the name of the body corporate regarded by the directors as being the company's ultimate holding company and, if known to them, the country in which it is incorporated.
(2) Subsection (1) shall not require the disclosure by a company which carries on business outside Vanuatu of information with respect to the body corporate regarded by the directors as being its ultimate holding company if the disclosure would, in their opinion, be harmful to the business of that holding company or of the firstmentioned company or any other of that holding company's subsidiaries and the registrar agrees that the information need not be disclosed.
OBLIGATION TO LAY GROUP ACCOUNTS BEFORE HOLDING COMPANY
154. (l) Where at the end of its financial year a company has subsidiaries, accounts or statements (in this Act referred to as "group accounts") dealing as hereinafter mentioned with the state of affairs and profit or loss of the company and the subsidiaries shall, subject to subsection (2), be laid before the company at its annual general meeting when the company's own balance sheet and profit and loss account are so laid.
(2) Notwithstanding anything in subsection (1)
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(iii) the business of the holding company and that of the subsidiary are so different that they cannot reasonably be treated as a single undertaking;
and, if the directors are of such an opinion about each of the company's subsidiaries, group accounts shall not be required:
Provided that the approval of the registrar shall be required for not dealing in group accounts with a subsidiary on the ground that the result would be harmful or on the ground of the difference between the business of the holding company and that of the subsidiary.
(3) If any person being a director of a company fails to take all reasonable steps to secure compliance as respects the company with the provisions of this section, he shall, in respect of each offence, be liable to imprisonment for a term not exceeding six months or to a fine not exceeding VT100,000 or to both:
Provided that –
(4) For the purposes of this section a body corporate shall be deemed to be the wholly owned subsidiary of another if it has no members except that other and that other's wholly owned subsidiaries and it or their nominees.
FORM OF GROUP ACCOUNTS
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155. (1) Subject to subsection (2), the group accounts laid before a holding company shall be consolidated accounts comprising
(2) If the company's directors are of opinion that it is better for the purpose –
the group accounts may be prepared an a form other than that required by subsection (1), and in particular may consist of more than one set of consolidated accounts dealing respectively with the company and one group of subsidiaries and with other groups of subsidiaries or of separate accounts dealing with each of the subsidiaries, or of statements expanding the information about the subsidiaries in the company's own accounts, or any combination of those forms.
CONTENTS OF GROUP ACCOUNTS Provided that the registrar may on the application or with the consent of a company's directors, modify the said requirements in relation to that company for the purpose of adapting them to the circumstances of the company.
156. | (1) | The group accounts laid before a company shall give a true and fair view | |||||||||||||
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of the state of affairs and profit or loss of the company and the subsidiaries | |||||||||||||||
dealt with thereby as a whole, so far as concerns members of the company. | |||||||||||||||
(2) | Where the financial year of a subsidiary does not coincide with that of the | ||||||||||||||
holding company, the group | accounts | shall, unless the registrar | on | the | |||||||||||
application | or | with | the | consent | of | the | holding | company's | directors | ||||||
otherwise direct, deal with the subsidiary's state of affairs as at the end of | |||||||||||||||
its financial year ending with or last before that of the holding company, | |||||||||||||||
and with the subsidiary's profit or loss for that financial year. |
FINANCIAL YEAR OF HOLDING COMPANY AND SUBSIDIARY
157. (1) A holding company's directors shall secure that except where in their opinion there are good reasons against it, the financial year of each of its subsidiaries shall coincide with the company's own financial year. LAWS OF THE REPUBLIC OF VANUATU
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(2) Where it appears to the registrar desirable for a holding company or a holding company's subsidiary to extend its financial year so that the subsidiary's financial year may end with that of the holding company, and for that purpose to postpone the submission of the relevant accounts to an annual general meeting from one calendar year to the next, the registrar may on the application or with the consent of the directors of the company whose financial year is to be extended direct that, in the case of that company, the submission o accounts to an annual general meeting, the holding of an annual general meeting or the making of an annual return shall not be required in the earlier of the said calendar years.
MEANING OF "HOLDING COMPANY" AND "SUBSIDIARY"
158. (1) For the purposes of this Act, a company shall, subject to the provisions of subsection (3), be deemed to be a subsidiary of another if, but only if –
(2) For the purposes of subsection (1), the composition of a company's board of directors shall be deemed to be controlled by another company if, but only if, that other company by the exercise of some power exercisable by it without the consent or concurrence of any other person can appoint or remove the holders of all or a majority of the directorships; but for the purposes of this provision that other company shall be deemed to have power to appoint to a directorship with respect to which any of the following conditions is satisfied, that is to say
(3) In determining whether one company is a subsidiary of another
(i) by any person as a nominee for that other (except where that other is concerned only in a fiduciary capacity); or
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(ii) by, or by a nominee for, a subsidiary of that other, not being a subsidiary which is concerned only in a fiduciary capacity;
shall be treated as held or exercisable by that other;
exercisable by that other if the ordinary business of that other or its subsidiary, as the case may be, includes the lending of money and the shares are held or power is exercisable as aforesaid by way of security only for the purposes of a transaction entered into in the ordinary course of that business.
SIGNING OF BALANCE SHEET
159. (1) Every balance sheet of a company shall be signed on behalf of the board by two of the directors of the company, or, if there is only one director, by that director.
(2) If any copy of a balance sheet which has not been signed as required by this section is issued, circulated or published, the company and every officer of the company who is in default shall be liable to a fine not exceeding VT10,000.
ACCOUNTS AND AUDITORS’ REPORT TO BE ANNEXED TO BALANCE SHEET
160. (l) The profit and loss account and, so far as not incorporated in the balance sheet or profit and loss account, any group accounts laid before the company at its annual general meeting, shall be annexed to the balance sheet, and the auditors' report, if any, shall be attached thereto.
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DIRECTORS' REPORT
161. | (1) | The directors of every company shall prepare for each financial year and | ||||||||||||||||||||
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lay before the company at its annual general meeting a directors’ report | ||||||||||||||||||||||
containing such information as may be prescribed. | ||||||||||||||||||||||
(2) | The directors’ report shall be approved by resolution of the directors and | |||||||||||||||||||||
shall be signed on the directors’ behalf by a director. | ||||||||||||||||||||||
(3) | If any person being a director of a company fails to take all reasonable | |||||||||||||||||||||
steps to comply with the provisions of this section, he shall in respect of | ||||||||||||||||||||||
each | offence, | be | liable | to | imprisonment | for | a | term | not | exceeding 6 | ||||||||||||
months | or | to | a | fine | not | exceeding | VT100,000 | or | to | both | such | |||||||||||
imprisonment and fine. |
RIGHT TO RECEIVE COPIES OF BALANCE SHEETS, AUDITORS' REPORT AND DIRECTORS' REPORT
162. (l) A copy of every balance sheet, including every document required by law to be annexed thereto, which is required to be laid before a company at its annual general meeting, together with a copy of the auditors' report, if any, and of the directors' report, shall, not less than 21 days before the date of the meeting, be sent to every member of the company (whether he is or is not entitled to receive notices of general meetings of the company), if they shall so request the legal personal representatives of any deceased member of the company, every holder of debentures of the company (whether he is or is not so entitled) and all other persons so entitled:
Provided that –
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APPOINTMENT AND REMUNERATION OF AUDITORS
163. (1) Every company to which section 149C applies shall at each annual general meeting appoint an auditor or auditors to hold office from the conclusion of that, until the conclusion of the next, annual general meeting.
Provided that where notice is given of an intended resolution to appoint some person or persons in place of a retiring auditor, and by reason of the death, incapacity or disqualification of that person or of all those persons, as the case may be, the resolution cannot be proceeded with, the retiring auditor shall not be automatically reappointed by virtue of this subsection.
(4) Where at an annual general meeting no auditors are appointed or reappointed, the registrar may appoint a person to fill the vacancy.
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meeting, and auditors so appointed shall hold office until the conclusion of that meeting:
Provided that
For the purposes of this subsection, any sums paid by the company in respect of the auditors expenses shall be deemed to be included in the expression “remuneration”.
APPOINTMENT OF AUDITOR OPTIONAL FOR CERTAIN PRIVATE COMPANIES
164. (l) The directors or members of every company other than a company specified in section 163(l) and which is not of a class specified in Schedule 3 may by ordinary resolution appoint an auditor or auditors to hold office for such period as is specified in the resolution and may by ordinary resolution terminate such appointment at any time.
(2) For a private local company with a turnover not exceeding VT20,000,000 in any year, the registrar may, at any time if he thinks fit, on the application of any member or creditor of the company or of his own motion, apply to the Supreme Court to appoint an auditor to hold office until the conclusion of the next annual general meeting.
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PROVISIONS AS TO RESOLUTIONS RELATING TO APPOINTMENT AND REMOVAL OF AUDITORS
165. (l) Special notice shall be required for a resolution at a company's annual general meeting appointing as auditor a person other than a retiring auditor or providing expressly that a retiring auditor shall not be reappointed.
and if a copy of the representations is not sent as aforesaid because received too late or because of the company's default, the auditor may (without prejudice to his right to be heard orally) require that the representations shall be read out at the meeting:
Provided that copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter; and the court may order the company's costs on an application under this section, to be paid in whole or in part by the auditor, notwithstanding that he is not a party to the application.
DISQUALIFICATION FOR APPOINTMENT AS AUDITOR
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(2) None of the following persons shall be qualified for appointment as auditor of a company
References in this subsection to an officer or servant shall be construed as not including references to an auditor.
AUDITOR'S REPORT AND RIGHT OF ACCESS TO BOOKS AND TO ATTEND AND BE HEARD AT MEETINGS
167. (l) The auditors of a company shall make report to the members on the accounts examined by them, and on every balance sheet, every profit and loss account, and all group accounts laid before the company at its annual general meeting during their tenure of office.
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(iii) in the case of group accounts submitted by a holding company, of the state of affairs and profit or loss of the company and its subsidiaries dealt with thereby, so far as concerns members of the company.
and if the auditors are of opinion that proper books of account have not been kept by the company or that proper returns adequate for their audit have not been received from branches not visited by them, or if the balance sheet and (unless it is framed as a consolidated profit and loss account) profit and loss account are not in agreement with the books of account and returns the auditors shall state that fact in their report.
CONSTRUCTION OF REFERENCES TO DOCUMENTS ANNEXED TO
ACCOUNTS
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168. References in this Act to a document annexed or required to be annexed to a company's accounts or any of them shall not include the Directors' report or the auditors' report:
Provided that any information which is required by this Act to be given in accounts, and is thereby allowed to be given in a statement annexed, may be given in the directors' report instead of in the accounts and, if any such information is so given, the report shall be annexed to the accounts and this Act shall apply in relation thereto accordingly, except that the auditors shall report thereon only so far as it gives the information.
INSPECTION
INVESTIGATION OF COMPANY'S AFFAIRS
169. (1) The Minister may appoint one or more competent inspectors to investigate the affairs of a company and to report thereon in such manner as he may direct if it appears to him that there are circumstances suggesting
(2) The power of the Minister shall be exercisable with respect to a body corporate notwithstanding that it is in course of being voluntarily wound up.
POWER OF INSPECTORS TO CARRY INVESTIGATION INTO AFFAIRS OF RELATED COMPANIES
PRODUCTION OF DOCUMENTS, AND EVIDENCE, ON INVESTIGATION
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172. (1) It shall be the duty of all officers and agents of the company and of all officers and agents of any other body corporate whose affairs are investigated by virtue of section 170 to produce to the inspectors all books and documents of or relating to the company or, as the case may be, the other body corporate which are in their custody or power to attend before the inspectors when required so to do and otherwise to give to the inspectors all assistance in connection with the investigation which they are reasonably able to give.
and notes of the examination shall be taken down in writing, and shall be read over to or by, and signed by, the person examined, and may thereafter be used in evidence against him:
Provided that, notwithstanding anything in paragraph (c), the court may allow the person examined such costs as in its discretion it may think fit, and any costs so allowed shall be paid as part of the expenses of the investigation.
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INSPECTORS' REPORT
173. The inspectors may, and, if so directed by the Minister, shall, make interim reports to the Minister, and on the conclusion of the investigation shall make a final report to the Minister.
Any such report shall be written or printed, as the Minister directs, and the Minister may, if he thinks it in the public interest to do so, cause it to be published.
POWER OF MINISTER TO PRESENT WINDINGUP PETITION OR PETITION UNDER SECTION 217 IN CONSEQUENCE OF INVESTIGATION, ETC.
174. | (1) | If, in the case of any body corporate liable to be wound up under this Act, | ||||||||
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it appears to the Minister from any report made under section 173 or from | ||||||||||
any | information | or | document | obtained | under | sections | 183 to | 188 | ||
(inclusive) that it is expedient in the public interest that the body should be | ||||||||||
wound up, the Minister may, unless the body is already being wound up | ||||||||||
by the court, present a petition for it to be so wound up if the court thinks | ||||||||||
it just and equitable for it to be so wound up. | ||||||||||
(2) | If, in the case of any such body corporate as aforesaid, it appears to the | |||||||||
Minister from any report made or information or document obtained as | ||||||||||
aforesaid that its business is being conducted in a manner oppressive to | ||||||||||
any part of its members, the Minister may (in addition to, or instead of, | ||||||||||
presenting a petition under subsection (1)) present a petition for an order | ||||||||||
under section 216. |
POWER OF MINISTER TO BRING CIVIL PROCEEDINGS ON BEHALF OF BODY CORPORATE
175. (l) If, from any report made under section 173 or from any information or document obtained under sections 183 to 188 (inclusive) it appears to the Minister that any civil proceedings ought in the public interest to be brought by any body corporate, he may himself bring such proceedings in the name and on behalf of the body corporate.
(2) The Minister shall indemnify the body corporate against any costs or expenses incurred by it in or in connection with any proceedings brought by virtue of subsection (1).
EXPENSES OF INVESTIGATION OF COMPANY'S AFFAIRS
176. (1) The expenses of and incidental to an investigation by an inspector appointed by the Minister under the preceding provisions of this Act shall be defrayed in the first instance by the Minister, but the following persons shall, to the extent mentioned, be liable to repay the Minister
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and any amount for which a body corporate is liable by virtue of paragraph (b) of this subsection shall be a first charge on the sums or property mentioned in that paragraph.
(2) For the purposes of this section, any costs or expenses incurred by the Minister in or in connection with proceedings brought by virtue of section 175(l) (including expenses incurred by virtue of section 15(2)) shall be treated as expenses of the investigation giving rise to the proceedings.
INSPECTORS' REPORT TO BE EVIDENCE
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copy thereof if he is of opinion that there is good reason for not divulging the contents of the report or of parts thereof, but shall cause to be kept by the registrar a copy of any such report or, as the case may be, the parts of any such report, as respects which he is not of that opinion.
POWER TO REQUIRE INFORMATION AS TO PERSONS INTERESTED IN SHARES OR DEBENTURES
179. (l) Where it appears to the Minister that there is good reason to investigate the ownership of any shares in or debentures of a company and that it is unnecessary to appoint an inspector for the purpose, he may require any person whom he has reasonable cause to believe
to give him any information which he has or can reasonably be expected to obtain as to the present and past interests in those shares or debentures and the names and addresses of the persons interested and of any persons who act or have acted on their behalf in relation to the shares or debentures.
POWER TO IMPOSE RESTRICTIONS ON SHARES OR DEBENTURES
180. (1) Where in connection with an investigation under either of sections 178 and 179 it appears to the Minister that there is difficulty in finding out the relevant facts about any shares (whether issued or to be issued), and that the difficulty is due wholly or mainly to the unwillingness of the
persons concerned or any of them to assist the investigation as required by this Act, the LAWS OF THE REPUBLIC OF VANUATU
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Minister may by order direct that the shares shall until further order be subject to the restrictions imposed by this section.
shall be liable to imprisonment for a term not exceeding 6 months or to a fine not exceeding VT100,000 or to both.
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SAVING FOR LEGAL PRACTITIONERS AND BANKERS
181. Nothing in the preceding provisions of this Part shall require disclosure to the Minister or to an inspector appointed by him
EXTENSION OF MINISTER'S POWERS OF INVESTIGATION TO CERTAIN BODIES INCORPORATED OUTSIDE VANUATU
182. Sections 169 to 177 (inclusive) and 181 shall apply to all bodies corporate incorporated outside Vanuatu which are carrying on business in Vanuatu or have at any time carried on business therein as if they were companies registered under this Act, but subject to such (if any) adaptations and modifications as may be specified by rules made by the Minister.
INSPECTION OF COMPANY’S BOOKS AND PAPERS
POWER OF MINISTER TO REQUIRE PRODUCTION OF DOCUMENTS
183. (1) The Minister may at any time, if he thinks there is good reason so to do, give directions to any such body as follows, namely
requiring the body, at such time and place as may be specified in the directions, to produce such books or papers as may be so specified, or may at any time, if he thinks there is good reason so to do, authorise any officer of his, on producing (if required so to do) evidence of his authority, to require any such body as aforesaid to produce to him forthwith any books or papers which the officer may specify.
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ENTRY AND SEARCH OF PREMISES
184. (l) If a magistrate is satisfied by information on oath laid by a police officer, that there are reasonable grounds for suspecting that there are on any premises any books or papers of which production has been required by virtue of section 183 and which have not been produced in compliance with that requirement, the magistrate may issue a warrant authorising any police officer, together with any other persons named in the warrant and any other police officers, to enter the premises specified in the information (using such force as is reasonably necessary for the purpose) and to search the premises and take possession of any books or papers appearing to be such books or papers as aforesaid, or to take, in relation to any books or papers so appearing, any other steps which may appear necessary for preserving them and preventing interference with them. LAWS OF THE REPUBLIC OF VANUATU
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PROVISION FOR SECURITY OF INFORMATION
185. (1) No information or document relating to a body, which has been obtained under section 183 or section 184, shall, without the previous consent in writing of that body, be published or disclosed, except to a competent authority, unless the publication or disclosure is required
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PENALIZATION OF DESTRUCTION, MUTILATION, ETC., OF COMPANY DOCUMENTS
186. (1) A person, being an officer of any such body as is mentioned in section 183(l)(a) to (c), who destroys, mutilates or falsifies, or is privy to the destruction, mutilation or falsification of a document affecting or relating to the property or affairs of the body, or makes or is privy to the making of a false entry in such a document, shall, unless he proves that he had no intention to conceal the state of affairs of the body or to defeat the law, be guilty of an offence.
PENALIZATION OF FURNISHING FALSE INFORMATION
(2) The Minister shall not, under section 183, require, or authorise an officer to require, the production by a person carrying of the business of banking of a document relating to the affairs of a customer of his unless either it appears to him that it is necessary so to do for the purpose of investigating the affairs of the firstmentioned person or the customer is a person on whom a requirement has been imposed by virtue of that section.
DIRECTORS AND OTHER OFFICERS
DIRECTORS
189. (l) A company (other than a private company) shall have at least two directors, and a private company shall have at least one director.
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SECRETARY
190. (1) Every company shall have a secretary and a sole director shall not also be secretary.
(2) Anything required or authorised to be done, by or to the secretary may, if the office is vacant or there is for any other reason no secretary capable of acting, be done by or to any assistant or deputy secretary or, if there is no assistant or deputy secretary capable of acting, by or to any officer of the company authorised generally or specially in that behalf by the directors.
PROHIBITION OF CERTAIN PERSONS BEING SOLE DIRECTOR OR SECRETARY
191. (1) No company shall
(2) No company shall be qualified to be appointed as a director of another company which is a director of the firstmentioned company.
AVOIDANCE OF ACTS DONE BY PERSON IN DUAL CAPACITY AS DIRECTOR AND SECRETARY
(i) signed the memorandum for a number of shares not less than his qualification, if any; or
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(ii) taken from the company and paid or agreed to pay for his qualification shares, if any; or
(iii) signed and delivered to the registrar for registration an undertaking in writing to take from the company and pay for his qualification shares, if any; or
(iv) made and delivered to the registrar for registration a statutory declaration to the effect that a number of shares, not less than his qualification, if any, are registered in his name.
SHARE QUALIFICATIONS OF DIRECTORS
195. (1) Without prejudice to the restrictions imposed by section 194, it shall be the duty of every director who is by the articles of the company required to hold a specified share qualification, and who is not already qualified, to obtain his qualification within 2 months after his appointment, or such shorter time as may be fixed by the articles.
after the expiration of the said period or shorter time he ceases at any time to hold his qualification.
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REMOVAL OF DIRECTORS
196. (1) A company may by ordinary resolution remove director before the expiration of his period of office, notwithstanding anything its articles or in any agreement between it and him:
Provided that this subsection shall not, in the case of a private company, authorise the removal of a director holding office for life on the commencement of this Act, whether or not subject to retirement under an age limit by virtue of the articles or otherwise.
company shall, unless the representations are received by it too late for it
to do so
and if a copy of the representations is not sent as aforesaid because received too late or because of the company's default, the director may (without prejudice to his right to be heard orally) require that the representations shall be read out at the meeting:
Provided that copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter; and the court may order the company's costs on an application under this section to be paid in whole or in part by the director, notwithstanding that he is not a party to the application.
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ALTERNATE DIRECTORS
197. (1) Unless prohibited by the articles a director may either generally or in respect of any period in which he is absent from Vanuatu or unable for any reason to act as a director, appoint another director, or any other person approved by a resolution of the board of directors, as an alternate director. Such appointment shall be in writing signed by the appointor and appointee and lodged with the company.
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RESOLUTION IN LIEU OF MEETING
198. (1) Except where this Act or the articles expressly require a meeting to be held, a resolution in writing, signed by or on behalf of all the directors entitled to vote on that resolution at a meeting of directors or committee of directors, shall be as valid as if it had been passed at a meeting of directors or committee of directors.
(2) A copy of every resolution referred to in subsection (1) shall be kept with the minutes of the proceedings of the directors or committee of directors.
PROVISIONS AS TO UNDISCHARGED BANKRUPTS ACTING AS DIRECTORS
199. (l) If any person being in any country an undischarged bankrupt acts as director of, or directly or indirectly takes part in or is concerned in the management of, any company except with the leave of the court, he shall be liable on conviction to imprisonment for a term not exceeding 2 years or to a fine not exceeding VT500,000 or to both such imprisonment and fine.
POWER TO RESTRAIN FRAUDULENT PERSONS FROM MANAGING COMPANIES
200. (1) Where
the court may make an order that that person shall not, without the leave of the court, be a director of or in any way, whether directly or indirectly, be concerned or take part in the management of a company for such period not exceeding 5 years as may be specified in the order.
(2) In subsection (1) the expression "the court" in relation to the making of an order against any person by virtue of paragraph (a), thereof, includes the court before which he is convicted, as well as the court in its jurisdiction to wind up the company, and in relation to the granting of leave means the court in its jurisdiction to wind up the company as respects which leave is sought
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LOANS TO DIRECTORS
201. (1) It shall not be lawful for a company, other than a private exempted company which is not a subsidiary of a public company, to make a loan to any person who is its director or a director of its holding company, or to enter into any guarantee or provide any security in connection with a loan made to such a person as aforesaid by any other person:
Provided that nothing in this section shall apply either
(2) Proviso (b) to subsection (1) shall not authorise the making of any loan, or the entering into any guarantee, or the provision of any security, except either
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APPROVAL OF COMPANY REQUISITE FOR PAYMENT BY IT TO DIRECTOR FOR LOSS OF OFFICE, ETC.
202. It shall not be lawful for a company to make to any director of the company any payment by way of compensation for loss of office, or as consideration for or in connection with his retirement from office, without particulars with respect to the proposed payment (including the amount thereof) being disclosed to members of the company and the proposal being approved by the company.
APPROVAL OF COMPANY REQUISITE FOR ANY PAYMENT, IN CONNECTION WITH TRANSFER OF ITS PROPERTY, TO DIRECTOR FOR LOSS OF OFFICE, ETC.
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203. (l) It is hereby declared that it is not lawful in connection with the transfer of the whole or any part of the undertaking or property of a company for any payment to be made to any director of the company by way of compensation for loss of office, or as consideration for or in connection with his retirement from office, unless particulars with respect to the proposed payment (including the amount thereof) have been disclosed to the members of the company and the proposal approved by the company.
(2) Where a payment which is hereby declared to be illegal is made to a director of the company, the amount received shall be deemed to have been received by him in trust for the company.
DUTY OF DIRECTOR TO DISCLOSE PAYMENT FOR LOSS OF OFFICE, ETC., MADE IN CONNECTION WITH TRANSFER OF SHARES IN COMPANY
204. (1) Where, in connection with the transfer to any persons of all or any of the shares in a company, being a transfer resulting from
a payment is to be made to a director of the company by way of compensation for loss of office, or as consideration for or in connection with his retirement from office, it shall be the duty of that director to take all reasonable steps to secure that particulars with respect to the proposed payment (including the amount thereof) shall be included in or sent with any notice of the offer made for their shares which is given to any shareholders.
(2) If
he shall be liable to a fine not exceeding VT5,000.
(3) If
(a) the requirements of subsection (1) are not complied with in relation to any such payment as is therein mentioned; or
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(b) the making of the proposed payment is not, before the transfer of any shares in pursuance of the offer, approved by a meeting summoned for the purpose of the holders of the shares to which the offer relates and of other holders of shares of the same class as any of the said shares;
any sum received by the director on account of the payment shall be deemed to have been received by him in trust for any persons who have sold their shares as a result of the offer made, and the expenses incurred by him in distributing that sum amongst those persons shall be borne by him and not retained out of that sum.
PROVISIONS SUPPLEMENTARY TO SECTIONS 202 TO 204
205. (1) Where in proceedings for the recovery of any payment | as | having, by | |||||||||||
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virtue | of | sections | 203(l) | and | (2) | or | of | sections | 204(l) | and | (3), | been | |
received by any person in trust it is shown that |
the payment shall be deemed, except in so far as the contrary is shown, to be one to which the subsections apply.
(2) If in connection with any such transfer as is mentioned in either section 203 or section 204
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the excess or the money value of the consideration, as the case may be, shall, for the purposes of that section, be deemed to have been a payment made to him by way of compensation for loss of office or as consideration for or in connection with his retirement from office.
PARTICULARS IN ACCOUNTS OF LOANS TO OFFICERS, ETC.
206. (1) The accounts which, in pursuance of this Act, are required to be laid before a company at its annual general meeting shall, subject to the provisions of this section, contain particulars showing
(a) the amount of any loans made during the company's financial year to –
by the company or a subsidiary thereof or by any other person under a guarantee from or on a security provided by the company or a subsidiary thereof (including any such loans which were repaid during that year); and
(b) the amount of any loans made in manner aforesaid to any such officer or person as aforesaid at any time before the company's financial year and outstanding at the expiration thereof.
(2) Subsection (1) shall not require the inclusion in accounts of particulars of –
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not being, in either case, a loan made by the company under a guarantee from or on a security provided by a subsidiary thereof or a loan made by a subsidiary of the company under a guarantee from or on a security provided by the company or any other subsidiary thereof.
GENERAL DUTY TO MAKE DISCLOSURE FOR PURPOSES OF SECTION 206
207. (1) It shall be the duty of any director of a company to give notice to the company of such matters relating to himself as may be necessary for the purposes of section 206 except so far as it relates to loans made, by the company or by any other person under a guarantee from or on a security provided by the company, to an officer thereof.
(2) Subsection (1) shall apply
as it applies in relation to directors.
(3) Any person who makes default in complying with the provisions of this section shall be liable to a fine not exceeding VT10,000.
DISCLOSURE BY DIRECTORS OF INTERESTS IN CONTRACTS
208. | (1) | Subject to the provisions of this section, it shall be the duty of a director of | |||||||||||||||||||||||||||||||||||||||||||||
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a company who is in any way, whether directly or indirectly, interested in | |||||||||||||||||||||||||||||||||||||||||||||||
a contract or proposed contract with the company to declare the nature of | |||||||||||||||||||||||||||||||||||||||||||||||
his interest at a meeting of the directors of the company. | |||||||||||||||||||||||||||||||||||||||||||||||
(2) | In the case of a proposed contract the declaration required by this section | ||||||||||||||||||||||||||||||||||||||||||||||
to be made by a director shall be made at the meeting of the directors at | |||||||||||||||||||||||||||||||||||||||||||||||
which | the | question | of | entering | into | the | contract | is | first | taken | into | ||||||||||||||||||||||||||||||||||||
consideration, | or | if | the | director | was | not | at | the | date | of | that | meeting | |||||||||||||||||||||||||||||||||||
interested in the proposed contract, at the next meeting of the directors | |||||||||||||||||||||||||||||||||||||||||||||||
held | after | he | became | so | interested, | and | in | a | case | where | the | director | |||||||||||||||||||||||||||||||||||
becomes interested in a contract after it is made, the said declaration shall | |||||||||||||||||||||||||||||||||||||||||||||||
be | made | at | the | first | meeting | of | the | directors | held | after | the | director | |||||||||||||||||||||||||||||||||||
becomes so interested. |
(3) For the purpose of this section, a general notice given to the directors of a company by a director to the effect that he is a member of a specified company or firm and is to be regarded as interested in any contract which may, after the date of the notice, be made with that company or firm, shall be deemed to be a sufficient declaration of interest in relation to any contract so made:
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Provided that no such notice shall be of effect unless either it is given at a meeting of the directors or the director takes reasonable steps to secure that it is brought up and read at the next meeting of the directors after it is given.
REGISTER OF DIRECTORS AND SECRETARIES
209. (1) Every company shall keep at its registered office a register of its directors and secretaries.
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PROVISIONS AS TO ASSIGNMENT OF OFFICE BY DIRECTORS
AVOIDANCE OF PROVISIONS IN ARTICLES OR CONTRACTS RELIEVING OFFICERS FROM LIABILITY
PROVISIONS AS TO LIABILITY OF OFFICERS AND AUDITORS Provided that –
(a) nothing in this section shall operate to deprive any person of any exemption or right to be indemnified in respect of anything done or omitted to be done by him while any such provision was in force; and
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(b) notwithstanding anything in this section, a company may, in pursuance of any such provision as aforesaid, indemnify any such officer or auditor against any liability incurred by him in defending any proceedings, whether civil or criminal in which judgment is given in his favour or in which he is acquitted or in connection with any application under section 404 in which relief is granted to him by the court.
ARRANGEMENTS AND RECONSTRUCTIONS
POWER TO COMPROMISE WITH CREDITORS AND MEMBERS
212. (1) Where a compromise or arrangement is proposed between a company and its creditors or any class of them or between the company and its members or any class of them, the court may, on the application in a summary way of the company or of any creditor or member of the company, or, in the case of a company being wound up, of the liquidator, order a meeting of the creditors or class of creditors, or of the members of the company or class of members, as the case may be, to be summoned in such manner as the court directs.
INFORMATION AS TO COMPROMISES WITH CREDITORS AND MEMBERS
213. (1) Where a meeting of creditors or any class of creditors or of members or any class of members is summoned under section 212 there shall
(a) with every notice summoning the meeting which is sent to a creditor or member, be sent also a statement explaining the effect of the compromise or arrangement and in particular stating any material interests of the directors of the company, whether as directors or as members or as creditors of the company or otherwise, and the effect thereon of the compromise or arrangement, in so far as it is different from the effect on the like interests of other persons; and
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(b) in every notice summoning the meeting which is given by advertisement, be included either such a statement as aforesaid or a notification of the place at which and the manner in which creditors or members entitled to attend the meeting may obtain copies of such a statement as aforesaid.
PROVISIONS FOR FACILITATING RECONSTRUCTION AND AMALGAMATION OF COMPANIES
214. (l) Where an application is made to the court under section 212 for the sanctioning of a compromise or arrangement proposed between a company and any such persons as are mentioned in that section, and it is shown to the court that the compromise or arrangement has been proposed for the purposes of or in connection with a scheme for the reconstruction of any company or companies or the amalgamation of any two or more companies, and that under the scheme the whole or any part of the undertaking or the property of any company concerned in the scheme (in this section referred to as "a transferor company") is to be transferred to another company (in this section referred to as "the transferee company"), the court may, either by the order sanctioning the compromise or arrangement or by any subsequent order, make provision for all or any of the following matters
(a) the transfer to the transferee company of the whole or any part of the undertaking and of the property or liabilities of any transferor company;
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“company” in this section does not include any company other than a company within the meaning of this Act.
POWER TO ACQUIRE SHARES OF SHAREHOLDERS DISSENTING FROM SCHEME OR CONTRACT APPROVED BY MAJORITY
215. (l) Where a scheme or contract involving the transfer of shares or any class of shares in a company (in this section referred to as “the transferor company”) to another company, whether a company within the meaning of this Act or not (in this section referred to as "the transferee company"), has, within 4 months after the making of the offer in that behalf by the transferee company, been approved by the holders of not less than nine tenths in value of the shares whose transfer is involved (other than shares already held at the date of the offer by, or by a nominee for, the transferee company or its subsidiary), the transferee company may, at any time within 2 months after the expiration of the said 4 months, give notice in the prescribed manner to any dissenting shareholder that it desires to acquire his shares, and when such a notice is given the transferee company shall, unless on an application made by the dissenting shareholder within 1 month from the date on which the notice was given the court thinks fit to order otherwise, be entitled and bound to acquire those shares on the terms on which, under the scheme or contract, the shares of the approving shareholders are to be transferred to the transferee company: LAWS OF THE REPUBLIC OF VANUATU
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Provided that where shares in the transferor company of the same class or classes as the shares whose transfer is involved are already held as aforesaid to a value greater than one tenth of the aggregate of their value and that of the shares (other than those already held as aforesaid) whose transfer is involved, the foregoing provisions of this subsection shall not apply unless
already held as aforesaid) whose transfer is involved, are not less than three fourths in number of the holders of those shares.
(2) Where, in pursuance of any such scheme or contract as aforesaid, shares in a company are transferred to another company or its nominee, and those shares together with any other shares in the firstmentioned company held by, or by a nominee for, the transferee company its subsidiary at the date of the transfer comprise or include nine tenths in value of the shares in the firstmentioned company or of any class of those shares, then
and where a shareholder gives notice under paragraph (b) of this subsection with respect to any shares, the transferee company shall be entitled and bound to acquire those shares on the terms on which under the scheme or contract the shares of the approving shareholders were transferred to it, or on such other terms as may be agreed or as the court on the application of either the transferee company or the shareholder thinks fit to order.
(3) Where a notice has been given by the transferee company under subsection (1) and the court has not, on an application made by the dissenting shareholder, ordered to the contrary, the transferee company shall, on the expiration of 1 month from the date on which the notice has been given, or, if an application to the court by the dissenting shareholder is then pending, after that application has been disposed of, transmit a copy of the notice to the transferor company together with an instrument of transfer executed on behalf of the shareholder by any person appointed by the transferee company and on its own behalf by the transferee company, and pay or transfer to the transferor company the amount or other consideration representing the price payable by the transferee company for the shares which by virtue of this section that company is entitled to acquire, and the transferor company shall thereupon register the transferee company as the holder of those shares: LAWS OF THE REPUBLIC OF VANUATU
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Provided that an instrument of transfer shall not be required for any share for which a share warrant is for the time being outstanding.
MINORITIES
ALTERNATIVE REMEDY TO WINDINGUP IN CASES OF OPPRESSION
216. (1) Any member of a company who complains that the affairs of the company are being conducted in a manner oppressive to some part of the members (including himself) or, in a case falling within section 174(2), the Minister may make an application to the court by petition for an order under this section.
(2) If on any such petition the court is of opinion
the court may, with a view to bringing to an end the matters complained of, make such order as it thinks fit, whether for regulating the conduct of the company's affairs in future, or for the purchase of the shares of any members of the company by other members of the company or "by the company and, in the case of a purchase by the company, for the reduction accordingly of the company's capital, or otherwise.
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PART VI
WINDINGUP
(i) PRELIMINARY MODES OF WINDINGUP
MODES OF WINDINGUP
217. | (1) | The winding up of a company may be either – | |
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(a) | by the court; or | ||
(b) | voluntary. | ||
(2) | The provisions of this Act with respect to winding up apply, unless the | ||
contrary appears, to the winding up of a company in either of those modes. |
CONTRIBUTORIES
LIABILITY AS CONTRIBUTORIES OF PRESENT AND PAST MEMBERS
218. In the event of a company being wound up, every present and past member shall be liable to contribute to the assets of the company to an amount sufficient for payment of its debts and liabilities, and the costs, charges and expenses of the winding up, and for the adjustment of the rights of the contributories among themselves, subject to the following qualifications
(a) a past member shall not be liable to contribute if he has ceased to be a member for one year or upwards before the commencement of the windingup;
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DEFINITION OF “CONTRIBUTORY”
(2) If the personal representatives make default in paying any money ordered to be paid by them, proceedings may be taken for administering the estate of the deceased contributory and for compelling payment thereout of the money due.
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CONTRIBUTORIES IN CASE OF BANKRUPTCY OF MEMBER
222. If a contributory becomes bankrupt, either before or after he has been placed on the list of contributories
(ii) WINDINGUP BY THE COURT
JURISDICTION
JURISDICTION TO WINDUP COMPANIES REGISTERED IN VANUATU
223. The Supreme Court shall have jurisdiction to wind up any company registered in Vanuatu.
CASES IN WHICH A COMPANY MAY BE WOUND UP BY THE COURT
CIRCUMSTANCES IN WHICH A COMPANY MAY BE WOUND UP BY THE COURT
224. A company may be wound up by the court if
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DEFINITION OF INABILITY TO PAY DEBTS
225. A company shall be deemed to be unable to pay its debts –
PETITION FOR WINDINGUP AND EFFECTS THEREOF
PROVISIONS AS TO APPLICATION FOR WINDING UP
226. (l) An application to the court for the winding up of a company shall be by petition presented, subject to the provisions of this section, either by the company or by any creditor or creditors (including any contingent or prospective creditor or creditors), contributory or contributories, or by all or any of those parties, together or separately:
Provided that
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POWERS OF COURT ON HEARING PETITION
227. (1) On hearing a windingup petition the court may dismiss it, or adjourn the hearing conditionally or unconditionally, or make any interim order, or any other order that it thinks fit, but the court shall not refuse to make a windingup order on the ground only that the assets of the company have been mortgaged to an amount equal to or in excess of those assets or that the company has no assets.
(2) Where the petition is presented by members of the company as contributories on the ground that it is just and equitable that the company should be wound up, the court, if it is of opinion
shall make a windingup order, unless it is also of the opinion both that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.
(3) Where the petition is presented on the ground of default in delivering the statutory report to the registrar or in holding the statutory meeting, the court may –
POWER TO STAY OR RESTRAIN PROCEEDINGS AGAINST COMPANY
228. At any time after the presentation of a windingup petition, and before a windingup order has been made, the company, or any creditor or contributory, may
(a) where any action or proceeding against the company is pending in the Supreme Court or Court of Appeal, apply to the court in which the action or proceeding is pending for a stay of proceedings therein; and
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(b) where any other action or proceeding is pending against the company, apply to the court having jurisdiction to wind up the company to restrain further proceedings in the action or proceeding;
and the court to which application is so made may, as the case may be, stay or restrain the proceedings accordingly on such terms as it thinks fit.
AVOIDANCE OF DISPOSITIONS OF PROPERTY, ETC., AFTER COMMENCEMENT OF WINDINGUP
COMMENCEMENT OF WINDINGUP
COMMENCEMENT OF WINDINGUP BY THE COURT
231. (1) Where, before the presentation of a petition for the winding up of a company by the court, a resolution has been passed by the company for voluntary windingup, the windingup of the company shall be deemed to have commenced at the time of the passing of the resolution, and unless the court, on proof of fraud or mistake, thinks fit otherwise to direct, all proceedings taken in the voluntary windingup shall be deemed to have been validly taken.
(2) In any other case, the winding up of a company by the court shall be deemed to commence at the time of the presentation of the petition for the windingup.
CONSEQUENCES OF WINDINGUP ORDER
COPY OF ORDER TO BE FORWARDED TO REGISTRAR
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EFFECT OF WINDINGUP ORDER
234. An order for windingup a company shall operate in favour of all the creditors and of all the contributories of the company as if made on the joint petition of a creditor and of a contributory.
OFFICIAL RECEIVER IN WINDINGUP
OFFICIAL RECEIVER IN BANKRUPTCY TO BE OFFICIAL RECEIVER FOR WINDINGUP PURPOSES
235. | (1) | For | the | purposes | of | this | Act | so | far | as | it | relates | the | winding | up | of | |||||||||||||
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companies by the court, the term | "official receiver" | means | the official | ||||||||||||||||||||||||||
receiver, if any, attached to the court for bankruptcy purposes, or, if there | |||||||||||||||||||||||||||||
is | more | than | one | such official receiver, then such | one | of them | as | the | |||||||||||||||||||||
Minister may appoint, or, if there is | no | such official receiver, then | an | ||||||||||||||||||||||||||
officer appointed for the purpose by the Minister. | |||||||||||||||||||||||||||||
(2) | Any such officer shall, for the purpose of his duties under this Act, be | ||||||||||||||||||||||||||||
styled "the official receiver". |
APPOINTMENT OF OFFICIAL RECEIVER BY COURT IN CERTAIN CASES
236. If, in the case of the windingup of any company by the court, it appears to the court desirable, with a view to securing the more convenient and economical conduct of the winding up, that some officer other than the person who would by virtue of section 235 be the official receiver should be the official receiver for the purposes of that winding up, the court may appoint that other officer to act as official receiver in that winding up, and the person so appointed shall be deemed to be the official receiver in that winding up for all the purposes of this Act.
STATEMENT OF COMPANY'S AFFAIRS TO BE SUBMITTED TO OFFICIAL RECEIVER
237. (1) Where the court has made a windingup order or appointed a provisional liquidator, there shall, unless the court thinks fit to order otherwise and so orders, be made out and submitted to the official receiver a statement as to the affairs of the company in the prescribed form, verified by affidavit, and showing the particulars of its assets, debts and liabilities, the names, residences and occupations of its creditors, the securities held by them respectively, the dates when the securities were respectively given, and such further or other information as may be prescribed or as the official receiver may require:
Provided that in the event that the court shall appoint a liquidator upon the making of a windingup order under the provisions of section 241(2), the statement as to the affairs of the company shall be submitted to such liquidator and this section shall be read and construed accordingly.
(2) The statement shall be submitted and verified by one or more of the persons who are at the relevant date the directors and by the person who is at that date the secretary of the company, or by such of the persons hereinafter in this subsection mentioned as the official receiver, subject to the direction of the court, may require to submit and verify the statement, that is to say, persons –
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REPORT BY OFFICIAL RECEIVER
238. (1) In a case where a windingup order is made, the official receiver shall, as soon as practicable after receipt of the statement to be submitted under the last foregoing section, or, in a case where the court orders that no statement shall be submitted, as soon as practicable after the date of the order, submit a preliminary report to the court LAWS OF THE REPUBLIC OF VANUATU
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LIQUIDATORS
POWER OF COURT TO APPOINT LIQUIDATORS
APPOINTMENT, STYLE, ETC., OF LIQUIDATORS
241. (1) The following provisions with respect to liquidators shall have effect on a windingup order being made
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(2) Notwithstanding the provisions of subsection (1) the court shall have power, where in the circumstances of any case it appears appropriate, to appoint a liquidator immediately upon the making of a windingup order. Where the petitioner intends to apply for such an order he shall give notice thereof in his petition.
PROVISIONS WHERE A PERSON OTHER THAN OFFICIAL RECEIVER IS APPOINTED LIQUIDATOR
242. Where, in the winding up of a company by the court, a person other than the official receiver is appointed liquidator, that person
GENERAL PROVISIONS AS TO LIQUIDATORS
243. (1) A liquidator appointed by the court may resign or, on cause shown, be removed by the court.
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CUSTODY OF COMPANY’S PROPERTY
(2) The liquidator in a windingup by the court shall have power
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(3) The exercise by the liquidator in a windingup by the court of the powers conferred by this section shall be subject to the control of the court, and any creditor or contributory may apply to the court with respect to any exercise or proposed exercise of any of those powers.
EXERCISE AND CONTROL OF LIQUIDATOR'S POWERS
247. (1) Subject to the provisions of this Act, the liquidator of a company which is being wound up by the court shall, in the administration of the assets of the company and in the distribution thereof among its creditors, have regard to any directions that may be given by resolution of the creditors or contributories at any general meeting or by the committee of inspection, and any directions given by the creditors or contributories at any general meeting shall in case of conflict be deemed to override any directions given by the committee of inspection.
(2) The liquidator may summon general meetings of the creditors or contributories; for the purpose of ascertaining their wishes, and it shall be his duty to summon meetings at such times as the creditors or contributories, by resolution, either at the meeting appointing the liquidator or otherwise, may direct, or whenever requested in writing to do so by onetenth in value of the creditors or contributories as the case may be.
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BOOKS TO BE KEPT BY LIQUIDATOR
248. Every liquidator of a company which is being wound up by the court shall keep, in manner prescribed, proper books in which he shall cause to be made entries or minutes of proceedings at meetings, and of such other matters as may be prescribed, and any creditor or contributory may, subject to the control of the court, personally or by his agent inspect any such books.
PAYMENTS OF LIQUIDATOR INTO TRUST ACCOUNT ETC.
249. | (1) | Every liquidator of a company which is being wound up by the court shall |
pay the moneys received by him into a trust account, whether special or | ||
existing, with any licensed trading bank carrying on business in Vanuatu | ||
and shall pay all outgoings by cheque from that account. | ||
(2) | Every liquidator to whom the provisions of subsection (1) apply shall, if | |
he holds moneys not required for immediate disbursement, have power to | ||
place such moneys upon fixed deposit at the said bank, so however that | ||
the funds of each company of which he is acting as liquidator shall be | ||
separately so invested. |
AUDIT OF LIQUIDATOR'S ACCOUNTS
250. (1) Every liquidator of a company which is being wound up by the court shall, at such times as may be prescribed but not less than twice in each year during his tenure of office, send to the Minister, or as he directs, an account of his receipts and payments as liquidator.
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CONTROL OF MINISTER OVER LIQUIDATORS
251. (1) The Minister shall take cognizance of the conduct of liquidators of companies which are being wound up by the court, and, if a liquidator does not faithfully perform his duties and duly observe all the requirements imposed on him by statute, rules or otherwise with respect to the performance of his duties or if any complaint is made to the Minister by any creditor or contributory in regard thereto, the Minister shall inquire into the matter, and take such action thereon as he may think expedient.
RELEASE OF LIQUIDATORS
252. (1) When the liquidator of a company which is being wound up by the court has realised all the property of the company, or so much thereof as can, in his opinion, be realised without needlessly protracting the liquidation, and has distributed a final dividend, if any, to the creditors, and adjusted the rights of the contributories among themselves, and made a final return, if any, to the contributories, or has resigned, or has been removed from his office, the Minister shall, on his application, cause a report on his accounts to be prepared, and, on his complying with all the requirements of the Minister, shall take into consideration the report and any objection which may be urged by any creditor or contributory or person interested against the release of the liquidator, and shall either grant or withhold the release accordingly, subject nevertheless to an appeal to the Supreme Court. A copy of the report on the accounts of the liquidator shall, unless the Minister otherwise directs, be sent by post to every creditor and contributory.
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COMMITTEES OF INSPECITON
MEETINGS OF CREDITORS AND CONTRIBUTORIES TO DETERMINE WHETHER COMMITTEE OF INSPECTION SHALL BE APPOINTED
253. (l) When a windingup order has been made by the court, it shall be the business of the separate meetings of creditors and contributories summoned for the purpose of determining whether or not an application should be made to the court for appointing a liquidator in place of the official receiver, to determine further whether or not an application is to be made to the court for the appointment of a committee of inspection to act with the liquidator and who are to be members of the committee if appointed.
(2) The court may make any appointment and order required to give effect to any such determination, and if there is a difference between the determinations of the meetings of the creditors and contributories in respect of the matters aforesaid the court shall decide the difference and make such order thereon as the court may think fit.
CONSTITUTION AND PROCEEDINGS OF COMMITTEE OF INSPECTION
254. (1) A committee of inspection appointed in pursuance of this Act shall consist of creditors and contributories of the company or persons holding general powers of attorney from creditors or contributories in such proportions as may be agreed on by the meetings of creditors and contributories or as, in case of difference, may be determined by the court.
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Provided that if the liquidator, having regard to the position in the winding up, is of the opinion that it is unnecessary for the vacancy to be filled he may apply to the court and the court may make an order that the vacancy shall not be filled, or shall not be filled except in such circumstances as may be specified in the order.
(8) The continuing members of the committee, if not less than two, may act notwithstanding any vacancy in the committee.
POWERS OF MINISTER WHERE NO COMMITTEE OF INSPECTION
255. Where in the case of a winding up there is no committee of inspection, the Minister may, on the application of the liquidator, do any act or thing or give any direction or permission which is by this Act authorised or required to be done or given by the committee.
GENERAL POWERS OF COURT IN CASE OF WINDINGUP BY COURT
POWER TO STAY WINDINGUP
256. (1) The court may at any time after an order for windingup, on the application either of the liquidator or the official receiver or any creditor or contributory, and on proof to the satisfaction of the court that all proceedings in relation to the winding up ought to be stayed, make an order staying the proceedings, either altogether or for a limited time, on such terms and conditions as the court thinks fit.
SETTLEMENT OF LIST OF CONTRIBUTORIES AND APPLICATION OF ASSETS
257. (l) As soon as may be after making a windingup order, the court shall settle a list of contributories, with power to rectify the register of members in all cases where rectification is required in pursuance of this Act, and shall cause the assets of the company to be collected, and applied in discharge of its liabilities:
Provided that, where it appears to the court that it will not be necessary to make calls on or adjust the rights of contributories, the court may dispense with the settlement of a list of contributories.
(2) In settling the list of contributories, the court shall distinguish between persons who are contributories in their own right and persons who are contributories as being representatives of or liable for the debts of others.
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DELIVERY OF PROPERTY TO LIQUIDATOR
POWER OF COURT TO MAKE CALLS
260. (1) The court may, at any time after making a windingup order, and either before or after it has ascertained the sufficiency of the assets of the company, make calls on all or any of the contributories for the time being settled on the list of the contributories to the extent of their liability, for payment of any money which the court considers necessary to satisfy the debts and liabilities of the company, and the costs, charges and expenses of windingup, and for the adjustment of the rights of the contributories among themselves, and make an order for payment of any calls so made.
(2) In making a call the court may take into consideration the probability that some of the contributories may partly or wholly fail to pay the call.
PAYMENT INTO BANK OF MONEYS DUE TO COMPANY
261. (1) The court may order any contributory, purchaser or other person from whom money is due to the company to pay the amount due into any specified bank account of the liquidator instead of to the liquidator, and any such order may be enforced in the same manner as if it had directed payment to the liquidator. LAWS OF THE REPUBLIC OF VANUATU
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(2) All moneys and securities paid or delivered into the bank account of the liquidator in the event of a windingup by the court shall be subject in all respects to the orders of the court.
ORDER ON CONTRIBUTORY CONCLUSIVE EVIDENCE
262. (1) An order made by the court on a contributory shall, subject to any right of appeal, be conclusive evidence that the money, if any, thereby appearing to be due or ordered to be paid is due.
(2) All other pertinent matters stated in the order shall be taken to be truly stated as against all persons and in all proceedings.
APPOINTMENT OF SPECIAL MANAGER
263. (l) Where in proceedings the official receiver becomes the liquidator of a company, whether provisionally or otherwise, he may, if satisfied that the nature of the estate or business of the company, or the interests of the creditors or contributories generally, require the appointment of a special manager of the estate or business of the company other than himself, apply to the court, and the court may on such application appoint a special manager of the said estate or business to act during such time as the court may direct, with such powers, including any of the powers of a receiver or manager, as may be entrusted to him by the court.
POWER TO EXCLUDE CREDITORS NOT PROVING IN TIME
(2) Nothing in this section shall be taken as excluding or restricting any statutory rights of the Government or person acting on behalf of the Government.
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POWER TO ORDER COSTS OF WINDINGUP TO BE PAID OUT OF ASSETS
267. The court may, in the event of the assets being insufficient to satisfy the liabilities, make an order as to the payment out of the assets of the costs, charges and expenses incurred in the windingup in such order of priority as the court thinks just.
POWER TO SUMMON PERSONS SUSPECTED OF HAVING PROPERTY OF COMPANY, ETC.
268. | (l) | The | court | may, | at | any | time | after | the | appointment | of | a | provisional | |||||||||||||||||||||||||||||||||||||||||||
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liquidator | or | the making of | a | windingup order, | summon | before it any | ||||||||||||||||||||||||||||||||||||||||||||||||||
officer | of | the company | or | person | known | or | suspected | to | have in | his | ||||||||||||||||||||||||||||||||||||||||||||||
possession any property of the company or supposed to be indebted to the | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
company, | or | any | person | whom | the | court | deems | capable | of | giving | ||||||||||||||||||||||||||||||||||||||||||||||
information concerning the promotion, formation, trade, dealings, affairs | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
or property of the company. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
(2) | The court may examine him | on | oath concerning the matters aforesaid, | |||||||||||||||||||||||||||||||||||||||||||||||||||||
either by word of mouth or on written interrogatories, and may reduce his | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
answers to writing and require him to sign them. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
(3) | The court may require him to produce any books and papers in his custody | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
or power relating to the company, but, where he claims any lien on books | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
or papers produced by him, the production shall be without prejudice to | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
that | lien, | and | the | court | shall | have | jurisdiction | in | the | windingup | to | |||||||||||||||||||||||||||||||||||||||||||||
determine all questions relating to that lien. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
(4) | If any person so summoned, after being tendered a reasonable sum for his | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
expenses, refuses | to | come | before the | court | at | the time appointed, | not | |||||||||||||||||||||||||||||||||||||||||||||||||
having a lawful impediment (made known to the court at the time of its | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
sitting and allowed by it), the court may cause him to be apprehended and | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
brought before the court for examination. |
POWER TO ORDER PUBLIC EXAMINATION OF PROMOTERS AND OFFICERS
269. (l) Where an order has been made for windingup a company by the court, and the official receiver has made a further report under this Act stating that in his opinion a fraud has been committed by any person in the promotion or formation of the company or by any officer of the company in relation to the company since its formation, the court may, after consideration of the report, direct that that person or officer shall attend before the court on a day appointed by the court for that purpose and be publicly examined as to the promotion or formation or the conduct of the business of the company or as to his conduct and dealings as officer thereof.
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POWER TO ARREST ABSCONDING CONTRIBUTORY
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(c) | the | paying, | delivery, | conveyance, | surrender | or | transfer | of | money, |
property, books or papers to the liquidator; | |||||||||
(d) | the making of calls; |
(e) the fixing of a time within which debts and claims must be proved;
to be exercised or performed by the liquidator as an officer of the court, and subject to the control of the court:
Provided that the liquidator shall not, without the special leave of the court, rectify the register of members, and shall not make any call without either the special leave of the court or the sanction of the committee of inspection.
DISSOLUTION OF COMPANY
273. (1) When the affairs of a company have been completely woundup, the court, if the liquidator makes an application in that behalf, shall make an order that the company be dissolved from the date of the order, and the company shall be dissolved accordingly.
(iii) VOLUNTARY WINDINGUP
RESOLUTIONS FOR, AND COMMENCEMENT OF, VOLUNTARY WINDINGUP
CIRCUMSTANCES IN WHICH COMPANY MAY BE WOUNDUP VOLUNTARILY
274. (1) A company may be woundup voluntarily
(2) In this Act the expression "a resolution for voluntary winding up" means a resolution passed under any of the provisions of subsection (1) of this section.
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NOTICE OF RESOLUTION TO WINDUP VOLUNTARILY COMMENCEMENT OF VOLUNTARY WINDINGUP
275. | (1) | When | a | company has passed | a | resolution for voluntary windingup, it |
shall, within 14 days after the passing of the resolution, give notice of the | ||||||
resolution by advertisement in the Gazette. | ||||||
(2) | If default is made in complying with this section, the company and every | |||||
officer of the company who is in default shall be liable to a default fine, | ||||||
and for the purposes of this subsection the liquidator of the company shall | ||||||
be deemed to be an officer of the company. |
276. A voluntary windingup shall be deemed to commence at the time of the passing of the resolution for voluntary winding up.
CONSEQUENCES OF VOLUNTARY WINDINGUP
EFFECT OF VOLUNTARY WINDING UP ON BUSINESS AND STATUS OF COMPANY
277. In case of a voluntary winding up, the company shall, from the commencement of the windingup, cease to carry on its business, except so far as may be required for the beneficial windingup thereof:
Provided that the corporate state and corporate powers of the company shall, notwithstanding anything to the contrary in its articles, continue until it is dissolved.
AVOIDANCE OF TRANSFERS, ETC., AFTER COMMENCEMENT OF VOLUNTARY WINDINGUP
278. Any transfer of shares, not being a transfer made to or with the sanction of the liquidator, and any alteration in the status of the members of the company, made after the commencement of a voluntary windingup, shall be void.
DECLARATION OF SOLVENCY
DECLARATION OF SOLVENCY IN CASE OF PROPOSAL TO WINDUP VOLUNTARILY
279. (1) Where it is proposed to windup a company voluntarily, the directors of the company or, in the case of a company having more than two directors, the majority of the directors, may, at a meeting of the directors, make a declaration to the effect that they have made a full inquiry into the affairs of the company, and that, having so done, they have formed the opinion that the company will be able to pay its debts in full within such period not exceeding 12 months from the commencement of the windingup as may be specified in the declaration.
(2) A declaration made as aforesaid shall have no effect for the purposes of this Act unless
(a) it is made within the 5 weeks immediately preceding the date of the passing of the resolution for winding up the company and is delivered to the registrar of companies for registration before that date; and
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(b) it embodies a statement of the company's assets and liabilities as at the latest practicable date before the making of the declaration.
PROVISIONS APPLICABLE TO A MEMBERS' VOLUNTARY WINDINGUP
PROVISIONS APPLICABLE TO A MEMBERS' WINDING UP
POWER OF COMPANY TO APPOINT AND FIX REMUNERATION OF LIQUIDATORS
(2) On the appointment of a liquidator all the powers of the directors shall cease, except so far as the company in general meeting or the liquidator sanctions the continuance thereof.
POWER TO FILL VACANCY IN OFFICE OF LIQUIDATOR
282. (l) If a vacancy occurs by death, resignation or otherwise in the office of liquidator appointed by the company, the company in general meeting may, subject to any arrangement with its creditors, fill the vacancy.
POWER OF LIQUIDATOR TO ACCEPT SHARES, ETC., AS CONSIDERATION FOR SALE OF PROPERTY OF COMPANY LAWS OF THE REPUBLIC OF VANUATU
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283. (l) Where a company is proposed to be, or is in course of being, woundup altogether voluntarily, and the whole or part of its business or property is proposed to be transferred or sold to another company, whether a company within the meaning of this Act or not (in this section called "the transferee company"), the liquidator of the firstmentioned company (in this section called "the transferor company") may, with the sanction of a special resolution of that company, conferring either a general authority on the liquidator or an authority in respect of any particular arrangement, receive, in compensation or part compensation for the transfer or sale, shares, policies or other like interests in the transferee company for distribution among the members of the transferor company, or may enter into any other arrangement whereby the members of the transferor company may in lieu of receiving cash, shares, policies or other like interests, or in addition thereto, participate in the profits of or receive any other benefit from the transferee company.
DUTY OF LIQUIDATOR TO CALL CREDITORS’ MEETING IN CASE OF INSOLVENCY
284. (1) If, in the case of a windingup commenced after the commencement of this Act (27 October 1986), the liquidator is at any time of opinion that the company will not be able to pay its debts in full within the period stated in the declaration under section 279 he shall forthwith summon a meeting of the creditors, and shall lay before the meeting a statement of the assets and liabilities of the company.
(2) If the liquidator fails to comply with this section, he shall be liable to a fine not exceeding VT10,000.
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DUTY OF LIQUIDATOR TO CALL GENERAL MEETING AT THE END OF EACH YEAR
285. (1) Subject to the provisions of section 287, in the event of the windingup continuing for more than 1 year, the liquidator shall summon a general meeting of the company at the end of the first year from the commencement of the winding up, and of each succeeding year, or at the first convenient date within 3 months from the end of the year or such longer period as the Minister may allow, and shall lay before the meeting an account of his acts and dealings and of the conduct of the windingup during the preceding year.
(2) If the liquidator fails to comply with this section, he shall be liable to a fine not exceeding VT10,000.
FINAL MEETING AND DISSOLUTION
286. (1) Subject to the provisions of section 287, as soon as the affairs of the company are fully woundup, the liquidator shall make up an account of the winding up, showing how the windingup has been conducted and the property of the company has been disposed of, and thereupon shall call a general meeting of the company for the purpose of laying before it the account, and giving any explanation thereof.
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ALTERNATIVE PROVISIONS AS TO ANNUAL AND FINAL MEETINGS IN CASE OF INSOLVENCY
287. Where section 284 has effect, sections 295 and 296 shall apply to the windingup to the exclusion of sections 285 and 286, as if the winding up were a creditors' voluntary windingup and not a members' voluntary windingup:
Provided that the liquidator shall not be required to summon a meeting of creditors under section 295 at the end of the first year from the commencement of the windingup, unless the meeting held under section 284 is held more than 3 months before the end of that year.
PROVISIONS APPLICABLE TO A CREDITORS’ VOLUNTARY WINDINGUP
PROVISIONS APPLICABLE TO A CREDITORS' WINDINGUP
cause the notices of the said meeting of creditors to be sent by post to the creditors simultaneously with the sending of the notices of the said meeting of the company.
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(6) If default is made
the company, directors or director, as the case may be, shall be liable to a fine not exceeding VT'20,000, and, in the case of default by the company, every officer of the company who is in default shall be liable to the like penalty.
APPOINTMENT OF LIQUIDATOR
290. The creditors and the company at their respective meetings mentioned in section 289 may nominate a person to be liquidator for the purpose of windingup the affairs and distributing the assets of the company, and if the creditors and the company nominate different persons, the person nominated by the creditors shall be liquidator, and if no person is nominated by the creditors the person, if any, nominated by the company shall be liquidator:
Provided that in the case of different persons being nominated; any director, member or creditor of the company may, within 7 days after the date on which the nomination was made by the creditors, apply to the court for an order either directing that the person nominated as liquidator by the company shall be liquidator instead of or jointly with the person nominated by the creditors or appointing some other person to be liquidator instead of the person appointed by the creditors.
APPOINTMENT OF COMMITTEE OF INSPECTION
291. (l) The creditors at the meeting to be held in pursuance of section 289 or at any subsequent meeting may, if they think fit, appoint a committee of inspection consisting of not more than five persons and if such a committee is appointed the company may, either at the meeting at which the resolution for voluntary windingup is passed or at any time subsequently in general meeting, appoint such number of persons as they think fit to act as members of the committee not exceeding five in number:
Provided that the creditors may, if they think fit, resolve that all or any of the persons so appointed by the company ought not to be members of the committee of inspection, and, if the creditors so resolve, the persons mentioned in the resolution shall not, unless the court otherwise directs, be qualified to act as members of the committee, and on any application to the court under this provision the court may, if it thinks fit, appoint other persons to act as such members in place of the persons mentioned in the resolution.
(2) Subject to the provisions of this section and to general rules, the provisions of section 254 (except subsection (1) thereof) shall apply with respect to a committee of inspection appointed under this section as they apply with respect to a committee of inspection appointed in a windingup by the court.
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FIXING OF LIQUIDATORS' REMUNERATION AND CESSER OF DIRECTORS’ POWERS
292. | (1) | The | committee | of | inspection, | or | if | there | is | no | such | committee, | the | ||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
creditors, | may | fix | the | remuneration | to | be | paid | to | the | liquidator | or | ||||||||||||
liquidators. | |||||||||||||||||||||||
(2) | On the appointment of a liquidator, all the powers of the directors shall | ||||||||||||||||||||||
cease, except so far as the committee of inspection, or if there is no such | |||||||||||||||||||||||
committee, the creditors, sanction the continuance thereof. |
POWER TO FILL VACANCY IN OFFICE OF LIQUIDATOR
(2) If the liquidator fails to comply with this section, he shall be liable to a fine not exceeding VT10,000.
FINAL MEETING AND DISSOLUTION
296. | (1) | As soon as the affairs of the company are fully woundup, the liquidator | ||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
shall make up an account of the windingup, showing how the winding up | ||||||||||||
has been conducted and the property of the company has been disposed of, | ||||||||||||
and thereupon shall call a general meeting of the company and a meeting | ||||||||||||
of the creditors for the purpose of laying the account before the meetings | ||||||||||||
and giving any explanation thereof. | ||||||||||||
(2) | Each | such | meeting | shall | be | called | by | advertisement | in | the | Gazette | |
specifying the time, place and object thereof, and published 1 month at | ||||||||||||
least before the meeting. | ||||||||||||
(3) | Within 1 week after the date of the meetings, or, if the meetings are not | |||||||||||
held on the same date, after the date of the later meeting, the liquidator | ||||||||||||
shall send to the registrar of companies a copy of the account, and shall | ||||||||||||
make a return to him of the holding of the meetings and of their dates, and | ||||||||||||
if the copy is not sent or the return is not made in accordance with this | ||||||||||||
subsection the liquidator shall be liable to a fine not exceeding VT1,000 | ||||||||||||
for every day during which the default continues: | ||||||||||||
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Provided that, if a quorum is not present at either such meeting, the liquidator shall, in lieu of the return herein before mentioned, make a return that the meeting was duly summoned and that no quorum was present thereat and upon such a return being made the provisions of this subsection as to the making of the return shall, in respect of that meeting, be deemed to have been complied with.
PROVISIONS APPLICABLE TO EVERY VOLUNTARY WINDINGUP
PROVISIONS APPLICABLE TO EVERY VOLUNTARY WINDINGUP
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POWER OF COURT TO APPOINT AND REMOVE LIQUIDATOR IN VOLUNTARY WINDINGUP
300. | (1) | If from any cause whatever there is no liquidator acting, the court may |
appoint a liquidator. | ||
(2) | The court may, on cause shown, remove a liquidator and appoint another | |
liquidator. |
NOTICE BY LIQUIDATOR OF HIS APPOINTMENT
301. (1) The liquidator shall, within 14 days after his appointment, publish in the Gazette and deliver to the registrar of companies for registration a notice of his appointment in the form prescribed by the Minister.
(2) If the liquidator fails to comply with the requirements of this section he shall be liable to a fine not exceeding VT1,000 for every day during which the default continues.
ARRANGEMENT WHEN BINDING ON CREDITORS
302. (l) Any arrangement entered into between a company about to be, or in the course of being, woundup and its creditors shall, subject to the right of appeal under this section, be binding on the company if sanctioned by an extraordinary resolution and on the creditors if acceded to by three fourths in number and value of the creditors.
(2) Any creditor or contributory may, within 3 weeks from the completion of the arrangement, appeal to the court against it, and the court may thereupon, as it thinks just, amend, vary or confirm the arrangement.
POWER TO APPLY TO COURT TO HAVE QUESTIONS DETERMINED OR POWERS EXERCISED
303. (l) The liquidator or any contributory or creditor may apply to the court to determine any question arising in the windingup of a company, or to exercise, as respects the enforcing of calls or any other matter, all or any
of the powers which the court might exercise if the company were being
woundup by the court.
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COSTS OF VOLUNTARY WINDINGUP
(iv) PROVISIONS APPLICABLE TO EVERY MODE OF WINDINGUP
PROOF AND RANKING OF CLAIMS
DEBTS OF ALL DESCRIPTIONS MAY BE PROVED
306. In every windingup (subject, in the case of insolvent companies, to the application in accordance with the provisions of this Act of the law of bankruptcy) all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as possible, of the value of such debts or claims as may be subject to
any contingency or sound only in damages, or for some other reason do not bear a
certain value.
APPLICATION OF BANKRUPTCY RULES IN WINDINGUP OF INSOLVENT COMPANIES
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out of money advanced by some person for that purpose, the person by whom the money was advanced shall in a windingup have a right of priority in respect of the money so advanced and paid up to the amount by which the sum in respect of which the clerk, servant, workman or labourer, or other person in his right, would have been entitled to priority in the winding up has been diminished by reason of the payment having been made.
(5) The foregoing debts shall
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EFFECT OF WINDINGUP ON ANTECEDENT AND OTHER TRANSACTIONS
FRAUDULENT PREFERENCE
309. (l) Any conveyance, mortgage, delivery of goods, payment, execution or other act relating to property made or done by or against a company within 6 months before the commencement of its windingup which, had it been made or done by or against an individual within 6 months before the presentation of a bankruptcy petition on which he is adjudged bankrupt, would be deemed in his bankruptcy a fraudulent preference, shall in the event of the company being woundup be deemed a fraudulent preference of its creditors and be invalid accordingly.
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(2) Any conveyance or assignment by a company of all its property to trustees for the benefit of all its creditors shall be void to all intents.
LIABILITIES AND RIGHTS OF CERTAIN FRAUDULENTLY PREFERRED PERSONS
310. (1) Where, in the case of a company being woundup, anything made or done is void under section 309 as a fraudulent preference of a person interested in property mortgaged or charged to secure the company's debt, then (without prejudice to any rights or liabilities arising apart from this provision) the person preferred shall be subject to the same liabilities, and shall have the same rights, as if he had undertaken to be personally liable as surety for the debt to the extent of the charge on the property or the value of his interest, whichever is the less.
This subsection shall apply, with the necessary modifications, in relation to transactions other than the payment of money as it applies in relation to payments.
EFFECT OF FLOATING CHARGE
311. Where a company is being woundup, a floating charge on the undertaking or property of the company created within 12 months of the commencement of the windingup shall, unless it is proved that the company immediately after the creation of the charge was solvent, be invalid, except to the amount of any cash paid to the company at the time of or subsequently to the creation of, and in consideration for, the charge, together with interest on that amount at the rate of 10 per cent per annum or such other rate as may for the time being be prescribed by the Minister.
DISCLAIMER OF ONEROUS PROPERTY OF A COMPANY
312. (1) Where any part of the property of a company which is being woundup consists of land of any tenure burdened with onerous covenants, of shares or stock in companies, of unprofitable contracts, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act or to the payment of any sum of money, the liquidator of the company, notwithstanding that he has endeavoured to sell or has taken possession of the property or exercised any act of ownership in relation thereto, may, with the leave of the court and subject to the provisions of this section, by writing signed by him, at any time within 12 months after the commencement of the windingup or such extended period as may be allowed by the court, disclaim the property: LAWS OF THE REPUBLIC OF VANUATU
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Provided that, where any such property has not come to the knowledge of the liquidator within 1 month after the commencement of the windingup, the power under this section of disclaiming the property may be exercised at any time within 12 months after he has become aware thereof or such extended period as may be allowed by the court.
(2) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interest and liabilities of the company, and the property of the company, in or in respect of the property disclaimed, but shall not, except so far as is necessary for the purpose of releasing the company and the
property of the company from liability, affect the rights or liabilities of
any other person.
Provided that, where the property disclaimed is of a leasehold nature, the court shall not make a vesting order in favour of any person claiming under the company, whether as underlessee or as mortgagee by demise, including a chargee by way of legal mortgage, except upon the terms of making that person
(a) subject to the same liabilities and obligations as those to which the company was subject under the lease in respect of the property at the commencement of the winding up;
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(b) if the court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date;
and in either event (if the case so requires) as if the lease had comprised only the property comprised in the vesting order, and any mortgagee or underlessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and, if there is no person claiming under the company who is willing to accept an order upon such terms, the court shall have power to vest the estate and interest of the company in the property in any person liable either personally or in a representative character, and either alone or jointly with the company, to perform the lessee's covenants in the lease, freed and discharged from all estates, encumbrances and interests created therein by the company.
(7) Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the company to the amount of the injury, and may accordingly prove the amount as a debt in the windingup.
RESTRICTION OF RIGHTS OF CREDITOR AS TO EXECUTION OR ATTACHMENT IN THE CASE OF A COMPANY BEING WOUND UP
313. (l) Where a creditor has issued execution against the goods or lands of a company or has attached any debt due to the company, and the company is subsequently woundup, he shall not be entitled to retain the benefit of the execution or attachment against the liquidator in the windingup of the company unless he has completed the execution or attachment before the commencement of the windingup:
Provided that –
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DUTIES OF BAILIFF AS TO GOODS TAKEN IN EXECUTION
314. (1) Subject to the provisions of subsection (3), where any goods of a company are taken in execution, and, before the sale thereof or the completion of the execution by the receipt or recovery of the full amount of the levy, notice is served on the bailiff that a provisional liquidator has been appointed or that a windingup order has been made or that a resolution for voluntary windingup has been passed, the bailiff shall, on being so required, deliver the goods and any money seized or received in part satisfaction of the execution to the liquidator, but the costs of the execution shall be a first charge on the goods or money so delivered, and the liquidator may sell the goods, or a sufficient part thereof, for the purpose of satisfying the charge.
OFFENCES ANTECEDENT TO OR IN COURSE OF WINDING UP
OFFENCES BY OFFICERS OF COMPANIES IN LIQUIDATION
315. (1) If any person, being a past or present officer of a company which at the time of the commission of the alleged offence is being wound up, whether by the court or voluntarily, or is subsequently ordered by be woundup by the court or subsequently passes a resolution for voluntary windingup
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(p) is guilty of any false representation or other fraud for the purpose of obtaining the consent of the creditors of the company or any of them to an agreement with reference to the affairs of the company or to the windingup;
he shall be guilty of an offence and shall, in the case of the offences mentioned respectively in paragraphs (m), (n) and (o), be liable on conviction to imprisonment for a term not exceeding 5 years or to a fine not exceeding VT1,000,000, or to both, and in the case of any other offence shall be liable on conviction to imprisonment for a term not exceeding 2 years or to a fine not exceeding VT500,000, or to both:
Provided that it shall be a good defence to a charge under any paragraphs (a), (b), (c), (d), (f), (n) and (o) if the accused proves that he had no intent to defraud, and to a charge under any of paragraphs (h), (i) and (j), if he proves that he had no intent to conceal the state of affairs of the company or to defeat the law.
PENALTY FOR FALSIFICATION OF BOOKS
316. If any officer or contributory of any company being woundup destroys, mutilates, alters or falsifies any books, papers or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account or document belonging to the company with intent to defraud or deceive any person, he shall be guilty of an offence and be liable to imprisonment for a term not exceeding 2 years or to a fine not exceeding VT500,000, or to both.
FRAUDS BY OFFICERS OF COMPANIES WHICH HAVE GONE INTO LIQUIDATION
317. If any person, being at the time of the commission of the alleged offence an officer of a company which is subsequently ordered to be woundup by the court or subsequently passes a resolution for voluntary winding up
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he shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 2 years, or to a fine not exceeding VT500,000, or to both.
LLABILITY WHERE PROPER ACCOUNTS NOT KEPT
318. (1) If where a company is woundup it is shown that proper books of account were not kept by the company throughout the period of 2 years immediately preceding the commencement of the winding up, or the period between the incorporation of the company and the commencement of the winding up, whichever is the shorter, every officer of the company who is in default shall, unless he shows that he acted honestly and that in the circumstances in which the business of the company was carried on the default was excusable, be liable on conviction to imprisonment for a term not exceeding 1 year, or to a fine not exceeding VT200,000, or to both.
(2) For the purposes of this section, proper books of account shall be deemed not to have been kept in the case of any company if there have not been kept such books or accounts as are necessary to exhibit and explain the transactions and financial position of the trade or business of the company, including books containing entries from day to day in sufficient detail of all cash received and cash paid, and, where the trade or business has involved dealings in goods, statements of the annual stock takings and (except in the case of goods sold by way of ordinary retail trade) of all goods sold and purchased, showing the goods and the buyers and sellers thereof in sufficient detail to enable those goods and those buyers and sellers to be identified.
RESPONSIBILITY FOR FRAUDULENT TRADING OF PERSONS CONCERNED
319. (l) If in the course of the windingup of a company it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, the court, on the application of the official receiver, or the liquidator or any creditor or contributory of the company, may, if it thinks proper so to do, declare that any persons who were knowingly parties to the carrying on of the business in manner aforesaid shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the court may direct.
On the hearing of an application under this subsection the official receiver or the liquidator, as the case may be, may himself give evidence or call witnesses.
(2) Where the court makes any such declaration, it may give such further directions as it thinks proper for the purpose of giving effect to that declaration, and in particular may make provision for making the liability of any such person under the declaration a charge on any debt or obligation due from the company to him, or on any mortgage or charge or any interest in any mortgage or charge on any assets of the company held by or vested in him, or any company or person on his behalf, or any person claiming as assignee from or through the person liable or any company or person acting on his behalf, and may from time to time make such further order as may be necessary for the purpose of enforcing any charge imposed under this subsection.
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For the purpose of this subsection, the expression “assignee” includes any person to whom or in whose favour, by the directions of the person liable, the debt, obligation, mortgage or charge was created, issued or transferred or the interest created, but does not include an assignee for valuable consideration given in good faith and without notice of any of the matters on the ground of which the declaration is made.
POWER OF COURT TO ASSESS DAMAGES AGAINST DELINQUENT DIRECTORS, ETC.
320. (l) If in the course of winding up a company it appears that any person who has taken part in the formation or promotion of the company, or any past or present director, manager or liquidator, or any officer of the company, has misapplied or retained or become liable or accountable for any money or property of the company, or been guilty of any misfeasance or breach of trust in relation to the company, the court may, on the application of the official receiver, or of the liquidator, or of any creditor or contributory, examine into the conduct of the promoter, director, manager, liquidator or officer, and compel him to repay or restore the money or property or any part thereof respectively with interest at such rate as the court thinks just, or to contribute such sum to the assets of the company by way of compensation in respect of the misapplication, retainer, misfeasance or breach of trust as the court thinks just.
(2) The provisions of this section shall have effect notwithstanding that the offence is one for which the offender may be criminally liable.
PROSECUTION OF DELINQUENT OFFICERS AND MEMBERS OF A COMPANY
321. (l) If it appears to the court in the course of a windingup by the court that any past or present officer, or any member, of the company has been guilty of any offence in relation to the company for which he is criminally liable, the court may, either on the application of any person interested in the windingup or of its own motion, direct the liquidator to refer the matter to the Attorney General or to the Commissioner of Police.
(2) If it appears to the liquidator in the course of a voluntary windingup that any past or present officer, or any member, of the company has been guilty of any offence in relation to the company for which he is criminally liable, he shall forthwith report the matter to the Attorney General or the Commissioner of Police, and shall furnish to him such information and give to him such access to and facilities for inspecting and taking copies of any documents, being information or documents in the possession or under the control of the liquidator and relating to the matter in question, as he may require.
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every officer and agent of the company past and present (other than the defendant in the proceedings) to give him all assistance in connection with the prosecution which he is reasonably able to give.
For the purposes of this subsection, the expression "agent" in relation to a company shall be deemed to include any banker or legal practitioner of the company and any person employed by the company as auditor, whether that person is or is not an officer of the company.
(6) If any person fails or neglects to give assistance in manner required by subsection (5), the court may, on the application of the Attorney General or the Commissioner of Police, direct that person to comply with the requirements of the said subsection, and where any such application is made with respect to a liquidator the court may, unless it appears that the failure or neglect to comply was due to the liquidator not having in his hands sufficient assets of the company to enable him so to do, direct that the costs of the application shall be borne by the liquidator personally.
SUPPLEMENTARY PROVISIONS AS TO WINDING UP
DISQUALIFICATION FOR APPOINTMENT AS LIQUIDATOR
322. A body corporate shall not be qualified for appointment as liquidator of a company, whether in a windingup by the court or in a voluntary windingup, and
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CORRUPT INDUCEMENT AFFECTING APPOINTMENT AS LIQUIDATOR
323. Any person who gives or agrees or offers to give to any member or creditor of a company any valuable consideration with a view to securing his own appointment or nomination, or to securing or preventing the appointment or nomination of some person other than himself, as the company's liquidator shall be liable to a fine not exceeding VT20,000.
ENFORCEMENT OF DUTY OF LIQUIDATOR TO MAKE RETURNS, ETC.
324. (1) If any liquidator who has made any default in filing, delivering or making any return, account or other document, or in giving any notice which he is by law required to file, deliver, make or give, fails to make good the default within 14 days after the service on him of a notice requiring him to do so, the court may, on an application made to the court by any contributory or creditor of the company or by the registrar of companies, make an order directing the liquidator to make good the default within such time as may be specified in the order.
NOTIFICATION THAT A COMPANY IS IN LIQUIDATION
325. (1) Where a company is being woundup, by the court or voluntarily, every invoice, order for goods or business letter issued by or on behalf of the company or a liquidator of the company, or a receiver or manager of the property of the company, being a document on or in which the name of the company appears, shall contain a statement that the company is being woundup.
(2) If default is made in complying with this section, the company and any of the following persons who knowingly and wilfully authorises or permits the default, namely, any officer of the company, any liquidator of the company and any receiver or manager, shall be liable to a fine of VT10,000.
EXEMPTION OF CERTAIN DOCUMENTS FROM STAMP DUTY ON WINDING UP OF COMPANIES
326. (1) In the case of a windingup by the court of a company or of a creditors' voluntary windingup of a company
(a) every assurance relating solely to movable or immovable property, or to any mortgage, charge or other encumbrance on, or any estate, right or interest in, any movable or immovable property, which forms part of the assets of the company and which, after the execution of the assurance, either at law or in equity, is or remains part of the assets of the company; and
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(b) every power of attorney, proxy paper, writ, order, certificate, affidavit, bond or other instrument or writing relating solely to the property of any company which is being so woundup, or to any proceeding under any such windingup;
shall be exempt from duties chargeable under the Stamp Duties Act, Cap.
68.
(2) In subsection (1) the expression “assurance” includes deed, conveyance, assignment and surrender.
BOOKS OF COMPANY TO BE EVIDENCE
327. Where a company is being woundup, all books and papers of the company and of the liquidators shall, as between the contributories of the company, be prima facie evidence of the truth of all matters purporting to be therein recorded.
DISPOSAL OF BOOKS AND PAPERS OF COMPANY company) as the Minister thinks proper, the destruction of the books and papers of a company which has been woundup, and for enabling any creditor or contributory of the company to make representations to the Minister and to appeal to the court from any direction which may be given by the Minister in the matter.
328. | (1) | When a company has been woundup and is about to be dissolved, the | |||
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books and papers of the company and of the liquidators may be disposed | |||||
of as follows, that is to say | |||||
(a) | in the case of a windingup by the court, in such way as the court | ||||
directs; | |||||
(b) | in the case of a members' voluntary windingup, in such way as the | ||||
company by extraordinary resolution directs, and, in the case of a | |||||
creditors' voluntary windingup, in such way as the committee of | |||||
inspection or, if there is no such committee, as the creditors of the | |||||
company, may direct. | |||||
(2) | After 5 years from the dissolution of the company no responsibility shall | ||||
rest on the company, the liquidators, or any person to whom the custody of | |||||
the books and papers has been committed, by reason of any book or paper | |||||
not being forthcoming to any person claiming to be interested therein. | |||||
(3) | Provision may be made by general rules for enabling the Minister | to | |||
prevent, for such period (not exceeding 5 years from the dissolution of the |
(4) If any person acts in contravention of any general rules made for the purposes of this section or of any direction of the Minister thereunder, he shall be liable to a fine not exceeding VT'20,000.
INFORMATION AS TO PENDING LIQUIDATIONS
329. (l) If where a company is being woundup the windingup is not concluded within 1 year after its commencement, the liquidator shall, at such intervals as may be prescribed, until the windingup is concluded, send to the registrar of companies a statement in the prescribed form and containing the prescribed particulars with respect to the proceedings in and position of the liquidation. LAWS OF THE REPUBLIC OF VANUATU
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(2) If a liquidator fails to comply with this section, he shall be liable to a fine not exceeding VT10,000 for each day during which the default continues.
UNCLAIMED ASSETS IN VANUATU TO BE PAID TO COMPANIES LIQUIDATION ACCOUNT
330. (l) If, where a company is being woundup, it appears either from any statement sent to the registrar under section 329 or otherwise that a liquidator has in his hands or under his control any money representing unclaimed or undistributed assets of the company which have remained unclaimed or undistributed for 6 months after the date of their receipt or any money held by the company in trust in respect of dividends or other sums due to any person as a member of the company, the liquidator shall forthwith pay the said money to the Companies Liquidation Account, and shall be entitled to an official certificate of receipt for the money so paid, and that certificate shall be an effectual discharge to him in respect thereof.
RESOLUTIONS PASSED AT ADJOURNED MEETINGS OF CREDITORS AND CONTRIBUTORIES
331. Where a resolution is passed at an adjourned meeting of any creditors or contributories of a company, the resolution shall, for all purposes, be treated as having been passed on the date on which it was in fact passed, and shall not be deemed to have been passed on any earlier date.
SUPPLEMENTARY POWERS OF COURT
MEETINGS TO ASCERTAIN WISHES OF CREDITORS OR CONTRIBUTORIES
332. | (1) | The court may, as to all matters relating to the windingup of a company, | |||||||||||
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have | regard | to | the | wishes | of | the | creditors | or | contributories | of | the | ||
company, as proved to it by any sufficient evidence, and may, if it thinks | |||||||||||||
fit, for the purpose of ascertaining those wishes, direct meetings of the | |||||||||||||
creditors or contributories to be called, held and conducted in such manner | |||||||||||||
as the court directs, and may appoint a person to act as chairman of any | |||||||||||||
such meeting and to report the result thereof to the court. | |||||||||||||
(2) | In the case of creditors, regard shall be had to the value of each creditor's | ||||||||||||
debt. |
(3) In the case of contributories, regard shall be had to the number of votes conferred on each contributory by this Act or the articles.
PROVISIONS AS TO DISSOLUTION
POWER OF COURT TO DECLARE DISSOLUTION OF COMPANY VOID
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333. (l) Where a company has been dissolved, the court may at any time within 2 years of the date of the dissolution, on an application being made for the purpose by the liquidator of the company or by any other person who appears to the court to be interested, make an order, upon such terms as the court thinks fit, declaring the dissolution to have been void, and thereupon such proceedings may be taken as might have been taken if the company had not been dissolved.
(2) It shall be the duty of the person on whose application the order was made, within 7 days after the making of the order, or such further time as the court may allow, to deliver to the registrar of companies for registration an office copy of the order, and if that person fails so to do he shall be liable to a fine not exceeding VT1,000 for every day during which the default continues.
ON REGISTRAR'S WINDINGUP PETITION, THE COURT MAY ORDER DISSOLUTION OF A COMPANY
334. (1) Upon the hearing of a windingup petition presented by the registrar of companies under any of the provisions of this Act, the court may, upon the application of the registrar, if it is satisfied that grounds exist for making a windingup order, and if, having regard to the assets and affairs of the company and any other relevant circumstances, it is of the opinion that a windingup would not be appropriate, order instead that the company be struck off the register and dissolved and the court may make such consequential orders and give such directions incidental thereto as it may think fit.
REGISTRAR MAY STRIKE DEFUNCT COMPANY OFF REGISTER
335. (l) Where the registrar of companies of his own knowledge, or upon information supplied by an officer or member of a company or any other person, has reasonable cause to believe that a company is not carrying on business or in operation, he may publish in the Gazette and send to the company by post, a notice that at the expiration of 3 months from the date of that notice the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the register and the company will be dissolved.
(2) If, in any case where a company is being woundup, the registrar has reasonable cause to believe either that no liquidator is acting, or that the affairs of the company are fully wound up, and the returns required to be made by the liquidator have not been made for a period of 6 consecutive months, the registrar shall publish in the Gazette and send to the company or the liquidator, if any, a like notice as is provided in subsection (1).
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(3) At the expiration of the time mentioned in the notice the registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Gazette, and on the publication in the Gazette of this notice the company shall be dissolved:
Provided that
PROPERTY OF DISSOLVED COMPANY TO BE FORFEITED TO REPUBLIC
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336. | (l) | Where a company is dissolved, all property and rights whatsoever vested | |||||||||||||||||||||||||||||||
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in | or | held | on | trust for the company immediately before its dissolution | |||||||||||||||||||||||||||||
(including | leasehold | property | but | not | including property | held | by | the | |||||||||||||||||||||||||
company | on | trust | for | any | other | person) | shall, | subject | and | without | |||||||||||||||||||||||
prejudice to any order which may at any time be made by the court under | |||||||||||||||||||||||||||||||||
sections 334 and 335, be deemed to be forfeited and shall accordingly | |||||||||||||||||||||||||||||||||
belong to the Republic. | |||||||||||||||||||||||||||||||||
(2) | Where | any | property | vests | in | the | Republic | under | subsection | (1), | the | ||||||||||||||||||||||
Republic's title thereto under that section may be disclaimed by a notice | |||||||||||||||||||||||||||||||||
signed by the Minister. | |||||||||||||||||||||||||||||||||
(3) | Where a notice of disclaimer under this section is executed as respects any | ||||||||||||||||||||||||||||||||
property, that property shall be deemed not to have vested in the Republic | |||||||||||||||||||||||||||||||||
under subsection (1) and sections 312(2) and 312(6) shall apply in relation | |||||||||||||||||||||||||||||||||
to the property as if it had been disclaimed under section 312 immediately | |||||||||||||||||||||||||||||||||
before the dissolution of the company. |
COMPANIES LIQUIDATION ACCOUNT
COMPANIES LIQUIDATION ACCOUNT
337. An account, to be called the Companies Liquidation Account shall be kept by the Treasury, and all moneys received by him in respect of proceedings under this Act in connexion with the windingup of companies shall be paid to that account.
RULES AND FEES
RULES AND FEES
338. (1) The Chief Justice may, with the approval of the Minister, from time to time, make rules consistent with this Act and with the law for the time being relating to civil procedure in the Supreme Court concerning the mode of proceedings to be had for windingup a company in the court, and for giving effect to the provisions herein before contained as to the reduction of the capital of a company. LAWS OF THE REPUBLIC OF VANUATU
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(2) There shall be paid in respect of proceedings under this Act in relation to the winding up of companies such fees as the Chief Justice may, with the approval of the Minister, prescribe.
PART VII
RECEIVERS AND MANAGERS
DISQUALIFICATION OF BODY CORPORATE FOR APPOINTMENT AS RECEIVER
(2) Subsection (1) shall not apply to a receiver or manager where
POWER TO APPOINT OFFICIAL RECEIVER AS RECEIVER FOR DEBENTURE HOLDERS OR CREDITORS
NOTIFICATION THAT RECEIVER OR MANAGER APPOINTED
343. (l) Where a receiver or manager of the property of a company has been appointed, every invoice, order for goods or business letter issued by or on behalf of the company or the receiver or manager or the liquidator of the company, being a document on or in which the name of the company appears, shall contain a statement that a receiver or manager has been appointed.
(2) If default is made in complying with the requirements of this section, the company and any of the following persons who knowingly and wilfully authorises or permits the default, namely, any officer of the company, any liquidator of the company and any receiver or manager, shall be liable to a fine of VT5,000.
POWER OF COURT TO FIX REMUNERATION ON APPLICATION OF LIQUIDATOR
344. (1) The court may, on an application made to the court by the liquidator of a company, by order fix the amount to be paid by way of remuneration to any person who, under the powers contained in any instrument, has been appointed as receiver or manager of the property of the company.
(2) The power of the court under subsection (1) shall, where no previous order has been made with respect thereto under that subsection
Provided that the power conferred by paragraph (c) of this subsection shall not be exercised as respects any period before the making of the application for the order unless in the opinion of the court there are special circumstances making it proper for the power to be so exercised.
PROVISIONS AS TO INFORMATION WHERE RECEIVER OR MANAGER APPOINTED
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345. (l) Where a receiver or manager of the whole or substantially the whole of the property of a company (hereinafter in this section and in section 346 referred to as "the receiver") is appointed on behalf of the holders of any debentures of the company secured by a floating charge, then subject to the provisions of this section and section 346
(iii) to any trustees for the debenture holders on whose behalf he was appointed and, so far as he is aware of their addresses, to all such debenture holders a copy of the said summary.
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[CAP. 191.
SPECIAL PROVISIONS AS TO STATEMENT SUBMITTED TO RECEIVER
346. | (l) | The statement as to the affairs of a company required by section 345 to be | ||||||||||||||||||||||||||||||||||||||||||||||||
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submitted to the receiver (or his successor) shall show as at the date of the | ||||||||||||||||||||||||||||||||||||||||||||||||||
receiver's appointment the particulars of the company's assets, debts and | ||||||||||||||||||||||||||||||||||||||||||||||||||
liabilities, | the | names, | residences | and | occupations | of | its | creditors, | the | |||||||||||||||||||||||||||||||||||||||||
securities held by them respectively, the dates when the securities were | ||||||||||||||||||||||||||||||||||||||||||||||||||
respectively given | and | such | further | or | other | information | as | may | be | |||||||||||||||||||||||||||||||||||||||||
prescribed. | ||||||||||||||||||||||||||||||||||||||||||||||||||
(2) | The said statement shall be submitted by, and be verified by affidavit of, | |||||||||||||||||||||||||||||||||||||||||||||||||
one | or | more | of | the | persons | who | are | at | the | date | of | the | receiver's | |||||||||||||||||||||||||||||||||||||
appointment | the | directors | and | by | the | person | who | is | at | that | date | the | ||||||||||||||||||||||||||||||||||||||
secretary of the company, | or | by such of the persons hereafter in this | ||||||||||||||||||||||||||||||||||||||||||||||||
subsection mentioned | as | the receiver (or his successor), subject | to | the | ||||||||||||||||||||||||||||||||||||||||||||||
direction of the court, may require to submit and verify the statement, that | ||||||||||||||||||||||||||||||||||||||||||||||||||
is to say, persons | ||||||||||||||||||||||||||||||||||||||||||||||||||
(a) | who are or have been officers of the company; |
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DELIVERY TO REGISTRAR OF ACCOUNTS OF RECEIVERS AND MANAGERS
347. (l) Except where section 345(2) applies, every receiver or manager of the property of a company who has been appointed under the powers contained in any instrument shall, within 1 month, or such longer period as the registrar of companies may allow, after the expiration of the period of 6 months from the date of his appointment and of every subsequent period of 6 months, and within 1 month after he ceases to act as receiver or manager, deliver to the registrar of companies for registration an abstract in the prescribed form showing his receipts and his payments during that period of 6 months, or, where he ceases to act as aforesaid, during the period from the end of the period to which the last preceding abstract related up to the date of his so ceasing, and the aggregate amount of his receipts and of his payments during all preceding periods since his appointment.
(2) Every receiver or manager who makes default in complying with the provisions of this section shall be liable to a fine not exceeding VT1,000 for every day during which the default continues.
ENFORCEMENT OF DUTY OF RECEIVERS AND MANAGERS TO MAKE RETURNS, ETC.
348. (1) If any receiver or manager of the property of a company
the court may, on an application made for the purpose, make an order directing the receiver or manager, as the case may be, to make good the default within such time as may be specified in the order.
(2) In the case of any such default as is mentioned in subsection (1)(a), an application for the purposes of this section may be made by any member or creditor of the company or by the registrar of companies, and in the case of any such default as is mentioned in subsection (1)(b), the application shall be made by the liquidator, and in either case the order may provide that all costs of and incidental to the application shall be borne by the receiver or manager, as the case may be.
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(3) Nothing in this section shall be taken to prejudice the operation of any enactments imposing penalties on receivers in respect of any such default as is mentioned in subsection (1).
CONSTRUCTION OF REFERENCES TO RECEIVERS AND MANAGERS
349. It is hereby declared that, except where the context otherwise requires
PART VIII
WINDINGUP OF UNREGISTERED COMPANIES
MEANING OF UNREGISTERED COMPANY
350. For the purposes of this Part, the expression "unregistered company" shall include any partnership, any association and any company with the following exceptions, namely
WINDINGUP OF UNREGISTERED COMPANIES
351. (l) Subject to the provisions of this Part of this Act, any unregistered company may be woundup under this Act, and all the provisions of this Act with respect to windingup shall apply to an unregistered company, with the exceptions and additions mentioned in the following provisions of this section.
company should be woundup.
(4) An unregistered company shall, for the purposes of this Act, be deemed to be unable to pay its debts
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OVERSEAS COMPANIES MAY BE WOUNDUP ALTHOUGH DISSOLVED
CONTRIBUTORIES IN WINDINGUP OF UNREGISTERED COMPANY
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354. (1) In the event of an unregistered company being woundup, every person shall be deemed to be a contributory who is liable to pay or contribute to the payment of any debt or liability of the company, or to pay or contribute to the payment of any sum for the adjustment of the rights of the members among themselves, or to pay or contribute to the payment of the costs and expenses of windingup the company, and every contributory shall be liable to contribute to the assets of the company all sums due from him in respect of any such liability as aforesaid.
(2) In the event of the death, bankruptcy or insolvency of any contributory, the provisions of this Act with respect to the legal personal representatives and heirs of deceased contributories and to the trustees of bankrupt or insolvent contributories, shall apply.
POWER OF COURT TO STAY OR RESTRAIN PROCEEDINGS
355. The provisions of this Act with respect to staying and restraining actions and proceedings against a company at any time after the presentation of a petition for windingup and before the making of a windingup order shall, in the case of an unregistered company, where the application to stay or restrain is by a creditor, extend to actions and proceedings against any contributory of the company.
ACTIONS STAYED ON WINDINGUP ORDER
Provided that an unregistered company shall not, except in the event of its being woundup, be deemed to be a company under this Act, and then only to the extent provided by this Part.
PART IX
COMPANIES INCORPORATED OUTSIDE VANUATU
PROVISIONS AS TO ESTABLISHMENT OF PLACE OF BUSINESS IN VANUATU
APPLICATION OF PART IX
358. This Part shall apply to all oversea companies, that is to say, companies incorporated outside Vanuatu which, after the commencement of this Act (27 October 1986), desire to establish a place of business within Vanuatu, and companies incorporated outside Vanuatu which have, on or before the commencement of this Act (27 October 1986), established a place of business within Vanuatu and continued to have an established place of business within Vanuatu on that date: LAWS OF THE REPUBLIC OF VANUATU
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Provided that any such oversea company having established and continuing to have a place of business in Vanuatu immediately prior to the commencement of this Act (27 October 1986), which has complied with the requirements of Part IX of the Companies Regulation (Q.R. No. 9 of 1971) shall be exempt from compliance with section 359 of this Act.
OVERSEA COMPANIES TO APPLY FOR PERMIT TO BE REGISTERED UNDER PART IX
359. (1) Every oversea company to which this Part applies shall, before establishing a place of business in Vanuatu, apply in writing to the Minister for a permit to be registered as an oversea company entitled to establish a place of business in Vanuatu.
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Provided that, where all the partners in a firm are joint secretaries of the company, the name and principal office of the firm may be stated instead of the particulars mentioned in paragraph (b) of this subsection.
subsection (5); and any oversea company acting in contravention of this subsection shall be liable to a fine not exceeding VT200,000 and every officer or agent of the company who knowingly and wilfully authorises or permits such contravention shall be liable to the like fine or to imprisonment for a term not exceeding 12 months, or to both such fine and imprisonment.
RETURN TO BE DELIVERED TO REGISTRAR BY OVERSEA COMPANY WHERE DOCUMENTS ETC., ALTERED
360. If any alteration is made in
the company shall, within 1 month, deliver to the registrar for registration a return containing the prescribed particulars of the alteration.
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ACCOUNTS OF OVERSEA COMPANY
361. (1) Every oversea company shall, in every calendar year, make out a balance sheet and profit and loss account and, if the company is a holding company, group accounts, in such form, and containing such particulars and including such documents, as under the provisions of this Act (subject, however, to any prescribed exceptions) it would, if it had been a company within the meaning of this Act, have been required to make out and lay before the company at its annual general meeting, and deliver copies of those documents to the registrar of companies not later than 3 months after the date of the annual general meeting for the year to which they relate.
(2) If any such document as is mentioned in subsection (1) is not written in the English or French language, there shall be annexed to it a certified translation thereof in either language.
OBLIGATION TO STATE NAME OF OVERSEA COMPANY, WHETHER LIMITED, AND COUNTRY WHERE INCORPORATED
362. Every oversea company shall
SERVICE ON OVERSEA COMPANY
363. Any process or notice required to be served on an oversea company shall be sufficiently served if addressed to any person whose name has been delivered to the registrar under the foregoing provisions of this Part of this Act and left at or sent by post to the address which has been so delivered: Provided that
a document may be served on the company by leaving it at or sending it by post to any place of business established by the company in Vanuatu.
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CESSATION OF BUSINESS
364. If any oversea company ceases to have a place of business in Vanuatu, it shall
forth with give notice of the fact to the registrar of companies and as from the date on which notice is so given the obligation of the company to deliver any document to the registrar shall cease.
PENALTIES
the expression “certified” means certified in the prescribed manner to be a true copy or a correct translation;
the expression “director” in relation to a company includes any person in accordance with whose directions or instructions the directors of the company are accustomed to act;
the expression “place of business” includes a share transfer or share registration office;
the expression “prospectus” has the same meaning as when used in relation to a company incorporated under this Act;
the expression “secretary” includes any person occupying the position of secretary by whatever name called.
PROSPECTUSES
APPROVAL OF PROSPECTUS AND PARTICULARS TO BE CONTAINED THEREIN
367. (1) It shall not be lawful for any person to issue, circulate or distribute in Vanuatu any prospectus offering for subscription shares in or debentures of a company incorporated or to be incorporated outside Vanuatu, whether the company has or has not established, or when formed will or will not establish, a place of business in Vanuatu unless the Minister has first given his approval, and the prospectus is dated and
(a) contains particulars with respect to the following matters –
(iii) an address in Vanuatu where the said instrument, enactments or provisions, or copies thereof , and if the same are in a foreign language a translation thereof in English or French certified in the prescribed manner, can be inspected;
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(b) subject to the provisions of this section, states the matters specified in Part I of Schedule 4 and sets out the reports specified in Part II of that Schedule, subject always to the provisions contained in Part III of that Schedule:
Provided that the provisions of subparagraphs (i), (ii) and (iii) of paragraph (a) of this subsection shall not apply in the case of a prospectus issued more than 2 years after the date at which the company is entitled to commence business, and, in the application of Part I of Schedule 4 for the purposes of this subsection, paragraph 2 thereof shall have effect with the substitution, for the reference to the articles, of a reference to the constitution of the company.
issue whereof in Vanuatu does not contravene the provisions of section
369:
Provided that this subsection shall not apply if it is shown that the form of application was issued in connection with a bona fide invitation to a person to enter into an underwriting agreement with respect to the shares or debentures.
(4) In the event of noncompliance with or contravention of any of the requirements imposed by paragraphs (a) and (b) of subsection (1), a director or other person responsible for the prospectus shall not incur any liability, by reason of the noncompliance or contravention, if
Provided that, in the event of failure to include in a prospectus a statement with respect to the matters contained in paragraph 16 of Schedule 4, no director or other person shall incur any liability in respect of the failure unless it be proved that he had knowledge of the matters not disclosed.
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(5) This section
debentures previously issued and for the time being dealt in or
quoted on an approved stock exchange;
but, subject as aforesaid, this section shall apply to a prospectus or form of application whether issued on or with reference to the formation of a company or subsequently.
(6) Nothing in this section shall limit or diminish any liability which any person may incur under the general law or this Act, apart from this section.
EXCLUSION OF SECTION 367 AND RELAXATION OF SCHEDULE 4 IN CASE OF CERTAIN PROSPECTUSES
368. | (1) | Where – |
(a) it is proposed to offer to the public by a prospectus issued | ||
generally any shares in or debentures of a company incorporated or | ||
to be incorporated outside Vanuatu, whether the company has or | ||
has not established, or when formed will or will not establish, a | ||
place of business in Vanuatu; and | ||
(b) application is made to an approved stock exchange for permission | ||
for those shares or debentures to be dealt in or quoted on that stock | ||
exchange; | ||
there may on the request of the applicant be given by or on behalf of that | ||
stock exchange a certificate of exemption, that is to say, a certificate that, | ||
having regard to the proposals (as stated in the request) as to the size and | ||
other circumstances of the issue of shares or debentures and as to any | ||
limitation on the number and class of persons to whom the offer is to be | ||
made, compliance with the requirements of Schedule 4 to this Act would | ||
be unduly burdensome. | ||
(2) | If a certificate of exemption is given, and if the proposals aforesaid are | |
adhered to and the particulars and information required to be published in | ||
connection with the application for permission to the stock exchange are | ||
so published, then | ||
(a) a prospectus giving the particulars and information aforesaid in the | ||
form in which they are so required to be published shall be deemed | ||
to comply with the requirements of Schedule 4; and | ||
(b) except in so far as it requires a prospectus to be dated, and that the | ||
Minister shall have first given his approval, section 367 shall not | ||
apply to any issue, after the permission applied for is given, of a | ||
prospectus or form of application relating to the shares or | ||
debentures. |
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PROVISIONS AS TO EXPERT’S CONSENT AND ALLOTMENT
369. | (l) | It shall not be lawful for any person to issue, circulate or distribute in |
Vanuatu any prospectus offering for subscription shares in or debentures | ||
of a company incorporated or to be incorporated outside Vanuatu, whether | ||
the company has or has not established, or when formed will or will not | ||
establish, a place of business in Vanuatu | ||
(a) if, where the prospectus includes a statement purporting to be | ||
made by an expert, he has not given, or has before delivery of the | ||
prospectus for registration withdrawn, his written consent to the | ||
issue of the prospectus with the statement included in the form and | ||
context in which it is included or there does not appear in the | ||
prospectus a statement that he has given and has not withdrawn his | ||
consent as aforesaid; or | ||
(b) if the prospectus does not have the effect, where an application. is | ||
made in pursuance thereof, of rendering all persons concerned | ||
bound by all the provisions (other than penal provisions) of | ||
sections 62 and 63 so far as applicable. | ||
(2) | In this section the expression "expert" includes engineer, valuer, | |
accountant and any other person whose profession gives authority to a | ||
statement made by him, and for the purposes of this section a statement | ||
shall be deemed to be included in a prospectus if it is contained therein or | ||
in any report or memorandum appearing on the face thereof or by | ||
reference incorporated therein or issued therewith. |
REGISTRATION OF PROSPECTUS
370. (l) It shall not be lawful for any person to issue, circulate or distribute in Vanuatu any prospectus offering for subscription shares in or debentures of a company incorporated or to be incorporated outside Vanuatu, whether the company has or has not established, or when formed will or will not establish, a place of business in Vanuatu, unless before the issue, circulation or distribution of the prospectus in Vanuatu, a copy thereof certified by the chairman and two other directors of the company as having been approved by resolution of the managing body has been delivered for registration to the registrar of companies, and the prospectus states on the face of it that a copy has been so delivered, and there is endorsed on or attached to the copy
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(2) The references in subsection (1)(b) to the copy of a contract required thereby to be endorsed on or attached to a copy of the prospectus shall, in the case of a contract wholly or partly in a foreign language, be taken as references to a copy of a translation of the contract in English or French or a copy embodying a translation in English or French of the parts in a foreign language, as the case may be, being a translation certified in the prescribed manner to be a correct translation, and the reference to a copy of a contract required to be available for inspection shall include a reference to a copy of a translation thereof or a copy embodying a translation of parts thereof.
PENALTY FOR CONTRAVENTION OF SECTIONS 367 TO 370
CIVIL LIABILITY FOR MISSTATEMENTS IN PROSPECTUS INTERPRETATION OF PROVISIONS AS TO PROSPECTUSES
373. | (l) | Where any document by which any shares in or debentures of a company | ||
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incorporated outside Vanuatu are offered for sale to the public would, if | ||||
the company concerned had been a company within the meaning of this | ||||
Act, have been deemed by virtue of section 58 to be a prospectus issued | ||||
by the company, that document shall be deemed to be, for the purpose of | ||||
this Part of this Act, a prospectus issued by the company. | ||||
(2) | An offer of shares or debentures for subscription | or | sale to any person | |
whose ordinary business it is to buy or sell shares or debentures, whether | ||||
as principal or agent, shall not be deemed an offer to the public for the | ||||
purposes of this Part. | ||||
(3) | In this Part the expressions “prospectus”, “shares” and “debentures” have | |||
the same meanings as when used in relation to a company incorporated | ||||
under this Act. |
PART X
TRANSFER OF COMPANIES FROM AND TO ANOTHER JURISDICTION
CONTINUATION IN VANUATU OF CORPORATION INCORPORATED ELSEWHERE
374. (1) Subject to subsection (10), a corporation incorporated as a company or corporation under the laws of any country, other than Vanuatu, or of any jurisdiction within any such country other than Vanuatu (in this section referred to as a "foreign corporation"), may if it appears to the Minister that there is no provision in the laws of that country or jurisdiction preventing such application, apply to the Minister to be registered as being continued in Vanuatu as if it had been incorporated under this Act.
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Provided that no such permit for the registration of a foreign corporation may be granted if
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and shall be binding on the corporation and its members accordingly.
CONTINUATION OUTSIDE VANUATU OF COMPANY INCORPORATED UNDER ACT
375. (l) A company registered under this Act may, where the laws of such country or jurisdiction so allow, upon obtaining the consent of the Minister apply to the proper officer of any other country than Vanuatu or any jurisdiction within such country for an instrument of continuation permitting such company to continue in being as if it had been incorporated under the laws of that other country or jurisdiction; and on and after the date of the instrument of continuation the company shall become a corporation under the laws of that other country or jurisdiction and be domiciled therein and shall be subject to such laws as is permitted or required (as the case may be) by the laws of that other country or jurisdiction.
(2) No company may apply to the Minister for his consent under subsection
(1) unless
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Provided that nothing in this subsection shall
(5) For the purposes of this section
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PART XI
EXEMPTED COMPANIES
CERTAIN COMPANIES MAY BE REGISTERED AS EXEMPTED COMPANIES
376. (1) In any case where, upon application to the Minister under the provisions of section 2 for a permit to form an incorporated company, the proposed business of the company is to be carried on, or the proposed objects of the company are to be carried out, outside Vanuatu, the company may, upon the granting of a permit by the Minister under the provisions of section 16, be registered as an exempted company.
(2) For the purposes of this Part, the expression "outside Vanuatu" shall be construed with reference to the provisions of section 378.
ANNUAL RETURN TO BE FILED BY EVERY EXEMPTED COMPANY
377. (l) Upon each anniversary of its registration, an exempted company shall forward to the registrar a return containing the particulars and in the form prescribed by the Minister. Every return shall be treated as a confidential official document by the registrar and all other public servants having access thereto and the provisions of section 381 shall apply with respect to the information therein contained:
Provided that particulars of persons for whom a member of the company has acted as an agent or nominee shall not be required in the case of an exempted private company which is not a class specified in Schedule 3.
RESTRICTIONS ON BUSINESS OF EXEMPTED COMPANIES
378. (1) An exempted company shall not
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Provided that nothing in this subsection shall be construed –
(iii) so as to prevent the company from carrying on any trade or business or any class of trade or business in Vanuatu prohibited by the foregoing provisions of this subsection in respect of which the Minister is of opinion that the same should be permitted on the grounds that it would be of economic or social benefit to Vanuatu and has granted his approval thereof in writing.
(1A) Nothing in subsection (1) is to be construed so as to prohibit an exempted company from:
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DIRECTORS’ MEETINGS IN VANUATU
contravention, shall be liable to a fine not exceeding VT10,000 for every day during which the contravention occurs or continues.
APPLICATION OF ACT TO EXEMPTED COMPANIES, PRESERVATION OF SECRECY
381. (l) Save as is provided by subsection (2), the provisions of Parts II, III, IV, V, VI, VII, and XIV shall apply to and in respect of every exempted company.
Provided that a liquidator or provisional liquidator appointed by the court under the provisions of Part VI may, upon the request in writing of a public officer in any country or territory and with the consent of the Attorney General, disclose to such public officer such information respecting the affairs of an exempted company which is the subject of windingup proceedings under the said Part if the liquidator or provisional liquidator has reason to believe that such information is or may be relevant to the liquidation of any company in such country or territory the affairs of which are or have been, directly or indirectly, related to the affairs of such exempted company, to any investigation into the affairs of such other company or to proceedings against its officers or former officers.
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(4) Except when lawfully required to do so by any court of competent jurisdiction within Vanuatu or under the provisions of any law, no auditor of an exempted company shall, unless specifically so authorised by the directors thereof, disclose to any other person any information whatsoever respecting the affairs of that exempted company acquired by him while acting in the capacity of auditor, whether while acting in such capacity or after having ceased to act in such capacity and whether such information was acquired by him before or after the commencement of this subsection:
Provided that nothing in this section shall prevent an auditor from making his report to the members and from fulfilling his other functions and duties under this Act.
For the purposes of this subsection, the expression "auditor" shall be deemed to include every partner, associate and employee of an auditor.
CERTAIN PROVISIONS OF ACT TO BE MODIFIED IN REGARD TO PRIVATE EXEMPTED COMPANIES NOT SPECIFIED IN SCHEDULE 3
382. In the case of a private exempted company which is not of a class specified in Schedule 3, the following provisions shall apply:
LOCAL COMPANIES MAY APPLY TO MINISTER TO BE REREGISTERED AS EXEMPTED COMPANIES
383. (l) Any local company which, if it had been incorporated after the commencement of this Act (27 October 1986), would have been entitled by virtue of the provisions of this Part to apply to the Minister for a permit to be formed and registered as an exempted company, may, if a special resolution that it should be reregistered as an exempted company is passed, make application, signed by a director or by the secretary of the company, to the Minister for a permit that the company should be so reregistered, 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 him.
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registration with the status of an exempted company and shall enter the particulars thereof in the register maintained by him pursuant to section
20.
EXEMPTED COMPANIES MAY APPLY TO MINISTER TO BE REREGISTERED AS LOCAL COMPANIES
384. (1) Any exempted company may, if a special resolution that it should be reregistered as a local company is passed, make application, signed by a director or by the secretary of the company, to the Minister for a permit that the company should be so reregistered, 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 him.
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PART XII
FRENCH COMPANIES
MEANING OF “FRENCH COMPANY”
385. In this Part, "French company" means a corporation formed or registered under French law as applied in Vanuatu, and includes any société anonyme, a société à responsabilité limitée and a société civile.
FRENCH COMPANIES TO REREGISTER UNDER THIS ACT
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386. (1) Every French company shall, within 12 months of the commencement of this Act (27 October 1986), or such extended time, not exceeding 12 months, as the registrar may allow with the approval of the Minister on application, reregister under this Act by delivering to the registrar an application stating the name under which it is proposed to reregister the company, together with
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EFFECT OF REREGISTRATION AS REGARDS CONSTITUTION
387. Upon the reregistration of a company under this Part of this Act
FRENCH COMPANIES NO LONGER TO BE FORMED IN VANUATU
388. From the date of commencement of this Act (27 October 1986), no company shall be formed or registered in Vanuatu under French law as applied in Vanuatu.
FRENCH COMPANIES WHICH HAVE NOT BEEN REREGISTERED TO BE DISSOLVED OR WOUND UP
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389. Where a French company fails to register within the time allowed by section 386, the registrar shall publish in the Gazette and send to the company by post at its last known address, a notice that at the expiration of 3 months from the date of that notice, the company will be dissolved:
Provided that where the registrar having regard to the assets and affairs of the company and any other relevant circumstances, is of the opinion that the dissolution of the company would not be appropriate, the registrar may instead present a petition to the court that the company be woundup under the provisions of Part VIII of this Act.
PART XIII
PROVISION WITH RESPECT TO PARTNERSHIPS
PROHIBITION OF ASSOCIATIONS ETC., WITH MORE THAN TWENTY MEMBERS
390. No association or partnership consisting of more than twenty persons shall be formed for the purpose of carrying on any business that has for its object the acquisition of gain by the association or partnership, or by the individual members thereof, unless it is registered as a company under this Act or is formed in pursuance of some other Act, in force for the time being.
PART XIV
GENERAL PROVISIONS
REGISTRATION
REGISTRATION OFFICE
391. | (1) | For the purposes of registration of companies under this Act, there shall be | |||||||
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an office in Vanuatu at such place as the Minister shall think fit. | |||||||||
(2) | There shall be a registrar of companies and such assistant registrars, clerks | ||||||||
and servants as are necessary for the registration of companies under this | |||||||||
Act who shall be public servants. | |||||||||
(3) | The Minister may approve a seal or seals to be used for the authentication | ||||||||
of documents required for or connected with the registration of companies. | |||||||||
(4) | Whenever by this Act any act is directed to be done to or by the registrar | ||||||||
of companies, it shall be done to or by the person holding the office of | |||||||||
registrar, | or | in his absence | to | or | by the deputy registrar | or | the acting | ||
registrar, as the case may be. |
FEES
392. (1) There shall be paid to the registrar of companies, as provided by this section
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1st
Where the fee which would be payable on the original registration of a company with such status is exceeded by the sum required to be set off in accordance with this subsection, the company shall not be entitled to any refund or credit.
(3A) The Minister may prescribe fees to be paid to the Registrar of Companies –
(3B) The fees referred to in subsection (3A) may be proportionate to the amount intended to be raised by the share issue, to the amount actually raised or to the minimum subscription and the fee for registration of the prospectus may be conditional in whole or in part upon the minimum subscription being received.
INSPECTION, PRODUCTION AND EVIDENCE OF DOCUMENTS KEPT BY REGISTRAR
393. (1) Any person may
Provided that
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NO CONSTRUCTIVE NOTICE
(2) Any such order may provide that all costs of and incidental to the
application shall be borne by the company or by any officers of the company responsible for the default.
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(3) Nothing in this section shall be taken to prejudice the operation of any enactment imposing penalties on a company or its officers in respect of any such default as aforesaid.
FORM OF REGISTERS, ETC.
FORM OF REGISTERS, ETC.
396. (1) Any register, index, minute book or book or account required by this Act to be kept by a company may be kept either by making entries in bound volumes, or by a system of mechanical or electronic recording or otherwise.
(2) or subsection (3), the company and every officer of the company who is in default shall be liable to a default fine.
SERVICE OF DOCUMENTS
SERVICE OF DOCUMENTS ON ANY COMPANY
397. A document may be served on a company by leaving it at or sending it by post to the registered office of the company.
OFFENCES
PENALTY FOR FAME STATEMENTS
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PROVISION WITH RESPECT TO DEFAULT FINES AND MEANING OF "OFFICER IN DEFAULT"
400. (l) Where by any provision in this Act it is provided that a company and every officer of the company who is in default shall be liable to a default fine, the company and every such officer shall, for every day during which the default, refusal or contravention continues, be liable to a fine not exceeding such amount as is specified in the said enactment, or, if the amount of the fine is not so specified, to a fine not exceeding VT1,000.
(2) For the purpose of any provision in this Act which provides that an officer of a company who is in default shall be liable to a fine or penalty, the expression "officer who is in default" means any officer of the company who knowingly and wilfully authorises or permits the default, refusal or contravention mentioned in the enactment.
PLACE OF PROCEEDINGS AGAINST BODY CORPORATE
401. Proceedings for any offence under this Act may (without prejudice to any
jurisdiction exercisable apart from this subsection) be taken against a body corporate at any place at which the body has a place of business, and against any other person at any place at which he is for the time being.
PRODUCTION AND INSPECTION OF BOOKS WHERE OFFENCE SUSPECTED
402. (1) If on an application made to a judge of the court in chambers by the Attorney General or the Commissioner of Police, there is shown to be reasonable cause to believe that any person has, while an officer of a company, committed an offence in connection with the management of the company's affairs and that evidence of the commission of the offence is to be found in any books or papers of or under the control of the company, an order may be made
LEGAL PROCEEDINGS
COSTS IN ACTIONS BY CERTAIN LIMITED COMPANIES
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403. Where a limited company is plaintiff in any action or other legal proceedings, any
judge having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be given for those costs, and may stay all proceedings until the security is given.
POWER OF COURT TO GRANT RELIEF IN CERTAIN CASES
404. (1) If in any proceedings for negligence, default, breach of duty or breach of trust against an officer of a company or a person employed by a company as auditor (whether he is or is not an officer of the company) it appears to the court hearing the case that that officer or person is or may be liable in respect of the negligence, default, breach of duty or breach of trust, but that he has acted honestly and reasonably, and that, having regard to all the circumstances of the case, including those connected with his appointment, he ought fairly to be excused for the negligence, default, breach of duty or breach of trust, that court may relieve him, either wholly or partly, from his liability on such terms as the court may think fit.
(2) Where any such officer or person aforesaid has reason to apprehend that any claim will or might be made against him in respect of any negligence, default, breach of duty or breach of trust, he may apply to the court for relief, and the court on any such application shall have the same power to relieve him as under this section it would have had if it had been a court before which proceedings against that person for negligence, default, breach of duty or breach of trust had been brought.
APPLICATTON OF ACT TO EXISITNG COMPANIES
ACT TO APPLY TO COMPANIES INCORPORATED PRIOR TO ACT
405. (l) Every existing company shall be deemed on and from the commencement of this Act (27 October 1986), to have been lawfully and validly incorporated and shall from that date be for all purposes a company to which this Act applies in like manner as a company registered under section, 20.
(2) In the application of this Act to existing companies, it shall apply in the same manner
Provided that reference, express or implied, to the date of registration shall be construed as a reference to the date at which the company was registered under the Companies Act, 1929, the Companies Act, 1948, the New Hebrides Companies (Incorporation) Regulation, 1970, or the Companies Regulation (Q.R. No. 9 of 1971), as the case may be.
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APPLICATION OF COMPANIES (WINDINGUP) RULES
APPLICATION OF COMPANIES (WINDINGUP) RULES
406. | (l) | Unless and until the Chief Justice shall make rules under the powers |
conferred by section 338, the Companies (WindingUp) Rules, 1949, | ||
made under the Companies Act, 1948 as from time to time amended down | ||
to the commencement of this Act (27 October 1986), and the scale of | ||
windingup fees prescribed under the Companies Fees Order 1983, are | ||
declared to be in force in Vanuatu and shall be read with and considered | ||
part of this Act: | ||
Provided that – | ||
(a) it shall be lawful for the Chief Justice by rule to amend or revoke | ||
any of the said rules; and | ||
(b) it shall be lawful for the court to construe the said rules with such | ||
verbal alteration not affecting the substance as may be deemed | ||
expedient to render the same applicable to any matters before the | ||
court, provided always that any such construction or alteration | ||
shall not be inconsistent with the provisions of this Act. | ||
(2) | In any proceedings taken in Vanuatu for the windingup of any company, | |
the decision of the court on the construction to be placed on any of the | ||
provisions of the said rules with respect to practice and procedure shall be | ||
final and no action, suit or other legal proceedings or process shall be | ||
brought, taken, issued or allowed in Vanuatu against any person in respect | ||
of any act or thing done or purporting to be done in pursuance of any order | ||
or direction of the court under the aforesaid rules. |
MISCELLANEOUS
EXEMPTION FROM PART IV OF THE ACT GRANTED TO SHIPOWNING COMPANIES
407. | (l) | Notwithstanding anything in this Act, | a | private exempted shipowning | ||||||||||||||||||||||||||||
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company shall be exempted from registering under Part IV of this Act any | ||||||||||||||||||||||||||||||||
charge | created | by | the | company | and | registered | in | the | office | of | the | |||||||||||||||||||||
Commissioner | or | Deputy | Commissioner | of | Maritime | Affairs | in | |||||||||||||||||||||||||
accordance with the Maritime Act Cap. 131. | ||||||||||||||||||||||||||||||||
(2) | For | the | purposes | of | this | section, | "shipowning | company" | means | a | ||||||||||||||||||||||
company | ||||||||||||||||||||||||||||||||
(a) | which is the owner or bareboat charterer of a vessel documented | |||||||||||||||||||||||||||||||
under the Maritime Act Cap. 131; and | ||||||||||||||||||||||||||||||||
(b) | which is engaged solely in the business of shipowners, bareboat | |||||||||||||||||||||||||||||||
charterers, shippers or businesses directly related thereto. |
MINISTER MAY DELEGATE POWERS
408. The Minister may delegate the exercise of the several powers vested in him by the foregoing provisions of this Act (other than the power to make rules or regulations, or to delegate under this section), or such of time as he may deem expedient, to the Attorney General or any other Minister and he may delegate all such powers (other than the power to make rules or regulations, or to delegate under this section, or to grant or refuse any permit in relation to a public company, or a private company of a class specified in Schedule 3, or to appoint inspectors) to the registrar.
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EXERCISE OF MINISTER'S DISCRETION UNDER CERTAIN SECTIONS NOT TO BE QUESTIONED IN ANY COURT PROCEEDINGS