The Cayman Islands has recently enacted the Companies (Amendment) Law, 2011 (the "Amendment Law"), which will serve to strengthen its reputation as an innovative jurisdiction committed to developing its legislation to meet the needs of the global financial services industry.

The Amendment Law has introduced a number of enhancements to the Companies Law (2010 Revision) (as so amended, the "Companies Law") such as enabling Cayman Islands companies to hold treasury shares and improving existing provisions, including the merger/consolidation regime.

The enactment of the Amendment is the product of the enhanced partnership between the private and public sectors in the Cayman Islands, following the creation of the Financial Services Legislative Committee (the "FSLC"). The FSLC provides a fast-track process through which the financial services industry can develop and present the Cayman Islands Government with proposals for improvements to the current financial services legislative framework. The revisions set out in the Amendment Law represent the first wave of amendments to the Companies Law which are expected to be introduced over the next 12 to 18 months. Maples provided significant input on these amendments, which were substantially drafted by a sub-committee of the FSLC chaired by a Maples partner.

You can access details of the principal revisions by clicking on the links below:

1 Mergers and Consolidations

2 Treasury Shares

3 Paperless share transfer

4 Redemption, Repurchase and Surrender of Shares

5 Permitting Company Names in Foreign Script

6 Execution of Documents

7 Update to Foreign Company Provisions

8 Special Resolutions

9 Segregated Portfolio Companies

1 Mergers and Consolidations

The merger and consolidation regime has proved extremely popular since its introduction in 2009. The changes brought in by the Amendment Law make the regime significantly more straightforward to utilise and also introduce additional flexibility to enable it to be used in a wider range of transactions. The principal revisions are as follows:

1.1 Simplification of shareholder authorisation procedures

The authorisation requirements have been greatly simplified so that all that is now required is:

(a) the passing of a special resolution1; and

(b) such other authorisation (if any) as may be specified in the company's articles of association.

1.2 Mergers and consolidations into foreign companies

Mergers and consolidations into foreign companies are now permitted, as described below:

(a) The foreign company must file with the Registrar of Companies:

(i) an undertaking that it will promptly pay dissenting members of each Cayman Islands constituent company any amounts to which they may be entitled under s.238 (being, subject to certain exceptions, the fair value of such members' shares); and

(ii) evidence of merger or consolidation from the jurisdiction of the surviving or consolidated company, including the effective date of the merger or consolidation.

(b) In addition to the requirements where the surviving or consolidated company is a Cayman Islands company, a director of each Cayman Islands constituent company must give a declaration in relation to the foreign company (see 1.3(a) below).

(c) Each Cayman Islands constituent company must pay a fee equal to three times the annual fee, which any company with the same authorised share capital would have been liable to pay in the immediately preceding January.

(d) All other provisions (for example, the statutory vesting of assets and liabilities) will apply, except to the extent that the laws of the jurisdiction of the surviving or consolidated company otherwise provide.

(e) The Registrar will strike off the Cayman Islands constituent companies by way of merger or consolidation, and is required to give notice of the strike-offs to Cayman Islands Monetary Authority.

1.3 Other revisions

(a) A director of a Cayman Islands company is required to give a declaration relating to certain matters with respect to a foreign company participating in a merger or consolidation. Such declaration must be given having made due enquiry. Any such director will now have the benefit of being deemed to have made due enquiry if he or she obtains a declaration in similar terms from a director (or equivalent) of the foreign company.

(b) The Companies Law requires that any constituent company (other than the surviving company) resign any fiduciary offices. The Amendment Law usefully clarifies that such offices must be resigned immediately prior to the effective date of merger (and not the date of the director's declaration submitted to the Registrar).

2. Treasury Shares

Cayman Islands companies will have greater flexibility with regard to their share capital as, upon repurchase, redemption or surrender of shares, the directors can now determine whether or not to cancel those shares or keep them as treasury shares. Treasury shares can subsequently be cancelled or sold by the company without regard to capital maintenance rules

There is a wide variety of possible uses, including offering listed companies the ability to manage their capital more flexibly and simplifying the structuring of share option and incentive plans. The principal features of the treasury share provisions are described below:

2.1 Conditions for the creation of treasury shares

(a) Shares must first be repurchased, redeemed or surrendered in accordance with usual rules (note that it is not possible to issue shares directly into treasury).

(b) Whilst it is not necessary for a company's articles of association to contemplate or authorise the holding of treasury shares, there must be no prohibition in the constitutional documents against it.

(c) Any relevant provisions in the articles must be complied with.

(d) The company must obtain authorisation to hold such shares as treasury shares prior to the purchase, redemption or surrender – either in accordance with the procedures set out in the company's articles or (if there are none) by board resolution.

2.2 What is the impact on the company?

(a) The company is entered on the register of members as the holder of the shares.

(b) The company is not treated as a member for any purpose; any purported exercise of a right as a member is void (with one exception, transfer, considered in 2.3(b) below).

(c) Treasury shares are not treated as "in issue" for any purpose, including under the company's articles. For example, in a funds context, the treasury shares will not throw off net asset value per share calculations.

(d) No dividends or other distributions may be made in respect of a treasury share; however, this will not prevent the allotment of fully paid bonus shares to the company (which will themselves be treated as treasury shares).

2.3 What can a company do with treasury shares?

The company may:

(a) cancel the treasury shares, either in accordance with the procedures set out in the company's articles or (if there are none) by resolution of the directors; or

(b) transfer the treasury shares2.

(i) The transfer has to be effected in accordance with the procedures set out in the articles - either specific provisions for the transfer of treasury shares or (if there are none) the provisions dealing with transfers generally.

(ii) The transfer can be for valuable consideration or otherwise, and at a discount to the par value of the shares

2.4 Accounting entries

(a) The par value of a treasury share is deducted from the company's share capital only upon its actual cancellation (and not upon repurchase, redemption or surrender).

(b) Upon the transfer of a treasury share:

(i) subject to (ii) below, if the company is able to pay its debts as they fall due in the ordinary course of business immediately following the transfer, the directors can determine how to credit the consideration for the transfer (if any) between the company's share capital, share premium and profit and loss accounts

(ii) however, to the extent that payment for the original purchase or redemption was made out of capital, the lesser of (x) the amount of that payment and (y) the amount of the transfer consideration must be credited to the share capital account

3. Paperless share transfer

A Cayman Islands company with shares listed on one of a very wide range of global stock exchanges, (details of which are set out in the Appendix)("Listed Shares") will now be able to record and transfer Listed Shares in accordance with the rules of that exchange and its electronic settlement systems.

The Companies Law previously did not expressly permit transfers of shares not to be in writing and the prior requirements for maintenance of the register of members was not compatible with electronic settlement systems that do not maintain or have the ability to produce 'real time' statement of current members (for example, the Taiwan Stock Exchange). The changes made by the Amendment Law will enhance the ability to use Cayman Islands companies in transactions where shares are to be listed on relevant exchanges and traded in relevant markets.

3.1 What do the changes mean?

(a) The company may evidence and transfer3 Listed Shares in accordance with the laws applicable to, and rules and regulations of, the relevant approved exchange ("Relevant Laws and Regulations") or specified in the company's articles or authorising special resolution.

(b) With respect to the company's register of members:

(i) the register of members in respect of Listed Shares may be kept by recording the information required under the Companies Law4 in a "non-legible" form, provided such recording complies with the Relevant Laws and Regulations (i.e. it does not need to show the identity of all shareholders and their shareholdings on a real-time basis);

(ii) the system for recording must be capable of being produced in a legible form; and

(iii) the company must also maintain a conventional legible register of members for any of its shares other than Listed Shares.

3.2 What authorisations are required?

The company must be authorised to evidence and transfer title to Listed Shares in this way, either:

(a) in the company's articles of association; or

(b) by a special resolution (subject to any applicable provisions in the company's articles).

We note that, as with the ability to hold treasury shares, a company does not require specific provisions to be incorporated in its articles.

4. Redemption, Repurchase and Surrender of Shares

The Amendment Law introduces a number of useful enhancements, as follows:

4.1 Surrender of fully paid shares

(a) A company may now permit the surrender of fully paid shares for no consideration (subject to any restriction in the company's articles of association).

(b) The relevant shares are cancelled upon surrender (unless they are held as treasury shares).

4.2 Other revisions

(a) It has now been clarified that a company's directors can be authorised to determine the manner and terms of redemption or repurchase (rather than having to specify this in the company's articles or shareholder resolution).

(b) The terms "paid up" and "fully paid" with respect to a share have been defined by reference to the par value of that share (or its issue price for a share with no par value). These terms are used in various provisions in the Companies Law, the most material being the prohibition against redeeming or repurchasing a share unless it is fully paid.

(c) Shares issued as non-redeemable shares were previously incapable of being converted into redeemable shares. This restriction has now been removed.

5. Permitting Company Names in Foreign Script

An exempted company will be permitted to adopt a "dual foreign name" in a foreign script which is not necessarily a translation or transliteration of the English name. This is a feature that is common in a number of onshore jurisdictions (for example, Hong Kong). The Cayman Islands are the first offshore jurisdiction to introduce this flexibility, which we expect to be of great appeal in a number of markets, particularly Asia.

The main features of the new provisions are as follows:

5.1 A company can be incorporated with a dual foreign name or adopt one by special resolution and this will appear on the certificate of incorporation or certificate of incorporation on change of name.

5.2 The dual foreign name can precede or follow the English name and may be included in the company's correspondence, name plate at the registered office, etc.

5.3 It will still be necessary to use the English name in order for directors, manager or others acting on behalf of the company to avoid potential personal liability issues.

5.4 The company must supply the Registrar of Companies with a translation or transliteration of the dual foreign name into English (the "translated name") provided by a "certified translator", i.e.:

(a) a person whose interpretation or translation competence has been tested and approved by a professional association or governmental body; or

(b) any other person determined by the Registrar (registered office providers will be sufficient).

5.5 The existing restrictions on the use of names apply to the translated name as if it were the principal English name5, including:

(a) words restricted by the regulatory laws or that otherwise require Registrar of Companies approval (for example, "bank", "insurance", "Royal", etc.); and

(b) a name that is not permitted on the grounds that it is too similar to the name of an existing company (note: going forward, any company may not be permitted to use a name if it is too similar to a translated name).

6. Execution of Documents

The Amendment Law introduces a number of helpful clarifications which allow for increased flexibility in relation to the execution of documents. The principal changes are outlined below:

6.1 In order to address practical difficulties arising out of the English "Mercury" case, which led to an increase in the formalities involved in the execution of documents, in particular deeds, the Amendment Law provides that contracts or other instruments (including deeds or instruments under seal) may be executed in any manner contemplated by the parties, including, without limitation:

(a) by the execution of the complete contract or instrument; or

(b) by the execution of signature pages to the contract or instrument (whether or not the contract or instrument at that time is in final form) which are attached, with the authority of the relevant party, to the contract or instrument,

provided that the contract or instrument is executed in conformity with the remaining requirements of the Companies Law relating to the execution of documents.

6.2 Together with corresponding changes dealing with execution of documents by individuals, a key effect of these changes is that, in relation to "virtual" signings or closings featuring Cayman Islands law-governed documents (including deeds or instruments under seal) the parties may elect to use (as a matter of Cayman Islands law) pre-signed or separate signature pages in order to facilitate an efficient and administratively convenient closing.

6.3 In order to further clarify the requirements for the execution of deeds by non-Cayman Islands companies that are not registered as "foreign companies" under the Companies Law, the Amendment Law provides that, if any non-Cayman Islands company (whether or not registered as a foreign company) executes a deed or instrument under seal, the document is, and will be treated as a deed or instrument under seal as a matter of Cayman Islands law where:

(a) the document is either sealed or is expressed to be executed as, or otherwise makes clear on its face it is intended to be, a deed or instrument under seal; and

(b) the document is executed in conformity with the requirements of (i) the relevant company's jurisdiction of incorporation; and (ii) its memorandum and articles of association (or other constitutional documents).

6.4 The Amendment Law clarifies that, where any company, (whether a Cayman Islands company or a non-Cayman Islands company) appoints a person to execute deeds or instruments under seal on its behalf, the document containing the appointment does not itself need to be made by deed or instrument under seal. Thus, the Amendment Law confirms that such an appointment may be made, for example, under an investment management or other agreement entered into by the relevant company which is not itself executed as a deed.

7. Update to Foreign Company Provisions

The Amendment Law modernises the provisions in relation to the registration of non-Cayman Islands entities as "foreign companies" in the Cayman Islands under Part IX of the Companies Law. In particular:

7.1 The Amendment Law clarifies that certain non-Cayman Islands entities (such as Limited Liability Companies or "LLCs") may be registered as foreign companies.

7.2 A number of changes have been made to the documents required to be filed with the Cayman Islands Registrar of Companies upon the registration of a foreign company in the Cayman Islands. These changes modernise the procedure and reflect more accurately (i) the documents that are commonly issued by the relevant authorities of the foreign companies' jurisdictions of incorporation; and (ii) the Cayman Islands Registrar of Companies' current practice.

8. Special Resolutions

The Companies Law now expressly states that a company has the flexibility to establish different voting thresholds for the passing of special resolutions at shareholder meetings with respect to different matters (subject to the continuing two-thirds minimum). By way of example, a company may now specify that the majority required to pass a special resolution to place the company into a voluntary winding-up, may be higher than that required to adopt changes to the company's articles of association. This is likely to be a benefit in a wide range of transactions, such as joint ventures and investment funds.

9. Segregated Portfolio Companies

A segregated portfolio company (or "SPC") permits the segregation of assets and liabilities amongst various segregated portfolios in a way which binds third parties as a matter of Cayman Islands law. A number of useful enhancements to the SPC provisions have been introduced pursuant to the Amendment Law, including the following:

9.1 Abolition of personal liability of directors

The directors of an SPC will no longer have personal liability on account of a failure to execute a contract for and on behalf of the relevant segregated portfolio. Instead, the revisions enable the directors to correct a mis-attribution. The process is straightforward and provides statutory protections for affected persons. Forthwith upon becoming aware of a breach, the directors must:

(a) determine the segregated portfolio to which the contract should be attributed and make the correct attribution; and

(b) notify (i) every party to the contract; and (ii) any person who may be adversely affected. This notification must include details of the affected person's right to apply to court for reattribution.

9.2 Termination of a segregated portfolio

The procedures for termination (and reinstatement) of segregated portfolios have been formalised to provide that:

(a) the procedure in articles will simply need to be followed or (if there is none) the directors can approve the termination by resolution;

(b) it is possible to reinstate a segregated portfolio in the same way; and

(c) notice of the termination of a segregated portfolio must be included in the annual notice required to be filed with the Registrar, listing each of the segregated portfolios (and there will then be no need to include details of that segregated portfolio in notices filed in subsequent years).

9.3 Choice of suffix

An SPC can use suffix "SP" or "S.P." instead of "Segregated Portfolio" in the name of each segregated portfolio.

9.4 Movement of assets between a segregated portfolio and the general assets

The directors enable assets to be moved between a segregated portfolio and the general assets (i.e. the assets not held within or on behalf of any segregated portfolio) at full value (as well as between segregated portfolios as previously permitted).

Appendix

List of approved stock exchanges – paperless share transfers

American Stock Exchange (AMEX)

Frankfurt Stock Exchange

New Zealand Stock Exchange

Athens Stock Exchange

Fukoka Stock Exchange

OMX Nordic Exchange

Australian Securities Exchange

The Gretai Securities Market of Taiwan

Osaka Securities Exchange

Barcelona Stock Exchange

Hamburg and Hannover Stock Exchange

Oslo Stock Exchange

Berlin Stock Exchange

Hong Kong Stock Exchange (including the Growth Enterprise Market)

Philadelphia Stock Exchange

Bermuda Stock Exchange

International Securities Exchange

Rio de Janeiro Stock Exchange

Bilbao Stock Exchange

Irish Stock Exchange

Sao Paulo Stock Exchange (Bovespa)

Bolsa de Comercio de Buenos Aires

Johannesburg Stock Exchange

Shanghai Stock Exchange Shenzhen, S.E.

Bolsa de Comercio de Santiago

Korea Exchange (including KOSPI and KOSDAQ Market Divisions)

Singapore Stock Exchange (including Catalist)

Bosla de Valores de Caracas

London Stock Exchange (including AIM)

Stuttgart Stock Exchange

Bolsa de Valores de Lima

Luxembourg Stock Exchange

SWX Stock Exchange

Bolsa Italiana SPA

Madrid Stock Exchange

Taiwan Stock Exchange

Boston Stock Exchange

Mexican Stock Exchange

Tel Aviv Stock Exchange

Bursa Malaysia (including the Main Market and the ACE Market)

Montreal Stock Exchange

The Stock Exchange of Thailand

Chicago Stock Exchange

Munich Stock Exchange

Tokyo Stock Exchange

Dusseldorf Stock Exchange

Nagoya Stock Exchange

Toronto Stock Exchange

Euronext Brussels

NASDAQ

Valencia Stock Exchange

Euronext Lisbon

National Stock Exchange

Vienna Stock Exchange

Euronext NV

New York Stock Exchange

  

Euronext Paris

NYSE Arca (all-electronic trading platform with open, direct and anonymous market access)

  

Any stock exchange that the Registrar may from time to time designate as an approved stock exchange by way of a public notice which shall be gazetted

 

Footnotes

1 Very broadly, a special resolution can be passed at a shareholder meeting by a two-thirds majority of those attending and voting (in person or, where the company's articles of association permit, by proxy), although a company may specify a higher threshold in its articles of association. Unanimous approval is required in order to pass a special resolution by written resolution procedure. See also 9 below.

2 The Securities Investment Business Law (2010 Revision) has also been amended to ensure that the disposal of treasury shares will fall outside the licensing regime under that law.

3. "transfer" here includes a transfer of the beneficial interest in the share and a transfer by way of security.

4 Section 40(1) of the Companies Law requires that every company keep a register of members that records (a) the names and addresses of members of the company; if the company has share capital, a statement of the shares held by a member (distinguished by a number if applicable), the amount paid up or agreed to be considered as paid up on the shares of each member; (b) the date on which the name of any person was entered on the register as a member; and (c) the date on which any person ceased to be a member.

5 Apart from as a function of its translated name, there are no restrictions as such on the dual foreign name.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.