Guernsey: New Companies Law - Registry Filing Requirements

Last Updated: 13 October 2008

This memorandum has been prepared for the assistance of our clients in connection with the provisions relevant to the Registry Filing Requirements under the Companies (Guernsey) Law, 2008 (as amended) (the "Companies Law"). It is intended to provide only a summary of the main legal and general principles and it is not intended to be comprehensive in scope. It is strongly recommended that you seek specific legal advice on such matters and we would be pleased to assist in this respect. A series of briefings on other specific aspects of Guernsey companies has been produced by Ogier and is available on our website www.ogier.com. Transitional provisions have also been made (a separate briefing addresses the operation of these).

The memorandum has been prepared on the basis of the law and practice in Guernsey as at 10 September 2008.

Table Of Registry Filing Requirements Arising Under The Companies Law

Action

Description of requirement

Section

Time period for filing with the Registry

Incorporation

Application for incorporation to be in the form prescribed by the Registrar and must be filed with the Registry and accompanied by:-

- the memorandum of incorporation,

- a statement of the proposed first directors,

- a statement of the proposed address of the company's registered office,

- a statement of the proposed first resident agent, comprising the particulars required to be entered in its record of resident agent under section 485,

- the name and address of the founder member of the company,

- in the case of a company with a share capital, a statement of initial share capital,

- in the case of a company with a founder member who is a guarantee member, a statement of initial guarantee,

- a copy of any consent required under section 10 (being the GFSC consent to the establishment of a protected cell company or an incorporated cell company),

- a copy of any special resolution required under section 11 (being the consent of an incorporated cell company for the establishment of a new incorporated cell), and

- a declaration of compliance (incorporation).

s.17

N/A

Change of Name

Application for change of name to be in the form prescribed by the Registrar and must be filed with the Registry and be accompanied by:

- the special resolution authorising the change of name, and

- a declaration of compliance (name change).

s.25

To be filed within 30 days of the special resolution being passed.

Conversion of Company

For a non-cellular company to convert into a protected cell company, the company must deliver to the Registrar:-

- a copy of the consent of the Commission under section 46(2),

- a copy of the special resolution under section 46(3),

- a copy of its memorandum (and articles, as the case may be) as it is proposed to be altered, and

- a declaration of compliance (conversion).

s.46(5)

To be filed within 30 days of the special resolution being passed.

 

For a non-cellular company to convert into an incorporated cell company the company must deliver to the Registrar:-

- a copy of the consent of the Commission under section 47(2),

- a copy of the special resolution under section 47(3),

- a copy of its memorandum (and articles, as the case may be) as it is proposed to be altered, and

- a declaration of compliance (conversion).

s.47(5)

To be filed within 30 days of the special resolution being passed.

 

For a Protected Cell Company to convert into an incorporated cell company the company must deliver to the Registrar:-

- a copy of the consent of the Commission,

- a copy of the special resolution of the company,

- a copy of its memorandum (and articles, as the case may be) as it is (or they are) proposed to be altered,

- a copy of the special resolution passed by each cell,

- an application for the incorporation of each cell as an incorporated cell of the incorporated cell company in accordance with section 17 and that application shall be deemed to have complied with the requirements of section 11, and

- a declaration of compliance (conversion).

s.48(6)

To be filed within 30 days of the special resolution being passed.

 

For an incorporated cell to convert into a noncellular company the incorporated cell must deliver to the Registrar:- - a copy of the special resolution under subsection 49(2), - a copy of its memorandum (and articles, as the case may be) as it is (or they are) proposed to be altered, and - a declaration of compliance (conversion).

s.49(4)

To be filed within 30 days of the special resolution being passed.

 

For the transfer of incorporated cells between incorporated cell companies, the incorporated cell company to which the incorporated cell is being transferred must deliver to the Registrar:-

- a copy of the special resolution of each incorporated cell company authorising the ransfer,

- a copy of the special resolution of the incorporated cell being transferred approving the transfer,

- a copy of the transfer agreement,

- a copy of its articles if they are proposed to be altered,

- a notice of the proposed new address of the registered office of the incorporated cell which is being transferred, in order to comply with section 31, and

- a declaration of compliance (conversion).

s.50(7)

To be filed within 30 days of the special resolution being passed.

 

For a non-cellular company to convert into an incorporated cell and transfer to an incorporated cell company, the non-cellular company must deliver to the Registrar:-

- a copy of the special resolution of the noncellular company,

- a copy of the special resolution of the incorporated cell company,

- a copy of the conversion and transfer agreement,

- a copy of its memorandum (and articles, as the case may be) as it is (or they are) proposed to be altered,

- a notice of the proposed new address of its registered office, in order to comply with section 31, and

- a declaration of compliance (conversion).

s.51(7)

To be filed within 30 days of the special resolution being passed.

 

For a protected cell company to convert into a non-cellular company the company must deliver to the Registrar:-

- a copy of the consent of the Commission,

- a copy of the special resolution of the company,

- a copy of its memorandum (and articles, as the case may be) as it is (or they are) proposed to be altered,

- a copy of the special resolution of each cell, and

- a declaration of compliance (conversion).

s.52(6)

To be filed within 30 days of the special resolution being passed.

 

For an incorporated cell to subsume into an incorporated cell company and convert to a noncellular company, the incorporated cell company shall deliver to the Registrar:-

- a copy of the consent of the Commission,

- a copy of the special resolution of the incorporated cell company,

- a copy of its memorandum (and articles, as the case may be) as it is (or they are) proposed to be altered,

- a copy of the special resolution of each incorporated cell, and

- a declaration of compliance (conversion).

s.53(7)

To be filed within 30 days of the special resolution being passed.

 

For a company to convert into an unlimited liability company, the company must deliver to the Registrar:-

- a copy of the unanimous resolution passed under section 54(2),

- a copy of its memorandum (and articles, as the case may be) as it is proposed to be altered, and

- a declaration of compliance (conversion).

s.54(4)

To be filed within 30 days of the unanimous resolution being passed.

 

For an unlimited or mixed liability company to convert into a limited liability company, the company must deliver to the Registrar:-

- a copy of the special resolution passed under section 55(2),

- a copy of its memorandum (and articles, as the case may be) as it is proposed to be altered, and

- a declaration of compliance (conversion).

s.55(4)

To be filed within 30 days of the special resolution being passed.

 

For a limited liability company to convert into a mixed liability company, the company must deliver to the Registrar:-

- a copy of the special resolution passed under section 56(2),

- a copy of its memorandum (and articles, as the case may be) as it is proposed to be altered, and

- a declaration of compliance (conversion).

s.56(4)

To be filed within 30 days of the special resolution being passed.

 

For an unlimited liability company to convert into a mixed liability company, the company must deliver to the Registrar:-

- a copy of the special resolution passed under section 57(2),

- a copy of its memorandum (and articles, as the case may be) as it is proposed to be altered, and

- a declaration of compliance (conversion).

s.57(4)

To be filed within 30 days of the special resolution being passed.

Amalgamation

Application for amalgamation to be filed with the Registrar and be accompanied by:-

- in cases where the consent of the Commission is required by section 62, a copy of that consent;

- in cases where the amalgamated body corporate will not be one of the amalgamating bodies corporate but a new company, the particulars required under section 17(2) in respect of the incorporation of a company;

- such other information or documents as the Registrar may require, including anything that could be required under section 17 in respect of an application for incorporation of a company; and

- a declaration of compliance (amalgamation).

s.69(2)

N/A

Change of Directors

Any change in directors or the particulars contained in the register of directors must be filed with the Registry. Notice must state the change and date on which it occurred.

s.145(1)(a)

To be filed within 14 days of the change.

 

Notice of a person having become a director of the company must:-

- contain a statement of the particulars of the new director that are required to be included in the company's register of directors, and

- be accompanied by the consent and declaration required by section 138.

s.145(2)

To be filed within 14 days of the new director's appointment.

Resolutions

Ordinary resolutions are not generally required to be filed with the Registry, but certain exceptions exist (including a requirement to file an ordinary resolution amending the share capital of a company or for the voluntary winding up of the company, which must be filed within 30 days of being passed).

s.176 and s.287(4)

To be filed within 30 days after the date of which it was passed.

 

Special resolutions.

s.178(7)

To be filed within 30 days of being passed.

 

Waiver resolutions.

s.179(7)

To be filed within 30 days of being passed.

 

Unanimous resolutions.

s.180(4)

To be filed within 30 days of being passed.

 

Any change in the resident agent or any of the details contained in the record of resident agent must be filed with the Registry; these details include:-

(1) Where a director is an individual, the following particulars must be entered in the register:-

- his name and any former name,

- his address, which may be either -

- his usual residential address, or

- his service address (which may be stated as "the company's registered office"),

- his nationality,

- his business occupation (if any), and

- his date of birth.

(2) Where a director is not an individual, the following particulars must be entered in the register:-

- its corporate or firm name and any former such name it has had within the preceding 5 years,

- its registered office (or, if it has no registered office, its principal office),

- its legal form and the law by which it is governed, and

- if applicable, the register in which it is entered and its registration number in that register.

Notice must state the change and date on which it occurred.

s.485(3)

To be filed within 14 days of change.

Other Certification Requirements Without Registry Filing Obligations

Action

Description of requirement

Section

Time period for filing with the Registry

Approval of Accounts

Every Guernsey company is obliged to prepare accounts in respect of each financial year and such accounts must include a profit and loss account and a balance sheet, must give (and state that they give) a true and fair view and must be in accordance with generally accepted accounting principles stating which principles have been adopted. The accounts must be approved by the board and must be signed by at least one of them (section 243).

The Companies Law makes provision for the preparation of "consolidated accounts" by "associated companies". Companies are "associated companies" for the purposes of the Companies Law if, inter alia, one is a subsidiary of the other or if they are both subsidiaries of the same company (section 529). A company is a "subsidiary" of another for the purposes of the Companies Law if the other company controls the composition of its board of directors, holds more than half the value of the equity share capital (if applicable) or controls more than half of the voting rights in it (section 531). Even if such consolidated accounts are prepared they must be approved by the board of each of the relevant companies and signed by a director of each relevant company (section 244).

s.243 and s.244

No obligation to file.

Allotment of Shares

Before a company issues shares under section 292 or 293,

(1) The board of directors must:-

- decide the consideration for which the shares will be issued and the terms on which they will be issued, and

- resolve that, in its opinion, the consideration for and terms of the issue are fair and reasonable to the company and to all existing members.

(2) The board of directors must approve a certificate:-

- stating the consideration for, and the terms of, the issue,

- describing the consideration in sufficient detail to identify it, and

- stating that, in its opinion, the consideration and terms of issue are fair and reasonable to the company and to all existing members, and the certificate must be signed on their behalf by at least one of them.

s.295(1) and (2)

(Note the transitional provisions and the delayed application of, inter alia, sections 292 and 293 in respect of companies existing prior to 1 July 2008)

No obligation to file.

 

In addition to the requirement above, where shares are issued other than for cash,

(1) The board of directors must certify as to:-

- the reasonable present cash value of the consideration for issue, and

- the present cash value of the consideration to be provided for the issue of shares being not less than the amount to be credited for the issue of the shares.

(2) The certificate referred to in section 295(2) must:-

- state the reasonable present cash value of the consideration and the basis for assessing it; and

- state that, in the opinion of the board, the present cash value of the consideration to be provided for the issue of shares is not less than the amount to be credited for the issue of the shares.

(3) Before shares that have already been issued are credited as fully or partly paid up, the board must:-

- determine the reasonable cash value of the consideration, and

- resolve that, in its opinion, the present cash value of the consideration is:-

- fair and reasonable to the company and to all existing members, and

- not less than the amount to be credited in respect of the shares.

(4) The board of directors must, in respect of a decision in relation to (3) above, approve a certificate:-

- describing the consideration in sufficient detail to identify it, and

- stating:-

- the present cash value of the consideration and the basis for assessing it,

- that the present cash value of the consideration is fair and reasonable to the company and to all existing members, and

- that the present cash value of the consideration is not less than the amount to be credited in respect of the shares. and the certificate must be signed on their behalf by at least one of them.

(5) Note that there are exceptions to the provisions under sections 295 and 296 set out above. See section 297 for full details.

s.296 and s.297


































































S.297

No obligation to file.

Rights to Subscribe for Shares

Before a company grants rights to subscribe for, or to convert any security into, shares in a company,

(1) the board of directors must:-

- decide the consideration for which the rights or securities and, in either case, the shares will be issued and the terms on which they will be issued, and

- resolve that, in its opinion, the consideration for and terms of the issue of the rights or securities and, in either case, the shares are fair and reasonable to the company and to all existing members.

(2) The board of directors must approve a certificate:-

- stating the consideration for, and terms of, the issue of the rights or securities and, in either case, the shares,

- describing the consideration in sufficient detail to identify it, and

- stating that, in its opinion, the consideration for and terms of issue of the rights or securities and, in either case, the shares are fair and reasonable to the company and to all existing members,

and the certificate must be signed on their behalf by at least one of them.

s.298

No obligation to file.

 

Before a company grants for consideration other than cash rights to subscribe for, or to convert any security into, shares in a company, the board of directors must:-

- determine the reasonable present cash value of the consideration for the issue, and

- resolve that, in its opinion, the present cash value of the consideration to be provided is not less than the amount to be credited for the issue of the shares.

s.299(3)

No obligation to file.

Distributions

(1) The board of directors of a company may authorise a distribution if:-

it is satisfied on reasonable grounds that the company will, immediately after the distribution, satisfy the solvency test, and

- it satisfies any other requirement in its memorandum and articles. (2) The board of directors must approve a certificate stating:-

- that in its opinion the company will, immediately after the distribution, satisfy the solvency test, and

- the grounds for that opinion, and the certificate must be signed on their behalf by at least one of them.

s.303

No obligation to file.

Payment of Dividends

(1) A company may pay a dividend if:-

- the board of directors is satisfied on reasonable grounds that the company will, immediately after payment, satisfy the solvency test, and

- it satisfies any other requirement in its memorandum and articles.

(2) The board of directors must approve a certificate stating:-

- that in its opinion the company will, immediately after payment of the dividend, satisfy the solvency test, and

- the grounds for that opinion, and the certificate must be signed on their behalf by at least one of them.

s.304

No obligation to file.

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.

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