A Cyprus company registered under the provisions of the Cyprus Companies Law, Cap. 113 ("Cap 113") may apply to a foreign country or jurisdiction to be registered and continue its existence as a legal entity under that legal regime (hereinafter referred to as "re-domiciliation") provided that:
(a) the laws of the foreign country or jurisdiction allow such re-domiciliation; and
(b) the prior consent of the Cyprus Companies Registrar (the "Registrar") has been obtained (section 354J, Cap. 113).
1. Obtaining the consent of the Registrar: the application requirement
The application for the consent of the Registrar as to the re-domiciliation of a Cyprus company abroad must be accompanied by a declaration signed by at least two directors of the company or, if the board of directors comprises of a single director, from the sole director, and must include the following documents: -
a) The name of the company under which it requests to be registered in the foreign country;
b) The place where the registration of the company will take place and the name and the address of the competent authority of the foreign country; and
c) The date proposed for the re-domiciliation of the company.
2. Conditions for obtaining the consent of the Registrar
In order for the Registrar to grant its consent for the re-domiciliation of a Cyprus company abroad, the following must be met: -
a) a special resolution of the shareholders of the company must be passed in accordance with the memorandum and articles of association of the company authorizing the re-domiciliation;
- before the shareholders meeting takes place for the approval of the re-domiciliation the directors must prepare and present interim financial statements as up to the date of the shareholders' general meeting;
- the special resolution together with the interim financial statements must be filed with the Registrar
b) the company must file with the Registrar a declaration of solvency of the company, signed by at least two directors or in case of only one director in office by that one, confirming that the directors of the company are not aware of any circumstances that could affect negatively the solvency of the company within a three year period;
c) if the company carries out an activity within or from the Republic of Cyprus that requires a permit from any competent authority, the company must provide the Registrar with proof of the consent of the competent authority to the re-domiciliation;
d) all the charges due, in relation to the activities of the company pursuant to Cap.113, must be paid and all the procedures must be completed;
e) the charges related to the application for re-domiciliation must be paid;
f) no procedures must have commenced for the dissolution of the company, nor any insolvency proceedings, arrangements or compositions, or proceedings for the execution of a court judgment or other similar procedures against the company;
g) the company, at the time of filing of the application, must not have infringed its obligations according to the provisions of Cap.113;
h) the company must have paid all its due taxes and custom duties if any (as at the date of the application), to the appropriate Cyprus authorities.
It must be noted that any director of a company making a declaration of solvency as described above, who has omitted to include the facts that he was or should have been aware of in order to justify such declaration, will be guilty of an offence, and in case of conviction shall be liable for imprisonment for a term not exceeding one year and to a fine not exceeding Euro 34.172.
Furthermore all the documents required to be submitted to the Registrar, as described above, must be submitted in the Greek language or in a certified translation in the Greek language.
Customarily, any documents to be executed by the directors (such as the application and the declaration of solvency), will need to be tabled before the board of directors, who will need to authorize their entry and execution (via a board resolution). A shareholders resolution will only be required if the Articles of Association of the company so require.
3. Creditors' right to object
In addition to the aforementioned requirements, the company must publish a notice of the special resolution approving the re-domiciliation in two daily newspapers of wide circulation in the Republic of Cyprus; proof of the said publication must be filed with the Registrar within fourteen days from the date of the publication.
Upon the receipt of the publications, the Registrar will allow three months before deleting the company from its records, so that any creditor of the company will have time to submit an objection to the Court for the continuation of the company abroad, if s/he so requires. Following the elapse of the three month period, the Court has the power to approve the continuation of the company or prohibit it.
4. Registrar's consent
Following the elapse of the three month period, if no objection has been filed by a creditor, or if an objection was filed and the court rejected the creditor's application, and provided the conditions referred to above are met and the relevant documents are presented, the Registrar shall grant its consent to the re-domiciliation of the company abroad.
5. Striking off from the Registry
The company must provide to the Registrar a copy of the Certificate of Continuation issued by the foreign jurisdiction (confirming that the company has been registered as a company continuing in a country other than the Republic of Cyprus). Once the said copy is presented to the Registrar, the Registrar will delete the name of the company from its registry and will issue a Certificate of Deletion.
It is clearly indicated in Cap. 113 that such deletion from the Cyprus Registry is not a liquidation of the company and such a deletion:-
a) does not revoke or affect the jurisdiction of any court in the Republic on any procedure which started by or against the company before deletion;
b) does not affect the assets of the company;
c) does not affect in any way any judgment, conviction, opinion, order, debt, liability or obligation, which is due or will become due, from any cause against the company.
It must be noted that the Registrar retains a register of all the companies that obtained its consent to re-domicile in an approved country, the record containing all the relevant details.
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.