Companies
(Demerger) (Jersey) Regulations 2018
1 Interpretation
(1) In these Regulations,
unless the context otherwise requires –
“completion date”, in relation to a demerger, shall be
construed in accordance with Article 12(2);
“Comptroller” has the meaning given by the Income Tax (Jersey)
Law 1961;
“demerged company” means a relevant Jersey company
resulting from a demerger under these Regulations;
“demerger instrument” shall be construed in accordance
with Regulation 3;
“demerging company” means a relevant Jersey company that
demerges into 2 or more relevant Jersey companies under these Regulations;
“employee” has the meaning given by Article 1A(1)
of the Employment (Jersey)
Law 2003;
“employer” has the meaning given by Article 1A(1)
of the Employment (Jersey)
Law 2003;
“Law” means the Companies (Jersey)
Law 1991;
“new company” means a relevant Jersey company incorporated
as a result of a demerger;
“relevant Jersey company” means a company that is not a
cell company or a cell and does not have unlimited shares or guarantor members;
“solvency statement” shall be construed in accordance
with Regulation 4(2);
“survivor company” means a demerging company which, on
completion of a demerger, continues as a demerged company.
(2) Nothing in these
Regulations is to be read as preventing –
(a) more
than one person from signing the same certificate under these Regulations; or
(b) more
than one certificate signed under these Regulations from being included in the
same document,
and references to a certificate are to be construed accordingly.
2 Companies eligible and not eligible to demerge and be demerged
(1) Subject to paragraphs (2),
(3) and (4) and to the requirements of these Regulations, a relevant Jersey
company may demerge into 2 or more relevant Jersey companies –
(a) one
of which is a survivor company; or
(b) all
of which are new companies.
(2) A company that is registered
under the Banking Business (Jersey)
Law 1991 or a permit holder within the meaning of the Insurance Business (Jersey)
Law 1996 shall not be eligible to demerge or to become a demerged company.
(3) The following companies
shall not be eligible to demerge or to become a demerged company –
(a) a
financial services company within the meaning given in Article 3(1) of the
Income Tax (Jersey)
Law 1961 that is subject to tax under Article 123D of that Law;
(b) a utility
company within the meaning given in Article 123C(3) of the Income Tax (Jersey)
Law 1961;
(c) a company
with profits or gains chargeable to tax from the importation and supply of
hydrocarbon oil under Article 123CAA of the Income Tax (Jersey)
Law 1961;
(d) a
company with profits or gains chargeable to tax under Schedule A under Article 51(1)(a),
(b) or (c) of the Income Tax (Jersey)
Law 1961;
(e) a
company to which Article 123C of the Income Tax (Jersey)
Law 1961 applies by virtue of paragraph (1) of that Article where an individual
resident in Jersey owns (whether directly or indirectly) more than 2% of the
ordinary share capital of the company;
(f) a
company required to deduct tax from the earnings payable by the employer to an employee
under Article 41B(1) of the Income Tax (Jersey)
Law 1961;
(g) a
company required to deduct tax from a payment made to a sub-contractor or to a
person nominated by the sub-contractor for the purpose under Article 41E(1)
of the Income Tax (Jersey)
Law 1961;
(h) a
“large corporate retailer” within the meaning given by Article 123I
of the Income Tax (Jersey)
Law 1961; and
(i) a
company registered under Part 3 of the Goods and Services Tax
(Jersey) Law 2007.
(4) Subject to an order of
the court, a company that –
(a) is under
investigation in relation to an offence; or
(b) has
been charged with an offence and against which there is a criminal prosecution
pending,
shall not be eligible to demerge or to become a demerged company
until the conclusion of the investigation without a criminal prosecution; or
the criminal prosecution, as the case may be.
3 Demerger
instrument
(1) A relevant Jersey company
proposing to demerge shall execute a demerger instrument in accordance with
this Regulation.
(2) A demerger instrument shall
state the terms and means of effecting the demerger and, in particular, the
following information –
(a) details
of the proposed demerging company, including –
(i) whether or not it
is to be a survivor company, and
(ii) the
names and addresses of the persons who are the directors of the demerging
company;
(b) details
of any arrangements necessary to complete the demerger;
(c) details
of any payment, other than of a kind described in paragraph (3)(b),
proposed to be made to a member or director of the demerging company; and
(d) in
relation to any securities of a demerging company, the information specified in
paragraph (3).
(3) The information
referred to in paragraph (2)(d) is –
(a) if
the securities are to be converted into securities of a demerged company, the
manner in which that conversion is to be done; or
(b) otherwise,
the kind of the payment that the holders of any securities in the demerging
company are to receive instead of the securities of a demerged company and the
manner in which and the time at which they are to receive it.
(4) If a demerged company is
to be a new company, the demerger instrument shall, in addition to the
information required under paragraph (2) –
(a) set
out –
(i) the proposed
memorandum and articles of the demerged company, and
(ii) the
name and address of any person who will become a director of the demerged company;
and
(b) have
attached to it a draft of any other document or information that would be
required by Part 2 of the Law to be delivered to the registrar if the demerged
company was being incorporated under the Law otherwise than by demerger.
(5) If a demerging company is
to be a survivor company, the demerger instrument shall, in addition to the
information required under paragraph (2) state –
(a) whether
any amendments to the memorandum and articles of the demerging company are
proposed to take effect on the demerger and, if so, details of those
amendments; and
(b) whether
it is proposed that, on the demerger, any person will become, or cease to be a
director of the survivor company and, if so, the name and address of each such
person.
(6) A demerger instrument may
provide that, at any time before the completion date of the demerger, the demerger
instrument may be revoked by the demerging company.
(7) If a demerger
instrument is revoked under a provision included in it under paragraph (6),
nothing in these Regulations requires or authorizes any further steps to be
taken to complete the demerger.
(8) A demerger instrument
must identify the undertaking, property, rights and liabilities of the
demerging company and must state, in respect of each demerged company, which
part of the undertaking, property, rights and liabilities of the demerging
company is to become the undertaking, property, rights and liabilities of each
demerged company, except that a liability attached to any property of a
demerging company must not be separated from that property.
4 Resolutions
and certificates
(1) Before notice is given
of a meeting of a demerging company to approve a demerger instrument under Regulation 5,
the directors of the demerging company shall pass a resolution that, in the
opinion of the directors voting for the resolution, the demerger is in the best
interests of the demerging company.
(2) For the purposes of
this Regulation, a solvency statement is a statement that, having made full
inquiry into the affairs of the demerging company, the person making the
statement reasonably believes that the demerging company is, and will remain
until the demerger is completed, able to discharge its liabilities as they fall
due.
(3) If the directors voting
for the resolution are satisfied on reasonable grounds that they can properly
make a solvency statement in respect of the demerging company, the resolution
shall in addition state that they are so satisfied.
(4) If paragraph (3)
does not apply, the resolution shall instead state that the directors voting
for it are satisfied on reasonable grounds that there is a reasonable prospect
of obtaining the permission of the court under Regulation 9 for the
demerger.
(5) After a resolution is
passed under paragraph (1), but before notice is given as mentioned in
that paragraph, each director who voted in favour of it shall sign a
certificate –
(a) containing –
(i) if paragraph (3)
applies, a solvency statement, or
(ii) if
paragraph (3) does not apply, a statement that the director is satisfied
on reasonable grounds that there is a reasonable prospect of obtaining the
permission of the court under Regulation 9; and
(b) setting
out the grounds for making the solvency statement under sub-paragraph (a)(i)
or statement under sub-paragraph (a)(ii).
(6) If paragraph (3)
applies, before notice is given as mentioned in paragraph (1), each person
who will become a director of a demerged company as set out in the demerger
instrument under Regulation 3(4)(a)(ii) shall sign a certificate stating –
(a) that,
in that person’s opinion, the demerged company of which the person will
be a director is in a position to carry on business and discharge its liabilities
as they fall due for the 12 months immediately following the demerger; and
(b) the
grounds for that opinion, having particular regard to –
(i) the prospects of
the demerged company,
(ii) the
proposals in the demerger instrument with respect to the management of the businesses
of the demerged company, and
(iii) the
amount and character of the financial resources that will, in the view of the
person signing, be available to the demerged company.
(7) If none of the persons referred
to in paragraph (6) are directors of the demerging company, the
certificate under paragraph (6) must also be signed by a director referred
to in paragraph (5).
5 Approval
of demerger instrument
(1) The directors of a demerging
company shall submit the demerger instrument for approval by a special
resolution of that demerging company and, where there is more than one class of
members, for approval by a special resolution of a separate meeting of each
class.
(2) Notice of each meeting
referred to in paragraph (1), shall be given and –
(a) shall
be accompanied by –
(i) a copy or summary
of the demerger instrument,
(ii) a
copy of the proposed memorandum and articles of association for each demerged company,
or a summary of the principal provisions of the memorandum and articles,
(iii) if a
summary is supplied under clause (i) or (ii), information as to how a copy
of the document summarized may, from the date that the notice is given, be
inspected free of charge by members either electronically (at all times) or at
the demerging company’s registered office during normal office hours in
accordance with paragraph (3),
(iv) a
copy of the certificates signed under Regulation 4(5) and (6) in
respect of that demerging company,
(v) a statement of the
material interests in the demerger of the directors of the demerging company
and of the persons who will become directors of the demerged companies, and
(vi) such
further information as a member would reasonably require to reach an informed
decision on the demerger; and
(b) shall
contain sufficient information to alert members to their right to apply to the
court under Regulation 6.
(3) A demerging company
shall, from the date that notice of a meeting is given under paragraph (2),
make the demerger instrument and copies of the proposed memorandum and articles
of each demerged company available for inspection free of charge by its members
either electronically at any time or at its registered office during normal
office hours.
(4) A demerger is approved
under this Regulation when all of the special resolutions required under
paragraph (1) have been passed in respect of the demerging company.
(5) A demerger shall not be
completed unless it is approved under this Regulation.
6 Objection
by member
(1) A member of a demerging
company may –
(a) within
21 days after the date on which the demerger is approved under
Regulation 5(4), serve notice on the demerging company of the member’s
objection to the demerger; and
(b) within
21 days after the date on which the member of the demerging company served
notice of his or her objection under sub-paragraph (a), apply to the court
for an order on the ground that the demerger would unfairly prejudice the
interests of the member.
(2) An objection or application
under paragraph (1) may not be made by a member who voted in favour
of the demerger under Regulation 5.
(3) If the court is
satisfied that an application under paragraph (1)(b) is well founded, it
may make such order as it thinks fit for giving relief in respect of the
matters complained of.
(4) Without prejudice to
the generality of paragraph (3), the court’s order may –
(a) regulate
the conduct of the demerging company’s affairs in the future;
(b) require
the demerging company to refrain from doing or continuing an act complained of
by the member or to do an act which the member has complained it has omitted to
do;
(c) authorize
civil proceedings to be brought in the name and on behalf of the demerging company
by such person or persons and on such terms as the court may direct; and
(d) provide
for the purchase of the rights of any members of the demerging company by other
members or by the demerging company itself and, in the case of a purchase by
the demerging company itself, the reduction of the demerging company’s
capital accounts accordingly.
(5) If an order under this Regulation
requires the demerging company not to make any, or any specified, alterations
in its memorandum or articles, the demerging company shall not then without
leave of the court make such alterations in breach of that requirement.
(6) An alteration in the demerging
company’s memorandum or articles made by virtue of an order under this Regulation
is of the same effect as if duly made by resolution of the demerging company,
and the provisions of the Law apply to the memorandum or articles as so altered
accordingly.
(7) The demerging company shall,
within 14 days after an order is made under this Regulation or such longer
period as the court may allow, deliver to the registrar for the registration of
the Act of court recording the making of the order under this Regulation –
(a) if
the order is altering, or giving leave to alter, a demerging company’s
memorandum or articles; or
(b) if
the court otherwise sees fit.
(8) If the demerging
company fails to comply with paragraph (7), the demerging company shall be
guilty of an offence and liable to a fine of level 3 on the standard scale
and a daily default fine of level 2 on the standard scale
in accordance with Article 215 of the Law.
7 Notice
to creditors
(1) During the period
beginning with the date on which the first notice is given under Regulation 5(2)
in relation to a demerger and ending 21 days after the demerger is
approved under Regulation 5(4), the demerging company shall send written
notice to each of its creditors who, after its directors have made reasonable
enquiries, is known to the directors to have a claim against the demerging company
exceeding £5,000.
(2) The notice sent under
paragraph (1) shall state –
(a) that
the demerging company intends to demerge, in accordance with these Regulations,
into 2 or more relevant Jersey companies specified in the notice; and
(b) that
the demerger instrument is available to creditors from the demerging company,
on request, free of charge.
(3) If Regulation 9 applies
to the demerger, the notice sent under paragraph (1) shall (in addition to
the matters in paragraph (2)) –
(a) state
that a demerging company has applied or will apply for the permission of the court
under that Regulation;
(b) state
that any creditor of the demerging company may require the demerging company
making the application to send a copy of the application to the creditor; and
(c) set
out information as to –
(i) the means by
which a creditor may contact the demerging company making the application, or a
person representing the demerging company in that application, and
(ii) Regulation 9(4),
including the date of the hearing of the application if known at the time of
the notice.
(4) If Regulation 9
does not apply to the demerger, the notice sent under paragraph (1) shall
state (in addition to the matters in paragraph (2)) that any creditor of
the demerging company may –
(a) object
to the demerger under Regulation 10(2)(a) and apply to the court for an
order restraining the demerger or modifying the demerger instrument under
Regulation 10(2)(b); or
(b) require
the demerging company to notify the creditor if any other creditor of the demerging
company applies to the court under Regulation 10(2)(b).
(5) Where an application is
made for a court order under paragraph (4)(a), the creditor shall serve a
copy of the application on the demerging company;
(6) The demerging company
shall, within the time limit set out in paragraph (7), publish the contents
of the notice sent under paragraph (1) –
(a) once
in a newspaper circulating in Jersey; or
(b) in any
other manner –
(i) approved by the
registrar, and
(ii) published
by the Commission.
(7) The time limit referred
to in paragraph (6) is whichever is the earlier of –
(a) 21 days
after the demerger is approved under Regulation 5(4); or
(b) as
soon as practicable after the demerging company sends the last of any notices
under paragraph (1).
(8) Subject to paragraph (9),
a demerging company shall, from the date that notice of a meeting is given
under paragraph (1), make the demerger instrument and a copy of the
proposed memorandum and articles of each demerged company available for
inspection free of charge by its creditors either electronically at any time or
at its registered office during normal office hours.
(9) A demerging company may
redact commercially sensitive information from the demerger instrument or copy
of the proposed memorandum and articles of each demerged company prior to making
it available for inspection under paragraph (8).
8 Declaration
to Comptroller
(1) During
the period beginning with the date on which the first notice is given under
Regulation 5(2) in relation to a demerger and ending 21 days after
the demerger is approved under Regulation 5(4), the demerging company
shall subject to paragraphs (2), make a declaration to the Comptroller.
(2) The
declaration made under paragraph (1) shall state that the demerging
company is eligible to demerge in accordance with Regulation 2(1) as none
of the conditions as set out in Regulation 2(3) apply to the demerging
company.
(3) If
a demerging company makes a declaration under paragraph (1), the
Comptroller shall issue a tax certificate (showing a lodgement number) to the
demerging company.
(4) If
the Comptroller discovers that the demerging company is not eligible to
demerge, the Comptroller shall advise the registrar of that discovery.
9 Company
to apply to court if solvency statement not made
(1) This Regulation applies
to a demerger if any certificate signed by a director of the demerging company
under Regulation 4(5) does not contain a solvency statement.
(2) A demerger to which
this Regulation applies shall not be completed unless an order of the court has
been obtained permitting the demerger on the ground that the demerger would not
be unfairly prejudicial to the interests of any creditor or member of the demerging
company.
(3) A demerging company in
respect of which a certificate referred to in paragraph (1) has been signed
shall, as soon as is practicable after the demerger is approved under Regulation 5(4) –
(a) apply
to the court for an order permitting the demerger under paragraph (2); and
(b) send
a copy of the application referred to in sub-paragraph (a) –
(i) to any creditor
who, after the directors have made reasonable enquiries, is known to the
directors to have a claim against the demerging company exceeding £5,000,
(ii) to
any other creditor of the demerging company who requests a copy from the
demerging company,
(iii) to
any member of the demerging company who requests a copy of the application, and
(iv) to
the registrar.
(4) The court shall not
hear an application made under paragraph (3) until at least 28 days
after it is made to the court unless the creditors and members mentioned in
paragraph (3)(b) consent to a shorter period.
(5) On the hearing by the
court of an application under this Regulation, a person mentioned in paragraph (3)(b)
shall have a right to be heard.
10 Objection by
creditor if solvency statement made
(1) This Regulation applies
to a demerger to which Regulation 9 does not apply.
(2) A creditor of a demerging
company who has a claim against the demerging company exceeding £5,000
and who objects to the demerger may –
(a) within
21 days after the date of the publication of the contents of the notice
under Regulation 7(6), serve notice of the creditor’s objection to
the demerging company; and
(b) within
21 days after the date on which the notice of the creditor’s
objection was given under sub-paragraph (a), if the creditor’s claim
against the demerging company has not been discharged, apply to the court for
an order restraining the demerger or modifying the demerger instrument and
serve a copy of the application on the demerging company.
(3) If a creditor makes an
application under paragraph (2)(b), the demerging company shall, as soon
as is practicable after being served with a copy of the application under paragraph (2)(b),
give a copy of it to each other creditor –
(a) to
whom a notice was given under Regulation 7(1);
(b) who
has required notification under Regulation 7(4)(b);
(c) who
has given notice of objection under paragraph (2)(a); or
(d) to
whom the court orders that a copy should be sent.
(4) If on an application
under paragraph (2)(b) the court is satisfied that the demerger would
unfairly prejudice the interests of the applicant, or of any other creditor of
the demerging company, the court may make such order as it thinks fit in
relation to the demerger, including an order –
(a) restraining
the demerger; or
(b) modifying
the demerger instrument in such manner as may be specified in the order.
(5) The court shall not
make an order under paragraph (4)(b) to modify a demerger instrument that
does not contain a provision in accordance with Regulation 3(6) allowing
the demerging company to revoke the demerger instrument following the
modification unless –
(a) the
order also inserts such a provision in the demerger instrument; and
(b) the
court is satisfied that the demerging company will have an adequate opportunity
to reconsider whether to proceed with the demerger following the modification.
11 Pre-registration
steps
(1) The demerging company
shall apply, in the published form and manner (if any), to the registrar to
complete the demerger.
(2) Except where all the
members of the demerging company and all of its creditors, who, after its
directors have made reasonable enquiries, are known to the directors to have a
claim against the demerging company exceeding £5,000, otherwise agree in
writing, the application under paragraph (1) shall not be made until after
whichever is the latest of the following dates –
(a) if
any application was made to the court under Regulation 6, the last date on
which such an application is disposed of otherwise than by an order restraining
the demerger;
(b) if Regulation 9
applies to the demerger, the date of the order permitting the demerger;
(c) if Regulation 9
does not apply to the demerger –
(i) 21 days
after the last date on which a notice was published under Regulation 7(6),
if by then no creditor has given notice of objection under Regulation 10(2)(a),
(ii) 21 days
after the date on which the last notice of objection by a creditor was given
under Regulation 10(2)(a), if by then no creditor has applied to the court
under Regulation 10(2)(b), or
(iii) if
any application was made to the court under Regulation 10(2)(b), the last
date on which such an application is disposed of otherwise than by an order
restraining the demerger.
(3) An application under
paragraph (1) shall be accompanied by –
(a) a
copy of the demerger instrument;
(b) a
copy of –
(i) if a demerged
company is to be a new company, its memorandum and articles and any other
document required for the incorporation of a new company under the Law, or
(ii) if
a demerged company is to be a survivor company, any amendment to its memorandum
or articles provided for under Regulation 3(5)(a);
(c) a
copy, in respect of the demerging company, of –
(i) the resolution
passed under Regulation 4(1), together with, if that information is not
contained in the resolution, a list identifying the directors who voted in
favour of that resolution, and
(ii) the
certificates signed under Regulation 4(5) and (6);
(d) a
further certificate, signed by each director who signed a certificate under Regulation 4(5),
stating –
(i) that the
director, and the demerging company of which he or she is a director, have
complied with the requirements of these Regulations in respect of the demerger,
(ii) if
Regulation 9 does not apply to the demerger, that in the director’s
opinion there has been no material change to the position stated in the
solvency statement; and
(e) the
special resolution passed under Regulation 5(1);
(f) a
copy of any order of the court under Regulation 6, 9 or 10;
(g) proof
that a declaration has been made by the demerging company under
Regulation 8 in the form of a tax certificate (showing a lodgement number)
issued by the Comptroller to the demerging company under Regulation 8(3);
and
(h) any
other document or information required by the registrar, including documents or
information which may be required by the registrar to establish that the
requirements of paragraph (2) have been met.
(4) The registrar shall
register notices as to the demerger in accordance with Regulation 12 if he
or she is satisfied –
(a) that
the application complies with paragraphs (1) and (2) and is accompanied by
the documents and information required under paragraph (3) and that the
documents provided under paragraph (3) comply with that paragraph and with
the provisions mentioned in it; and
(b) if
the demerger instrument provides for a demerged company to be a new company,
that he or she would have registered the memorandum and articles of the company
under Article 8 of the Law if it had been incorporated otherwise than by demerger.
12 Registration of
notices as to demerger
(1) This Regulation applies
where the registrar is to register notices as to a demerger under Regulation 11.
(2) The completion date of a
demerger is the date the last entry on the register is made under this
Regulation in relation to the demerger.
(3) The registrar shall
enter in the register, in respect of a demerging company that is not a survivor
company, a notice that states that the company has ceased to be incorporated as
a separate company because it has demerged into the demerged companies specified
in the notice.
(4) If a demerged company is
a survivor company, the registrar shall enter in the register, in respect of
that company, a notice that states that the company has demerged, and has been continued
as a survivor company together with the new company or companies specified in
the notice.
(5) If a demerged company is
a new company, the registrar shall, if he or she would have registered the new company
under the Law if it had been incorporated otherwise than as the result of a demerger, register
the new company by –
(a) registering
the memorandum and articles of the new company under Article 8 of the Law,
and issuing a certificate of its incorporation under Article 9 of the Law,
as if the registrar had received an application for the creation of the new company
under Part 2 of the Law with the memorandum and articles provided for in
the demerger instrument; and
(b) entering
in the register, in respect of that new company, a notice that states that the new
company is the result of a completed demerger of the demerging company
specified in the notice,
and the fee payable under Article 201 of the Law in respect of
the registration of a company shall be payable in respect of the registration
of the new company.
(6) Each entry on the
register under this Regulation –
(a) shall
in addition include a note specifying the completion date of the demerger to
which it relates; and
(b) may
in addition include a note of any further information that the registrar
considers useful in relation to the demerger.
13 Effect of
completion of demerger generally
(1) On the completion date
of a demerger –
(a) if
the demerging company is a survivor company it continues as a demerged company
together with one or more demerged companies that are new companies; or
(b) if
the demerging company is not a survivor company it ceases to be incorporated as
a separate company and continues as 2 or more demerged companies that are new
companies.
(2) Subject to paragraph (3),
when a demerger is completed –
(a) all
property and rights to which the demerging company was entitled immediately
before the demerger was completed become the property and rights of the
demerged companies in the parts stated in the demerger instrument under Regulation 3(8)
or jointly in common in equal parts if not stated in the demerger instrument;
(b) subject
to an order of the court, the demerged companies become jointly and severally
subject to all financial penalties which the demerging company was subject to immediately
before the demerger was completed;
(c) the
demerged companies become subject to all civil liabilities and all contracts,
debts and other obligations which the demerging company was subject to immediately
before the demerger was completed in the parts stated in the demerger
instrument under Regulation 3(8) or jointly and severally if not stated in
the demerger instrument; and
(d) subject
to an order of the court, all actions and other legal proceedings which,
immediately before the demerger was completed, were pending by or against the
demerging company may be continued by or against all or any of the demerged
companies.
(3) A licence held by a
demerging company shall not be transferred to a demerged company on completion
of the demerger unless with the permission of the authority that granted the
licence.
(4) Entries made on the
register under Regulation 12 are conclusive evidence of the following
matters to which they refer –
(a) that
on the completion date of the demerger specified in the entry, the demerging company
demerged and was continued as the demerged companies; and
(b) that
the requirements of these Regulations and the Law have been complied with in
respect of –
(i) the demerger of
the demerging company under these Regulations, and
(ii) all
matters precedent to and incidental to the demerger.
(5) The operation of this
Regulation shall not be regarded –
(a) as a
breach of contract or confidence or otherwise as a civil wrong;
(b) as a
breach of any contractual provision prohibiting, restricting or regulating the
assignment or transfer of rights or liabilities; or
(c) as
giving rise to any remedy by a party to a contract or other instrument, as an
event of default under any contract or other instrument, or as causing or
permitting the termination of any contract or other instrument, or of any
obligation or relationship.
(6) In this Regulation
“licence” includes an authorization, a certificate, a consent, a
permit, a registration or any other permission.
14 Effect of
demerger on employment
(1) During
the period beginning with the date on which the first notice is given under Regulation 5(2)
in relation to a demerger and ending 21 days after the demerger is
approved under Regulation 5(4), the demerging company shall send written
notice to each of its employees.
(2) The
notice sent under paragraph (1) shall state –
(a) that
the demerging company intends to demerge, in accordance with these Regulations,
into 2 or more relevant Jersey companies specified in the notice; and
(b) that
the demerger instrument is available to employees from the demerging company,
on request, free of charge.
(3) A
demerging company shall in accordance with paragraph (2)(b) make the
demerger instrument available to employees free of charge and may redact
commercially sensitive information from the demerger instrument prior to making
it available to employees.
(4) Where
any duty, right or liability transferred from a demerging company to a demerged
company under a demerger is a duty, right or liability under a contract of
employment –
(a) the
contract –
(i) shall not be
terminated by the demerger, unless express provision is made to that effect, or
unless paragraph (5) applies, and
(ii) shall
have effect from the completion date of the demerger as if between the employee
and the demerged company;
(b) any
act done or omitted to be done before the completion date of the demerger by or
in relation to the demerging company in respect of the contract of employment
or employee is to be treated from that date as having been done or omitted to
be done, as the case may be, by or in relation to the demerged company;
(c) a
period of employment with the demerging company is to be treated as a period of
employment with the demerged company, and the demerger is not to be treated as
interrupting the continuity of that period.
(5) Where an employee
objects to a transfer of his or her rights and liabilities under a contract of
employment, the employee must give notice of his or her objection to the
demerging company in writing prior to the completion date of the demerger and
where such notice is given and has not been withdrawn prior to that
date –
(a) subject
to sub-paragraph (d), the rights and liabilities of the employee under the
contract of employment are not transferred by the demerger;
(b) subject
to sub-paragraph (d), the employee is not to be treated, for any purpose,
as having been either employed by the demerged company or dismissed by the
demerging company;
(c) the
employee’s contract of employment shall terminate on the completion date
of the demerger and the demerging company may make a payment to the employee in
lieu of notice in respect of all or part of the relevant unexpired notice
period; and
(d) any
liability of the demerging company to pay the employee upon termination of the
employee’s contract of employment under sub-paragraph (c) shall be a
liability of the demerged companies in the parts stated in the demerger
instrument under Regulation 3(8) or jointly and severally if not stated in
the demerger instrument.
(6) Any
collective agreement which is –
(a) made
by the demerging company with a representative body recognized by the demerging
company; and
(b) in
force in relation to an employee immediately before the completion date of the
demerger,
shall continue to have
effect in respect of that employee as if made by or on behalf of the demerged
company to which the rights and liabilities under the collective agreement are
transferred.
(7) Changes
to an employee’s terms and conditions of employment may, after the expiry
of one year after the completion date of the demerger, be negotiated between a
demerged company and an employee of that demerged company (whose contract of
employment was transferred from the demerging company to the demerged company)
without the risk of the changes being declared void on the basis of terms and
conditions that were in effect between the demerging company and the employee
before the demerger.
(8) A
demerged company shall not within one year after a demerger terminate the
recognition of a representative body whose recognition by the demerging company
was effective immediately prior to the completion date of the demerger.
(9) A
demerging company may transfer to a demerged company the following information
regarding an employee of the demerging company for the purpose of employment of
the employee by the demerged company –
(a) the
name and address of the employee;
(b) the
age of the employee;
(c) educational
or vocational qualification of the employee;
(d) information
regarding a collective agreement which applies to the employee;
(e) information
regarding any current disciplinary proceedings or grievances in respect of the
employee;
(f) information
regarding any legal action taken by the employee against the employer in the
previous 2 years;
(g) information
regarding any, annual, special, maternity, paternity or other leave due to be
taken or owed to the employee; and
(h) any
other information which may reasonably be necessary.
15 Effect of a
demerger on retirement schemes
If immediately before the
completion date of a demerger, the demerging company had a contractual
obligation to pay a contribution to a retirement scheme on behalf of an
employee, that contractual obligation shall, on the completion date of the
demerger be transferred to the demerged company, if any, which is the
employee’s employer on the completion date of the demerger.
16 Offences relating
to demerger
(1) A person shall not, on
or in connection with an application under these Regulations, knowingly or
recklessly provide to the registrar or the Comptroller –
(a) any
information which is false, misleading or deceptive in a material particular;
or
(b) any
document containing any information which is false, misleading or deceptive in
a material particular.
(2) A person shall not sign
a certificate under Regulation 4 or 11(3)(d) without having reasonable
grounds for the opinion expressed in the certificate or for the statement made
in the certificate.
(3) A person who
contravenes paragraph (1) or (2) shall be guilty of an offence and liable
to imprisonment for a term of 2 years and a fine.
17 Citation
These Regulations may be cited as the Companies (Demerger) (Jersey)
Regulations 2018.