Foundations
(Mergers) (Jersey) Regulations 2009
Part 1
Interpretation and recognized
entities
1 Interpretation
(1) In
these Regulations, unless the context otherwise requires –
“Law” means the
Foundations (Jersey) Law 2009;
“merger agreement”
means –
(a) in Part 2,
an agreement entered into under Regulation 4(1);
(b) in Part 3,
an agreement entered into under Regulation 14(1);
(c) in Part 4,
an agreement entered into under Regulation 26(1);
“recognized entity”
means a body corporate incorporated or established outside Jersey that is
within a class of bodies corporate designated by the Minister under
Regulation 2.
(2) For
the purposes of these Regulations a foundation or a recognized entity is
solvent if, at the relevant time –
(a) it has
no liabilities;
(b) it has
liabilities that have fallen due, or that will fall due within 6 months,
that it will be able to discharge in full within 6 months;
(c) it has
other liabilities that it will be able to discharge in full as they fall due;
or
(d) it has
a combination of the liabilities mentioned in sub-paragraphs (b) and (c).
(3) If
a penalty is specified after a provision of these Regulations, it indicates that
a contravention of the provision is an offence that is punishable by a penalty
not exceeding the penalty so specified.
2 Minister
may designate bodies corporate to be recognized entities
The Minister may, by published notice, designate classes of bodies
corporate that are incorporated or established outside Jersey to be recognized
entities for the purposes of these Regulations.[1]
Part 2
Merger of foundations
3 Foundations may merge
(1) If the requirements of
this Part are complied with, 2 or more foundations may merge and continue as
one foundation.
(2) They may
continue –
(a) as a
new foundation; or
(b) as
one of the merging foundations.
4 Merging
foundations to enter into merger agreement
(1) Foundations that intend
to merge must first enter into a written agreement that states the terms and
means of effecting the merger.
(2) If the foundations
intend to continue as a new foundation, the agreement must, in particular, set
out details of the proposed charter for the foundation to be incorporated
pursuant to the merger agreement.
5 Notice
of
merger agreement to be published
(1) The qualified members
of the councils of foundations that are parties to a merger agreement must,
within the 28 days after the date of the agreement, jointly publish a
notice of the agreement in the manner published by the registrar.
(2) On or before publishing
the notice, the qualified members must send a copy of the notice
to –
(a) each
creditor who, to the knowledge of the qualified members, has a claim against
any of the merging foundations exceeding £5,000;
(b) the
registrar; and
(c) the
guardians of the merging foundations.
(3) The notice to the
guardians must be accompanied by a copy of the merger agreement.
(4) The notice must state
that the foundations specified in the notice intend to merge.
(5) The notice must also
state whether each of those foundations is solvent.
(6) The notice must also
include a statement that a person aggrieved by the proposed merger may, within
the 28 days after the first publication of the notice, apply to the Royal
Court for an order to restrain the proposed merger.
(7) If, within the
28 days after the first publication of the notice a person aggrieved by
the proposed merger applies to the Royal Court for an order to restrain the
proposed merger, the Royal Court may make the order applied for.
(8) The
Court must not do so unless it is satisfied that the interests of the person
who made the application would be unfairly prejudiced if the proposed merger
were to take place.
(9) The
Court may make the order subject to such terms, if any, as it thinks fit.
(10) If
a creditor of a merging foundation –
(a) satisfies
the qualified member of the council of the foundation that the creditor has a
claim against the foundation exceeding £5,000; and
(b) applies
for a copy of the merger agreement,
the qualified member must
supply the creditor with a copy of the agreement without any charge to the
creditor.
6 Provision where a party to merger agreement is insolvent
(1) This
Regulation applies if the notice published under Regulation 5 does not
state that each of the merging foundations is solvent.
(2) The
qualified
members of the councils of the foundations that are parties to the merger
agreement may not apply to the registrar for the merger agreement
to be implemented unless an Act of the Royal Court has been obtained stating
that the merger of the foundations to form a new or continuing foundation would
not be prejudicial to the interests of creditors of the foundations.
(3) The
qualified members must send a copy of their application to the Royal
Court –
(a) to
each creditor who, after the qualified members have made reasonable enquiries,
is known to the qualified members to have a claim against any of the merging
foundations exceeding £5,000; and
(b) to
the registrar.
(4) The
Court must not hear the application for at least 28 days after it is made
to the Court.
7 Application
to registrar
to merge foundations
(1) The qualified members
of the councils of the foundations that are parties to the merger agreement must
jointly apply to the registrar for the agreement to be implemented.
(2) The application must be
made in a form and manner published by the registrar.
(3) It must be accompanied
by –
(a) unless
another method of payment is agreed, the published fee;
(b) the
approval of the merger by the guardians of the merging foundations;
(c) evidence
satisfactory to the registrar that Regulation 5 has been complied with;
and
(d) if
Regulation 6 applies, a copy of the Act of the Royal Court.
(4) If the foundations
intend to continue as a new foundation, the application must also be
accompanied by –
(a) a
copy of the proposed charter and abridged regulations for the new foundation and,
if any part of it is not in English, a translation of the part in English; and
(b) a certificate signed by the qualified members making the
application certifying the matters set out in paragraph (5).[2]
(5) Those matters
are –
(a) that
a qualified person, named in the certificate, will become the qualified member
of the council of the new foundation on the incorporation of the foundation;
(b) that
the qualified members who signed the certificate are in possession of
regulations for the proposed new foundation that have been approved by the
merging foundations and by the qualified person named in the certificate;
(c) that
the address in Jersey, specified in the certificate, is the business address in
Jersey of the qualified person named in the certificate; and
(d) that
a person has been selected who will become the guardian of the new foundation
in accordance with its regulations on the incorporation of the foundation.
(6) An application under
this Regulation and any document accompanying it must be authenticated in any
manner published by the registrar.
(7) For the purpose of
paragraph (3)(c), Regulation 5 has not been complied with
until –
(a) the
28 days mentioned in Regulation 5(6) expire; or
(b) if during
those 28 days a person applies to the Royal Court for an order to restrain
the proposed merger, the application is withdrawn or is determined,
whichever last occurs.
8 Refusal by registrar to accept merger agreement
(1) This Regulation applies
if an application to the registrar is for the implementation of a merger
agreement that provides for the parties to the agreement to continue as a new
foundation.
(2) The registrar may
refuse to accept the application if –
(a) the
registrar is not satisfied that the objects of the foundation are lawful; or
(b) the
registrar considers that the proposed name of the foundation is misleading or
otherwise undesirable or that it does not end with the word
“Foundation” or a word or words that mean that word in a foreign
language.
(3) If the registrar so
refuses, the registrar must, within 28 days, inform the qualified
members who made the application of the refusal and the reason
for the refusal.
(4) The qualified
members may, within 28 days of being informed of the
refusal, appeal to the Royal Court.
(5) The Royal Court may
order the registrar to accept the application if it considers –
(a) that
the objects of the foundation are lawful; or
(b) that
the proposed name of the foundation is not misleading or otherwise undesirable or
that it does end with the word “Foundation” or a word or words that
mean that word in a foreign language,
as the case may be, but must otherwise confirm the registrar’s
decision to refuse to accept the application.
9 Implementation of merger agreement
The registrar must implement a merger agreement that provides for
the parties to the agreement to continue as a new foundation if –
(a) the registrar accepts
or is ordered by the Royal Court to accept the application to implement the agreement;
and
(b) the registrar is
satisfied that the requirements of the Law and of this Part in respect of the merger
of foundations have been complied with.
10 Means
of incorporation of new foundations on implementation of merger agreement
(1) This Regulation applies
where a merger agreement provides that foundations are to merge and continue as
a new foundation.
(2) To incorporate the
foundation, the registrar must enter in the register –
(a) the
name of the foundation as shown in its proposed charter;
(b) the
name and business address in Jersey of the qualified member of the council of
the merged foundation as shown in the certificate mentioned in
Regulation 7(4); and
(c) the
names of the foundations that merged to form the merged foundation,
and date each entry with the date the last entry was made.
(3) The registrar must also
issue the foundation with a registration number.
(4) The registrar must
also –
(a) enter
in the register in respect of each of the foundations that merged, a note to
the effect that the foundation has ceased to be a separate foundation because
it has merged with another foundation or foundations, specified in the note, to
form the new foundation, also specified in the note; and
(b) date
the entry.
(5) An entry in the
register of the name of a merged foundation is conclusive evidence –
(a) that,
on the date mentioned in paragraph (2), the foundation was incorporated
under the Law; and
(b) that
the requirements of the Law and of this Part were complied with in respect of
all matters precedent or incidental to the incorporation of the foundation.
11 Effect of merger of foundations to form a new foundation
(1) This Regulation applies
where a new foundation is incorporated on the implementation of a merger
agreement.
(2) From the date of the
incorporation of the new foundation, the foundations that were parties to the
merger agreement continue as one foundation with the name specified in the
register in respect of the new foundation.
(3) On the incorporation of
the new foundation –
(a) the
property and rights to which each of the parties to the merger agreement was
entitled immediately before the incorporation become the property and rights of
the new foundation;
(b) the
new foundation becomes subject to any criminal and civil liabilities, and any
contracts, debts and other obligations, to which any of the parties to the
merger agreement was subject immediately before the incorporation; and
(c) any
action and other legal proceedings that, immediately before the incorporation,
were pending by or against any of the parties to the merger agreement, may be
continued by or against the new foundation.
(4) On the incorporation of
the new foundation the parties to the merger agreement cease to be separate
foundations.
(5) On the incorporation of
the new foundation the qualified person named under Regulation 7(5)(a)
shall be taken to have become the qualified member of the council of the new
foundation under Article 23(1) of the Law.
12 Continuing as one
of the merging foundations on implementation of merger agreement
(1) This Regulation applies
where the registrar accepts an application to implement a merger agreement that
provides that the foundations that are the parties to the agreement are to
merge and continue as one of those foundations.
(2) The registrar
must –
(a) enter
in the register in respect of a foundation that is not to continue a note to
the effect that it has ceased to be a separate foundation because it has merged
with another foundation, specified in the note, to continue as part of that
foundation;
(b) enter
in the register in respect of the foundation that is to continue a note
specifying the name of each foundation that is not to continue; and
(c) date
each entry with the date the last entry was made.
(3) The entries in the
register under paragraph (2) are conclusive evidence –
(a) that,
on the date mentioned in paragraph (2)(c), the foundations merged and
continued as one of the merging foundations; and
(b) that
the requirements of the Law and of this Part were complied with in respect of
all matters precedent or incidental to the merger of the foundations.
(4) On the date mentioned
in paragraph (2)(c) –
(a) the
property and rights to which a party to the merger agreement that is not to
continue was entitled immediately before that date, become the property and
rights of the foundation that is to continue;
(b) the
continuing foundation becomes subject to any criminal and civil liabilities,
and any contracts, debts and other obligations, to which a party to the merger
agreement that is not to continue was subject immediately before that date; and
(c) any
action and other legal proceedings that, immediately before that date, were
pending by or against a party to the merger agreement that is not to continue,
may be continued by or against the foundation that is to continue.
(5) On the date mentioned
in paragraph (2)(c) the parties to the merger agreement cease to be
separate foundations.
Part 3
Merger of foundations with recognized entities to continue as
foundations
13 Foundation
may merge with a recognized entity and continue as a foundation
(1) If the requirements of
this Part are complied with, one or more foundations may merge with one or more
recognized entities and continue as a foundation.
(2) They may
continue –
(a) as a
new foundation; or
(b) as
the merging foundation or as one of the merging foundations.
14 Foundation and
recognized entity to enter into merger agreement
(1) A foundation that
intends to merge with a recognized entity and to continue as a foundation must
first enter into a written agreement with the recognized entity that states the
terms and means of effecting the merger.
(2) If the foundation and
the recognized entity intend to continue as a new foundation, the agreement
must, in particular, set out details of the proposed charter for the foundation
to be incorporated pursuant to the merger agreement.
(3) If more than one
foundation is a party to a merger agreement a reference in this Part to the
qualified member of the council of a foundation that has entered into a merger
agreement is to be taken to be a reference to the qualified members of the
councils of the foundations acting jointly.
15 Notice of merger
agreement to be published
(1) The qualified member of
the council of a foundation that has entered into a merger agreement must,
within the 28 days after the date of the agreement, publish a notice of
the agreement in the manner published by the registrar.
(2) On or before publishing
the notice, the qualified member must send a copy of the notice to –
(a) each
creditor who, to the knowledge of the qualified member, has a claim against a
party to the merger agreement exceeding £5,000;
(b) the
registrar; and
(c) the
guardian of the foundation.
(3) The notice to the
guardian must be accompanied by a copy of the merger agreement.
(4) The notice must state
that the foundation and the recognized entity specified in the notice intend to
merge and to continue as a foundation.
(5) The notice must also
state whether both the foundation and the recognized entity are solvent.
(6) The notice must include
a statement that a person aggrieved by the proposed merger may, within the
28 days after the first publication of the notice, apply to the Royal
Court for an order to restrain the proposed merger.
(7) If, within the
28 days after the first publication of the notice a person aggrieved by
the proposed merger applies to the Royal Court for an order to restrain the
proposed merger, the Royal Court may make the order applied for.
(8) The Court must not do
so unless it is satisfied that the applicant would be unfairly prejudiced if
the proposed merger were to take place.
(9) The Court may make the
order subject to such terms, if any, as it thinks fit.
(10) If a creditor of a party to
the merger agreement –
(a) satisfies
the qualified member that the creditor has a claim against that party exceeding
£5,000; and
(b) applies
for a copy of the merger agreement,
the qualified member must supply the creditor with a copy of the
agreement without any charge to the creditor.
16 Provision where a
party to merger agreement is insolvent
(1) This Regulation applies
if the notice under Regulation 15 does not state that both the foundation
and the recognized entity are solvent.
(2) The qualified
member of the council of the foundation may not apply to the
Commission for the merger agreement to be implemented unless an Act of the
Royal Court has been obtained stating that the merger of the foundation and the
recognized entity to form a new or continuing foundation would not be
prejudicial to the interests of the creditors of the parties to the merger
agreement.
(3) The qualified member
must send a copy of his or her application to the Royal Court –
(a) to
each creditor who, after the qualified member has made reasonable enquiries, is
known to the qualified member, to have a claim against a party to the merger
agreement exceeding £5,000; and
(b) to
the Commission.
(4) The Court must not hear
the application for at least 28 days after it is made to the Court.
17 Application to
Commission to implement merger agreement
(1) The qualified member of
the council of a foundation that is a party to a merger agreement must apply to
the Commission for the agreement to be implemented.
(2) The application must be
made in a form and manner published by the Commission.
(3) It must be accompanied
by –
(a) unless
another method of payment is agreed, the published fee;
(b) the
approval of the merger by the guardian of the merging foundation;
(c) evidence
satisfactory to the Commission that Regulation 15 has been complied with;
and
(d) if
Regulation 16 applies, a copy of the Act of the Royal Court.
(4) If the parties to the
merger agreement intend to continue as a new foundation, the application must
also be accompanied by –
(a) a
copy of the proposed charter and abridged regulations for the new foundation and
if any part of it is not in English, a translation of the part in English; and
(b) a
certificate signed by the qualified member making the application certifying
the matters set out in paragraph (5).[3]
(5) Those matters
are –
(a) that
a qualified person, named in the certificate, will become the qualified member
of the council of the new foundation on the incorporation of the foundation;
(b) that
the qualified member who signed the certificate is in possession of regulations
for the proposed new foundation that have been approved by the parties to the
merger agreement and by the qualified person named in the certificate;
(c) that
the address in Jersey, specified in the certificate, is the business address in
Jersey of the qualified person named in the certificate;
(d) that
a person has been selected who will become the guardian of the new foundation
in accordance with its regulations on the incorporation of the foundation;
(e) that
the laws of the jurisdiction in which the recognized entity that is a party to
the merger agreement is established or incorporated do not prohibit the
application being made in respect of the entity;
(f) that
if those laws or the constitution of the recognized entity requires that an
authorization be given for the application, that it has been given;
(g) that,
if the merger takes place the recognized entity will, in due course, cease to
be an entity incorporated or established under the law of the jurisdiction in
which it is presently incorporated or established; and
(h) that,
if the merger takes place, the interests of the creditors of the recognized
entity will not be unfairly prejudiced.
(6) An application under
this Regulation and any document accompanying it must be authenticated in any
manner published by the Commission.
(7) For the purpose of
paragraph (3)(c), Regulation 15 has not been complied with
until –
(a) the
28 days mentioned in Regulation 15(6) expire; or
(b) if during
those 28 days a person applies to the Royal Court for an order to restrain
the proposed merger, the application is withdrawn or is determined,
whichever last occurs.
(8) The
Commission must, as soon as practical, forward to the registrar the documents
that accompanied the application.
18 Commission
may require security for its expenses
(1) Following receipt of an
application under Regulation 17, the Commission may –
(a) estimate
the likely amount of its expenses in dealing with the application; and
(b) require
the merging foundation to give the Commission security for that amount, to the
satisfaction of the Commission.
(2) If the Commission
requires security to be given under paragraph (1)(b), it need take no
further action in respect of the application until the security has been given.
(3) If the Commission, in
the course of considering the application, subsequently forms the view that its
expenses will be of a higher amount, it may require the merging foundation to
give it security for that higher amount, to its satisfaction.
(4) If the Commission
requires security for a higher amount to be given under paragraph (3), it
may refuse to consider the application further until that security has been
given.
(5) On determining the
application, the Commission must –
(a) ascertain
the actual amount of its expenses; and
(b) inform
the qualified member of the council of the foundation who made the application
of the amount.
(6) The expenses shall be a
debt due and payable by the merging foundation to the Commission.
(7) Where the merger is of
more than one foundation, their liability under paragraph (6) is joint and
several.
(8) Without prejudice to
any other mode of recovery, the Commission may recover the expenses by
realising the security if the expenses are not paid by the merging foundation
on demand.
19 Commission may require
further information
(1) Following receipt of an
application under Regulation 17, the Commission may require the qualified
member who made the application to supply to the Commission such other document
or information as the Commission may reasonably require to determine whether to
accept the application.
(2) Any such document or
information must be authenticated in any manner published by the Commission.
(3) If the Commission
requires a document or information under paragraph (1), it need take no further
action in respect of the application until the document or information has been
supplied.
20 Refusal by
Commission to accept an application to implement a merger agreement
(1) The Commission may
refuse to accept an application to implement a merger agreement, if it is
satisfied that it is necessary to do so –
(a) in
order to protect the reputation and integrity of Jersey in financial and
commercial matters;
(b) in
the best economic interests of Jersey; or
(c) to
protect the international standing of Jersey.
(2) The Commission may
refuse to accept an application to implement a merger agreement, where the
parties to the agreement intend to continue as a new foundation,
if –
(a) the
Commission is not satisfied that the objects of the foundation are lawful; or
(b) the
registrar advises the Commission that the proposed name of the foundation is
misleading or otherwise undesirable or that it does not end with the word
“Foundation” or a word or words that mean that word in a foreign
language.
(3) If the Commission
refuses to accept an application, it must, within 28 days, inform the
qualified member who made the application of the refusal and the reason for the
refusal.
(4) The qualified member
may, on behalf of the merging foundation, within 28 days of being informed
of the refusal, appeal to the Royal Court.
(5) An appeal on a refusal
under paragraph (1) may be made on the grounds that the refusal by the
Commission to accept the application was unreasonable in all the circumstances
of the case.
(6) An appeal on a refusal
under paragraph (2)(a) may be made on the grounds that the objects of the
foundation are lawful.
(7) An appeal on a refusal
under paragraph (2)(b) may be made on the grounds –
(a) that
the proposed name of the foundation is not misleading or otherwise undesirable;
or
(b) that
the proposed name does end with the word “Foundation” or a word or
words that mean that word in a foreign language.
(8) The Royal Court may, on
an appeal on a refusal under paragraph (1), order the Commission to accept
the application if it considers that the refusal by the Commission to accept
the application was unreasonable in all the circumstances of the case, but must
otherwise confirm the Commission’s decision to refuse to accept the
application.
(9) The
Royal Court may, on an appeal on a refusal under paragraph (2), order the
Commission to accept the application if it considers –
(a) that
the objects of the foundation are lawful; or
(b) that
the proposed name of the foundation is not misleading or otherwise undesirable or
that it does end with the word “Foundation” or a word or words that
mean that word in a foreign language,
as the case may be, but
must otherwise confirm the Commission’s decision to refuse to accept the
application.
21 Commission
to instruct registrar to implement merger agreement
The Commission must instruct the registrar to implement a merger
agreement if –
(a) the Commission accepts
an application from the qualified member of a merging foundation; or
(b) an appeal to the Royal
Court by the qualified member under Regulation 20 is successful.
22 Means of
incorporation of new foundations on implementation of merger agreement
(1) This Regulation applies
where the Commission instructs the registrar to implement a merger agreement
that provides that a foundation and a recognized entity are to merge and
continue as a new foundation.
(2) To incorporate the
foundation, the registrar must enter in the register –
(a) the
name of the foundation as shown in its proposed charter;
(b) the
name and business address in Jersey of the qualified member of the council of
the merged foundation as shown in the certificate mentioned in
Regulation 17(4)(b); and
(c) the
names of the foundation and the recognized entity that merged to form the
merged foundation,
and date each entry with the date the last entry was made.
(3) The registrar must also
issue the foundation with a registration number.
(4) The registrar must
also –
(a) enter
in the register in respect of the foundation that merged, a note to the effect
that the foundation has ceased to be a separate foundation because it has
merged with a recognized entity, specified in the note, to form the new
foundation, also specified in the note; and
(b) date
the entry.
(5) An entry in the
register of the name of a merged foundation is conclusive evidence –
(a) that,
on the date mentioned in paragraph (2), the foundation was incorporated
under the Law; and
(b) that
the requirements of the Law and this Part were complied with in respect of all
matters precedent or incidental to the incorporation of the foundation.
23 Effect of merger
of foundation and recognized entity to form a new foundation
(1) This Regulation applies
where a new foundation is incorporated on the implementation of a merger
agreement.
(2) From the date of the
incorporation of the new foundation, the parties to the merger agreement
continue as a foundation with the name specified in the register in respect of
the new foundation.
(3) On the incorporation of
the new foundation –
(a) the
property and rights to which each of the parties to the merger agreement was
entitled immediately before the incorporation become the property and rights of
the new foundation;
(b) the
new foundation becomes subject to any criminal and civil liabilities, and any
contracts, debts and other obligations, to which any of the parties to the
merger agreement was subject immediately before the incorporation; and
(c) any
action and other legal proceedings that, immediately before the incorporation,
were pending by or against any of the parties to the merger agreement, may be
continued by or against the new foundation.
(4) On the incorporation of
the new foundation –
(a) the
party to the merger agreement that was a foundation ceases to be separate
foundation; and
(b) the
party to the agreement that was a recognized entity ceases to be a recognized
entity.
(5) On the incorporation of
the new foundation the qualified person named under Regulation 17(5)(a)
shall be taken to have become the qualified member of the council of the new
foundation under Article 23(1) of the Law.
24 Foundation
continuing on merger with recognized entity
(1) This Regulation applies
where the Commission instructs the registrar to implement a merger agreement
that provides that a foundation and a recognized entity are to merge and that
the foundation is to continue as a foundation.
(2) The registrar
must –
(a) enter
in the register in respect of the foundation a note specifying the name of the
recognized entity that it has merged with; and
(b) date
the entry.
(3) The entries in the
register under paragraph (2) are conclusive evidence –
(a) that,
on the date mentioned in paragraph (2)(b), the specified recognized entity
merged with the foundation and that the foundation continued as a foundation;
and
(b) that
the requirements of the Law and this Part were complied with in respect of all
matters precedent or incidental to the merger of a foundation and a recognized
entity.
(4) On the date mentioned
in paragraph (2)(b) –
(a) the
property and rights to which the recognized entity was entitled immediately
before that date, becomes the property and rights of the foundation;
(b) the
foundation becomes subject to any criminal and civil liabilities, and any
contracts, debts and other obligations, to which the recognized entity was subject
immediately before that date; and
(c) any
action and other legal proceedings that, immediately before that date, were
pending by or against the recognized entity, may be continued by or against the
foundation.
Part 4
Merger of foundations with recognized entities to continue as
recognized entities
25 Foundation may be
permitted to merge with a recognized entity and continue as a recognized entity
(1) If the requirements of
this Part are complied with, one or more foundations may merge with one or more
recognized entities and continue as a recognized entity.
(2) They may
continue –
(a) as a
new recognized entity of the same type as the merging recognized entity or as
one of the merging recognized entities; or
(b) as
the merging recognized entity or as one of the merging recognized entities.
26 Foundation and
recognized entity to enter into merger agreement
(1) A foundation that seeks
permission to merge with a recognized entity and to continue as a recognized
entity must first enter into a written agreement with the recognized entity
that states the terms and means of effecting the merger.
(2) If more than one
foundation is a party to a merger agreement a reference in this Part to the
qualified member of the council of a foundation that has entered into a merger
agreement is to be taken to be a reference to the qualified members of the
councils of the foundations acting jointly.
27 Notice of merger
agreement to be published
(1) The qualified member of
the council of a foundation that has entered into a merger agreement must
within the 28 days after the date of the agreement, publish a notice of
the agreement in the manner published by the registrar.
(2) On or before publishing
the notice, the qualified member must send a copy of the notice to –
(a) each
creditor who, to the knowledge of the qualified member, has a claim against a
party to the merger agreement exceeding £5,000;
(b) the
registrar; and
(c) the
guardian of the foundation.
(3) The notice to the
guardian must be accompanied by –
(a) a
copy of the merger agreement; and
(b) where
the parties to the merger agreement are to continue as a new recognized entity,
a copy of the documents required to establish or incorporate the recognized
entity.
(4) The notice
must –
(a) state
that the foundation is seeking permission to merge with the recognized entity,
as specified in the notice, and to continue as a recognized entity of a type
specified in the notice; and
(b) specify
the jurisdiction in which the recognized entity is established or incorporated
or, in the case of a new recognized entity, it is intended to establish or
incorporate the recognized entity.
(5) The notice must also
state whether both the foundation and the recognized entity are solvent.
(6) The notice must include
a statement that a person aggrieved by the proposed merger may, within the
28 days after the first publication of the notice, apply to the Royal
Court for an order to restrain the proposed merger.
(7) If, within the
28 days after the first publication of the notice a person aggrieved by
the proposed merger applies to the Royal Court for an order to restrain the
proposed merger, the Royal Court may make the order applied for.
(8) The Court must not do
so unless it is satisfied that the applicant would be unfairly prejudiced if the
proposed merger were to take place.
(9) The Court may make the
order subject to such terms, if any, as it thinks fit.
(10) If a creditor of a party to
the merger agreement –
(a) satisfies
the qualified member that the creditor has a claim against that party exceeding
£5,000; and
(b) applies
for a copy of the merger agreement,
the qualified member must supply the creditor with a copy of the
agreement without any charge to the creditor.
28 Provision where a
party to merger agreement is insolvent
(1) This Regulation applies
if the notice under Regulation 27 does not state that both the foundation
and the recognized entity are solvent.
(2) The qualified
member of the council of the foundation may not apply to the
Commission for permission to implement the merger agreement unless an Act of
the Royal Court has been obtained stating that the merger of the foundation and
the recognized entity to form a new or continuing recognized entity would not
be prejudicial to the interests of the creditors of the parties to the merger
agreement.
(3) The qualified member
must send a copy of his or her application to the Royal Court –
(a) to
each creditor who, after the qualified member has made reasonable enquiries, is
known to the qualified member, to have a claim against a party to the merger
agreement exceeding £5,000; and
(b) to
the Commission.
(4) The Court must not hear
the application for at least 28 days after it is made to the Court.
29 Application to
Commission for permission to implement merger agreement
(1) The qualified member of
the council of the foundation that is a party to a merger agreement must apply
to the Commission for permission to implement the agreement.
(2) The application must be
made in a form and manner published by the Commission.
(3) It must be accompanied
by –
(a) unless
another method of payment is agreed, the published fee;
(b) the
approval of the merger by the guardian of the merging foundation;
(c) evidence
satisfactory to the Commission that Regulation 27 has been complied with; and
(d) if
Regulation 28 applies, a copy of the Act of the Royal Court.
(4) The application must
also be accompanied by a certificate, signed by the qualified
member of the council of the foundation that is a party to the merger agreement,
certifying that the laws of the relevant jurisdiction allow the
merger and that those laws provide that upon the merger –
(a) the
property and rights to which the foundation was entitled immediately before the
merger will become the property and rights of the recognized entity;
(b) the
recognized entity will become subject to any criminal and civil liabilities,
and any contracts, debts and other obligations, to which the foundation was
subject immediately before merger; and
(c) any
actions and other legal proceedings that, immediately before the merger, were
pending by or against the foundation may be continued by or against the
recognized entity.
(5) In paragraph (4) –
(a) the
“recognized entity” is the entity as which the merging recognized
entity and foundation will continue; and
(b) the
“relevant jurisdiction” is the jurisdiction in which that entity is
or will be established or incorporated.
(6) An application under
this Regulation and any document accompanying it must be authenticated in any
manner published by the Commission.
(7) For the purpose of
paragraph (3)(c), Regulation 27 has not been complied with
until –
(a) the
28 days mentioned in Regulation 27(6) expire; or
(b) if during
those 28 days a person applies to the Royal Court for an order to restrain
the proposed incorporation, the application is withdrawn or is determined,
whichever last occurs.
(8) The Commission must, as
soon as practical, forward to the registrar the documents that accompanied the
application.
30 Commission may
require security for its expenses
(1) Following receipt of an
application under Regulation 29, the Commission may –
(a) estimate
the likely amount of its expenses in dealing with the application; and
(b) require
the merging foundation to give the Commission security for that amount, to the
satisfaction of the Commission.
(2) If the Commission
requires security to be given under paragraph (1)(b), it need take no
further action in respect of the application until the security has been given.
(3) If the Commission, in
the course of considering the application, subsequently forms the view that its
expenses will be of a higher amount, it may require the merging foundation to
give it security for that higher amount, to its satisfaction.
(4) If the Commission
requires security for a higher amount to be given under paragraph (3), it
may refuse to consider the application further until that security has been
given.
(5) On determining the
application, the Commission must –
(a) ascertain
the actual amount of its expenses; and
(b) inform
the qualified member of the council of the foundation who made the application
of the amount.
(6) The expenses shall be a
debt due and payable by the merging foundations to the Commission for which the
merging foundations shall be jointly and severally liable.
(7) Without prejudice to
any other mode of recovery, the Commission may recover the expenses by
realising the security if the expenses are not paid by the merging foundation
on demand.
31 Commission may
require further information
(1) Following receipt of an
application under Regulation 29, the Commission may require the qualified
member who made the application to supply to the Commission such other document
or information as the Commission may reasonably require to determine whether to
accept the application.
(2) Any such document or
information must be authenticated in any manner published by the Commission.
(3) If the Commission
requires a document or information under paragraph (1), it need take no
further action in respect of the application until the document or information
has been supplied.
32 Refusal by
Commission to accept an application for permission to implement a merger
agreement
(1) The Commission may
refuse to accept an application for permission to implement a merger agreement,
if it is satisfied that it is necessary to do so –
(a) in
order to protect the reputation and integrity of Jersey in financial and
commercial matters;
(b) in
the best economic interests of Jersey; or
(c) to
protect the international standing of Jersey.
(2) If the Commission
refuses to accept an application, it must, within 28 days, inform the
qualified member who made the application of the refusal and the reason for the
refusal.
(3) The qualified member
may, on behalf of the merging foundation, within 28 days of being informed
of the refusal, appeal to the Royal Court.
(4) An appeal may be made
on the ground that the refusal by the Commission to accept the application was
unreasonable in all the circumstances of the case.
(5) The Royal Court may
order the Commission to accept the application if it considers that the refusal
by the Commission to accept the application was unreasonable in all the
circumstances of the case, but must otherwise confirm the Commission’s
decision to refuse to accept the application.
33 Commission to
permit the implementation of merger agreement
(1) The Commission must
give its permission to a merger agreement being implemented if –
(a) the
Commission accepts an application from the qualified member of the council of a
merging foundation; or
(b) an
appeal to the Royal Court by the qualified member under Regulation 32 is
successful.
(2) The Commission must
inform the qualified member of the Commission’s permission.
34 Qualified member
to inform registrar of implementation of merger agreement
(1) The qualified member
who applied to the Commission for permission to implement the merger agreement
must as soon as reasonably possible after the agreement has been implemented
inform the Commission that it has been implemented and the date on which it was
implemented.
(2) The Commission must, as
soon as practical, forward to the registrar the
information received under paragraph (1).
35 Effect of
implementation of merger agreement
(1) This Regulation applies
on the implementation of a merger agreement where the Commission has given its
permission to implement the agreement.
(2) The registrar must
enter in the register in respect of the foundation that is a party to the
merger agreement a note that –
(a) states
that the foundation has ceased to be a foundation because it has merged with a recognized
entity specified in the note and continued as a recognized entity;
(b) specifies
the name of the recognized entity and the type of recognized entity that it is;
(c) specifies
the jurisdiction in which the recognized entity is established or incorporated;
and
(d) specifies
the date when the merger agreement was implemented.
(3) The foundation ceases
to be a foundation with effect from the date mentioned in paragraph (2)(d).
Part 5
Offences
36 Offences
(1) A person must not, in connection
with an application under these Regulations, knowingly or recklessly provide to
the Commission or to the registrar –
(a) information
that is false, misleading or deceptive, whether, in each case, by the inclusion
or omission of any material information; or
(b) a
document that contains any such information.
Penalty:
Imprisonment for 2 years and a fine.
(2) A person must not, in connection
with an application under these Regulations knowingly or recklessly publish a
notice that contains information that is false, misleading or deceptive in a
material particular.
Penalty: Imprisonment for 2 years and a fine.
(3) A
qualified member must not fail to comply with Regulation 34(1).
Penalty: A
fine of level 3 on the standard scale.[4]
Part 6
Citation
37 Citation
These Regulations may be cited as the Foundations (Mergers) (Jersey)
Regulations 2009.