Companies
(Amendment No. 9) (Jersey) Law 2008
A LAW to amend further the Companies
(Jersey) Law 1991.
Adopted by the
States 16th January 2008
Sanctioned by
Order of Her Majesty in Council 11th June 2008
Registered by the
Royal Court 20th
June 2008
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
1 Interpretation
In this Law, “principal Law” means the Companies (Jersey)
Law 1991[1].
2 Article 1
amended
In Article 1(1) of the principal Law –
(a) in
the definition “capital accounts”, in paragraph (b), the words
“and any capital redemption reserves” are deleted; and
(b) after
the definition “surname” there is inserted the following definition –
“ ‘treasury
share’ means a share held as a treasury share under Article 58A(1);”.
3 Article 2
amended
In Article 2 of the principal Law –
(a) for
paragraph (4) there is substituted the following paragraph –
“(4) A holding company is a body
corporate that is a holding body.”; and
(b) paragraph (5)
is deleted.
4 New
Article 2B
In the principal Law, after Article 2A, there is inserted the
following Article –
“2B Power
of States to amend Part 1
The States may amend this Part
by Regulations.”.
5 Article 13
amended
In Article 13 of the principal Law, after paragraph (3),
there are inserted the following paragraphs –
“(3A) Despite paragraph (2), the name of a
public company that is a limited company may end with the words ‘public
limited company’ or the abbreviation ‘PLC’ or
‘plc’.
(3B) A company which is registered with a name ending with
the words ‘public limited company’ or the abbreviation
‘PLC’ or ‘plc’ may, in setting out or using its name
for any purpose under this Law, do so –
(a) in full or in the abbreviated form; and
(b) in any combination of capital or lower case
characters,
as it prefers.”.
6 Article 17
amended
In Article 17 of the principal Law, paragraph (4) is
deleted.
7 Article
T55 repealed
Article T55 of the principal Law is repealed.
8 Article 55
amended
In Article 55 of the principal Law –
(a) for
paragraphs (4) to (7) there are substituted the following paragraphs –
“(4) The redeemable limited shares
of a par value company that is not an open-ended investment company shall be
capable of being redeemed from any source, but only if they are fully paid up.
(5) The redeemable limited shares of a no par
value company that is not an open-ended investment company shall be capable of
being redeemed from any source, but only if they are fully paid up.”;
(b) paragraphs (13)
to (15) are deleted;
(c) for
paragraph (16) there is substituted the following paragraph –
“(16) A company may, by special resolution,
apply a capital redemption reserve in issuing shares to be allotted as fully
paid bonus shares.”.
9 Article 58
amended
In Article 58 of the principal Law, paragraphs (4) and (5)
are deleted.
10 Article 58A
amended
In Article 58A of the principal Law, in paragraph (5), the
words “55(14) and (15) and Article” are deleted.
11 Article 61
amended
In Article 61 of the principal Law, in paragraph (3),
after the words “paragraphs (4) and (5)” there are inserted
the words “or in the case of a reduction in capital comprised of a
distribution made in accordance with Article 115”.
12 Article 73
amended
In Article 73 of the principal Law, paragraph (5) is
deleted.
13 New
Article 85A inserted
In the principal Law, immediately after Article 85, there is
inserted the following Article –
“85A Power
of States to amend Part 14
The States may amend this
Part by Regulations.”.
14 Article 87
amended
In Article 87 of the principal Law –
(a) in paragraph (4)
the word “private” is deleted;
(b) in paragraph (6) –
(i) in
sub-paragraph (a) for the words “the agreement;” there are
substituted the words “the agreement; or”,
(ii) in
sub-paragraph (b) for the words “the agreement; or” there are
substituted the words “the agreement.”, and
(iii) sub-paragraph (c)
is deleted.
15 Article 90
amended
In Article 90 of the principal Law, in paragraphs (1) and
(2), for the words “21 days’ notice” there are substituted
the words “14 days’ notice”.
16 Article 91
amended
In Article 91 of the principal Law –
(a) in paragraph (1)
for the words “by a shorter notice than –” and all the
words following there are substituted the words “by a shorter notice than
14 days’ notice in writing.”;
(b) in paragraph (2)
for the words “may be called –” and all the words
following there are substituted the words “may be called by 14 days’
notice in writing.”.
17 Article 104
amended
In Article 104 of the principal Law –
(a) for
paragraph (2) there shall be substituted the following
paragraphs –
“(2) The accounts must be prepared
in accordance with any generally accepted accounting principles.
(2A) The accounts of a company must specify the generally
accepted accounting principles that have been adopted in their preparation.
(2B) The accounts of a company that is required by
Article 109(1) to appoint an auditor must show a true and fair view of, or
be presented fairly in all material respects so as to show –
(a) the company’s profit or loss for the
period covered by the accounts; and
(b) the state of its affairs at the end of the
period,
and must otherwise comply
with any other requirements of this Law.”;
(b) in
paragraph (4)(b) for the words “subject in the case of a private
company to paragraph (5)” there are substituted the words
“subject to paragraph (5)”.
18 Article 106
amended
In Article 106 of the principal Law, after paragraph (1),
there is inserted the following paragraph –
“(1A) If a public company becomes a private company
during a financial period –
(a) paragraph (1) applies in relation to
the company in respect of that period; and
(b) the requirement in paragraph (1)(a) to deliver
accounts may be satisfied if the accounts relate to either all of the financial
period (including a period when the company was no longer a public company) or
only the part of the financial period during which the company was a public
company.”.
19 Article 108
substituted
For Article 108 of the principal Law there is substituted the
following Article –
“108 Power
to amend Part 16
The States may amend this
Part by Regulations.”.
20 Article 109
amended
In Article 109 of the principal Law in paragraphs (4) and
(5) the word “private” is deleted.
21 Article 110
amended
In Article 110 of the principal Law for paragraph (3)
there shall be substituted the following paragraph –
“(3) The report must state
whether, in the opinion of the auditor, the accounts –
(a) have been properly prepared in accordance with
this Law; and
(b) give a true and fair view or, alternatively,
are presented fairly in all material respects.”.
22 Article 113A
amended
In Article 113A of the principal Law, in paragraph (2) –
(a) in
sub-paragraph (a), for the words “at least 75% of the partners
are” there are substituted the words “at least 50% of the partners
are any of, or any combination of, the following”;
(b) in
sub-paragraph (b), for the words “at least 75%” there are
substituted the words “at least 50%”.
23 Article 113B
amended
In Article 113B of the principal Law, in paragraph (4),
for the words “at least 75%” (wherever occurring) there are
substituted the words “at least 50%”.
24 Articles 114
and 115 substituted
For Articles 114 and 115 of the principal Law there are
substituted the following Articles –
“114 Meaning
of ‘distribution’ in this Part
(1) In this Part, ‘distribution’, in
respect of a company, means every description of distribution of the
company’s assets to its members as members, whether in cash or otherwise.
(2) However, ‘distribution’ does not
include a distribution by way of –
(a) an issue of shares as fully or partly paid
bonus shares;
(b) the redemption or purchase of any of the
company’s shares;
(c) any reduction of capital by
extinguishing or reducing the liability of any of the members on any of the
company’s shares in respect of capital not paid up; or
(d) a distribution of assets to members of the
company on its winding up.
115 Restrictions
on distributions
(1) A company may make a distribution at any
time.
(2) A company shall not make a distribution
except in accordance with this Article.
(3) A company (other than an open-ended
investment company) may make a distribution only if the directors who are to
authorize the distribution make a statement in accordance with paragraph (4).
(4) The statement shall state that the directors
of the company who are to authorize the distribution have formed the opinion –
(a) that, immediately following the date on
which the distribution is proposed to be made, the company will be able to
discharge its liabilities as they fall due; and
(b) that, having regard to –
(i) the
prospects of the company and to the intentions of the directors with respect to
the management of the company’s business, and
(ii) the
amount and character of the financial resources that will in their view be
available to the company,
the company will be able to –
(A) continue
to carry on business, and
(B) discharge
its liabilities as they fall due,
until the expiry of the
period of 12 months immediately following the date on which the
distribution is proposed to be made or until the company is dissolved under Article 150,
whichever first occurs.
(5) A director who makes a statement under paragraph (4)
without having reasonable grounds for the opinion expressed in the statement is
guilty of an offence.
(6) Despite any other provision of this Law, an
open-ended investment company may make a distribution only if the directors who
are to authorize the distribution reasonably believe that immediately after the
distribution has been made the company will be able to discharge its
liabilities as they fall due.
(7) A distribution made in accordance with
this Article is debited to –
(a) a share premium account, or a stated capital
account, of the company; or
(b) any other account of the company, other than
the capital redemption reserve or the nominal capital account.
(8) In paragraph (7), ‘nominal
capital account’, in relation to a company, means a share capital account
of the company to which are credited funds equivalent to the nominal value of
the shares issued by the company.”.
25 New
Article 115B inserted
In the principal Law, after Article 115A, there is inserted the
following Article –
“115B Power
of States to amend Part 17
The States may amend this
Part by Regulations.”.
26 Article 125
amended
In Article 125 of the principal Law, for paragraph (2)
there is substituted the following paragraph –
“(2) If a majority in number
representing –
(a) 3/4ths in value of the creditors or class of
creditors; or
(b) 3/4ths of the voting rights of the members
or class of members,
as the case may be, present
and voting either in person or by proxy at the meeting, agree to a compromise
or arrangement, the compromise or arrangement, if sanctioned by the court, is
binding on –
(i) all creditors or the class of
creditors; or
(ii) all the members or class of members,
as the case may be and also
on the company or, in the case of a company in the course of being wound up, on
the liquidator and contributories of the company.”.
27 Article 127N(5)
amended
In Article 127N(5) of the principal Law, for the word
“Committee” there is substituted the word “Commission”.
28 Article 127W
amended
In Article 127W of the principal Law –
(a) in paragraph (1),
for sub-paragraph (b) there is substituted the following sub-paragraph –
“(b) that, having regard to –
(i) the
prospects of the company,
(ii) the
intentions of the directors with respect to the management of the
company’s business, and
(iii) the
amount and character of the financial resources that will in the
directors’ view be available to the company,
the company will be able to –
(A) continue
to carry on business, and
(B) discharge
its liabilities as they fall due,
until the expiry of the
period of 12 months immediately following the date on which the statement
is signed.”;
(b) in paragraph (2),
for sub-paragraph (b) there is substituted the following sub-paragraph –
“(b) that, having regard to –
(i) the
prospects of the applicant,
(ii) the
intentions of the directors with respect to the management of the
applicant’s business, and
(iii) the
amount and character of the financial resources that will in the
directors’ view be available to the applicant if the application is
granted,
the applicant, if
incorporated under the laws of the other jurisdiction, will be able to
discharge its liabilities as they fall due.”;
(c) at
the end there is added the following paragraph –
“(4) A director, or a person who
is to be a director, who makes a statement under paragraph (1) or (2)
without having reasonable grounds for the opinion expressed in the statement is
guilty of an offence.”.
29 Repeal
of Article T127YN and consequential renumbering of Articles
(1) Article
T127YN of the principal Law is repealed.
(2) Articles
T58B, T127YDA, T127YE, T127YI and T127YIA of the principal Law are renumbered
respectively as Article 58B, 127YDA, 127YE, 127YI and 127YIA.
30 Article 186
amended
In Article 186 of the principal Law, at the end, there is added
the following paragraph –
“(3) Despite paragraphs (1)
and (2) and Article 166, if, in the course of a creditor’s winding
up of a company, the liquidator (or, if a liquidator has not yet been
appointed, a director) is satisfied that the company’s assets will be
sufficient to ensure that –
(a) the costs, charges and expenses properly
incurred in the winding up may be paid; and
(b) the claims of all creditors (including any
interest owing on a debt) may be satisfied in full,
the liquidator, or, with the sanction
of the court under Article 164(2), the director, may, before or after
meeting some or all of those costs, charges and expenses and satisfying some or
all of the claims of the creditors, distribute to the members of the company,
proportional to their rights or interests, or otherwise as provided by the
company’s memorandum or articles, so much of the company’s assets
as shall not be required to meet those costs, charges, expenses and
claims.”.
31 Article 220
amended
At the end of Article 220 of the principal Law there is added
the following paragraph –
“(3) A power conferred on the
States by this Law to make Regulations to amend any provision of this Law
includes the power to make Regulations to make such transitional,
consequential, incidental or supplementary amendments to any other provision of
this Law as appears to the States to be necessary or expedient.”.
32 Schedule 1
amended
In Schedule 1 to the principal Law –
(a) for
the entry relating to Article 58(5) there is substituted the following
entry –
|
“58B(4)
|
Company failing to dispose of treasury shares
|
Level 3
|
Level 2”;
|
(b) after
the entries relating to Article 113E(2) there are inserted the following
entries in Columns 1, 2 and 3 respectively –
|
“115(5)
|
Director making statement without having reasonable grounds for
doing so
|
2 years or a fine, or both”;
|
(c) after
the entries relating to Article 127(4) there are inserted the following
entries in Columns 1, 2 and 3 respectively –
|
“127W(4)
|
Director, or future director, making statement without having
reasonable grounds for doing so
|
2 years or a fine, or both”;
|
(d) in
the entry relating to Article 127Y, for the words “Part
XVIIIC” there are substituted the words “Part 18C”;
(e) for
the entry relating to Article 127YD(3) there is substituted the following entry –
|
“127YDA(4)
|
Company or cell failing to comply with requirements re directors
|
Level 3
|
Level 2”;
|
(f) for
the entries relating to Article 127YF(4) and 127YG(5) there is substituted
the following entry –
|
“127YE(5)
|
Cell of cell company and officer failing to provide information to
cell company
|
Level 3
|
Level 2”;
|
(g) for
the entries relating to Article 127YI(6) and (7) there are substituted the
following entries –
|
“127YI(5)
|
Director making declaration without reasonable grounds to do so
|
2 years or a fine; or both
|
|
|
127YI(7)
|
Cell company and officers failing to file document in respect of
cell transfer
|
Level 3
|
Level 2
|
|
127YIA(5)
|
Director making declaration without having reasonable grounds to
do so
|
2 years or a fine; or both
|
|
|
127YIA(7)
|
Cell company and officer failing to file document in respect of
cell transfer
|
Level 3
|
Level 2”.
|
33 Citation
and commencement
(1) This
Law may be cited as the Companies (Amendment No. 9) (Jersey) Law 2008.
(2) Except
as provided by paragraph (3), this Law shall come into force 7 days
after it is registered.
(3) Articles
17 to 22 of this Law shall come into force on such day or days as the States
may by Act appoint.
a.h. harris
Deputy Greffier of the States