Companies
(Amendment No. 5) (Jersey) Regulations 2011
Made 16th February 2011
Coming into force 23rd
February 2011
THE STATES, in pursuance of Articles 2B, 113H, 127GA, 127YN and 220 of the
Companies (Jersey) Law 1991[1], have made the following
Regulations –
1 Interpretation
In these Regulations, “principal Law” means the Companies
(Jersey) Law 1991[2].
2 Article 1
amended
In Article 1(1) of the principal Law, the definition “merged
company” shall be deleted.
3 Article 9
amended
For Article 9(1) of the principal Law there shall be
substituted the following paragraph –
“(1) On the registration of a
company’s memorandum the registrar shall issue a certificate that the
company is incorporated.”.
4 Article 110
amended
In Article 110(5) of the principal Law for the words “an
eligible auditor” there shall be substituted the words “a
recognized auditor”.
5 Articles 127A
to 127G substituted
For Articles 127A to 127G of the principal Law there shall be
substituted the following chapter headings and Articles –
(1) In this Part, unless the context otherwise
requires –
‘merged body’
means the body resulting from a merger under Article 127C (and
‘merged company’ is to be read accordingly);
‘merger
agreement’ means an agreement under Article 127D;
‘merging body’
means a body that is seeking to merge with another body under this Part (and
‘merging company’ is to be read accordingly);
‘new body’ means
a merged body that is new within the meaning of Article 127C(2) (and
‘new company’ is to be read accordingly);
‘overseas body’
means a body incorporated in a jurisdiction outside Jersey;
‘relevant Jersey
company’ means a company that is not a cell company or a cell and does
not have unlimited shares or guarantor members;
‘survivor body’
means a merging body that becomes a merged body as provided for in
Article 127C(1)(a) (and ‘survivor company’ is to be read
accordingly).
(2) Nothing in this Part is to be read as
preventing –
(a) more than one person from signing the same
certificate under this Part; or
(b) more than one certificate signed under this
Part from being included in the same document,
and references to a
certificate are to be construed accordingly.
(3) For the avoidance of doubt, it is declared
that references in this Part to a body as being incorporated (whether in or
outside Jersey) are to be construed without reference to
sub-paragraphs (b) to (d) of Article 1(2).
(4) Nothing in Part 18 or Part 18A is
to be construed as preventing the acquisition or takeover of one merging body
by another by way of merger under this Part.
127B Bodies
eligible to merge
(1) A relevant Jersey company may merge, subject
to the requirements of this Part, with one or more bodies falling within any
one or more of paragraphs (2) to (4).
(2) A body falls within this paragraph if it is
another relevant Jersey company.
(3) A body falls within this paragraph
if –
(a) it is not a company; and
(b) it is incorporated –
(i) in
Jersey, and
(ii) under
an enactment under which it is permitted to merge with a company.
(4) A body falls within this paragraph if it is
an overseas body that –
(a) is not an excluded body under
paragraph (5); and
(b) to the reasonable satisfaction of the
Commission, is not prohibited, under the law of the jurisdiction in which it is
incorporated, from merging with a company.
(5) The Minister may designate, as classes of
excluded bodies for the purpose of paragraph (4), one or more classes of
overseas bodies, not being classes of bodies designated by the Minister under Regulation 2
of the Foundations (Mergers) (Jersey) Regulations 2009[3].
(6) A designation under paragraph (5) shall
be by notice published in a manner that will bring the notice to the attention
of those who, in the opinion of the Minister, are likely to be affected by it.
127C Bodies
eligible to be merged bodies
(1) The result of a merger under this Part is
that the merging bodies continue as a single merged body, and that body is
either –
(a) one of the merging bodies; or
(b) a new body that –
(i) is
a relevant Jersey company,
(ii) is
incorporated in Jersey under the same enactment (other than this Law) as one of
the merging bodies, or
(iii) is
an overseas body that is incorporated under the law of the same jurisdiction as
one of the merging bodies and is not an excluded body under
Article 127B(5).
(2) For the purpose of this Part, a merged body
is new if it is created by the merger from which it results.
(1) Each company proposing to merge shall, in
order to do so, enter into an agreement in writing with each body with which it
proposes to merge.
(2) The merger agreement shall state the terms
and means of effecting the merger and, in particular, the following
information –
(a) details of the proposed merged body,
including –
(i) whether
it is to be a survivor body or a new body,
(ii) whether
it is to be a company, an overseas body or some other body, and
(iii) the
names and addresses of the persons who are proposed –
(A) to be its directors, or
(B) to manage it, if it is to be a body that
does not have directors;
(b) details of any arrangements necessary to
complete the merger and to provide for the management of the merged body;
(c) details of any payment, other than of a kind
described in paragraph (3), proposed to be made to a member or director of
a merging company or to a person having a similar relationship to a merging body
that is not a company; and
(d) in relation to any securities of a merging
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 the merged body, the manner in which that conversion is to be done;
or
(b) otherwise, what the holders are to receive
instead and the manner in which and the time at which they are to receive it.
(4) If the merged body is to be a new company,
the merger agreement shall also set out –
(a) the proposed memorandum and articles of the
merged company; and
(b) a draft of any other document or information
that would be required by Part 2 to be delivered to the registrar if the
merged company were being incorporated under this Law otherwise than by merger.
(5) If the merged body is to be a survivor
company, the merger agreement shall also state –
(a) whether any amendments to the memorandum and
articles of the company are proposed to take effect on the merger, with details
of those amendments; and
(b) whether it is proposed that, on the merger,
any person will become, or cease to be a director of the company, with the name
and address of each such person.
(6) If shares of a merging company are held by
or on behalf of another merging company and the merged body is to be a
company –
(a) the merger agreement shall provide for the
cancellation of those shares, without any repayment of capital, when the merger
is completed; and
(b) no provision may be made in the merger
agreement for the conversion of those shares into securities of the merged
company.
(7) A merger agreement may provide that, at any
time before the completion of the merger, the agreement may be terminated
by –
(a) any one or more of the merging companies,
notwithstanding that it has been approved by the members of all or any of those
companies; or
(b) any of the merging bodies that are not
companies.
(8) If an agreement is terminated under a
provision included in it under paragraph (7), nothing in this Part
requires or authorizes any further steps to be taken to complete the merger.
127E Resolutions
and certificates
(1) Before notice is given of a meeting of a
merging company to approve a merger agreement under Article 127F, or to
approve a merger under Article 127FA, the directors of that company shall
pass a resolution that, in the opinion of the directors voting for the
resolution, the merger is in the best interests of the company.
(2) For the purposes of this Article a solvency
statement is a statement that, having made full inquiry into the affairs of the
company, the person making the statement reasonably believes that the company
is, and will remain until the merger 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 company, the resolution shall in addition state
that they are so satisfied.
(4) If paragraph (3) does not
apply –
(a) 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
Article 127FD; and
(b) the company shall, as soon as is practicable
after the passing of the resolution, inform the other merging bodies that
paragraph (3) does not apply.
(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 –
(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 Article 127FD; and
(b) setting out the grounds for that statement.
(6) Before notice is given as mentioned in
paragraph (1), each person falling within paragraph (7) shall sign a
certificate stating –
(a) that, in his or her opinion, the merged body
will be able to continue to carry on business and discharge its liabilities as
they fall due –
(i) on
and immediately after the completion of the merger, and
(ii) if
later, until 12 months after the signing of the certificate; and
(b) the grounds for that opinion, having
particular regard to –
(i) the
prospects of the merged body,
(ii) the
proposals in the merger agreement with respect to the management of the merged
body’s business, or any proposals in the special resolutions passed under
Article 127FA with respect to that matter, and
(iii) the
amount and character of the financial resources that will, in the view of the
person signing, be available to the merged body.
(7) The persons falling within this paragraph
are –
(a) the persons proposed in the merger
agreement, or in a special resolution passed under
Article 127FA –
(i) to
be directors of the merged body, or
(ii) to
manage the merged body, if it is to be a body that does not have directors; and
(b) if none of the directors of the merging
companies is a person referred to in sub-paragraph (a), each person who
must sign a certificate under paragraph (5).
127F Approval
of merger agreement
(1) The directors of each merging company shall
submit the merger agreement for approval by a special resolution of that
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 –
(a) shall be accompanied by –
(i) a
copy or summary of the merger agreement,
(ii) copies
of the proposed constitutional documents for the merged body, or a summary of
the principal provisions of those documents,
(iii) if
a summary is supplied under clause (i) or (ii), information as to how a
copy of the document summarized may be inspected by members,
(iv) a
copy of the certificates signed under Article 127E(5) and (6) in respect
of that company, and a copy of any information that may have been provided, by
the date of the notice, to that company by any other merging company under
Article 127E(4)(b),
(v) a
statement of the material interests in the merger of the directors of each
merging body, and of the persons managing any merging body that does not have
directors, and
(vi) such
further information as a member would reasonably require to reach an informed
decision on the merger; and
(b) shall contain sufficient information to
alert members to their right to apply to the court under Article 127FB.
(3) A merger is approved under this Article when
all of the special resolutions referred to in paragraph (1) have been
passed in respect of all of the merging bodies that are companies.
(4) A merger may not be completed unless it is
approved under this Article, or under Article 127FA.
127FA Simplified
approval of mergers involving subsidiaries
(1) A holding company merger or an
inter-subsidiary merger may be approved by a special resolution of each merging
company under this Article, without approval of a merger agreement.
(2) For the purpose of this Article, a holding
company merger is a merger in which –
(a) the merging bodies are –
(i) a
company that is a holding company, and
(ii) one
or more other companies that are its wholly-owned subsidiaries; and
(b) the merged body is the holding company,
continuing as a survivor company.
(3) For a holding company merger –
(a) each special resolution of a merging
subsidiary shall provide that its shares are to be cancelled without any
repayment of capital; and
(b) the special resolution of the holding
company shall –
(i) provide
that the capital accounts of each merging subsidiary are to be added to the
capital accounts of the holding company,
(ii) provide
that no securities are to be issued and no assets distributed by it in
connection with the merger (whether before, on or after the merger),
(iii) specify
any changes to its memorandum and articles that are to take effect on the
merger, and
(iv) state
the names and addresses of the persons who are proposed to be the directors after
the merger.
(4) For the purpose of this Article, an
inter-subsidiary merger is a merger in which –
(a) the merging bodies are all companies that
are wholly-owned subsidiaries of the same holding body (whether that holding
body is incorporated in Jersey or elsewhere); and
(b) the merged body is one of the merging
companies, continuing as a survivor company.
(5) For an inter-subsidiary merger –
(a) each special resolution of a merging
company, other than the survivor company, shall provide that –
(i) its
shares are to be cancelled without any repayment of capital, and
(ii) its
capital accounts are to be added to the capital accounts of the survivor
company; and
(b) the special resolution of the survivor
company shall –
(i) provide
that the capital accounts of each other merging company are to be added to the capital
accounts of the survivor company,
(ii) specify
any changes to the memorandum and articles of the survivor company that are to
take effect on the merger, and
(iii) state
the names and addresses of the persons who are proposed to be the directors of
the survivor company after the merger.
(6) A merger is approved under this Article when
all of the merging companies have passed the special resolutions required by
this Article.
(7) In relation to a merger approved under this
Article the provisions of this Part (other than this Article) apply to the
extent that they apply to a merger between companies of which one is a
survivor, but Articles 127B, 127D and 127F do not apply.
(8) In this Article, ‘company’ means
any company (whether or not having unlimited shares or guarantor members) that
is not a cell or a cell company.
127FB Objection
by member
(1) A member of a merging company may apply to
the court for an order under Article 143 on the ground that the merger
would unfairly prejudice the interests of the member.
(2) An application may not be made –
(a) more than 28 days after the merger is
approved under Article 127F(3) or 127FA(6), or
(b) by a member who voted in favour of the
merger under either of those Articles.
127FC Notice
to creditors
(1) No later than 28 days after a merger is
approved under Article 127F(3) or 127FA(6), each merging 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
company exceeding £5,000.
(2) The notice shall state –
(a) that the company intends to merge, in
accordance with this Part, with one or more bodies specified in the notice; and
(b) that the merger agreement, or the
company’s special resolution passed under Article 127FA, is
available to creditors from the company, free of charge, on request.
(3) If Article 127FD applies to the merger,
the notice shall in addition –
(a) state that a merging company has applied or
will apply for the permission of the court under that Article;
(b) state that any creditor of any of the
merging bodies may request the company making the application to send a copy of
the application to the creditor; and
(c) set out information as to –
(i) a
means by which a creditor may contact the company making the application, or a
person representing it in that application, and
(ii) the
effect of Article 127FD(4), including the date of the application if known
at the time of the notice.
(4) If Article 127FD does not apply to the
merger, the notice shall state (in addition to the matters in paragraph (2))
that any creditor of the company may –
(a) object to the merger under
Article 127FE(2)(a); or
(b) require the company to notify the creditor
if any other creditor of the company applies to the court under
Article 127FE(2)(b).
(5) The company shall, within the time limit set
out in paragraph (6), publish the contents of the notice –
(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.
(6) The time limit is whichever is the sooner
of –
(a) no later than 28 days after the merger
is approved under Article 127F(3) or 127FA(6); or
(b) as soon as practicable after the company
sends the last of any notices under paragraph (1).
(7) The Minister may by Order alter the amount
specified in paragraph (1).
127FD Company
to apply to court if solvency statement not made
(1) This Article applies to a merger if any
certificate signed by a director of any of the merging companies under
Article 127E(5) does not contain a solvency statement for the purpose of
that Article.
(2) The merger may not be completed unless an
Act of the court has been obtained permitting the merger on the ground that the
merger would not be unfairly prejudicial to the interests of any creditor of
any of the merging bodies.
(3) A merging company to which a certificate
mentioned in paragraph (1) relates, or all such companies jointly if there
are more than one, shall as soon as is practicable after the merger is approved
under Article 127F(3) or 127FA(6) –
(a) apply to the court for an Act permitting the
merger under paragraph (2); and
(b) send a copy of that application –
(i) to
any creditor who, after the directors have made reasonable enquiries, is known
to the directors to have a claim against any of the merging bodies exceeding
the amount specified in Article 127FC(1),
(ii) to
any other creditor of any of the merging bodies who requests a copy from that
company, and
(iii) to
the registrar.
(4) The court shall not hear the application for
at least 28 days after it is made to the court.
127FE Objection
by creditor if all solvency statements made
(1) This Article applies to a merger to which
Article 127FD does not apply.
(2) A creditor of a merging company who objects
to the merger –
(a) may, within 28 days of the date of the publication
of the notice under Article 127FC(5), give notice of the creditor’s
objection to the company; and
(b) may, within 28 days of the date of the
notice of objection, if the creditor’s claim against the company has not
been discharged, apply to the court for an order restraining the merger or
modifying the merger agreement.
(3) If a creditor makes an application under
paragraph (2)(b), the company shall, within a reasonable time after
receiving a copy of the application, send a copy of it to each other
creditor –
(a) to whom a notice was sent under Article 127FC(1);
(b) who has required notification under
Article 127FC(3)(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 merger would unfairly
prejudice the interests of the applicant, or of any other creditor of the
company, the court may make such order as it thinks fit in relation to the
merger, including, but not limited to, an order –
(a) restraining the merger; or
(b) modifying the merger agreement in such
manner as may be specified in the order.
(5) Paragraph (6) applies if a court is
considering making an order under paragraph (4)(b) to modify a merger
agreement that does not contain a provision in accordance with
Article 127D(7) allowing each of the merging bodies to terminate the
merger following the modification.
(6) The court shall not make the order
unless –
(a) the order also inserts such a provision in
the agreement; and
(b) the court is satisfied that each merging
body will have an adequate opportunity to reconsider whether to proceed with
the merger following the modification.
(7) If a merger is approved under Article 127FA,
references in this Article to the merger agreement are to be read as references
to the special resolutions passed under Article 127FA.
127FF Consent
of Commission required for mergers involving bodies other than companies
(1) If any of the merging bodies is not a
company –
(a) the merging bodies shall apply jointly, in
the published form and manner (if any), to the Commission for consent to the
merger; and
(b) the merger may not be completed unless the
Commission gives consent and any conditions attached to the consent are
complied with.
(2) The application for consent shall not be
made until after the date of the last publication of a notice under
Article 127FC(5).
(3) The application shall be accompanied
by –
(a) a copy of the merger agreement and the
special resolutions passed under Article 127F;
(b) a copy, in respect of each merging company,
of –
(i) the
resolution passed under Article 127E(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 Article 127E(5) and (6);
(c) a copy, in respect of each merging company,
of the notice to creditors under Article 127FC, with the date of its
publication under Article 127FC(5); and
(d) information, as at the time of the
application under this Article, as to –
(i) any
application made by a member to the court under Article 127FB, or
(ii) if
no such application has been made to the court, the date on which the time for
doing so has elapsed or will elapse.
(4) If Article 127FD applies to the
merger –
(a) the application under this Article shall in
addition be accompanied by information, as at the time of that application, as
to the application made, or to be made, to the court under Article 127FD;
and
(b) the applicants shall –
(i) keep
the Commission informed of the progress of the application under that Article,
and
(ii) provide,
when available, a copy of the Act of the court permitting the merger.
(5) If Article 127FD does not apply to the
merger, the application shall in addition be accompanied by –
(a) information, as at the time of the
application under this Article, as to –
(i) any
notice of objection given by a creditor under Article 127FE(2)(a), or
(ii) if
no such notice has been given, the date on which the time for doing so has
elapsed or will elapse; and
(b) evidence satisfactory to the Commission that
the merger would not be unfairly prejudicial to the interests of any creditor
of any of the merging bodies.
(6) If the merged body is to be a
company –
(a) the application shall in addition be
accompanied by –
(i) the
consents of its proposed directors to act as such, and
(ii) a
copy of its proposed memorandum and articles, unless it is to be a survivor
company without any amendment to its memorandum or articles; and
(b) the Commission shall inform the registrar of
the name proposed for the merged company in the merger agreement, and the
registrar shall then inform the Commission whether that name is in his or her
opinion in any way misleading or otherwise undesirable.
(7) If one or more of the merging bodies is an
overseas body, the application shall in addition be accompanied by evidence
satisfactory to the Commission, in respect of each overseas body,
that –
(a) the laws of the jurisdiction in which the
overseas body is incorporated do not prohibit either or both of –
(i) the
proposed merger, or
(ii) if
the merged body is to be a new body incorporated in that jurisdiction, the
incorporation of that body as the result of that merger;
(b) if those laws or the constitution of the
overseas body require that an authorization be given for the application or for
the merger, the authorization has been given; and
(c) if the overseas body is not to be a survivor
body, the overseas body will, in due course after completion of the merger,
cease to be a body incorporated under the law of the jurisdiction in which it
is presently incorporated.
(8) If the merged body is to be an overseas
body, the application shall in addition be accompanied by evidence satisfactory
to the Commission that the laws of the jurisdiction in which the merged body is
to be incorporated provide that upon the merger –
(a) the property and rights to which the merging
bodies were entitled immediately before the merger will become the property and
rights of the merged body;
(b) the merged body will become subject to any
criminal and civil liabilities, and any contracts, debts and other obligations,
to which the merging bodies were subject immediately before merger; and
(c) any actions and other legal proceedings
that, immediately before the merger, were pending by or against any of the
merging bodies may be continued by or against the merged body.
(9) In paragraphs (10), (11) and (12)
‘objection’ means –
(a) the making by a member of an application to
the court under Article 127FB in respect of any merging company; and
(b) the giving of notice of objection under
Article 127FE(2)(a) by a creditor of any merging company.
(10) Paragraphs (11), (12) and (13) apply unless, at
the time of the application under this Article –
(a) there has been no objection to the merger;
and
(b) the time for making any objection has
elapsed.
(11) The applicants shall –
(a) notify the Commission of any objection of
which they become aware after the application;
(b) notify the Commission of the result once any
objection, whenever made, has been disposed of; and
(c) provide to the Commission any further
information or document reasonably required by the Commission in connection
with any objection.
(12) Until the applicants have complied with
paragraph (11), the Commission –
(a) shall not make any decision on the
application other than to refuse consent on grounds unconnected to an
objection; and
(b) may, in respect of the application, take any
other action short of making a decision, or take no further action.
(13) If a document or information required by the
Commission under paragraph (11)(c) is not provided within a reasonable
time, the Commission may give the applicants a warning notice stating that the
application will be refused unless the document or information is provided
within a period specified in the notice being not less than 14 days.
(14) Where any document, information or evidence is
submitted under this Article –
(a) it shall be authenticated in the manner, if
any, published by the Commission; or
(b) the Commission may require it to be
authenticated in any manner appearing reasonable to the Commission, if the
Commission has not published any manner of authentication in relation to that
document, information or evidence.
(15) If a document, information or evidence submitted under
this Article is not in English or French, it shall be accompanied by a
translation into English or French, certified, in a manner approved by the
Commission, to be a correct translation.
127FG Fees,
expenses and security
(1) Article 201 applies to the
Commission’s function of considering applications for consent under
Article 127FF, as if references in Article 201 to the registrar were
references to the Commission.
(2) On receiving an application under
Article 127FF, the Commission may estimate the likely amount of its
expenses in dealing with the application.
(3) If that amount exceeds any fee charged under
Article 201, as applied by paragraph (1), for the consideration of
the application, the Commission may require the applicants to give it security
for that excess, to its satisfaction.
(4) 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 applicants to give it security for the
difference, to its satisfaction.
(5) If the Commission requires security under
paragraph (3) or (4), the Commission need take no further action in respect
of the application until the security has been given.
(6) If –
(a) a fee is charged under Article 201, as
applied by paragraph (1), or the Commission requires security under
paragraph (3) or (4); and
(b) that fee is not paid, or that security is
not given, within a reasonable time from the making of the application or the
requirement,
the Commission may give the
applicants a warning notice stating that the application will be refused unless
the fee is paid, or the security given, within a period specified in the notice
being not less than 14 days.
(7) If the Commission has required security
under paragraph (3) –
(a) on determining the application the
Commission shall ascertain the actual amount of its expenses; and
(b) if the actual amount exceeds any fee paid
under Article 201, as applied by paragraph (1), the Commission may,
by notice in writing, require the applicants to pay the excess.
(8) An excess notified under
paragraph (7)(b) shall be a debt due and payable jointly and severally by
the applicants to the Commission.
(9) Without prejudice to any other mode of
recovery, the Commission may recover that excess by realising any security
given if the excess is not paid by the applicants on demand.
127FH Commission
may require further information
(1) Following receipt of an application under
Article 127FF, the Commission may by notice require the applicants to
supply to the Commission such other document or information as the Commission
may reasonably require to determine whether to accept the application.
(2) The documents and information may in
particular include any that are reasonably required to assess the solvency, and
interests of any creditors, of any merging body that is not a company.
(3) Any such document or information shall be
authenticated in any manner reasonably required by the Commission.
(4) If the Commission gives a notice under
paragraph (1) –
(a) it need take no further action in respect of
the application until the document or information has been supplied; and
(b) if the document or information is not
supplied within a reasonable time after the notice, it may give the applicants
a warning notice stating that the application will be refused unless the
document or information is supplied within a period specified in the notice
being not less than 14 days.
127FI Decisions
and appeals
(1) After considering an application under
Article 127FF the Commission shall –
(a) give its consent without conditions;
(b) give its consent subject to conditions; or
(c) refuse its consent.
(2) In deciding an application the Commission
shall –
(a) consider all the relevant circumstances; and
(b) have particular regard to the interests of
creditors of the merging bodies, in addition to the matters to which it must
have particular regard under Article 7 of the Financial Services
Commission (Jersey) Law 1998[4].
(3) The Commission may refuse its consent, or
impose conditions on its consent, on any grounds, including any one or more of
the following grounds –
(a) that the merger would unfairly prejudice the
interests of a creditor of a merging body;
(b) that the merger would be undesirable with
regard to any other matter mentioned in paragraph (2);
(c) that the applicants have not complied with a
warning notice under Article 127FF(13), 127FG(6) or 127FH(4)(b) within the
period specified in that notice;
(d) that any other requirement of or under this
Part has not been met in respect of the merger.
(4) Where the merged body is to be an overseas
body, the Commission shall, unless it is satisfied that it would be preferable
in the circumstances not to do so, impose on any consent a condition that the
consent is subject to the merging bodies complying with Article 127FK(2)
and the merged body complying with Article 127FK(3).
(5) Where the merged body is to be a new company,
the Commission may, without prejudice to the generality of paragraph (3),
refuse its consent, as if the application was for incorporation under
Part 2, on any ground on which the incorporation or registration of that
company could be prevented under this Law (whether by the registrar, the
Commission or the court).
(6) On determining an application, the
Commission shall inform the applicants in writing of –
(a) its decision;
(b) if consent is given subject to any
condition, the terms of that condition; and
(c) if consent is refused or is given subject to
any condition –
(i) the
reasons for that refusal or condition, and
(ii) the
right to appeal under paragraph (7).
(7) If the Commission refuses consent, or gives
consent subject to any condition, an applicant may, within one month after
being informed of the decision, appeal to the court on the ground that the
decision was unreasonable having regard to all the circumstances of the case.
(8) On hearing an appeal under
paragraph (7) the court –
(a) may confirm, reverse or vary the decision of
the Commission; and
(b) may make such order as to the costs of the
appeal as it thinks fit.
127FJ Pre-registration
steps: where all merging bodies are companies
(1) This Article applies if all the merging
bodies in a merger are companies.
(2) The merging companies shall apply jointly,
in the published form and manner (if any), to the registrar to complete the
merger.
(3) The application shall not be made until
after whichever is the latest of the following dates –
(a) if any application was made to the court
under Article 127FB, the last date on which such an application is
disposed of otherwise than by an order restraining the merger;
(b) if Article 127FD applies to the merger,
the date of the Act of court permitting the merger;
(c) if Article 127FD does not apply to the
merger –
(i) 28 days
after the last date on which a notice was published under
Article 127FC(5), if by then no creditor has given notice of objection
under Article 127FE(2)(a),
(ii) 28 days
after the last date on which the last notice of objection by a creditor was
given under Article 127FE(2)(a), if by then no creditor has applied to the
court under Article 127FE(2)(b), or
(iii) if
any application was made to the court under Article 127FE(2)(b), the last
date on which such an application is disposed of otherwise than by an order
restraining the merger.
(4) The application shall be accompanied
by –
(a) a copy of the merger agreement, unless the
merger was approved under Article 127FA;
(b) a copy of –
(i) if
the merged company is to be a new company, its memorandum and articles, or
(ii) if
the merged company is to be a survivor company, any amendment to its memorandum
or articles provided for under Article 127D(5)(a) or 127FA(3)(b)(iii);
(c) a copy, in respect of each merging company,
of –
(i) the
resolution passed under Article 127E(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 Article 127E(5) and (6);
(d) a further certificate, signed by each
director who signed a certificate under Article 127E(5),
stating –
(i) that
the director, and the merging company of which he or she is a director, have
complied with the requirements of this Part in respect of the merger, and
(ii) if
Article 127FD does not apply to the merger, that in the director’s
opinion the merger will not unfairly prejudice any interests of any creditor of
that merging company;
(e) a copy of any Act of the court
under –
(i) Article 143
on an application under Article 127FB,
(ii) Article 127FD,
or
(iii) Article 127FE;
and
(f) any other document or information
required by the registrar to establish that the requirements of
paragraph (3) have been met.
(5) The registrar shall register notices as to
the merger in accordance with Article 127FM if he or she is
satisfied –
(a) that the application complies with
paragraphs (2) and (3), and that the documents provided under
paragraph (4) comply with that paragraph and with the provisions mentioned
in it; and
(b) if the merger agreement provides for the
merged company to be a new company, that he or she would have registered the
memorandum and articles of the company under Article 8 if it had been
incorporated otherwise than by merger.
127FK Pre-registration
steps: where merged body is not a company
(1) This Article applies if –
(a) the merged body provided for in the merger
agreement is not to be a company;
(b) the Commission has given its consent to the
merger under Article 127FI; and
(c) if any conditions were attached to that
consent (other than a condition under Article 127FI(4)), those conditions
have been met to the satisfaction of the Commission.
(2) When this Article applies, the merging
bodies shall take whatever steps are necessary to complete the merger in
accordance with the merger agreement under the laws governing the merged body
and those merging bodies that are not companies.
(3) As soon as is reasonably practical after the
merging bodies have completed the merger the merged body shall –
(a) inform the Commission that it has been
completed, including the date of completion;
(b) provide any document or information that the
Commission may reasonably require to establish the fact and date of the
completion; and
(c) authenticate any such document or information
in any manner that the Commission may reasonably require.
(4) If satisfied that the merger has been
completed, the Commission shall –
(a) provide the registrar with copies of –
(i) the
merger agreement,
(ii) the
certificates signed under Article 127E(5) and (6),
(iii) any
Act of the court provided to the Commission under Article 127FF or 127FH, and
(iv) the
documents provided to the Commission to prove completion; and
(b) instruct the registrar to register the
merger.
(5) As soon as is practical after receipt of the
documents and instruction under paragraph (4), the registrar shall
register notices as to the merger in accordance with Article 127FM.
127FL Pre-registration
steps: other cases
(1) This Article applies if –
(a) one or more of the merging bodies in a
merger is not a company;
(b) the merged body provided for in the merger
agreement is to be a company;
(c) the Commission has given its consent to the
merger under Article 127FI; and
(d) if any conditions were attached to that
consent, those conditions have been met to the satisfaction of the Commission.
(2) The Commission shall –
(a) provide the registrar with copies
of –
(i) the
merger agreement,
(ii) the
certificates signed under Article 127E(5) and (6),
(iii) the
memorandum and articles of the merged company, if they were provided to the
Commission under Article 127FF(6)(a)(ii), and
(iv) any
Act of the court provided to the Commission under Article 127FF or 127FH; and
(b) instruct the registrar to register the
merger.
(3) As soon as is practical after receipt of the
documents and instruction under paragraph (2), the registrar shall
register notices as to the merger in accordance with Article 127FM.
127FM Registration
of notices as to merger
(1) This Article applies where the registrar is
to register notices as to a merger under Article 127FJ, 127FK or 127FL.
(2) The completion date of a merger
is –
(a) if the merged body is not a company, the
date notified under Article 127FK(3); or
(b) if the merged body is a company, the date
the last entry on the register is made under this Article in relation to the
merger.
(3) The registrar shall enter in the register,
in respect of each merging company that is not a survivor body, a notice
that –
(a) states that the company has ceased to be
incorporated as a separate company because it has merged with a body or bodies
specified in the notice, so that they have together continued as a merged body;
and
(b) specifies the name of the merged body
and –
(i) the
enactment under which it is incorporated in Jersey, or
(ii) the
jurisdiction outside Jersey in which it is incorporated.
(4) If the merged body is a survivor company,
the registrar shall enter in the register, in respect of that company, a notice
that –
(a) states that the company has merged with a
body or bodies specified in the notice, so that they have together continued as
the merged survivor company; and
(b) refers to any change in the company’s
memorandum and articles that takes effect on the merger.
(5) If the merged body is a new company, the
registrar shall, if he or she would have registered the company under this Law
if it had been incorporated otherwise than as the result of a
merger –
(a) register the memorandum and articles of the
new company under Article 8, and issue a certificate of its incorporation
under Article 9, as if the registrar had received an application for the
creation of the company under Part 2 with the memorandum and articles
provided for in the merger agreement; and
(b) enter in the register, in respect of that
new company, a notice that states that the company is the result of a completed
merger between the former bodies specified in the notice, which have together
continued as the new company.
(6) Each entry under this Article –
(a) shall in addition include a note specifying
the completion date of the merger 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
merger.
(7) When the registrar enters a notice on the
register referring to an overseas body, the registrar shall also immediately
send a copy of the notice to the appropriate official or public body in the
jurisdiction in which that body is or was incorporated.
(8) The registrar shall send the copy referred
to in paragraph (7) –
(a) electronically;
(b) by some other means of instantaneous
transmission; or
(c) if no instantaneous transmission to the
official or public body is practicable, by such other means as the registrar
believes likely to be acceptable to that official or public body.
127FN Effect
of completion of merger
(1) On the completion date of a
merger –
(a) the merging bodies are merged and continue
as one merged body as provided in the merger agreement or in the special
resolutions passed under Article 127FA;
(b) any merging company that is not a survivor
company ceases to be incorporated as a separate company; and
(c) any merging body falling within
Article 127B(3) that is not a survivor body ceases to be incorporated as a
separate body.
(2) When a merger is completed in which the
merged body is a company or a body falling within
Article 127B(3) –
(a) all property and rights to which each
merging body was entitled immediately before the merger was completed become
the property and rights of the merged body;
(b) the merged body becomes subject to all
criminal and civil liabilities, and all contracts, debts and other obligations,
to which each of the merging bodies was subject immediately before the merger
was completed; and
(c) all actions and other legal proceedings
which, immediately before the merger was completed, were pending by or against
any of the merging bodies may be continued by or against the merged body.
(3) Entries made on the register under
Article 127FM are conclusive evidence of the following matters to which
they refer –
(a) that on the completion date specified in the
entry the merging bodies merged and continued as the merged body; and
(b) that the requirements of this Law have been
complied with in respect of –
(i) the
merger of the merging bodies under this Law, and
(ii) all
matters precedent to and incidental to the merger.
(4) The operation of this Article 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.
127G Offences
relating to merger
(1) A person commits an offence if, on or in
connection with an application under this Part, he or she knowingly or
recklessly provides to the Commission or to the registrar –
(a) any information which is false, misleading
or deceptive in a material particular; or
(b) any document containing any such
information.
(2) A person commits an offence if he or she
signs a certificate under Article 127E or 127FJ(4)(d) without having
reasonable grounds for the opinion expressed in the certificate or for the
statement made in the certificate.”.
6 Article 127YG
amended
In Article 127YG(1) of the principal Law for the words
“Article 104” there shall be substituted the words
“Article 105”.
7 Article 143
amended
In Article 143(1) of the principal Law, for the words
“Article 127E” there are substituted the words
“Article 127FB”.
8 Schedule 1
amended
In Schedule 1 to the principal Law, after the entries relating
to Article 127(4) there are inserted the following entries in Columns 1, 2
and 3 respectively –
“127G(1)
|
Person providing false, misleading or deceptive information or
document in connection with application under Part 18B
|
2 years or a fine; or both
|
127G(2)
|
Person signing certificate without reasonable grounds for doing so
|
2 years or a fine; or both”
|
9 Transitional
provision
(1) The
principal Law applies to a merger falling within paragraph (2) as if these
Regulations had not come into force.
(2) A
merger falls within this paragraph if, immediately before the commencement of
these Regulations –
(a) the
merger has been approved under Article 127B or 127C of the principal Law;
and
(b) the
registrar has not complied with Article 127G(3).
10 Citation
and commencement
These Regulations may be cited as the Companies (Amendment
No. 5) (Jersey) Regulations 2011 and come into force 7 days after
they are made.
m.n. de la haye
Greffier of the States