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BVI Business Companies Act, 2004

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PART X

CONTINUATION

180. (1) Subject to subsection (2), a foreign company may continue as a company incorporated under this Act in accordance with this Part if the laws of the jurisdiction in which it is registered permit it to continue in another jurisdiction, including the Virgin Islands.

(2) A foreign company may not continue as a company incorporated under this Act if

(a) it is in liquidation, or subject to equivalent insolvency proceedings, in another jurisdiction;

(b) a receiver or manager has been appointed in relation to any of its assets;

(c) it has entered into an arrangement with its creditors, that has not been concluded; or

(d) an application made to a Court in another jurisdiction for the liquidation of the company or for the company to be subject to equivalent insolvency proceedings has not been determined.

181. (1) An application by a foreign company to continue under this Act shall be made by filing

(a) a certified copy of its certificate of incorporation, or such other document as evidences its incorporation, registration or formation;

(b) a memorandum and articles complying with subsections (2) and (3);

(c) evidence satisfactory to the Registrar that the application to continue and the proposed memorandum and articles have been approved

(i) by a majority of the directors or the other persons who are charged with exercising the powers of the company, or

(ii) in such other manner as may be established by the company for exercising the powers of the company; and

(d) evidence satisfactory to the Registrar that the company is not disqualified from continuing in the Virgin Islands under section

180. (2) Subject to subsection (3), the memorandum of a company continuing under this Act shall comply with section 9.

(3) The memorandum of a company applying to continue under this Act

(a) shall, in addition to the matters required to be stated under section 9, state

(i) the name of the company at the date of the application and the name under which it proposes to be continued,

(ii) the jurisdiction under which it is incorporated, registered or formed, and

(iii) the date on which it was incorporated, registered or formed;

and

(b) shall state the matters specified in section 9(2).

(4) The memorandum and articles of a company applying to continue under this Act shall be signed by, or on behalf of, the persons who have approved them under subsection (1)(c).

182. (1) If he is satisfied that the requirements of this Act in respect of continuation have been complied with, upon receipt of the documents specified in section 181(1), the Registrar shall

(a) register the documents;

(b) allot a unique number to the company; and

(c) issue a certificate of continuation to the company in the approved form.

(2) A certificate of continuation issued by the Registrar under subsection (1) is conclusive evidence that

(a) all the requirements of this Act as to continuation have been complied with; and

(b) the company is continued as a company incorporated under this Act under the name designated in its memorandum on the date specified in the certificate of continuation.

183. (1) When a foreign company is continued under this Act,

(a) this Act applies to the company as if it had been incorporated under section 7 after the commencement date;

(b) the company is capable of exercising all the powers of a company incorporated under this Act;

(c) the company is no longer to be treated as a company incorporated under the laws of a jurisdiction outside the Virgin Islands; and

(d) the memorandum and articles filed under section 181(1) become the memorandum and articles of the company.

(2) The continuation of a foreign company under this Act does not affect

(a) the continuity of the company as a legal entity; or

(b) the assets, rights, obligations or liabilities of the company.

(3) Without limiting subsection (2),

(a) no conviction, judgement, ruling, order, claim, debt, liability or obligation due or to become due, and no cause existing, against the company or against any member, director, officer or agent thereof, is released or impaired by its continuation as a company under this Act; and

(b) no proceedings, whether civil or criminal, pending at the time of the issue by the Registrar of a certificate of continuation by or against the company, or against any member, director, officer or agent thereof, are abated or discontinued by its continuation as a company under this Act, but the proceedings may be enforced, prosecuted, settled or compromised by or against the company or against the member, director, officer or agent thereof, as the case may be.

(4) All shares in the company that were outstanding prior to the issue by the Registrar of a certificate of continuation shall be deemed to have been issued in conformity with this Act.

184. (1) Subject to its memorandum or articles, a company for which the Registrar would issue a certificate of good standing pursuant to section 235(1) may, by a resolution of directors or by a resolution of members, continue as a company incorporated under the laws of a jurisdiction outside the Virgin Islands in the manner provided under those laws.

(2) A company that continues as a company incorporated under the laws of jurisdiction outside the Virgin Islands does not cease to be a company incorporated under this Act unless the laws of the jurisdiction outside the Virgin Islands permit the continuation and the company has complied with those laws.

(3) The registered agent of a company that continues as a company incorporated under the laws of a jurisdiction outside the Virgin Islands may file a notice of the company’s continuance in the approved form.

(4) If the Registrar is satisfied that the requirements of this Act in respect of the continuation of a company under the laws of a foreign jurisdiction have been complied with, he shall

(a) issue a certificate of discontinuance of the company in the approved form;

(b) strike the name of the company off the Register of Companies with effect from the date of the certificate of discontinuance; and

(c) publish the striking off of the company in the Gazette.

(4A) A certificate of discontinuance issued under subsection (4) is prima facie evidence that

(a) all the requirements of this Act in respect of the continuation of a company under the laws of a foreign jurisdiction have been complied with; and

(b) the company was discontinued on the date specified in the certificate of discontinuance.

(5) Where a company is continued under the laws of a jurisdiction outside the Virgin Islands

(a) the company continues to be liable for all of its claims, debts, liabilities and obligations that existed prior to its continuation as a company under the laws of the jurisdiction outside the Virgin Islands;

(b) no conviction, judgement, ruling, order, claim, debt, liability or obligation due or to become due, and no cause existing, against the company or against any member, director, officer or agent thereof, is released or impaired by its continuation as a company under the laws of the jurisdiction outside the Virgin Islands;

(c) no proceedings, whether civil or criminal, pending by or against the company, or against any member, director, officer or agent thereof, are abated or discontinued by its continuation as a company under the laws of the jurisdiction outside the Virgin Islands, but the proceedings may be enforced, prosecuted, settled or compromised by or against the company or against the member, director, officer or agent thereof, as the case may be; and

(d) service of process may continue to be effected on the registered agent of the company in the Virgin Islands in respect of any claim, debt, liability or obligation of the company during its existence as a company under this Act.