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BVI Business Companies Act, 2004

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MEMBERS

78. In this Act,

“guarantee member”, in relation to a company, means a person whose name is entered in the register of members as a guarantee member;

“shareholder”, in relation to a company, means a person whose name is entered in the register of members as the holder of one or more shares, or fractional shares, in the company;

“unlimited member”, in relation to a company, means a person whose name is entered in the register of members as a member who has unlimited liability for the liabilities of the company.

79. (1) Subject to subsection (1A), a company shall at all times have one or more members.

(1A)Subsection (1) does not apply during the period from the incorporation of the company to the appointment of its first directors under section 113(1).

(2) In the case of a company limited by guarantee, whether or not authorised to issue shares, at least one of the members of the company shall be a guarantee member and where the company is authorised to issue shares, a guarantee member may also be a shareholder.

(3) In the case of an unlimited company, whether or not authorised to issue shares, at least one of the members of the company shall be an unlimited member and where the company is authorised to issue shares, an unlimited member may also be a shareholder.

80. (1) A member of a limited company has no liability, as a member, for the liabilities of the company.

(2) The liability of a shareholder to the company, as shareholder, is limited to

(a) any amount unpaid on a share held by the shareholder;

(b) any liability expressly provided for in the memorandum or articles of the company; and

(c) any liability to repay a distribution under section 58(1).

(3) The liability of a guarantee member to the company, as guarantee member, is limited to

(a) the amount that the guarantee member is liable to contribute as specified in the memorandum in accordance with section 9(1)(f); and

(b) any other liability expressly provided for in the memorandum or articles of the company; and

(c) any liability to repay a distribution under section 58(1).

(4) An unlimited member has unlimited liability for the liabilities of the company.

81. (1) Unless otherwise specified in this Act or in the memorandum or articles of a company, the exercise by the members of a company of a power which is given to them under this Act or the memorandum or articles shall be by a resolution

(a) passed at a meeting of members held pursuant to section 82; or

(b) passed as a written resolution in accordance with section 88.

(2) A resolution is passed if approved by a majority of in excess of fifty per cent or, if a higher majority is required by the memorandum or articles, that higher majority, of the votes of those members entitled to vote and voting on the resolution.

(3) For the purposes of subsection (2),

(a) votes of shareholders shall be counted according to the votes attached to the shares held by the shareholder voting; and

(b) unless the memorandum or articles otherwise provide, a guarantee member and an unlimited member is entitled to one vote on any resolution on which he is entitled to vote.

82. (1) Subject to a company’s memorandum and articles, the following may convene a meeting of the members of the company at any time:

(a) the directors of the company; or

(b) such person or persons as may be authorised by the memorandum or articles to call the meeting.

(2) Subject to a provision in the memorandum or articles for a lesser percentage, the directors of a company shall call a meeting of the members of the company if requested in writing to do so by members entitled to exercise at least thirty per cent of the voting rights in respect of the matter for which the meeting is requested.

(3) Subject to a company’s memorandum and articles, a meeting of the members of the company may be held at such time and in such place, within or outside the Virgin Islands, as the convener of the meeting considers appropriate.

(4) Subject to the memorandum or articles of a company, a member of the company shall be deemed to be present at a meeting of members if

(a) he participates by telephone or other electronic means; and

(b) all members participating in the meeting are able to hear each other.

(5) A member may be represented at a meeting of members by a proxy who may speak and vote on behalf of the member.

(6) Subject to the memorandum and articles, the following apply where shares are jointly owned

(a) if two or more persons hold shares jointly each of them may be present in person or by proxy at a meeting of members and may speak as a member;

(b) if only one of them is present in person or by proxy, he may vote on behalf of all of them; and

(c) if two or more are present in person or by proxy, they must vote as one.

83. (1) Subject to a requirement in the memorandum or articles to give longer notice, a person or persons convening a meeting of the members of a company shall give not less than seven days notice of the meeting to those persons whose names, on the date the notice is given, appear as members in the register of members and are entitled to vote at the meeting.

(2) Notwithstanding subsection (1), and subject to the memorandum or articles, a meeting of members held in contravention of the requirement to give notice is valid if members holding a ninety per cent majority, or such lesser majority as may be specified in the memorandum or articles, of the total voting rights on all the matters to be considered at the meeting have waived notice of the meeting and, for this purpose, the presence of a member at the meeting shall be deemed to constitute a waiver on his part.

(a) (Repealed)

(b) (Repealed)

(3) The inadvertent failure of the convener or conveners of a meeting of members to give notice of the meeting to a member, or the fact that a member has not received the notice, does not invalidate the meeting.

(4) The convener or conveners of a meeting of members may fix the date notice is given of a meeting, or such other date as may be specified in the notice, as the record date for determining those members that are entitled to vote at the meeting.

84. The quorum for a meeting of the members of a company for the purposes of a resolution of members is that fixed by the memorandum or articles but, where no quorum is so fixed, a meeting of members is properly constituted for all purposes if at the commencement of the meeting there are present in person or by proxy, members entitled to exercise at least fifty percent of the votes.

85. (1) One or more shareholders of a company may, by agreement in writing, deposit bearer shares with a custodian, or transfer registered shares to any person, authorised to act as trustee for the purpose of vesting in such person, who may be designated voting trustee, the right to vote thereon and the following provisions shall apply

(a) (Repealed)

(b) the agreement may contain any other provisions not inconsistent with the purpose of the agreement;

(c) a copy of the agreement shall be deposited at the registered office of the company and shall be open to the inspection of members of the company

(i) in the case of any beneficiary of the trust under the agreement, daily during business hours, and

(ii) in the case of members of the company, subject to the provisions of section 100;

(d) where certificates for registered shares have been issued for shares that are to be transferred to a trustee pursuant to this section, new certificates shall be issued to the voting trustee to represent the shares so transferred and the certificates formerly representing the shares that have been transferred shall be surrendered and cancelled;

(e) where a certificate is issued to a voting trustee, an endorsement shall be made on the certificate that the shares represented thereby in the case of registered shares and the certificates in case of bearer shares are held by the person named therein pursuant to an agreement;

(f) there shall be noted in the register of members of the company against the record of the shares held by the trustee the fact that such an agreement exists;

(g) the voting trustee may vote the shares so issued or transferred during the period specified in the agreement;

(h) shares registered in the name of the voting trustee may be voted either in person or by proxy and, in voting the shares, the voting trustee shall not incur any liability as member or trustee, except in so far as he may be liable for his own conduct or acts;

(i) where two or more persons are designated as voting trustees and the right and method of voting any shares registered in their names at any meeting of members or on any resolution of members are not fixed by the agreement appointing the trustees, the right to vote shall be determined by a majority of the trustees, or if they are equally divided as to the right and manner of voting the shares in any particular case, the votes of the shares in such case shall be divided equally among the trustees;

(j) at any time prior to the time of expiration of any voting trust agreement as originally fixed or as last extended as provided in this subsection, one or more beneficiaries of the trust under the voting trust agreement may, by written agreement and with the written consent of the voting trustee, extend the duration of the voting trust agreement for such additional period as is stated in the written agreement; and

(k) the voting trustee shall, prior to the time of expiration of a voting trust agreement, as originally fixed or as previously extended, as the case may be, deposit at the registered office of the company a copy of the extension agreement and of his consent thereto, and thereupon the duration of the voting trust agreement shall be extended for the period fixed in the extension agreement, but no extension agreement shall affect the rights or obligations of persons not parties thereto.

(2) Bearer shares may only be deposited under subsection (1) with a custodian and Division 5 shall apply.

(3) Two or more members of a company may by agreement in writing provide that in exercising any voting rights the shares held by them shall be voted

(a) as provided by the agreement;

(b) as the parties may agree; or

(c) as determined in accordance with such procedure as they may agree upon.

(4) (Repealed)

(5) This section shall be deemed not to invalidate any voting or other agreement among members or any irrevocable proxy that is not otherwise illegal.

86. (1) The Court may order a meeting of members to be held and to be conducted in such manner as the Court orders if it is of the opinion that

(a) it is impracticable to call or conduct a meeting of the members of a company in the manner specified in this Act or in the memorandum and articles of the company; or

(b) it is in the interests of the members of the company that a meeting of members is held.

(2) An application for an order under subsection (1) may be made by a member or director of the company.

(3) The Court may make an order under subsection (1) on such terms, including as to costs of conducting the meeting and as to the provision of security for those costs, as it considers appropriate.

87. The Regulations may specify provisions for proceedings of members’ meetings which shall apply in respect of a company, except to the extent that the memorandum or articles of the company provide otherwise.

88. (1) Subject to the memorandum or articles of a company, an action that may be taken by members of the company at a meeting of members may also be taken by a resolution of members consented to in writing or by telex, telegram, cable or other written electronic communication, without the need for any notice.

(2) A resolution under subsection (1) may consist of several documents, including written electronic communications, in like form each signed or assented to by one or more members.

89. (1) Any notice, information or written statement required under this Act to be given by a company to members shall be served

(a) in the case of members holding registered shares,

(i) in the manner specified in the memorandum or articles, as the case may be, or

(ii) in the absence of a provision in the memorandum or articles, by personal service or by mail addressed to each member at the address shown in the register of members; and

(b) in the case of members holding bearer shares, by personal service on, or by mail addressed to, each custodian of bearer shares in the company at the address shown in the register of members.

(2) (Repealed)

(3) (Repealed)