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BVI Business Companies Act, 2004

BVI Company Formations bvi-business-companies-act-2004 previous companies act next companies act

Division 2 – Memorandum and Articles

9. (1) The memorandum of a company shall state

(a) the name of the company;

(b) whether the company is

(i) a company limited by shares,

(ii) a company limited by guarantee that is not authorised to issue shares,

(iii) a company limited by guarantee that is authorised to issue shares,

(iv) an unlimited company that is not authorised to issue shares, or

(v) an unlimited company that is authorised to issue shares;

(c) the address of the first registered office of the company;

(d) the name of the first registered agent of the company;

(e) in the case of a company limited by shares or otherwise authorised to issue shares

(i) the maximum number of shares that the company is authorised to issue or that the company is authorised to issue an unlimited number of shares, and

(ii) the classes of shares that the company is authorised to issue and, if the company is authorised to issue two or more classes of shares, the rights, privileges, restrictions and conditions attaching to each class of shares,

(f) in the case of a company limited by guarantee, whether or not it is authorised to issue shares, the amount which each guarantee member of the company is liable to contribute to the company’s assets in the event that a voluntary liquidator or an Insolvency Act liquidator is appointed whilst he is a member; and

(g) in the case of a segregated portfolio company, that the company is a segregated portfolio company.

(2) In the case of a company limited by shares or otherwise authorised to issue shares, the memorandum shall also state,

(a) if the company is prohibited by this or any other Act from issuing bearer shares, that the company is not authorised to

(i) issue bearer shares,

(ii) convert registered shares to bearer shares, or

(iii) exchange registered shares for bearer shares; or

(b) in any other case, either that the company is, or is not, authorised to

(i) issue bearer shares,

(ii) convert registered shares to bearer shares, or

(iii) exchange registered shares for bearer shares.

(3) (Repealed)

(4) The Regulations may require the memorandum of a company to contain a statement, in the form specified in the Regulations, as to any limitations on the business that the company may carry on.

10. (1) The memorandum of a company limited by shares may state that the company is a restricted purposes company.

(2) The memorandum of a restricted purposes company shall state the purposes of the company.

(3) Nothing in this section prevents the memorandum or articles of a company that is not a restricted purposes company from limiting the purposes, capacity, rights, powers or privileges of the company.

11. (1) The memorandum and articles of a company are binding as between

(a) the company and each member of the company; and

(b) each member of the company.

(2) The company, the board, each director and each member of a company has the rights, powers, duties and obligations set out in this Act except to the extent that they are negated or modified, as permitted by this Act, by the memorandum or the articles.

(3) The memorandum and articles of a company have no effect to the extent that they contravene or are inconsistent with this Act.

12. (1) Subject to subsection (2) and section 14, the members of a company may, by resolution, amend the memorandum or articles of the company.

(2) Subject to subsection (3), the memorandum of a company may include one or more of the following provisions:

(a) that specified provisions of the memorandum or articles may not be amended;

(b) that a resolution passed by a specified majority of members, greater than fifty per cent, is required to amend the memorandum or articles or specified provisions of the memorandum or articles; and

(c) that the memorandum or articles, or specified provisions of the memorandum or articles, may be amended only if certain specified conditions are met.

(3) Subsection (2) does not apply to any provision in the memorandum of a company that is not a restricted purposes company that restricts the purposes of that company.

(4) Subject to subsection (5), the memorandum of a company may authorise the directors, by resolution, to amend the memorandum or articles of the company.

(5) Notwithstanding any provision in the memorandum or articles to the contrary, the directors of a company shall not have the power to amend the memorandum or articles

(a) to restrict the rights or powers of the members to amend the memorandum or articles;

(b) to change the percentage of members required to pass a resolution to amend the memorandum or articles; or

(c) in circumstances where the memorandum or articles cannot be amended by the members;

and any resolution of the directors of a company is void and of no effect to the extent that it contravenes this subsection.

13. (1) Where a resolution is passed to amend the memorandum or articles of a company, the company shall file for registration

(a) a notice of amendment in the approved form; or

(b) a restated memorandum or articles incorporating the amendment made.

(2) An amendment to the memorandum or articles has effect from the date that the notice of amendment, or restated memorandum or articles incorporating the amendment, is registered by the Registrar or from such other date as may be ordered by the Court under subsection (5).

(3) A company, a member or director of a company or any interested person may apply to the Court for an order that an amendment to the memorandum or articles should have effect from a date no earlier than the date of the resolution to amend the memorandum or articles.

(4) An application under subsection (3) may be made

(a) on, or at any time after, the date of the resolution to amend the memorandum or articles; and

(b) before or after the notice of amendment, or the restated memorandum or articles, has been filed for registration.

(5) The Court may make an order on an application made under subsection

(3) where it is satisfied that it would be just to do so but if, at the time of the order, the notice of amendment, or restated memorandum or articles, has not been filed, the Court shall order that the notice of amendment, or restated memorandum or articles, must be filed within a period not exceeding five days after the date of the order.

14. (1) A restricted purposes company shall not amend its memorandum to delete or modify the statement specified in section 10(1) and any resolution of the members or directors of a company is void and of no effect to the extent that it contravenes this subsection.

(2) Subject to section 12(2), a restricted purposes company may amend its memorandum to modify its purposes.

(3) A company that is not a restricted purposes company shall not amend its memorandum to state that it is a restricted purposes company and any resolution of the members or directors of a company is void and of no effect to the extent that it contravenes this subsection.

15. (1) A company may, at any time, file a restated memorandum or articles.

(2) A restated memorandum or articles filed under subsection (1) shall incorporate only such amendments that have been registered under section 13.

(3) Where a company files a restated memorandum or articles under subsection (1), the restated memorandum or articles has effect as the memorandum or articles of the company with effect from the date that it is registered by the Registrar.

(4) The Registrar is not required to verify that a restated memorandum or articles filed under this section incorporates all the amendments, or only those amendments, that have been registered under section 13.

16. (1) A copy of the memorandum and a copy of the articles shall be sent to any member who requests a copy on payment by the member of such amount as the directors may determine to be reasonably necessary to defray the costs of preparing and furnishing them.

(2) A company that contravenes subsection (1) commits an offence and is liable on summary conviction to a fine of $1,000.