Bahamas IBC Act – PART X
PART X – LIMITED DURATION COMPANY
Interpretation for purposes of Part X.
“limited duration company” means an International Business Company registered in accordance with this Part.
International Business Company may apply to be registered as a limited duration company.
(2) An application may also be made at the same time as an application is made-
(a) to incorporate a company under section 3;
(b) to continue the incorporation of a company under section 84.
(3) An application under this section shall in addition to any other fee that may be payable be accompanied by an application fee of two hundred dollars.
Registration of limited duration company.
(a) the company has at least two subscribers or two members;
(b) where the company was not already incorporated as an International Business Company prior to the application-
(i) the Memorandum of the company limits the company’s duration to a period of 30 years or less; and
(ii) the name of company includes the words “Limited Duration Company” or the abbreviation “LDC”; and
(c) where the company was already incorporated as an International Business Company prior to the application-
(i) the Registrar has been supplied, where the duration of the company is not already limited to a period of 30 years or less, with a certified copy of a resolution of the company altering its Memorandum to limit the duration of the company to a period of 30 years or less; and
(ii) the Registrar has been supplied, in accordance with section 18(2) , with a copy of the amendment changing its name to a name that includes the words “Limited Duration Company” or the abbreviation “LDC”.
(2) On registering an International Business Company as a limited duration company the Registrar shall-
(a) where the company was not already incorporated as an International Business Company prior to the application, certify in the certificate of incorporation issued in accordance with section 15(2) or the certificate of continuation issued in accordance with section 84(1) (d) that the company is registered as a limited duration company; and
(b) where the company was already incorporated as an International Business Company prior to the application, certify in the certificate of incorporation issued in accordance with section 15(2) that the company is registered as a limited duration company stating the date of such registration.
(3) A resolution passed for the purpose of subsection (1) (c) shall have no effect until the company is registered as a limited duration company.
173.(1) The Articles of a limited duration company may provide that the transfer of any share or other interest of a member of the company shall require the unanimous resolution of all the other members.
Contents of Articles of limited duration company.
(2) The Articles of a limited duration company may provide that the management of the company is vested in the members of the company in their capacity as such either equally or in proportion to their share or other ownership interest in the company or in such other manner as may be specified in the Articles.
(3) Where the Articles of a limited duration company contain the provisions referred to in subsection (2) the Articles may contain such other provisions concerning management as the members see fit including but not limited to power for the members to appoint managing agents removable with or without cause at any time and subject to supervision by the members.
Winding-up of a limited duration company.
(a) when the period fixed for the duration of the company expires;
(b) if the members of the company pass a resolution that the company be wound up voluntarily; or
(c) subject to any contrary provision in the Memorandum or Articles of the company, on the expiry of a period of 90 days starting on-
(i) the death, insanity, bankruptcy, withdrawal, retirement or resignation of a member of the company;
(ii) the redemption, purchase, or cancellation of all the shares of a member of the company; or
(iii) the occurrence of any event which under the Memorandum or Articles of the company terminates the membership of a member of the company,
unless there remain at least two members of the company and the company is continued in existence by the written resolution of such members pursuant to amended Articles of the company adopted during the period of 90 days.
(2) Where the winding-up of a limited duration company is taken to have commenced by virtue of subsection (1) the members of the company shall by resolution appoint a liquidator for the purpose of the winding-up and if they fail to do so section 133(2) shall apply.
(3) Sections 131 and 132 shall have no application to a limited duration company.
Cancellation of registration.
(a) the Registrar issues a certificate or dissolution under section 138(6) (b) ;
(b) the Registrar issues a certificate of incorporation in accordance with section 12(7) which records a change of name for the company that does not include the words “Limited Duration Company” or the abbreviation “LDC”; or
(c) the company passes a resolution in accordance with section 18 to alter its Memorandum to provide for a period of duration of the company that exceeds or is capable of exceeding 30 years,
and in the case of paragraph (b) or (c) the company pays a cancellation fee of two hundred dollars.
(2) On a company ceasing to be a limited duration company-
(a) the Registrar shall, where the company has ceased to be a limited duration company by virtue of subsection (1) (b) or (c) , issue to the company a certificate of incorporation altered to meet the circumstances of the case; and
(b) in all cases the certificate issued by virtue of section 172(2) shall cease to have effect.
(3) A resolution passed for the purpose of subsection (1) (c) has no effect until a certificate of incorporation is issued by the Registrar under subsection (2) .
PART XI – FEES AND PENALTIES
176.(1) There shall be paid to the Registrar in respect of the several matters mentioned in the Schedule the several fees specified therein and such other fees as the Minister may, by order, prescribe.
(2) In respect of the payment of fees not more than thirty days’ grace to be calculated from the 1st January in each year may be allowed by the Registrar for payment of the fee payable in any year under this Act.
(3) The fees mentioned in the Schedule shall not apply until January 1, 2002 and the fees payable under the repealed Act shall remain in force until December 31, 2001.
(4) The Minister may by order amend the Schedule for the purpose of varying the fees specified therein and any such order which vary the fees shall be exempt from the provisions of section 31 of the Interpretation and General Clauses Act but shall be subject to an affirmative resolution of the House of Assembly.
(5) In subsection (4) “affirmative resolution of the House of Assembly” in relation to subsidiary legislation means that such legislation does not come into operation unless and until affirmed by a resolution of that House.
Penalties payable to Registrar.
178.(1) When an offence is committed under this Act by a company, whether it is incorporated or registered under this Act, and a director or officer of the company knowingly authorized, permitted or acquiesced in the commission of the offence, the director or officer is also guilty of that offence and shall be liable to the same criminal penalty specified for that offence.
Criminal liability and proceedings.
(2) Every offence under this Act and every default, refusal or contravention for which a penalty is provided by this Act, being an offence, default, refusal or contravention for which no other mode of proceedings is provided shall be enforced by summary proceedings
180.A person who fails to keep a Share Register for the purposes of section 29 is guilty of an offence and shall be liable on summary conviction to a fine of ten thousand dollars or to imprisonment for two years.
Failure to keep Share Register.
False reports and false statements.
(a) contains any untrue statement of a material fact; or
(b) omits to state a material fact required in such report, return, notice or other document,
is guilty of an offence and shall be liable on summary conviction to a fine of ten thousand dollars or to imprisonment for two years.
(2) A person is not guilty of an offence under subsection (1) if the making of the untrue statement or the omission of the material fact was unknown to him and with the exercise of reasonable diligence could not have been known to him.
182.A person who without reasonable cause contravenes any section of this Act for which no other penalty is provided is guilty of an offence and shall be liable on summary conviction to a fine of ten thousand dollars or to imprisonment for two years.
183.Any fee or penalty payable under this Act that remains unpaid for 30 days immediately following the date on which demand for payment is made by the Registrar is recoverable at the instance of the Attorney-General in civil proceedings as a debt due to the Crown.
Recovery of penalties, etc.
184.A company incorporated under this Act continues to be liable for all fees and penalties payable under this Act notwithstanding the name of the company has been struck off the Register and all those fees, and penalties have priority to all other claims against the assets of the company.
Company struck off liable for fees, etc.
Fees, etc., to be paid into Consolidated Fund.
Fees payable to Registrar.
(2) The Registrar may refuse to continue under this Act a company incorporated under the Companies Act until all fees prescribed as payable by the company under the Companies Act have been paid.
PART XII – EXEMPTIONS
(2) Where a company desires to carry on business with persons resident in The Bahamas, that company must first obtain Exchange Control approval pursuant to the Exchange Control Regulations with respect to its planned operations.
(3) Any resident of The Bahamas, within the meaning of the Exchange Control Regulations Act and the regulations made thereunder, shall, prior to acquiring ownership in any common or preferred shares or any debt or other securities issued or to be issued by a company including options or other contracts which are intended to confer rights to ownership or income derived from such a company, obtain Exchange Control approval with respect to such acquisition.
(4) Stamp duty shall only be payable by an International Business Company in relation to real property situate in The Bahamas which it owns, or which is owned by any company in which it holds shares or for which it holds a lease.
PART XIII – MISCELLANEOUS
188.The Minister may make regulations with respect to the duties to be performed by the Registrar under this Act and in so doing may prescribe the place where the office for the registration of International Business Companies is located.
Form of certificate.
190.(1) The Registrar shall, upon request by any person issue a certificate of good standing under his hand and seal certifying that a company incorporated under this Act is of good standing if the Registrar is satisfied that-
Certificate of good standing.
(a) the name of the company is on the Register; and
(b) the company has paid all fees, licence fees and penalties due and payable.
(2) The certificate of good standing issued under subsection (1) shall contain a statement as to whether-
(a) the company has submitted to the Registrar articles of merger or consolidation that have not yet become effective;
(b) the company has submitted to the Registrar articles of arrangement that have not yet become effective;
(c) the company is in the process of being wound up and dissolved; or
(d) any proceedings to strike the name of the company off the Register have been instituted.
Inspection of documents.
(a) inspect the documents kept by the Registrar pursuant to this Act; and
(b) require a certificate of incorporation, merger, consolidation, arrangement, continuation, dissolution or good standing of a company or a copy or an extract of any document or any part of a document of which he has custody, to be certified by the Registrar and a certificate of incorporation, merger, consolidation, arrangement, continuation, dissolution or good standing or a certified copy or extract shall be prima facie evidence of the matters contained therein.
(2) A document or a copy or an extract of any document or any part of a document certified by the Registrar under subsection (1) is admissible in evidence in any proceedings as if it were the original document.
192.(1) A company may without the necessity of joining any other party, apply to the court, by summons supported by an affidavit, for a declaration on any question of interpretation of this Act or of the Memorandum or Articles of the company.
Declaration by court.
(2) A person acting on a declaration made by the court as a result of an application under subsection (1) shall be deemed, in so far as regards the discharge of any fiduciary or professional duty, to have properly discharged his duties in the subject matter of the application.
Judge in Chambers.
Minister may vary fees.
(2) Notwithstanding subsection (1) , any International Business Company which commenced winding-up under the repealed Act shall in respect of such winding-up continue to be governed by the winding-up provisions of that Act.
196.(1) Subject to section 194(2) , every International Business Company in existence immediately before the commencement of this Act shall continue in existence and shall satisfy the requirements of this Act within 12 months from the commencement of this Act and shall thereafter be continued as an International Business Company incorporated under this Act.(2) A company that fails to satisfy the requirements of this Act within the time specified in subsection (1) shall be struck off the Register:
Provided that it shall not be necessary for a company to amend its Memorandum and Articles in order to satisfy the requirements of this Act.
(3) All benefits accruing to any International Business Company registered in The Bahamas prior to the commencement of this Act shall not be affected by the coming into force of this Act.
(4) Every company which has issued bearer shares under the repealed Act shall recall such shares within six months from the date of commencement of this Act and the company shall cancel such shares and substitute therefor registered shares issued in accordance with this Act and the regulations made thereunder. Any bearer shares which have not been recalled and cancelled within the said period of six months shall thereafter be null and void and be without effect for all purposes of law.
SCHEDULE (Section 176)
FEES TO BE PAID TO THE REGISTRAR
|Matter in respect of which fee is payable||Amount of fee|
|1.Upon filing Memorandum||$ 300|
|2.Upon filing Articles||$ 30|
|3.In respect of a company registered under this Act on 1st January in each year||$ 350|