BERMUDA, BRITISH VIRGIN ISLANDS AND CAYMAN ISLANDS COMPANY LAW CHRISTOPHER BICKLEY
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1 BERMUDA, BRITISH VIRGIN ISLANDS AND CAYMAN ISLANDS COMPANY LAW CHRISTOPHER BICKLEY HONG KONG SINGAPORE MALAYSIA SWEET & MAXWELL ASIA 2004
2 CONTENTS Note to Readers About the Author Acknowledgments Foreword by The Hon. Madam Justice Kwan Foreword by Professor ELG Tyler Preface Table of Cases Table of Statutes Page v vii ix xi xiii xv xix xxi CHAPTER 1 - INTRODUCTION TO BERMUDA Para Background 1-01 Company Law in Bermuda 1 03 Directors 1 07 Establishment 1-08 Taxation 1-09 Inspection of Corporate Records 1-10 Government Fees 1-11 Annexure A: Objects contained in the Second Schedule to the Bermuda Act 1-12 Annexure B: Standard powers contained in the First Schedule to the Bermuda Act 1-13 Annexure C: Appointed stock exchanges designated by the Minister of Finance under the Bermuda Act 1-14 Annexure D: Personal Declaration 1-15 Annexure E: Sample organisational documents on the incorporation of a Bermuda exempted company 1-16 CHAPTER 2 - INTRODUCTION TO THE BRITISH VIRGIN ISLANDS Background 2-01 Company Law in the BVI 2-03 Directors 2-09 Establishment 2-11 Taxation 2-14 Documents Available for Public Inspection Government Fees 2-16
3 lviii Contents Annexure A: Sample documents relating to the organisation of an IBC 2 17 CHAPTER 3 - INTRODUCTION TO THE CAYMAN ISLANDS Background 3-01 Company Law in the Cayman Islands 3 02 Directors 3-07 Establishment 3-09 Taxation 3-13 Public Disclosure 3-14 Government Fees 3 15 Annexure A: Sample organisational documents on the incorporation of a Cayman Islands exempted company 3 16 CHAPTER 4 - JOINT VENTURES, PREFERENCE SHARE ISSUES AND SHAREHOLDERS AGREEMENTS Introduction 4-01 Veto Rights and Super Majorities 4 04 Dividends 4-05 Conversion 4-06 Return of Capital 4-07 Special Considerations for Bermuda 4 08 Corporate governance 4-09 Dividends 4-13 Redemptions 4 14 Special Considerations for the BVI 4-15 Corporate governance 4 16 Dividends 4-18 Redemptions 4-19 Special Considerations for the Cayman Islands 4 20 Corporate governance 4 21 Dividends 4-22 Redemptions and purchases 4-23 CHAPTER 5 - SECURITY ISSUES Bermuda 5-03 The BVI 5-13 The Cayman Islands 5-18
4 Contents Annexure A: Form No. 9 (particulars of a mortgage or charge) 5-20 Annexure B: Form No. 9A (particulars of a mortgage or charge) 5-21 Annexure C: Form No. 11 (memorandum ofcomplete satisfaction of mortgage or charge) 5-22 Annexure D: Form No. lla (memorandum of (1) partial payment of satisfaction of mortgage or charge (2) release of part of property or undertaking from mortgage or charge) 5-23 Annexure E: Form No. lib (memorandum of fact that part of property or undertaking mortgaged or charged has ceased to form part of property or undertaking of company) 5-24 Annexure F: Register of mortgages, charges and other encumbrances 5-25 Annexure G: The Companies Law register of a charge or mortgage pursuant to Section CHAPTER 6 - INITIAL PUBLIC OFFERINGS Hong Kong 6-01 Incorporation and share swap 6 02 Share premium and contributed surplus 6 05 Prospectus requirements 6-09 Underwriting agreements 6-11 Bye-laws or articles of association 6 13 Hong Kong rules 6-14 Singapore Listings 6-22 Post Offering Matters 6-23 Schemes of Arrangement 6 24 Listings on Other Exchanges / Prospectus Requirements and Liabilities /Anti-takeover Provisions 6-26 Other Considerations 6-33 Annexure A: Illustration of incorporating the proposed issuer in Bermuda or the Cayman Islands 6-36 Annexure B: Illustration of implementing a share swap between the intermediate holding IBC and the operational group 6-37 Annexure C: Illustration of the position after the second share swap 6-38 Annexure D: Illustration of the position after the public offering 6 39 Annexure E: List of competent regulatory authorities 6-40 CHAPTER 7 - DIRECTORS Directors' Powers and Duties 7-01 Common Law Considerations 7-02 Directors' powers 7 02
5 Contents To whom are the duties owed? 7-03 Types of duties owed 7-04 Statutory Duties and Obligations 7-11 Bermuda 7 12 The BVI 7-17 The Cayman Islands 7-21 Meetings of Directors Notice Quorum Proceedings and voting, Directors' interests 7-29 Written Resolutions 7-30 CHAPTER 8 - SHAREHOLDERS Rights of Shareholders 8-01 Personal actions 8-02 Representative actions 8-03 Derivative actions 8-04 Winding up 8-07 Additional Provisions for Each Jurisdiction 8-08 Bermuda 8-08 The BVI 8-10 The Cayman Islands 8 13 Shareholder Meetings 8-14 Bermuda 8-14 The BVI 8-20 The Cayman Islands 8 22 CHAPTER 9 - ALTERATIONS TO CONSTITUTIONAL DOCUMENTS AND CAPITAL Amendments to Constitutional Documents 9-01 Bermuda 9-01 The BVI 9-03 The Cayman Islands 9 04 Financial Assistance 9-05 Bermuda 9-05 The BVI and the Cayman Islands 9-06 Alteration of Share Capital 9-07 Bermuda 9-07
6 Contents The BVI and the Cayman Islands 9-12 Annexure A: Form No. 7 (memorandum of increase of share capital) 9-19 Annexure B: Form No. 17 (memorandum of diminution of authorised but unissued share capital) 9 20 Annexure C: Form No. 16 (memorandum of change of the currency denomination of share capital) 9 21 Annexure D: Form No. 8b (memorandum of reduction of issued share capital) 9-22 Annexure E: Form No. 8c (certificate of deposit of memorandum of reduction of issued share capital) 9 23 CHAPTER 10 - MERGERS AND ACQUISITIONS Bermuda General offers Compulsory acquisition when holding 95 per cent in value of shares Schemes of arrangement Amalgamations The BVI Redemption of minority shares The Cayman Islands Compulsory acquisition Scheme of arrangement Reduction of capital Discontinuation CHAPTER 11 - AMALGAMATIONS, MERGERS AND CONTINUATIONS Bermuda Procedure Effect of amalgamation Short form amalgamations Continuations Amalgamation into Bermuda Discontinuances Amalgamation from Bermuda The BVI Continuation 11 28
7 lxii Contents The Cayman Islands Continuation CHAPTER 12 - MUTUAL FUNDS Bermuda Bermuda Standard Schemes Bermuda Institutional Schemes Bermuda Recognised Schemes The BVI The Cayman Islands Annexure A: Application for recognition of a private or professional mutualfund Annexure B: Application for registration of a public mutual fund Annexure C: Recognised stock exchanges Annexure D: Application for registration of a regulated mutual fund under the mutual funds law CHAPTER 13 - INVESTMENT MANAGERS Bermuda The BVI The Cayman Islands Annexure A: Application for a 'general" licence to provide management and/or administration services to mutual funds 13 L3 Annexure B: Application for a "restricted" licence to act as non-resident provider of management or administrative services to professional or private funds 13-1* Annexure C: CIMA application CHAPTER 14 - SECURITISATION Introduction Bankruptcy Remoteness Contractual restrictions on activities and debt limitations Change of ownership Independent existence Security interests over assets Limited recourse and non-petition Maintenance of the Vehicle and Trust Purpose/STAR Trust and Charitable Trusts Bermuda 14-10
8 Contents The BVI i4_i i The Cayman Islands Charitable trusts Conclusion Annexure A: Illustration of a simple securitisation structure Annexure B: Illustration of relationships between security ranking, payout in interest and return Annexure C: Illustration of the use of synthetic securitisations Annexure D: Illustration of the acquisition of assets and receipt of income by an SPV CHAPTER 15 - SEGREGATED ACCOUNTS COMPANIES Introduction Bermuda Deregistration Private acts Segregated account representatives Governing instruments and contracts Dividends, redemptions, repurchases and reductions of capital Accounts and registers Internal transactions Receivers Winding up The BVI Shares and dividends Contracts Designation of assets Receivership The Cayman Islands Issue of shares and dividends Contracts Segregation of assets and liabilities Winding up CHAPTER 16 - INSURANCE Bermuda Class 1 insurer Class 2 insurer Class 3 insurer 16-06
9 lxiv Contents Class 4 insurer Long-term insurers Establishment Ongoing requirements Fees Long-term business Transfers of long-term business Powers of the BMA Failure to meet margins of solvency Dividends and reducing statutory capital Winding up of insurers carrying on long-term business Subsidiary insurers Cancellation of registration Request for assistance by foreign regulatory The BVI Establishment Ongoing requirements Long-term business Winding up Cancellation of licence Disclosure of documents The Cayman Islands Establishment Ongoing requirements Revocation of licence Winding up Annexure A: Bermuda pre-incorporation form Annexure B: BVI insurance application form Annexure C: Cayman Islands application for Class B insurer's licence CHAPTER 17 - LIQUIDATIONS Bermuda Voluntary winding up Liquidator's powers Winding up by the court Power of directors to petition 17 0J Definition of inability to pay debts 17-1" Provisional liquidators 17-12
10 Contents Liquidators Fraudulent trading, fraudulent preference and fraudulent conveyance Power to summon persons The BVI Winding up under the IBC Act Insolvency Act Administration orders Receivership Liquidations Remedies against delinquent officers Fraudulent trading Insolvent trading Disqualification orders Termination Court termination Termination by liquidator The Cayman Islands Voluntary winding up Winding up by the court CHAPTER 18 - THE INTERNATIONAL INITIATIVES AND THEIR EFFECT ON BERMUDA, THE BVI AND THE CAYMAN ISLANDS The OECD Review Financial Action Task Force on Money Laundering Bermuda The BVI The Cayman Islands The KPMG Review Bermuda The BVI The Cayman Islands Conclusion Index page 547
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