THE COMPANIES ORDINANCE, 1972

Part VIII.—Existing Companies

322.—(1) Subject to the provisions of this Part of this Ordinance, Parts 1 to VI inclusive of this Ordinance shall apply to an existing company as though it had been incorporated on the date on which this Ordinance comes into operation by the Registrar issuing to it under section 11 a certificate of incorporation bearing that date.

(2)  This Ordinance and all other rules of law shall apply to the regulations of an existing company as though such of them as would, in the case of a company incorporated under this Ordinance, be required to be set out in its memorandum, were set out in a registered memorandum of association of the existing company, and as though the remainder of the said regulations were contained in registered articles of association of the existing company.

(3)  The name of an existing company shall, as from the date on which this Ordinance comes into force, be the name which it had immediately before that date with the addition of the word "Limited" as the last word thereof, unless that word was immediately before that date the last word of its name.

(4)  The regulations of an existing company shall be deemed to provide that its registered office shall be situate in Seychelles, and the company shall within fourteen days after this Ordinance comes into operation deliver to the Registrar a statement of the address of its registered office signed by a director of the company.

(5)  Any provisions of the regulations of an existing company which conflict or are inconsistent with the provisions of this Ordinance shall be void as from the date when this Ordinance comes into force.

(6)  Section 8 shall apply to an existing company and to its regulations.

(7)  In this Part of this Ordinance the regulations of an existing company mean the contract, statutes, notarial deed or other instrument by which it was formed and which were referred to in the proclamation sanctioning its formation issued by the Governor, subject to such alterations thereof and additions thereto as have been lawfully made since the date of the proclamation.

(8)  If an existing company fails to comply with subsection (4) the company and every director thereof shall be guilty of an offence punishable by a fine of one thousand rupees and a further fine of one hundred rupees for each day that the default continues.

(9)  Nothing in this section shall invalidate any contract or transaction entered into, or any shares or debentures issued by an existing company before this Ordinance comes into force, and if bearer share certificates have been issued in respect of such shares, the issue shall be as effectual as if they had been issued with the consent of the Financial Secretary under section 90.

323.—(1) An existing company may by an ordinary resolution passed by a general meeting adopt a memorandum and articles of association in place of the regulations which apply to it immediately before this Ordinance comes into operation, but the company may not alter or add to the provisions of its regulations unless it complies with section 18 or section 20 (whichever is applicable), and in that case sections 19 and 21 shall apply to the alteration or addition.

(2)  Every shareholder of an existing company shall be entitled to vote upon any resolution proposed under subsection (1), whether it does or does not alter or add to the regulations of the company, and section 118(1) shall apply to the resolution.

(3)  The adoption of any of the provisions contained in the forms of articles of association set out in Parts II or IV of the First Schedule to this Ordinance, shall not be considered to be an alteration of or addition to the regulations of an existing company for the purpose of this section.

324.—(1) An existing company may, within six months after the date when this Ordinance comes into operation and before holding its first annual general meeting after thnt date, declare itself to be a proprietary company. The declaration shall be made by all the shareholders of the company subscribing an instrument in the prescribed form and the declaration shall take effect only when the company delivers that instrument to the Registrar.

(2)  An instrument under subsection (1) may be subscribed on behalf of a person who is a minor or who has been interdicted by his tutor, or if he has no tutor, by a person appointed by the court for that purpose.

(3)  A declaration made under subsection (1) shall be effective only if, at the dates when the instrument containing it is signed by each subscriber and when that instrument is delivered to the Registrar, the company satisfies the conditions contained in section 24(1) and has not at any time before or after this Ordinance comes into operation issued a prospectus inviting the public to subscribe for its shares or debentures.

(4)  Upon delivery of an instrument subscribed under subsection (1), the Registrar shall make enquiries to ensure that the conditions mentioned in subsection (3) have been fulfilled, and on being satisfied in that respect, the Registrar shall issue a certificate of incorporation to the company. The certificate of incorporation shall be conclusive evidence that the company is authorised to become, and is at the dale of the certificate, a proprietary company, and that ail proceedings leading to the issue of the certificate were duly and regularly taken.

(5)  In satisfying himself that the conditions mentioned in subsection (3) have been fulfilled, the Registrar may rely to such extent as he thinks fit upon a signed declaration made by a notary, barrister or attorney in respect of any relevant facts.

(6)  If a certificate is issued under this section the word "Proprietary" shall be added to the name of the company as the penultimate word thereof.

(7)  If a certificate of incorporation is issued under this section, the company shall for all purposes be deemed to have been a proprietary company from the date on which this Ordinance comes into operation until the date of the certificate.

325.—(1) Notwithstanding anything in the regulations of an existing company, the company shall hold its annual general meeting for the year in which this Ordinance comes into operation (in this section called its transitional annual general meeting) within six months atter the date when this Ordinance comes into operation, and shall hold its annual general meetings for subsequent years in accordance with section 119.

(2)  An existing company need not hold its transitional annual general meeting under subsection (1) if it has, in accordance with its regulations, held an annual general meeting for the year in which this Ordinance comes into operation before the date when it comes into operation, but if in reliance on this subsection a company does not hold its transitional annual general meeting under subsection (1), section 119(1) and (3) shall apply to it as though it had held an annual general meeting four months after this Ordinance comes into operation.

(3)  All directors of an existing company holding office at the date when this Ordinance comes into operation shall, notwithstanding anything in the regulations of the company, retire at the end of the second annual general meeting of the company held after that date, but any such director may be re-elected at any annual general meeting of the company, and thereupon section 163(1) shall apply to him :

Provided that a director of an existing company shall cease to hold office before the second annual general meeting aforesaid if he becomes disqualified under this Ordinance or the regulations of the company from being or acting as a director of it, or if by or under the regulations of the company or any contract with him his appointment terminates.

(4)  Subsection (3) shall not apply to an existing company after it delivers to the Registrar an instrument under section 324 if the Registrar issues a certificate of incorporation to it under that section.

326.—(1) A person who is a managing director of an existing company at the date when this Ordinance comes into operation shall cease to be a managing director thereof one month after that date, but without prejudice to the power of the directors at any time after that date to appoint him or any other person to be a managing director under section 178.

(2)  In this section the expression "managing director" means a director, by whatsoever name called, whom the directors have appointed to exercise the powers necessary for carrying on the company's business in the usual way, whether with or without other powers and whether subject to exceptions, conditions or restrictions or not.

(3)  This section shall not apply to an existing company after it delivers to the Registrar an instrument under section 324 if the Registrar issues a certificate of incorporation to it under that section.

327.—(1) If an existing company has before the date when this Ordinance comes into operation issued two or more classes of shares and the rights or obligations of any of those classes of shares are wholly or partly set out in a resolution, prospectus, contract or instrument (other than the regulations of the company) the rights and obligations so set out shall for the purposes of this Ordinance be deemed to be set out in the company's regulations.

(2) Section 118(3) shall apply to non-participating preference shares issued by an existing company before the date when this Ordinance comes into operation as it applies to such shares issued after that date.

328.—(1) The Governor in Council may bv order adapt, modify or add to the provisions of this Ordinance insofar as they apply to existing companies for the purpose of enabling existing companies to conform in an orderly manner to the requirements of this Ordinance applicable to companies incorporated thereunder.

(2)  The Governor in Council may, by order made under this section, either conditionally or unconditionally exempt from any of the requirements of this Ordinance any particular existing company or class of existing companies.

(3)  An order made under this section shall be published in the Gazette.