THE COMPANIES ORDINANCE, 1972

Part VII.—Overseas Companies

309.—(1) This Part of this Ordinance shall apply to all overseas companies which, after this Ordinance comes into operation, establish a place of business or carry on business in Seychelles and to all overseas companies which have before this Ordinance comes into operation, established a place of business or carried on business in Seychelles, and either continue to have an established place of business or to carry on business there after this Ordinance comes into operation.

(2) An overseas company' shall be considered as carrying on business in Seychelles if it—

(a) enters into two or more contracts with persons resident there, or with companies formed or incorporated there, being contracts which—

(i) are entered into in connection with the business or objects which the overseas company carries on or pursues ; and

(ii) by their express or implied terms are to be wholly or substantially performed in Seychelles, or may be so performed at the option of any party thereto ; or

(b)   appoints an agent who resides or has a place of business in Seychelles to represent the overseas company in connection with the making or performance of two or more contracts which fall within paragraph (a) of this subsection, or in connection with the transactions of the overseas company in Seychelles generally, whether the appointment is made for a fixed period of time or not; ot

(c)   owns, possesses or uses assets situate in Seychelles for the purpose of carrying on or pursuing its business or objects, if it obtains or seeks to obtain-from those assets directly or indirectly, any revenue, profit or gain, whether realised in Seychelles or not; or

{d) issues, or is deemed under section 4$ tc issue, in Seychelles a prospectus offering its shares or debentures for subscription or purchase.

(3) An overseas company shall not be considered as entering into a contract within paragraph (o) of subsection (2) if it subscribes for or purchases shares or debentures of a company incorporated under this Ordinance or of an existing company.

310. —(1) Overseas companies which, after this Ordinance comes into operation, establish a place of business in Seychelles or commence to carry on business in Seychelles shall, within fourteen days after the establishment of the place of business or the commencement of business as aforesaid, deliver to the Registrar for registration : —

(a)   a certified copy of the charter, statutes, memorandum and articles of association, certificate or articles of association or incorporation of the company or the other instrument which constitutes the overseas company or contains the regulations which govern it, and, if the instrument is not written in the English language, a certified translation thereof;

(b)   a list of the directors and secretary of the company containing the particulars mentioned in sub section (3);

(c)     the name of the person or persons who has or have been appointed to be the managing agent or agents of the overseas company in Seychelles, and the particulars in respect of that person or each of those persons mentioned in subsection (3); and

(d)   the names of two or more persons who have been appointed to accept on behalf of the company service of process and any notices required to be served on the overseas company, and the particulars in respect of those persons mentioned in subsection (3).

(2)  Any of the persons appointed for the purposes mentioned in paragraphs (c) and (d) of subsection (1) may be an individual or a firm resident or carrying on business in Seychelles, or a company formed or incorporated in Seychelles.

(3)  The particulars required by paragraphs (b), (c) and {d) of subsection (1) shall be—

(a)   with respect to each individual who is a director, managing agent in Seychelles or person appointed to accept service on behalf of the overseas company in Seychelles, his present Christian name and surname and any former Christian name or surname, his usual residential address, his nationality and his business occupation (if any) or, if he has no business occupation but holds any other directorship or directorships, particulars of that directorship or of some one of those directorships;

(b)   with respect to a company, body corporate or firm which is a director, managing agent or person appointed to accept service on behalf of the overseas company in Seychelles, its corporate or firm name, the country where it was formed or incorporated, and its registered office (if any) and its principal place of business in Seychelles (if any);

(c)   with respect to the secretary of the overseas company or, where there are joint secretaries, with respect to each of them—

(i) in the case of an individual, his present Christian name and surname, any former Christian name and surname and his usual residential address ; and

(ii) in the case of a company, body corporate or firm, its corporate or firm name and its registered office (if any) and principal place of business in Seychelles (if any). Section 169(9) shall apply for the purpose of the construction of references in this subsection to present and former Christian names and surnames as they apply for the purpose of the construction of such references in that section.

(4)  Overseas companies which have established a place of business in Seychelles or carried on business in Seychelles before this Ordinance comes into operation, and which continue to have an established place of business or to carry on business in Seychelles thereafter, shall within fourteen days after this Ordinance comes into operation deliver to the Registrar the documents specified in subsection (1), but an overseas company shall not be required to deliver a certified copy of its charter, statutes, or memorandum or articles of association, certificate or articles oi association or incorporation, or the other instrument which constitutes the overseas company or contains the regulations which govern it, nor to deliver a certified translation thereof, if the overseas company already delivered copies of those documents in compliance with section 7 of the Overseas Corporation Ordinance, 1959.

(5)  If any overseas company to which this Part of this Ordinance applies ceases to have a place of business or to carry on business in Seychelles, it shall forthwith give notice of the fact to the Registrar, and as from the date on which notice is so given the obligation of the overseas company to deliver any document to the Registrar under this Part of this Ordinance shall cease :

Provided that if the Registrar is satisfied by any other means that the company neither has a place of business nor carries on business in Seychelles, it shall be lawful for him to make an entry to that effect against the particulars delivered by the overseas company, and thereupon the obligation of the company to deliver any document to the Registrar under this Part of this Ordinance shall cease.

(6)  When an overseas company has delivered a notice or notices to the Registrar under subsection (5) which show that the company neither has a place of business in Seychelles nor carries on business there, the overseas company shall, for the purposes of this Ordinance, be deemed not to be a company to which this Part of this Ordinance applies as from the date such notice or the later or latest of such notices is delivered, but without prejudice to the duty of the overseas company to comply with this section if after that date it establishes a place of business in Seychelles or carries on business there.

(7)  If the Registrar has cause to believe that any notice delivered to him under subsection (5) contains any statement which is untrue or omits any matter which should be stated therein, he may direct that subsection (6) shall not apply to the overseas company in consequence of the delivery of that notice.

(8)  If any person delivers or concurs in delivering to the Registrar any notice or other document under this section which he knows to be false, or to contain a statement which is false, or to omit any matter which should be stated therein, he shall be guilty of an offence punishable by a fine not exceeding ten thousand rupees or imprisonment for nor more than two years, or by both such fine and such imprisonment,

(9)  If an overseas company to which this Part of this Ordinance applies fails to comply with subsection (1) or (4) as the case may be, every director of the company who is in default and the managing agent of the company in Seychelles shall be guilty of an offence punishable by a fine not exceeding ten thousand rupees or imprisonment for not more than two years, or by both such fine and such imprisonment.

311.—(1) An overseas company to which this Part of this Ordinance applies which has corporate status or personality or moral personality by the law of the country where it was formed or incorporated shall for all purposes be deemed to be a body corporate, and may hold assets, contracts and transactions, and sue and be sued in its corporate name.

(2) An overseas company to which this Part of this Ordinance applies which has delivered to the Registrar the diocuinenls and particulars required by subsections (1) or (3) of section 310 within the period thereby limited shall, subject to the provisions of the Immovable Property (Transfer Restriction) Ordinance, 1963, have the same power to hold land as if it were a company incorporated under this Ordinance.

(3) In all other respects the powers of an overseas company to which this Part of this Ordinance applies and the powers and authority of its directors shall be governed by the law of the country where the company was incorporated, but : —

(a)   section 33(1) and (2) and section 34(1), (2) and (3) shall apply to an overseas company to which this Part of this Ordinance applies in connection with contracts and transactions which are entered into or carried out (in whole or part) in Seychelles, or which are expressly or impliedly subject to the law of Seychelles, as though the overseas company were a company other than a proprietary company ; and

(b)   subject to paragraph (a), all questions arising in respect of a contract or transaction entered into or carried, out by an overseas company to which this Part of this Ordinance applies shall be governed by the law of the country where the contract is to be wholly or mainly performed, or where the transaction is wholly or mainly carried out.

312.—(1) If any alteration is made or occurs in—

(a)   the charter, statutes, or memorandum or articles of association, certificate or articles of association or incorporation or the other instrument which constitutes an overseas company or contains the regulations which govern it, being an overseas company to which this Part of this Ordinance applies ; or

(b)   the directors, secretary, managing agent or agents or persons appointed to accept service on behalf of the overseas company, or the matters particulars of which have been delivered to the Registrar in respect of any of those persons ;

the company shall, within fourteen days after the occurrence of the event giving rise to the alteration, deliver to the Registrar for registration a copy of the resolution, contract or declaration by which the alteration is made to the instrument mentioned in paragraph (a) of subsection (1), or in a case falling under paragraph (b), the same particulars as are required by section 310(3) in respect of any person who as a result of the alteration is appointed to be or ceases to be a director, secretary, managing agent or person appointed to accept service on behalf of the overseas company, or if any matter particulars of which have been delivered in respect of any such person have changed or been altered, particulars of the alteration.

(2)  Sections 169(9) and 310(8) shall apply to notices and documents delivered to the Registrar under this section as they apply to notices and documents delivered under section 310.

(3)  If an overseas company to which this Part of this Ordinance applies fails to comply with subsection (1), every director of the company who is in default and the managing agent of the company in Seychelles shall be guilty of an offence punishable by a fine not exceeding ten thousand rupees or by imprisonment for not more than two years, or by both such fine and such imprisonment.

313.—(1) No overseas company shall carry on business in Seychelles unless it has appointed a managing agent to represent it there and the appointment has not terminated by dismissal, resignation, expiration of the period of appointment, death or otherwise.

(2)  A managing agent of an overseas company shall in respect of contracts and transactions entered into, acts done and defaults made in Seychelles, and in respect of the company having notice of any matter, be deemed to be a managing director or a director of the company (as the case may be) for the purposes of sections 34, 37, 38 and 39.

(3)  The termination of the appointment of a managing agent shall not be effective as against any person who deals with him or does any act in relation to him, unless at the time of such act or dealing notice of the termination of his appointment has been delivered by the company to the Registrar.

(4) An individual or two or more individuals resident in Seychelles or a company or body corporate formed or incorporated in Seychelles may be appointed to be the managing agent or agents of an overseas company, but an overseas company may not be appointed to be the managing agent of another overseas company.

(5) If an overseas company to which this Part of this Ordinance applies ceases both to have a place of business in Seychelles and to carry on business in Seychelles, the managing agent most recently appointed by it shall for the purpose of this Ordinance be deemed to continue to be the managing agent of the company notwithstanding the termination of his appointment, and all persons may act accordingly, but an overseas company shall not be considered as continuing to be one to which this Part of this Ordinance applies merely because of the deemed continuation under this subsection of the appointment of a managing agent.

(6) If at any time two or more individuals are the managing agents in Seychelles of an overseas company, this section shall apply as though each of them were the sole managing agent thereof.

314.- -(1) Every overseas company to which this Part of this Ordinance applies shall, in every calendar year and at inteivals not exceeding fifteen months, make out a balance sheet and profit and loss account and, if the company is a holding company, group accounts, in such form, and containing such particulars and including such documents, as under the provisions of this Ordinance it would. if it had been a company within the meaning of this Ordinance, have been required to make out and lay before the company in general meeting, and deliver copies of those documents to the Registrar within twenty-eight days after they are made out.

(2) The annual accounts of an overseas company shall, in addition to setting out the matters specified in the Sixth Schedule to this Ordinance, comply with the following rules, namely—

(a)   the fixed assets and current assets of the company and its assets which are neither fixed nor current shall be separately identified and classified, and such assets situate in Seychelles shall be distinguished from such assets situate elsewhere ;

(b)   the amount of the company's cash held by banks incorporated in Seychelles and branches of banks operating in Seychelles shall be distinguished from cash held by other banks ;

(c)   the amount of bank loans and overdrafts made to the company by banks incorporated in Seychelles or branches of banks operating in Seychelles shall be distinguished from bank loans and overdrafts made by other banks ;

(d)   the aggregate amount of the company's debts and liabilities to persons resident or carrying on business in Seychelles and to companies and bodies corporate formed or incorporated there shall be separately shown, r.nd there shall also be shown the amount of such debts and liabilities which : —

(i) are already due or will or may become due within twelve months after the daite as at which the annual accounts of the company are made out ;

(ii) will become due between twelve and thirty-six months after that date ; and

(iii) will become due more than thirty-six months after that date ; and

(e)   the aggregate amount of the company's debts and liabilities which are secured by a hypothecation, mortgage or charge on assets situate in Seychelles shall be separately shown.

O) For the purpose of subsection (2) : —

(a)   a debt shall be deemed to be due on the earliest date on which the creditor could require payment of it to be made ;

(b)   the whole of a debt shall be deemed to be due when any instalment of it falls due ; and

(c)   an overseas company shall be deemed to be indebted to debenture stockholders and loan stockholders for the principal amount and any arrears of interest in respect of the debenture stock or loan stock held by them.

(4) The Governor in Council may by an order published in the Gazette exempt any overseas company from compliance with subsections (1) or (2) of this section, or from both those subsections, on such terms and conditions as he thinks fit if : —

(a) he is satisfied that the overseas company has, and will maintain, in Seychelles sufficient cash and readily realisable assets (as defined by paragraph (c) (i) of section 206(1)) to satisfy its debts as they fall due ; or

(b) a company (whether an overseas company or not) which is the holding company of the overseas company has delivered to the Registrar a written undertaking to pay all the present and future debts and liabilities of the company to persons resident or carrying on business in Seychelles and to companies and bodies corporate incorporated in Seychelles ;

and while any exemption granted under this subsection continues in force, this section shall not apply to the overseas company.

(5)  A written undertaking in respect of the debts and liabilities of an overseas company delivered under subsection (4) shall be enforceable by any creditor of the overseas company who was resident or carrying on business in Seychelles at the time the debt or liability to him is incurred, and by any company or body corporate incorporated in Seychelles, as though the undertaking were a wriiten guarantee of the amount payable to the creditor by the overseas company given by the holding company to the creditor at the date when the debt or Hability to him is incurred.

(6)  The Governor in Council may :it any time revoke an exemption granted under subsection (4), and thereupon any undertaking delivered by a holding company under that subsection shall cease to have effect, but without prejudice to the liability of the holding company in respect of debts and liabilities of the overseas company incurred before the revocation is advertised under subsection (7).

(7)  The Registrar shall advertise the revocation of an exemption granted under this section in the Gazette as soon as conveniently after the revocation takes place.

(8)  Upon the revocation of an exemption granted under subsection (4), subsections (1) and (2) of this section shall apply to the overseas company as though it were thereby required to deliver copies of its annual accounts to the Registrar as from the date of the revocation ; the overseas company shall also deliver to the Registrar a copy of its annual accounts for its financial year ending last before that date within three months after that date, and the copy of the accounts so delivered shall comply with subsections (1) and (2).

(9)  If any document delivered to the Registrar under this section is not written in the English language, there shall be annexed to it a certified translation thereof.

(10)  Until sections 143 to 145 come into force, subsection (1) shall take effect as though the words "and if the company is a holding company, group accounts" were omitted therefrom.

(11)  If an overseas company fails to make out or to deliver a copy of its annual accounts to the Registrar in compliance with this section, every director of the company who is in default and every managing agent of the company in Seychelles shall be guilty of an offence punishable by a fine not exceeding one hundred rupees for every day during the first month that default continues, two hundred and fifty rupees for every day during the next two months that default continues, and five hundred rupees for every day that default continues thereafter.

(12)  In a prosecution under subsection (11) the fact that an overseas company has not delivered a copy of its annual accounts to the Registrar shall be presum-tive evidence that it has not made out those acco'ints.

315.—(1) Every overseas company to which this Part of this Ordinance applies shall—

(a) in every prospectus inviting subscriptions for or purchases of its shares or debentures issued in Seychelles state the country in which the company was formed or incorporated ; and

{b) conspicuously exhibit on every place where it carries on business in Seychelles the name of the company and the country in which the company was formed or incorporated ; and

(c)   cause the name of the company and of the country in which the company was formed or incorporated to be stated in legible characters in all letters, business communications, notices, advertisements and other publications of the company, and in all bills of exchange, cheques, promissory notes endorsements, cheques and orders for money or goods, purporting to be signed by or on behalf of the company, and in di invoices, receipts and letters of credit of the company ; and

(d)   if the liability of the members or shareholders of the company is limited, cause notice of that fact to be stated in the English language in legible characters in every such prospectus as aforesaid and in all letters, business communications, notices, advertisements and other publications of the company issued, delivered or published in Seychelles and to be affixed, on every place where it carries on its business.

(2) If an overseas company fails to comply with any of the provisions of subsection (1), every director of the company who is in default and the managing agent of the company in Seychelles shall be guilty of an offence punishable by a fine not exceeding one thousand rupees.

316.—(1) Any process, notice or document required to be served on an overseas company shall be sufficiently served if—

{a) it is addressed to any of the persons who have been appointed by the company for that purpose and particulars of whom have been delivered to the Registrar under section 310 ; and

(b) it is left at or sent by post to the address notified to the Registrar in respect of that person which has been so delivered.

(2)  Service under subsection (1) shall be effectual notwithstanding the termination of the appointment of the person who is so served, unless the overseas company has notified the Registrar of the termination and has delivered to the Registrar the particulars required by section 310 in respect of at least two other persons who have been appointed to accept service on behalf of the overseas company and whose appointments for that purpose have not terminated.

(3)  If an overseas company to which this Part of this Ordinance applies neither has a place of business in Seychelles nor carries on business in Seychelles, the two persons -most recently appointed by it to accept service on its behalf shall for the purposes of this Ordinance be deemed to continue to be authorised to accept service on its behalf notwithstanding the termination of their appointments, and all persons may act accordingly, but an overseas company shall not be considered as continuing to be one to which this Part of this Ordinance applies merely because of the deemed continuance under this subsection of the authority of persons appointed to accept service on its behalf.

317.—(1) Sections 40 to 50 inclusive shall apply to an overseas company as they apply to a company incorporated under this Ordinance, subject to the following modifications : —

(a)   in section 40(1) after the word "incorporated" there shall be added the words "or formed with corporate status or personality or with moral personality under the law of the company where it was formed or incorporated" ;

(b)   references to "directors" in section 40(3) and (13), sections 41(10), 42(3), 43(4) and (8), section 44(3) and (8), section 46(1), (2) (except paragraph (a) thereof) and (4), section 47(1) and (5), and section 49(5) shall be construed to include references to the managing agent or agents of the overseas company, particulars of whom have been delivered to the Registrar ; and

(c)   section 41(1) shall be deemed to require a prospectus issued by or on behalf ot an overseas company to contain, in addition to the matters there mentioned, the following particulars and statement : —

(i) the names, descriptions and addresses of the directors and proposed directors of the company, and of the managing agent or agents of the company, particulars of whom have been delivered to the Registrar;

(ii) the date when, and the country under the law of which, the company was incorporated or formed with corporate status or personality or with moral personality ;

(iii) an address in Seychelles where there will be available for inspection a copy of the charter, statutes, or memorandum and articles of association, certificate or articles of association or incorporation, or the other instrument which constitutes the overseas company or contains the regulations which govern it, and a copy of the legislation under which the company was incorporated or formed, together, if any such documents are not written in the English language, with certified translations thereof; and

(iv) a statement that any person may inspect the documents mentioned in sub-paragraph (iii) of this paragraph at the address specified in the prospectus at any reasonable hour between the date on which the prospectus is first issued and six months after the closing of the subscription lists for the shares or debentures offered thereby for subscription or purchase, and that any person may also obtain a copy of any such document at that address between those dates on payment of a fee not exceeding five rupees for each such document.

(2)  If inspection of any document mentioned in paragraph (c) (iii) of subsection (1) is refused to any person who makes a request therefor in accordance with paragraph (c)(iv) of that subsection, or if a copy of any such document is not supplied within two days to any person who makes such a request therefor and tenders the proper fee for such a copy, every director of the company and its managing agent or each of its managing agents in Seychelles shall be guilty of an offence punishable by a fine not exceeding one thousand rupees.

(3)  Sections 69 to 82 inclusive shall apply to an overseas company as they apply to a company incorporated under this Ordinance, and references therein to directors or officers of a company shall be construed as including references to the managing agent or agents of an overseas company, particulars of whom have been delivered to the Registrar.

318.—(1) Where a company formed or incorporated outside Seychelles has or has had a place of business in Seychelles, or carries on or has carried on business in Seychelles, it may be wound up as though it were a company incorporated under this Ordinance.

(2)  This section shall apply notwithstanding that the company has been dissolved or has ceased to exist under the laws of.the country in which it was incorporated or formed, and in that case the company shall for the purposes of this Ordinance be deemed to have continued in existence until it is dissolved by order of the court.

(3)  This section shall also apply to an overseas company which has never had a place of business in Seychelles and has never carried on business there, if the company has assets in Seychelles, or if, upon the company being wound up by the court, assets in Seychelles would be recoverable by the liquidator or claims against any person resident or carrying on business in Seychelles would be enforceable by the liquidator or any creditor of the company.

319.—(1) If an offence under this Part of this Ordinance is committed by a director or by a managing agent in Seychelles of an overseas company and any fine imposed on that person is not paid within seven days after the date of his conviction, the fine may be recovered out of the assets of the overseas company as though it had been convicted of the offence and the fine had been imposed on it, and it shali be immaterial that before or after the date of the commission or commencement of the offence the overseas company has ceased to be a company to which this Part of this Ordinance applies.

(2) Sections 183 to 195 inclusive and section 337 shall apply in respect of an overseas company as though it were a company incorporated under this Ordinance.

320.—(1) If the Registrar considers that : —

(a)   any director, officer, managing agent or other agent of an overseas company has in Seychelles or elsewhere in connection with the management or conduct of its affairs committed a criminal offence involving dishonesty, or has obtained credit or the transfer or delivery of assets or the performance of services by false representations made fraudulently or by the dishonest concealment of material facts ; or

(b)   any offence has been committed by any person in Seychelles in connection with a prospectus issued by or on behalf of the overseas company, or deemed by section 48 to be issued by it; or

(c)   any business or affairs of the overseas company in Seychelles has been conducted illegally or for an illegal purpose ; or

(d) any act has been done by or on behalf of an overseas company in Seychelles or elsewhere which has harmed or is likely to harm the economic welfare of Seychelles ; he may serve written notice on the overseas company of his intention to make an order requiring it to cease to carry on business in Seychelles, stating the grounds on which the order will be made and informing the company that it may within one month from the service of the notice make written representations to him which he will take into consideration.

(2)  If within one month from the service of a notice under subsection (1) the overseas company does not make written representations to the Registrar, or if the Registrar, after considering any written representation which the overseas company makes to him within that time, is satisfied that the ground which was specified in the notice for making an order under this section is made out, he may make an order requiring the overseas company forthwith or after a period limited by the order to cease to carry on business in Seychelles.

(3)  A copy of an order made under subsection (2) shall be served on the overseas company and the order shall be published in the Gazette.

(4)  Within one month after service on the overseas company of a copy of an order made under subsection (2), it may, if the order was made on any of the grounds mentioned in paragraphs (a), (b) or (c) of subsection (1), appeal to the court, and the court may annul the order if the overseas company satisfies it that the ground or grounds on which it was made do not exist.

(5)  If an order has been made under subsection (2) in respect of an overseas company and any period limited by it has expired, and, in a case where the company has appealed to the court against the order, if its appeal has been rejected, the overseas company shall cease to carry on business in Seychelles and to have a place of business there, and shall give notice accordingly under section 310(5).

(6)  If an overseas company carries on business in Seychelles or has a place of business there after it should have ceased to do so under subsection (5), the company and every director, officer, managing agent and agent of the company who is in default shall be guilty of an offence punishable by a fine not exceeding ten thousand rupees or, in the case of an individual defendant, by imprisonment for not more than two years, or by both such a fine and such imprisonment.

321. For the purpose of this Part of this Ordinance: —

(a) a certified copy of a document means a copy which has been certified by a judge, magistrate, notary, barrister, attorney or prescribed person, whether holding office under the law of Seychelles or of any other country, to be a true and complete copy of the document; and

(b) a certified translation of a document means a translation thereof which has been certified by an officer of an Embassy, High Commission, Consulate or Vice-Consulate or by a prescribed person.