THE COMPANIES ORDINANCE, 1972

SEYCHELLES Ordinance No. 4 of 1972.

I assent,

B. GREATBATCH,

Governor,

10 March, 1972.

An Ordinance to provide for the incorporation, regulation and winding up of companies, and to make provision for other matters relating thereto and connected therewith.

ENACTED by the Governor with the advice and consent of the Legislative Assembly.

Part I.—Preliminary

1.—(1) This Ordinance may be cited as the Companies Ordinance, 1972.

(2) Subject to any express provision to the contrary, this Ordinance shall come into operation on such day as the Minister may, by notice in the Gazette, appoint, and different days may be appointed for different provisions of this Ordinance or for the same provision in relation to different cases or classes of case.

2.—(1) In this Ordinance—

"accounts" includes the group accounts of a company or corporation ;

"annual accounts" and "annual accounts and reports" have the meanings assigned to them respectively by section 141(5);

"annual general meeting" means the general meeting held for any year under section 119 ;

"annual return" means the return required to be made under section 114 ;

"articles" means the articles of association of a company, as originally framed or as altered by special resolution, including, so far as they apply to the company, the regulations contained in Part II or, in the case of a proprietary company, Part IV of the First Schedule to this Ordinance, and in the case of an existing company, means the regulations contained in the notarial deed, contract, statutes, articles of association or other instrument under which the company was constituted insofar as such regulations would not, in the case of a company formed under this Ordinance, be required to be set out in its memorandum of association;

"assets" means any property in which a company has any interest or over which it has any rights ;

"associated company" has the meaning assigned to it by section 111(3);

"bearer debenture" means a debenture the principal or interest of which is by its terms payable to the bearer of the debenture for the time being, and includes a renounceable or transferable letter of allotment or acceptance in respect of debentures;

"bearer share certificate" means a certificate by the terms of which the bearer of the certificate for the time being is entitled to the shares specified in it, and includes a renounceable or transferable letter of allotment or acceptance in respect of shares;

"book and paper" and "book or paper" include accounts, deeds, writings, and documents ;

"capital reserve" means the total of the amounts referred to in section 55(5);

"chairman" means the person who presides at a meet ing or during part of a meeting ;

"company" means a company formed and registered under this Ordinance or an existing company ;

"contributory" has the meaning assigned to it by section 204 ;

"convertible debenture" has the meaning assigned to it by section 173(5);

"court" means the Supreme Court of Seychelles, except in connection with criminal proceedings lor contraventions of this Ordinance, when it means the court before which such proceedings may be brought ;

''creditors' voluntary winding up" has the meaning assigned to it by section 253(4) ;

"debenture" means a written acknowledgment of indebtedness issued by a company in respect of a loan made to it or to any other person (whether before, or at the time of, or subsequently to the issue of the debenture) or in respect of existing indebtedness of the company or any other person, and includes debenture stock, a bond, an obligation (whether under seal or authenticated by a notarial deed or not), loan stock, an unsecured note or any other instrument executed, authenticated, issued or created in consideration of such a loan or existing indebtedness, whether constituting a charge on any of the assets of the company or not, but does not include a bill of exchange, cheque, promissory note, banker's draft, banker's cheque or letter of credit, nor an acknowledgment of indebtedness issued in the ordinary course of business for goods or services supplied, nor a deposit certificate, pass book or similar document issued in connection with a deposit or current account at a bank, nor a policy of insurance ;

"debenture stock" means a debenture by which a company or trustees of a debenture trust deed acknowledge that the holder of the stock is entitled to participate in the debt owing by the company to the trustees under the debenture trust deed, and includes loan stock ;

"debenture trust deed" means a deed executed by a company and trustees appointed by the deed in con-. nection with the issue of debentures, together with any supplemental deed, resolution or scheme of arrangement modifying the terms thereof, and any deed substituted therefor ;

"derivative interest" has the meaning assigned to it by section 26(2);

"director" includes any person occupying the position of director by whatever name called, and any person in accordance with whose directions or instructions the directors of a company are accustomed to act, but does not include a holding company or a substantial shareholder merely by virtue of its or his position as such ;

"directors' annual report" has the meaning assigned to it by section 153(1);

"document" includes a summons, notice, order, or other legal process, and a register ;

"employee share subscription scheme" has the meaning assigned to it by section 173(6);

"equity capital" means the issued share capital of a company or corporation, except non-participating preference shares and preference shares which do not entitle their holders to unrestricted voting rights as defined by section 118(7);

"existing company" means a limited company (so-ciete anonyme) formed and proclaimed under the provisions of the Commercial Code ; "extraordinary general meeting" has the meaning assigned to it by section 120(1) ;

"financial year" means in relation to any body corporate, the period in respect of which any profit and loss account of the body corporate is made up, whether that period is a year or not; firm" means a partnership (societe en nom collectif), limited partnership (societe en commemdite) or civil company (societe civile);

"floating charge" means a security created over a class or classes of assets of a company when the instrument creating the security does not identify the constituent items comprised in the said class or classes, and does not restrict the security to assets of the company at the date the charge is created ; "general floaikg charge" means a Moating charge created over the whole or substantially the whole of the property or assets of a company, and a security expressed to be created over the undertaking, or business, or the assets generally, of a company is a general floating charge ;

"goods" means tangible moveables and property which, by virtue of articles 520 to 525 inclusive of the Civil Code is deemed to be immoveable, but which under a contract of sale or any other contract is to be severed and converted into tangible moveables either immediately or after an interval;

"group accounts" means the consolidated balance sheet and consolidated profit and' loss account of a body corporate which is a holding company at the end of the financial year to which they relate, or if the body corporate prepares a consolidated balance sheet and consolidated profit and loss account in respect of itself and less than ail its subsidiaries, such consolidated balance sheet and consolidated profit and loss account together with the balance sheets and profit and loss accounts of its subsidiaries not included in the consolidated balance sheet and profit and loss accounts for financial years of the subsidiaries ending on dates within the financial year to which the consolidated profit and loss account relates ;

"group of companies" means two or more companies or bodies corporate one of which is the holding company of the other or others ;

"holding company" means a company or body corporate which either—

(i) holds more than half of the equity capital of another company or body corporate ; or

(ii) by contract, or by the memorandum or articles of another company or body corporate or otherwise is entitled to appoint, or to prevent the appointment of, a managing director or more than half of the directors (other than the managing director) of the other company or body corporate ; or

(iii) is the holding company of another company or body corporate which is itself the holding company of the company or body corporate in question ;

"interim dividends" has the meaning assigned to it by section 160(5);

"issue price" means the amount agreed to be paid to a company for a share or debenture, and if the consideration for a share does not consist entirely of cash, means the amount agreed to be paid to the company in cash (if any) plus the agreed value of the consideration other than cash ;

"loan stock" means debenture stock the holder of which is not entitled to the benefit of any security over the assets of the company or of any other person;

"member" has the meaning assigned to it by section 23(1) and (2);

"members' voluntary winding up" has the meaning assigned to it by section 253(4) ;

"memorandum" means the memorandum of association of a company, as originally framed or as altered in pursuance of this Ordinance, or in the case of an existing company the provisions of the notarial deed, statutes, articles of association or other instrument under which the company was constituted which, in the case of a company formed under this Ordinance, would be required to be contained in its memorandum association ;

"nominal capital" has the meaning assigned to it by section 4(4);

"non-participating preference share" means a preference share which confers on its holder the right to a dividend of a fixed amount, or not exceeding a fixed amount, whether cumulative or not, and the right to repayment of capital in a winding up in priority to another class or other classes of shares, but which confers no other rights in respect of dividend or capital whatsoever ;

"officer", in relation to a body corporate, includes a governor, president, vice-president, director, manager (except a manager appointed by or for the benefit of debenture holders), secretary or treasurer, and in relation to an overseas company includes its managing agent and a local director, manager or executive having the superintendence of its affairs in Seychelles ;

"Official Receiver" has the meaning assigned to it by section 214;

"ordinary resolution" has the meaning assigned to it by section 122(1);

"ordinary share" means a share which is not a preference share ;

"overseas company" means an incorporated or unincorporated body formed under the laws of a country other than Seychelles which has as its object the acquisition of gain by it or its members, but does not include a partnership or limited partnership some or all of whose members are liable for its debts without limit and shares in which are not transferable free from any restrictions ;

"preference share" means a share which carries the right to payment of a dividend of a fixed amount, or not exceeding a fixed amount, in priority to payment of a dividend on another class or other classes of shares, whether with or without other rights ;

"prescribed" means prescribed by regulations made under this Ordinance ;

''printed" means produced by ordinary letterpress or lithography or by such other process as the Registrar in his discretion may accept;

"procedural resolution" has the meaning assigned to it by section 125(4) ;

"promoter" means any person engaged in the formation of a company, or in raising money to enable a company to be formed or to acquire any assets or an existing business, or in negotiating the acquisition of any assets or an existing business by or for a company, and includes any person engaged in doing any of those acts for the benefit of an overseas company, but does not include a person who acts only in a professional capacity on behalf of a promoter ;

"property" means land, movables (whether tangible or not), debts, claims, rights of action, licences, concessions, patents, copyright, trademarks, designs, knowledge and information which has been confidentially communicated or which is protected by law similarly to intangible movables, all other choses in action of any kind whatsoever, and the capital of a company which has not been called or paid up or credited as paid up;

"proprietary company" has the meaning assigned to it by section 24;

"prospectus" means any invitation, whether written, visual or oral, and by whatever means conveyed, to subscribe for shares or debentures, or to purchase shares or debentures which have been allotted to any person with a view to them being offered for sale, and without prejucic? to the generality of the foregoing, includes an advertisement published in con-ruction with the placing c-" ; hares or debentures on a stock exchange, a letter of rights and a provisional letter of allotment, but does not include a letter of rights, or a letter of allotment or a letter of acceptance, or a provisional or renounceable share certificate or similar document in respect of debentures issued in connection with a capitalisation of profits or reserves ;

''prospectus issued to the public" has the meaning assigned to it by section 40(16);

"qualification shares" has the meaning assigned to it by section 166(6) ;

"registered" means registered in the register of members or debenture holders ;

"Registrar" means the Registrar of Companies ;

"revenue reserves" has the meaning assigned to it by section 160(5);

"rights issue" has the meaning assigned to it by section 54(5);

"share" means a share in the capital of a company and includes stock ;

"shares carrying unrestricted voting rights" has the meaning assigned to if by section 118(8);

"shareholder" has the meaning assigned to it by section 23(3);

"special resolution" has the meaning assigned to it by section 122(2);

"stock" means the interest of a holder of a share in a company which has been converted into stock ;

"stock exchange" means any exchange or association of dealers in securities which provides facilities for the sale and purchase of shares or debentures, and publishes at intervals oi' not more than one week the prices at which shares or debentures are currently being sold and purchased; "a stock exchange in Seychelles" means a stock exchange carrying on such activities in Seychelles, whether or not also carrying on such activities elsewhere ; and "a recognised overseas stock exchange" means any other stock exchange declared by the Governor to be such a stock exchange ;

"subsidiary" means a company or body corporate of

which another company or body corporate is the holding company;

"substantial shareholder" has the meaning assigned to it by section 112(6);

"transfer" means an instrument of transfer of registered shares or debentures and "to transfer" means to execute and deliver such an instrument, or in the case of a bearer share certificate or a bearer debenture, to deliver it with the intention of passing the title to the shares or debentures represented by it;

"trustee in bankruptcy" means a trustee or assignee in the bankruptcy or insolvency of a person or partnership and includes the official assignee in bankruptcy ;

"underwriting contract" has the meaning assigned to it by section 40(16);

"wholly owned subsidiary" has the meaning assigned to it by section 143(4);

"winding up resolution" has the meaning assigned to it by section 247(6).

(2)  A person shall not be deemed to be within the meaning of any provision in this Ordinance a person in accordance with whose directions or instructions the directors of a company are accustomed to act, by reason only that the directors of the company act on advice given by him in a professional capacity.

(3)  References in this Ordinance to a body corporate or to a corporation shall be construed as not including a corporation sole, but as including a body corporate or corporation incorporated outside Seychelles ; and references to the memorandum or articles shall in the case of a corporation which is not a company be construed to mean the legislation constituting it, its charter, certificate or articles of incorporation, statutes, or other instrument having the same function as the memorandum and articles of a company, and references to its directors shall be construed to mean members of its governing body, by whatever name called.

(4)  Notwithstanding anything contained in this section, a body corporate shall not (except for the purposes of Part VII of this Ordinance) be deemed to be the holding company or subsidiary of another body corporate if neither body corporate is a company within the meaning of this section, and a body corporate shall not (except as aforesaid) be deemed to belong to the same group of companies as another body corporate if neither body corporate is a company within the meaning of this section.

(5)  Any provision of this Ordinance which overrides a company's articles shall, except as provided by this Ordinance, apply to articles of existing companies at the coming into operation of this Ordinance, as well as to articles of companies formed under this Ordinance, and shall apply also in relation to a company's memorandum as it applies in relation to its articles.

(6)  Unless the context otherwise requires, references (howsoever expressed) in any provision of this Ordinance to the commencement of this Ordinance shall be read as references to the commencement of that provision.