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Products
International
Business Companies
The
Companies Act
SAINT LUCIA
————
No. 40 of 1999
Arrangement
of Sections
PART
IX
Winding-up,
Dissolution and Striking-Off
89.
Compulsory winding-up and dissolution.
90.
Voluntary winding up and dissolution.
91.
Powers of directors.
92.
Appointment and duties of liquidator.
93.
Powers of liquidator.
94.
Procedure.
95.
Rescission.
96.
Winding-up and dissolution for unpaid claims.
97.
Winding-up and dissolution by the Court.
98.
Receivers and managers.
99.
Striking-off.
100.
Restoration to Register.
101.
Effect of striking-off.
102.
Appointment of official liquidator.
103.
Dissolution of company struck-off.
Compulsory
winding-up and dissolution
89.
An international business company shall begin to wind-up
and dissolve by a resolution of directors —
(a)
upon expiration of such time as may be prescribed by
its memorandum or articles for its existence;
(b)
upon the happening of such an event as specified in
the articles as an event that shall terminate the existence
of the international business company.
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Voluntary
winding-up, and dissolution
90.—
(1) An international business company that has never
issued shares may voluntarily begin to wind-up and dissolve
by a resolution of directors.
(2)
Subject to any limitations in its memorandum or articles,
an international business company that has previously
issued shares may voluntarily begin to wind up and dissolve
by a resolution of members or by a resolution of directors.
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Powers
of directors
91.
Upon the commencement of a winding-up and dissolution
under section 89 or permitted under section 90 the powers
of the directors are limited to —
(a)
authorizing a liquidator, by a resolution of directors,
to carry on the business of the company if the liquidator
determines that to do so would be necessary or in the
best interests of the creditors or members of the international
business company; and
(b)
determing to rescind the articles of dissolution as
permitted under section 95.
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Appointment
and duties of liquidator
92.—
(1) If for any reason there is no liquidator acting
in the case of a winding-up the Court may on the application
of a share holder creditor or other interested party
appoint a liquidator or liquidators, and the Court may
on due cause shown remove any liquidator and appoint
another liquidator to act in a matter of a winding-up.
(2)
A liquidator shall, upon his or her appointment in accordance
with this Part and upon the commencement of a winding-up
and dissolution, proceed —
(a)
to identify all assets of the international business
company;
(b)
to identify all creditors of and claimants against the
international business company;
(c) to pay or provide for the payment of, or to discharge,
all claims, debts, liabilities and obligations of the
international business company;
(d)
to distribute any surplus assets of the international
business company to the members in accordance of the
actions and transactions of the liquidator;
(e)
to prepare or cause to be prepared a statement of account
in respect of the actions and transactions of the liquidator;
and
(f)
to send a copy of the statement of account to all members
if so required by the plan of dissolution required by
section 94.
(3)
A transfer, including a prior transfer, described in
subsection (2) of section 14 of all or substantially
all of the assets of an international business company
incorporated under this Act for the benefit of the creditors
and members of the international business company, is
sufficient to satisfy the requirements of paragraphs
(c) and (d) of subsection (1).
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Powers
of liquidator
93.—
(1) In order to perform the duties imposed on him or
her under section 92, a liquidator has all powers of
the international business company that are not reserved
to the members under this Act or in the memorandum or
articles, including, but not limited to, the power —
(a)
to take custody of the assets of the international business
company and, in connection therewith, to register any
property of the international business company in the
name of the liquidator or that of his or her nominee;
(b)
to sell any assets of the international business company
at public auction or by private sale without any notice;
(c)
to collect the debts and assets due or belonging to
the international business company;
(d)
to borrow money from any person for any purpose that
will facilitate the winding-up and dissolution of the
international business company and to pledge or mortgage
any property of the international business company as
security for any such borrowing;
(e)
to negotiate, compromise and settle any claim, debt,
liability or obligation of the international business
company;
(f) to prosecute and defend, in the name of the international
business company or in the name of the liquidator or
otherwise, any action or other legal proceedings;
(g)
to retain solicitors, accountants and other advisers
and appoint agents;
(h)
to carry on the business of the international business
company, if the liquidator has received authorisation
to do so in the plan of dissolution pursuant to section
94, or by a resolution of directors permitted under
section 91, as the liquidator may determine to be necessary
or to be in the best interests of the creditors or members
of the international business company;
(i)
to execute any contract, agreement or other instrument
in the name of the international business company or
in the name of the liquidator; or
(j)
to make any distribution in money or in other property
or partly in each, and if in other property, to allot
the property, or an undivided interest therein, in equal
or unequal proportions.
(2)
Notwithstanding paragraph (h) of subsection (1), a liquidator
shall not, without the permission of the Court, carry
on for a period in excess of two years the business
of the international business company that is being
wound-up and dissolved under this Act.
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Procedure
94.—
(1) The directors of an international business company
required under section 89 or proposing under section
90 to wind-up and dissolve the international business
company, must approve a plan of dissolution containing
—
(a)
a statement of the reason for the winding-up and dissolving;
(b)
a statement that the international business company
is, and will continue to be, able to discharge or pay
or provide for the payment of all claims, debts, liabilities
and obligations in full;
(c)
a statement that the winding up will commence on the
date when articles of dissolution are submitted to the
Registrar or on such date subsequent thereto, not exceeding
thirty days, as is stated in the articles of dissolution;
(d)
a statement of the estimated time required to wind up
and dissolve the international business company;
(e)
a statement as to whether the liquidator is authorised
to carry on the business of the international business
company if the liquidator determines that to do so would
be necessary or in the best interests of the creditors
or members of the international business company;
(f)
a statement of the name and address of each person to
be appointed a liquidator and the remuneration proposed
to be paid to each liquidator; and
(g)
a statement as to whether the liquidator is required
to send to all members a statement of account prepared
or caused to be prepared by the liquidator in respect
of his or her actions or transactions.
(2)
If a winding-up and dissolution is being effected in
a case where subsection (2) of section 90 is applicable
—
(a)
the plan of dissolution must be authorised by a resolution
of members, and the holders of the outstanding shares
of a class or series of shares are entitled to vote
on the plan of dissolution as a class or series only
if the memorandum or articles so provide;
(b)
if a meeting of members is to be held, notice of the
meeting, accompanied by a copy of the plan of dissolution,
must be given to each member, whether or not entitled
to vote on the plan of dissolution; and
(c)
if it is proposed to obtain the written consent of members,
a copy of the plan of dissolution must be given to each
member, whether or not entitled to consent to the plan
of dissolution.
(3)
After approval of the plan of dissolution by the directors,
and if required, by the members in accordance with subsection
(2), articles of dissolution must be executed by the
international business company and must contain —
(a)
the plan of dissolution; and
(b)
the manner in which the plan of dissolution was authorised.
(4)
Articles of dissolution shall be submitted by the international
business company to the Registrar who shall retain and
register them in the Register and within thirty days
immediately following the date on which the articles
of dissolution are submitted to the Registrar, the international
business company shall cause to be published, in the
Gazette, in a publication of general circulation in
Saint Lucia, a notice stating —
(a)
that the international business company is in dissolution;
(b)
the date of commencement of the dissolution; and
(c)
the names and addresses of the liquidators.
(5)
A winding-up and dissolution commences on the date the
articles of dissolution are registered by the Registrar
or on such date subsequent thereto, not exceeding thirty
days, as is stated in the articles of dissolution.
(6)
A liquidator shall, upon completion of a winding-up
and dissolution, submit to the Registrar a statement
that the winding-up and dissolution has been completed
and upon receiving the notice, the Registrar shall —
(a)
strike the international business company off the Register;
and
(b)
issue a certificate of dissolution under his or her
hand and seal certifying that the international business
company has been dissolved.
(7)
Where the Registrar issues a certificate of dissolution
under his or her hand and seal certifying that the international
business company has been dissolved —
(a)
the certificate is prima facie evidence of compliance
with all requirements of this Act in respect of dissolution;
and
(b)
the dissolution of the international business company
is effective from the date of the issue of the certificate.
(8)
Immediately following the issue by the Registrar of
a certificate of dissolution under subsection (6), the
liquidator shall cause to be published, in the Gazette,
in a publication of general circulation in Saint Lucia,
a notice that the international business company has
been dissolved and has been struck off the Register.
(9)
An international business company that wilfully contravenes
subsection (4) is liable to a penalty of one hundred
dollars for every day or part thereof during which the
contravention continues, and a director or liquidator
who knowingly permits the contravention is liable to
a like penalty.
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Rescission
95.—
(1) In the case of a winding-up and dissolution permitted
under section 90, an international business company
may, prior to submitting to the Registrar a notice specified
in subsection (4) of section 94, rescind the articles
of dissolution by —
(a)
a resolution of directors in the case of a winding-up
and dissolution under subsection (1) of section 90;
or
(b)
a resolution of members in the case of a winding-up
and dissolution under subsection (2) of section 90.
(2)
A copy of a resolution referred to in subsection (1)
shall be submitted to the Registrar who shall retain
and register it in the Register.
(3)
Within thirty days immediately following the date on
which the resolution referred to in subsection (1) has
been submitted to the Registrar, the international business
company must cause a notice stating that the international
business company has rescinded its intention to wind-up
and dissolve to be published in the Gazette, in a publication
of general circulation in Saint Lucia.
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Winding-up
and dissolution for unpaid claims
96.
Where —
(a)
the directors or the members of an international business
company that is required under section 89 or permitted
under section 90 to wind up and dissolve, at the time
of the passing of the resolution to wind-up and dissolve
the international business company; or
(b)
the liquidator of an international business company
after his or her appointment; have reason to believe
that the international business company will not be
able to pay or provide for the payment of or discharge
of all claims, debts, liabilities and obligations of
the international business company in full, the directors,
the members or the liquidator, shall immediately give
notice of the fact to the Registrar.
(2)
Where notice has been given to the Registrar under subsection
(1), all winding-up and dissolution proceedings after
the notice has been given shall be in accordance with
the provisions of the Companies Act relating to winding-up
and dissolution and those provisions shall apply, with
the necessary changes, to the winding-up and dissolution
of the international business company.
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Winding-up and dissolution by Court
97.
—(1) An order for the liquidation and dissolution
of an international business company maybe made by the
Court if —
(a)
the company carries on business in breach of section
12;
(b)
the company carries on business without a share holder;
(c)
the company has seriously or persistently failed to
comply with this Act;
(d)
the company is unable to pay its debts;
(e)
the company is carrying on business in a manner detrimental
to the public interest;
(f)
the Court considers that it would be just and equitable
for the company to be liquidated and dissolved.
(2)
An application to the Court for an order under subsection
(1) may be made by the Registrar or, if the application
is made under paragraphs (c) or (d) of subsection (1),
by any interested person.
(3)
Where the Court makes an Order under this section, the
provisions of the Companies Act shall apply with the
necessary changes as if the international business company
was a company being liquidated and dissolved by the
Court under that Act.
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Receivers
and managers
98.
The provisions of the Companies Act regarding receivers
and managers govern, with the necessary changes, the
appointment, duties, powers and liabilities of receivers
and managers of the assets of any international business
company.
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Striking-off
99.—
(1) Where the Registrar has reasonable cause to believe
that an international business company is contravening
section 12 the Registrar shall serve on the company
a notice that the name of the international business
company may be struck-off the Register if the international
business company continues to contravene section 12.
(2)
If the Registrar does not receive a reply within thirty
days immediately following the date of the service of
the notice referred to in subsection (1), the Registrar
must serve on the international business company another
notice stating that the name of the company may be struck
off the register if a reply to the notice is not received
within thirty days immediately following the date thereof
and that a notice of the contemplated striking off will
be published in the Gazette.
(3)
If the Registrar —
(a)
receives from the international business company a notice
stating that the company is in contravention of section
12, in reply to a notice served on the international
business company under subsection (1) or (2); or
(b)
does not receive a reply to a notice served on the international
business company under subsection (2) as required by
that subsection; the Registrar shall publish a notice
in the Gazette that the name of the international business
company will be struck-off the Register unless the international
business company or another person satisfies the Registrar
that the name of the international business company
should not be struck off.
(4)
At the expiration of a period of ninety days immediately
following the date of the publication of the notice
under subsection (3), the Registrar shall strike the
name of the international business company off the Register,
unless the international business company or any other
person satisfies the Registrar that the name of the
international business company should not be struck
off, and the Registrar must publish notice of striking-off
in the Gazette.
(5)
If an international business company has failed to pay
the increased licence fee due under subsection (2) of
section 104, the Registrar shall, within thirty days
immediately following the date specified in that subsection,
publish in the Gazette and serve on the international
business company, a notice stating the amount of the
licence fee due, under subsection (3) of section 104
and stating that the name of the international business
company will be struck-off the Register if the international
business company fails to pay the licence fee on or
before the 31st December next ensuing.
(6)
If an international business company fails to pay the
increased licence fee stated in the notice referred
to in subsection (5) by the 31st December referred to
in that subsection, the Registrar shall strike the name
of the international business company off the Register
from 1st January next ensuing.
(7)
An international business company that has been struck
off the Register under this section remains liable for
all claims, debts, liabilities and obligations of the
international business company, and the striking-off
does not affect the liability of any of its members,
directors, officers or agents.
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Restoration
to Register
100.—
(1) If the name of an international business company
has been struck off the Register under subsection (4)
of section 99, the international business company, or
a creditor, member or liquidator thereof, may apply
to the Court to have the name of the international business
company restored to the Register.
(2)
If upon an application under subsection (1) the Court
is satisfied that —
(a)
at the time the name of the international business company
was struck-off the Register, the international business
company was not in contravention of section 12; and
(b)
it would be fair and reasonable for the name of the
international business company to be restored to the
Register; the Court may order the name of the international
business company to be restored to the Register upon
payment to the Registrar of all fees due under section
104 and all penalties due under section 105 without
any increase for late payment, and upon restoration
of the name of the international business company to
the Register, the name of the international business
company is deemed never to have been struck off the
Register.
(3)
If the name of an international business company has
been struck-off the Register under subsection (6) of
section 99, the international business company, or a
creditor, member or liquidator thereof, may, within
three years immediately following the date of the striking-off,
apply to the Registrar to have the name of the international
business company restored to the Register, and upon
payment to the Registrar of —
(a)
all the fees due under section 104;
(b)
the licence fee stated in the notice referred to in
subsection (5) of section 99; and
(c)
a licence fee in the amount stated in the notice referred
to in paragraph (b) for each year or part thereof during
which the name of the international business company
remained struck off the Register;
the Registrar shall restore the name of the international
business company to the Register and upon restoration
of the name of the international business company to
the Register, the name of the international business
company shall be deemed never to have been struck off
the Register.
(4)
For purposes of this Part, the appointment of an official
liquidator under section 102 operates as an order to
restore the name of the international business company
to the Register.
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Effect
of striking-off
101.—
(1) Where the name of an international business company
has been struck-off the Register, the international
business company, and the directors, members, liquidators
and receivers thereof, may not legally—
(a)
commence legal proceedings, carry on any business or
in anyway deal with the assets of the company;
(b)
defend any legal proceedings, make any claim or claim
any right for, or in the name of, the international
business company; or
(c)
act in any way with respect to the affairs of the international
business company.
(2)
Notwithstanding subsection (1), where the name of the
international business company has been struck-off the
Register, the company, or a director, member, liquidator
or receiver thereof, may —
(a)
make application for restoration of the name of the
international business company to the Register;
(b)
continue to defend proceedings that were commenced against
the international business company prior to the date
of the striking-off; and
(c)
continue to carry on legal proceedings that were instituted
on behalf of the international business company prior
to the date of the striking-off.
(3)
The fact that the name of the international business
company is struck-off the Register does not prevent
—
(a)
the international business company from incurring liabilities,;
(b)
any creditor from making a claim against the international
business company and pursuing the claim through to judgement
or execution; or
(c) the appointment by the court of an official liquidator
for the international business company under section
102.
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Appointment
of official liquidator
102.
The Court may appoint a person to be the official liquidator
in respect of an international business company the
name of which has been struck-off the Register.
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Dissolution
of company struck-off
103.—
(1) The duties of an official liquidator appointed under
section 102 are limited to —
(a)
identifying and taking possession of all assets of the
international business company;
(b)
calling for claims by advertisement in the Gazette and
in such other manner as the official liquidator deems
appropriate, requiring all claims to be submitted to
him or her within a period of not less than ninety days
immediately following the date of the advertisement;
and
(c)
applying those assets that he or she recovers in the
following order of priority —
(i)
in satisfaction of all outstanding fees, licence fees
and penalties due to the Registrar; and
(ii)
in satisfaction pari passu of all other claims admitted
by the official liquidator.
(2)
In order to perform the duties with which the official
liquidator is charged under subsection (1), the official
liquidator may exercise such powers as the Court may
as it considers reasonable confer on the official liquidator.
(3)
The official liquidator may require such proof as the
official liquidator considers necessary to substantiate
any claim submitted to him or her and the official liquidator
may admit, reject or settle claims on the basis of the
evidence submitted to him or her.
(4)
When the official liquidator has completed his or her
duties, the liquidator shall submit a written report
of his or her conduct of the liquidation proceedings
to the Registrar and, upon receipt of the report by
the Registrar, all assets of the international business
company, wherever situated, that are not disposed of,
vest in the Government and the international business
company is dissolved.
(5)
The official liquidator is entitled to such remuneration
out of the assets of the international business company
for his or her services as the Court approves, but if
the international business company is unable to discharge
all of its claims, debts, liabilities and obligations,
payment of the official liquidator's remuneration shall
be a charge on the Consolidated Fund.
(7)
No liability attaches to an official liquidator —
(a)
to account to creditors of the international business
company who have not submitted claims within the time
allowed by him or her; or
(b)
for any failure to locate any assets of the international
business company.
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