INTERNATIONAL BUSINESS COMPANIES ACT, 1994
(Act 24 of 1994)
I assent
F. A. René
President
23rd December, 1994
Enacted by the President of the National Assembly
PART I
PRELIMINARY
(1) In this Act -
"Articles" means the Articles of Association of a company incorporated under this Act;
"authorised capital", in relation to a company, means the sum of the aggregate par value of all shares which the company is authorised by its Memorandum to issue plus the amount, if any, stated in its Memorandum as authorised capital to be represented by shares without par value which the company is authorised by its Memorandum to issue;
"Capital", in relation to a company, means the sum of the aggregate par value of all the outstanding shares with par value of a company and shares with par value held by the company as treasury shares plus –
(a) the aggregate of the amounts designated as capital of all outstanding shares without par value of the company and shares without par value held by the company as treasury shares, and
(b) the amounts as are from time to time transferred from surplus to capital by a resolution of the directors;
"Companies Act" means the Companies Act, 1972 of Seychelles or any other similar law which replaces the Companies Act, 1972;
"continued" means the continued in accordance with Part VIII;
"court" means the Supreme Court;
"member" means a person who holds shares in a company;
"Memorandum" means the Memorandum of Association of a company incorporated under this Act;
"Register" means the Register of International Business Companies maintained by the Registrar in accordance with section 14(2);
"Registrar" means the Registrar of International Business Companies appointed under section 14;
"securities" includes shares and debt obligations of every kind, and options, warrants and rights to acquire shares or debt obligations;
"surplus", in relation to a company, means the excess, if any, at the time of the determination, of total assets of the company over the sum of its total liabilities, as shown in the books of account plus its issued and outstanding share capital;
"treasury shares" means shares of a company that were otherwise acquired by the company and not cancelled.
(2) A company that is incorporated under the laws of a jurisdiction outside Seychelles shall be a company incorporated under this Act if it is continued as a company incorporated under this Act and references to a "company incorporated under this Act" shall be construed accordingly.
(3) Unless otherwise defined in the Articles "resolution of directors" means –
(a) a resolution approved at a duly constituted meeting of directors or of a committee of directors of a company, by affirmative vote of a simple majority or such larger majority as may be specified in the Articles, of the directors present at the meeting who voted and did not abstain; or
(b) a resolution consented to in writing by an absolute majority, or such larger majority as may be specified in the Articles, of all the directors or of all the members of the committee, as the case may be, but, where a director is given more than one vote in any circumstances, he shall in the circumstances be counted for the purposes of establishing majorities by the number of votes he casts.
(4) Unless otherwise defined in the Articles "resolution of members" means –
(a) a resolution approved at a duly constituted meeting of the members of a company by the affirmative vote of –
(i) a simple majority, or such larger majority as may be specified in the Articles, of the votes of the shareholders present at the meeting and entitled to vote thereon and who voted and did not abstain; or
(ii) a simple majority, or such larger majority as may be specified in the Articles of the votes of the shareholders of each class or series of shares present at the meeting and entitled to vote thereon as a class or series and who voted and did not abstain and of a simple majority or such larger majority as may be specified in the Articles, of the votes of the remaining shareholders entitled to vote thereon present at the meeting and who voted and did not abstain; or
(b) a resolution consented to in writing by –
(i) a simple majority or such larger majority as may be specified in the Articles, of the shareholders entitled to vote thereon, or
(ii) a simple majority, or such larger majority as may be specified in the Articles, of the votes of the shareholders entitled to vote thereon as a class or series and of an absolute majority, or such larger majority as may be specified in the Articles, of the votes of the holders of the remaining shares entitled to vote thereon.
(5) The symbol $ denotes dollars in the currency of the United States of America.
PART II
CONSTITUTION OF COMPANIES
(1) For the purposes of this Act, an International Business Company is a company that does not –(a) carry on business in Seychelles;
(b) own an interest in immovable property situate in Seychelles, or a lease of immovable property situate in Seychelles otherwise than as referred to in subsection (2)(e);
(c) carry on banking as defined in the Financial Institutions Act, 1984 or a trust business;
(d) carry on business as an insurance or a reinsurance company; or
(e) carry on the business of providing the registered office for companies.
(2) For the purposes of subsection (1)(a), an International Business Company shall not be treated as carrying on business in Seychelles by reason only that -
(a) it makes or maintains deposits with a person carrying on business within Seychelles;
(b) it makes or maintains professional contact with counsel and attorneys, accountants, bookkeepers, trust companies, management companies, investment advisers or other similar persons carrying on business within Seychelles;
(c) it prepares or maintains books and records within Seychelles;
(d) it holds, within Seychelles, meetings of its directors or members;
(e) it holds a lease of property for use as an office from which to communicate with members or where books and records of the company are prepared or maintained;
(f) it holds shares, debt obligations or other securities in a company incorporated under this Act or under the Companies Act;
(g) it holds bonds, treasury bills and other securities issued by the Government of Seychelles or the Central Bank of Seychelles;
(h) shares, debt obligations or other securities in the company are owned by any person resident in Seychelles or by any company incorporated under this Act or under the Company Act; or
(i) it owns or manages a vessel registered in the Republic under the Merchant Shipping Act, 1992.
(1) Without prejudice to section 97, if a company is incorporated under this Act without having satisfied the requirements prescribed for an International Business Company by section 5, the company shall, or if having satisfied the requirements it subsequently ceases to satisfy those requirements for a continuous period of more than 30 days, upon the expiration of that period, notify the Registrar of that fact.
(2) A company that contravenes subsection (1) shall be liable to a penalty of $100 for each day or part thereof during which the contravention continues.
(3) A director who knowingly permits the contravention of subsection (1) shall be liable to a penalty of $100 for each day or part thereof during which the contravention continues.
(1) Subject to any limitations in its Memorandum or Articles, this Act or any other law for the time being in force in Seychelles, a company incorporated under this Act has the power, irrespective of corporate benefit, to perform all acts and engage in all activities necessary or conducive to the conduct, promotion or attainment of the objects or purposes of the company, including the power to do the following:
(a) issue registered shares or shares issued to bearer or both;
(b) issue the following:
(i) voting shares;
(ii) non-voting shares;
(iii) shares that may have more or less than one vote per share;
(iv) shares that may be voted only on certain matters or only upon the occurrence of certain events;
(v) shares that may be voted only when held by persons who meet specified requirements;
(vi) no par value shares;
(vii) unnumbered shares;
(c) issue common shares, preferred shares, or redeemable shares;
(d) issue shares that entitle participation only in certain assets;
(e) issue options, warrants or rights, or instruments of a similar nature, to acquire any securities of the company;
(f) issue securities that, at the option of the holder thereof or of the company or upon the happening of a specified event, are convertible into, or exchangeable for, other securities in the company or any property then owned or to be owned by the company;
(g) purchase, redeem or otherwise acquire and hold its own shares;
(h) guarantee a liability or obligation of any person and to secure any of its obligations by mortgage, pledge or other charge, of any of its assets for that purpose; and
(i) protect the assets of the company for the benefit of the company, its creditors and its members, and at the discretion of the directors, for any person having a direct or indirect interest in the company.
(2) For the purpose of subsection (1)(i), notwithstanding any other provision of this Act or of any other law for the time being in force in Seychelles to the contrary save the law as to fraudulent preference and the law as to dispositions made with intent to defraud creditors, the directors may cause the company to transfer any of its assets in trust to one or more trustees and, with respect to such transfer, the directors may provide that the company, its creditors, its members or any person having a direct or indirect interest in the company, or any of them, may be the beneficiaries, creditors, members, certificate holders, partners or holders of any other similar interest.
(1) An act of a company incorporated under this Act and a transfer of movable or immovable property by or to a company so incorporated is not invalid by reason only of the fact that the company was without capacity or power to perform the act or to transfer or receive the property, but the lack of capacity or power may be pleaded in the following cases:
(a) in proceedings by a member against the company to prohibit the performance of any act or the transfer of immovable or movable property by or to the company; or
(b) in proceedings by the company, whether acting directly or through a receiver, trustee or other legal representative or through members in a derivative action, against the incumbent or former directors of the company for loss or damage due to their unauthorised act.
(2) For the purposes of subsection (1)(a), the court may set aside and prohibit the performance of a contract if:
(a) the unauthorised act or transfer sought to be set aside or prohibited is being, or is to be, performed or made under any contract to which the company is a party;
(b) all the parties to the contract are parties to the proceedings; and
(c) it appears fair and reasonable in the circumstances to set aside or prohibit the performance of the contract, and in so doing the court may, in applying this subsection, award to the company or to the other parties such compensation as may be reasonable except that in determining the amount of compensation the court shall not take into account anticipated profits to be derived from the performance of the contract.
(1) The word "Limited", "Corporation", "Incorporated", "Société Anonyme" or "Sociedad Anomina", "Public Limited Company", "Societé à Responsabilité Limitée", "Berhad", "Proprietary", "Namloze Vennootschap", "Besloten Vennootschap", "Aktiengesellschaft" or "Limited Life Company" or the abbreviation "Ltd", "Corp", "Inc" or "S.A.", "PLC", "S.A.R.L.", "Bhd", "Pty", "NV", "B.V.", "A.G." or "LLC" shall form part of the name of every company incorporated under this Act provided that a company incorporated under the laws of a jurisdiction outside Seychelles and continued as a company incorporated under this Act may use the name designated in the Articles of continuation.
(2) Subject to subsection (1), the name of a company may be expressed in any language but where the name is not in a national language a translation and transliteration of the name in English or French shall be given.
(3) No company shall be incorporated under this Act under a name that:
(a) is identical with that of a statutory corporation or that under which a company in existence is already incorporated under this Act or registered under the Companies Act or so nearly resembles the name of another company as to be calculated to deceive, except where the company in existence gives its consent;
(b) contains the words "Assurance", "Bank", "Building Society", "Chamber of Commerce", "Chartered, "Cooperative", "Imperial", "Insurance", "Municipal", "Trust", "Foundation", or a word conveying a similar meaning, or any other word that, in the opinion of the Registrar, suggests or is calculated to suggest the patronage of or any connection with Seychelles or the Government of Seychelles or with any other country or the Government of that country;
(c) is indecent, offensive or, in the opinion of the Registrar is otherwise objectionable or misleading.
(4) A company may amend its Memorandum to change its name.
(5) Where a company is incorporated under a name that:
(a) is identical with a name under which a company in existence was incorporated under this Act or registered under the Companies Act; or
(b) so nearly resembles the name of another company in existence which was incorporated under this Act or registered under the Companies Act as to be calculated to deceive or confuse, the Registrar may, whether or not the consent of the company in existence has been obtained pursuant to subsection (3)(a), give notice to the last registered company to change its name and if it fails to do so within 60 days from the date of the notice the Registrar shall direct the company to change its name to such name as the Registrar deems appropriate, and the Registrar shall publish a notice of the change in the Gazette.
(6) Subject to subsections (3) and (5), where a company changes its name, the Registrar shall enter the new name on the Register in place of the former name, and shall issue a new certificate of incorporation indicating the change of name.
(7) A change of name does not affect any rights or obligations of a company, or render defective any legal proceedings by or against a company, and all legal proceedings that have been commenced against a company by its former name may be continued against it in its new name.
(8) Subject to subsection (3), the Registrar may, upon a request made by any person and payment of the prescribed fee, reserve for 90 days a name for future adoption by a company under this Act.
(1) The Memorandum shall include the following particulars-
(a) the name of the company;
(b) the address within Seychelles of the registered office of the company;
(c) the name and address within Seychelles of the registered agent of the company;
(d) subject to subsection (2), the objects or purposes for which the company is to be incorporated;
(e) the currency in which shares in the company shall be issued;
(f) a statement of the authorised capital of the company setting forth the aggregate of the par value of the shares that the company is authorised to issue and the amount, if any, to be represented by shares without par value that the company is authorised to issue;
(g) a statement of the number of classes and series of shares, the number of shares of each such class and series and the par value of shares with par value and that the shares may be without par value if this is the case;
(h) a statement of the designations, powers, preferences and rights, and the qualifications, limitations or restrictions of each class and series of shares that the company is authorised to issue, unless the directors are to be authorised to fix any such designations, powers, preferences, rights, qualifications, and in that case, an express grant of such authority as may be desired to grant to the directors to fix by resolution any such designations, powers, preferences, rights, qualifications, limitations and restrictions that have not been fixed by the Memorandum;
(i) a statement of the number of shares to be issued as registered shares and as shares issued to bearer, unless the directors are authorised to determine at their discretion whether shares are to be issued as registered shares or to bearer and in that case an express grant of such authority as may be desired shall be given to empower the directors to issue shares as registered shares or to bearer as they may determine by resolution of the directors;
(j) whether registered shares may be exchanged for shares issued to bearer and whether shares issued to bearer may be exchanged for registered shares; and
(k) if shares issued to bearer are authorised to be issued, the manner in which a required notice to members is to be given to the holders of shares issued to bearer.
(l) in the case of a limited life or duration company, the period, which shall not exceed 50 years, of the duration of the life of the company.
(m) a statement that the company shall not carry on any banking, insurance, reinsurance or trust business.
(2) For the purposes of subsection (1)(d), if the Memorandum contains a statement either alone or with other objects or purposes that the object or purpose of the company is to engage in any act or activity that is not prohibited under any law for the time being in force in Seychelles, the effect of that statement is to make all acts and activities, that are not illegal, part of the objects or purposes of the company, subject to any limitations in the Memorandum.
(3) The Memorandum shall be subscribed to by one or more persons in the presence of another person who shall write his full name and address and sign as a witness.
(4) The Memorandum, when registered, binds the company and its members from time to time to the same extent as if each member had subscribed his name and affixed his seal thereto and as if there were contained in the Memorandum, on the part of himself, his heirs, executors and administrators, a covenant to observe the provisions of the Memorandum, subject to this Act.
(5) The Memorandum may be written in the English or French language or if written in a language other than English or French shall be accompanied by a translation in the English or French language certified by the registered agent of the company of the Memorandum.
(1) The Articles, if not submitted for registration with the Memorandum shall be submitted within 30 days following the date of incorporation.
(2) The Articles shall be subscribed to by each subscriber of the Memorandum in the presence of another person who shall write his full name and address and sign as a witness.
(3) The Articles, when registered, bind the company and its members from time to time to the same extent as if each member had subscribed his name and affixed his seal thereto and as if there were contained in the Articles, on the part of himself, his heirs, executors and administrators, a covenant to observe the provisions of the Articles, subject to this Act.
(4) The Articles may be written in the English or French language or if written in a language other than in English or French shall be accompanied by a translation in the English or French language certified by the registered agent of the company of the Articles.
(1) For the purposes of this Act the Minister shall appoint a Registrar of International Business Companies.
(2) The Memorandum and Articles shall, on application made to the Registrar, be registered by the Registrar in a register to be maintained by him and to be known as the Register of International Business Companies.
(3) Upon registration of the Memorandum, the Registrar shall issue a certificate of incorporation under his hand certifying that the company is incorporated.
(4) The Minister may appoint a diplomatic or consular officer of Seychelles or any other person or body in a country or jurisdiction outside Seychelles to perform in that country or jurisdiction such of the functions of the Registrar as may be delegated to the officer, person or body by the Minister and, subject to subsection (6) any act or thing done by or before the diplomatic or consular officer or the other person or body appointed by the Minister shall be valid and effectual as if done by or before the Registrar.
(5) The Minister may establish a branch office in a country or jurisdiction referred to in subsection (4) for the performance by or before the diplomatic or consular officer or the other person or body of the functions of the Registrar delegated to the officer or other person or body under that subsection.
(6) A diplomatic or consular officer or other person or body shall before performing the functions delegated to the officer or other person or body under subsection (4) consult the Registrar and act in accordance with the instructions of the Registrar.
(7) A diplomatic or consular officer or other person or body shall, as soon as practicable, forward to the Registrar copies of all applications made to the officer or other person or body and certificates or other documents issued by the officer or other person or body, a record of all fees and any penalty collected by the officer or other person or body under this Act and those fees and the penalty.
(8) Any act done or certificate or document made or issued under this Act by a diplomatic or consular officer or person or body referred to in subsection (4) shall be deemed to be an act done or certificate or document made or issued by the Registrar under this Act.
(1) Subject to any limitation in its Memorandum or Articles, a company incorporated under this Act may amend its Memorandum or Articles by a resolution of members or, where permitted by its Memorandum or Articles or by this Act, by a resolution of directors.
(2) A limited life company may by resolution alter its Memorandum to extend the period of the duration of the company to such period or periods not exceeding in aggregate 99 years from the date of its incorporation.
(3) A company that amends its Memorandum or Articles shall submit a copy of the amendment certified by a director or officer of the company to the Registrar within 30 days after the resolution is approved or consented and the Registrar shall retain and register the copy of the amendment.
(4) An amendment to the Memorandum or Articles has effect from the time the amendment is registered by the Registrar.
(5) A company that contravenes subsection (3) shall be liable to a penalty of $50 for each day or part thereof during which the contravention continues.
(6) A director who knowingly permits the contravention of subsection (3) shall be liable to a penalty of $50 for each day or part thereof during which the contravention continues.
PART III
CAPITAL AND DIVIDENDS
(1)Subject to any limitations in the Memorandum or Articles, shares in a company incorporated under this Act may be issued for such amount as may be determined from time to time by the directors, except that in the case of shares with par value the amount shall not be less than the par value; and, in the absence of fraud, the decision of the directors as to the value of the consideration received by the company in respect of the issue is conclusive, unless a question of law is involved.
(2)Subject to any limitations in the Memorandum or Articles, treasury shares and unissued shares may be disposed of by a company incorporated under this Act on such terms and conditions as the directors may determine.
(1) Where a company incorporated under this Act issues a share with par value, the consideration in respect of the share constitutes capital to the extent of the par value and the excess constitutes surplus.
(2) Subject to any limitations in the Memorandum or Articles, where a company incorporated under this Act issues a share without par value, the consideration in respect of the share constitutes capital to the extent designated by the directors and the excess constitutes surplus, except that the directors shall designate as capital an amount of the consideration that shall be at least equal to the amount that the share is entitled to as a preference, if any, in the assets of the company upon liquidation of the company.
(3) Upon the disposition by a company incorporated under this Act of a treasury share, the consideration in respect of the share shall be added to surplus.
(1) A share issued as a dividend by a company incorporated under this Act shall be treated for all purposes as having been issued for money equal to the surplus that has been transferred to capital upon the issue of the share.
(2) In the case of a dividend of authorised but unissued shares with par value, an amount equal to the aggregate par value of the shares shall be transferred from surplus to capital at the time of the distribution.
(3) In the case of a dividend of authorised but unissued shares without par value, the amount designated by the directors shall be transferred from surplus to capital at the time of the distribution, except that the directors shall designate as capital an amount that is at least equal to the amount that the shares are entitled to as preference, if any, in the assets of the company upon liquidation of the company.
(4) A division of the issued and outstanding shares of a class or series of shares into a larger number of shares of the same class or series having proportionately small par value does not constitute a dividend of shares.
(1) Subject to any limitations in its Memorandum or Articles, a company incorporated under this Act may, by a resolution of directors, amend its Memorandum to increase or reduce its authorised capital, and in connection therewith, the company may –
(a) increase or reduce the number of shares which the company may issue;
(b) increase or reduce the par value of any of its shares; or
(c) effect any combination under paragraphs (a) and (b).
(2) Where a company reduces its authorised capital under subsection (1), then, for purposes of computing capital of the company, any capital that immediately before the reduction was represented by shares but immediately following the reduction is no longer represented by shares shall be deemed to be surplus transferred from capital to surplus.
(3) A company incorporated under this Act shall, in writing, inform the Registrar of any increase or decrease of its authorised capital within 30 days after the resolution.
(4) A company that contravenes subsection (3) shall be liable to a penalty of $25 for each day or part thereof during which the contravention continues.
(5) A director who knowingly permits the contravention of subsection (3) shall be liable to a penalty of $25 for each day or part thereof during which the contravention continues.
but the company may delete from the Share Register information relating to shares issued to bearer that have been cancelled.
a member of the company, or any person who is aggrieved by the omission, inaccuracy or delay may apply to the court for an order that the Share Register be rectified, and the court may either grant or refuse the application, with or without costs to be paid by the applicant, or order the rectification of the Share Register and may direct the company to pay all costs of the application and any damages the applicant may have sustained.
takes or seizes any shares or other interest in a company incorporated under this Act, the company itself or a person holding shares or any other interest in a company, including an interest as a creditor, may apply to the court for an order that the company disregard the taking or seizure and continue to treat the person who would have held shares or any other interest in the company but for the taking or seizure of the shares or other interest as continuing to hold the shares or other interest.
and, in the absence of fraud, the decision of the directors as to the realizable value of the assets of the company is conclusive unless a question of law is involved.
the shareholders of the first company are not entitled to vote or to have dividends paid thereon and shall not be treated as outstanding for any purpose under this Act except for the purpose of determining the capital of the first company.
and, in the absence of fraud, the decision of the directors as to the realizable value of the assets of the company is conclusive unless a question of law is involved.
and, in the absence of fraud, the decision of the directors as to the realizable value of the assets of the company is conclusive unless a question of law is involved.
PART IV
REGISTERED OFFICE AND AGENT
PART V
DIRECTORS, OFFICERS, AGENTS AND LIQUIDATORS
(a) a company incorporated under this Act; and
(b) one or more of its directors or liquidators, or any person in which any director or liquidator has a financial interest or to whom any director or liquidator is related, including as a director or liquidator of that other person,
is void or voidable for this reason only or by reason only that the director or liquidator is present at the meeting of directors or liquidators, at the meeting of the committee of directors or liquidators, that approves the agreement or transaction or that the vote or consent of the director or liquidator is counted for that purpose.
PART VI
PROTECTION OF MEMBERS AND CREDITORS
have waived notice of the meeting; and for this purpose, the presence of a member at the meeting shall be deemed to constitute waiver on his part.
and if so endorsed, the person signing the endorsement shall not be liable thereon.
PART VII
MERGER, CONSOLIDATION, SALE OF ASSETS FORCED REDEMPTIONS, ARRANGEMENTS AND DISSENTERS
"consolidated company" means the new company that results from the consolidation of 2 or more constituent companies;
"consolidation" means the fusion of 2 or more constituent companies into a new company;
"constituent company" means an existing company that is participating in a merger or consolidation with one or more other existing companies;
"merger" means the merging of 2 or more constituent companies into one of the constituent companies;
"parent company" means a company that owns more than 50 percent of the outstanding voting shares of each class and series of shares in another company: Provided that for the purposes of section 75 it means a company that owns more than 90 percent of such shares as aforesaid;
"subsidiary company" means a company more than 50 percent of whose outstanding voting shares are owned by another company: Provided that for the purposes of section 75 it means a company more than 90 percent of whose shares as aforesaid are owned by another company;
"surviving company" means the constituent company into which one or more other constituent companies are merged.
on a merger or consolidation under section 74, may give a written instruction to one of the constituent companies incorporated under this Act directing the company to redeem the shares held by the remaining members.
and a member who elects to dissent from a merger under section 74 shall give to the company a written notice of his decision to elect to dissent within 20 days immediately following the date on which the copy of the plan of merger or an outline thereof is given to him in accordance with section 74.
PART VIII
CONTINUATION
PART IX
WINDING-UP, DISSOLUTION AND STRIKING-OFF
the court may order the name of the company to be restored to the Register upon payment to the Registrar of all fees payable by virtue of section 102 and all licence fees payable by virtue of section 103 without any increase for late payment, and upon restoration of the name of the company to the Register, the name of the company is deemed never to have been struck off the Register.
the Registrar shall restore the name of the company to the Register and upon restoration of the name of the company to the Register, the name of the company shall be deemed never to have been struck off the Register.
(b) for any failure to locate any assets of the company.
PART X
FEES AND PENALTIES
PART XI
EXEMPTIONS
are exempt from the payment of stamp duty.
PART XII
MISCELLANEOUS
not being a document referred to in section 113(1)(a), shall be heard by a Judge in Chambers.
SCHEDULE
Section 102(1)
Part I
REGISTRATION AND OTHER SPECIFIED FEES
Section 103(1)
Part II
Annual Licence Fee