Comparison of Voluntary Liquidation Procedures in the British Virgin Islands, the Cayman Islands and Jersey

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1 Comparison of Voluntary Liquidation Procedures in the British Virgin Islands, the Cayman Islands and Jersey Introduction In light of recent changes to UK tax on residential property it may in certain circumstances be considered desirable to wind up offshore holding vehicles in order to distribute property assets by way of voluntary liquidation. This note provides a comparative analysis of voluntary liquidation procedures under the laws of Cayman, BVI and Jersey. It is not an attempt to guide the reader as to the steps that should be taken following the coming into force of the changes to UK tax on residential property. Separate advice should be sought in this regard. Principal legislation BVI Business Companies Act, 2004 (the "BC Act") BVI Business Companies Regulations, 2012 (the "Regulations") Note: The summary provided for the voluntary liquidation procedure in the BVI assumes that the company being liquidated is not a regulated entity. We have not considered the voluntary liquidation procedure available pursuant to section 159(2) of the Insolvency Act, Companies Law (2012 Revision) (as amended) The Companies Winding Up Rules 2008 (as amended) Companies (Jersey) Law 1991, as amended (the "Companies Law"). A voluntary liquidation is referred to as a "summary winding up". The statutory process is simple and can often be done quickly without the involvement of a liquidator.

2 Page 2 Status of the jurisdiction and court system The BVI is a British Overseas Territory which is self-governing and part of the Commonwealth. The head of state is HM the Queen of England and the UK is responsible for the appointment of the BVI's Governor, external affairs, internal security and the administration of the courts. The BVI is a member of the Eastern Caribbean Supreme Court system which was founded in The Judicial Committee of the Privy Council is the final court of appeal. The Cayman Islands is a British Overseas Territory which is self-governing and part of the Commonwealth. The head of state is HM the Queen of England and the UK is responsible for the appointment of the Cayman Islands' Governor, national security and the administration of the courts. The Cayman Islands has its own independent court system. The Judicial Committee of the Privy Council is the final court of appeal. Jersey is a UK Crown Dependency which is self-governing and part of the Commonwealth. The head of state is HM the Queen of England and the UK is responsible for the appointment of Jersey's Governor, and the senior members of the judiciary such as the Bailiff and deputy Bailiff. Jersey has its own independent court system. The Judicial Committee of the Privy Council is the final court of appeal. Board resolution The directors may, by passing a resolution, appoint an eligible individual to act as voluntary liquidator: 1. upon the expiration of such time as may be specified in the Memorandum and Articles of the company (the "M&A") for its existence; 2. upon the happening of such event as may be specified in its M&A as an event that shall terminate the existence of the company; A board resolution based on a simple majority is passed to requisition an extraordinary general meeting of the company to consider, and if thought fit, to pass a special resolution seeking the company's winding up and, thereafter, ordinary resolutions confirming the appointment of specific liquidators. A resolution of the directors should be passed to approve the signing of a statutory solvency statement with respect to the company and to deal with obtaining the necessary shareholder approval that the company be wound up which, subject to the Memordanduma nd Articles of Association of the company (the "M&A"), may be at a general meeting or by way of a unanimous written resolution. 3. in the case of a company

3 Page 3 limited by shares, if it has never issued any shares; or 4. in any other case if the M&A permit them to pass a resolution for the appointment of a voluntary liquidator, and the members have, by resolution, approved the liquidation plan. Extraordinary general meeting It is not required for an extraordinary general meeting to be convened, however the members of a company may, by resolution, approve the liquidation plan and appoint an eligible individual as the voluntary liquidator of the company. A special resolution approving: 1. the company's voluntary liquidation; 2. the appointment of voluntary liquidators; 3. their remuneration; and Within 28 days of the solvency statement being signed, the shareholders must pass a special resolution to wind up the company summarily. A copy of the special resolution must then be delivered to the Jersey Registrar of Companies (the "Registrar") together with the signed solvency statement. 4. the granting of an indemnity to the liquidators is passed. From that moment on the company is under the control of the liquidators and unless any resolution of the company says otherwise the directors' powers and authority are terminated. Note that in the case of limited life companies and companies of limited duration there is generally no need to obtain a shareholders' resolution. The corporate state and capacity of a company continues after the commencement of its winding up until it is dissolved. However, the company's powers should only be exercised so far as required to realise its assets, to discharge its liabilities, and thereafter to distribute

4 Page 4 its surplus assets (if any). Declaration of solvency The directors of the company must make a declaration of solvency in the approved form stating that, in their opinion: 1. the company is and will continue to be able to discharge, pay or provide for its debts as they fall due; and 2. the value of the company's assets equals or exceeds its liabilities. The declaration of solvency has no effect unless it is made on a date no more than four weeks earlier than the date of the resolution to appoint the liquidator and it has attached to it a statement of the company's assets and liabilities as at the latest practical date before the making of the declaration. Unless the supervision of the Court is being sought, each director of the company is required to execute a declaration of solvency stating that the company will be able to pay its debts in full, together with interest at the prescribed rate, in a period not exceeding twelve months. If the declaration of solvency is not signed by all directors within 28 days of the commencement of the liquidation there is a statutory requirement for the liquidators to apply to court for an order that the liquidation be subject to Court supervision. All the directors of the company must sign a solvency statement (the "Initial Statement") that, having made full enquiry into the company's affairs, each is satisfied that the company: 1. has no assets and no liabilities; 2. has assets and no liabilities; 3. will be able to discharge its liabilities in full within the six months after the commencement of the winding up; 4. has liabilities that will fall due more than six months after the commencement of the winding up that it will be able to discharge in full as they fall due; or In addition to the declaration of solvency, the directors must also approve a liquidation plan which addresses each of the matters set out in the BC Act. 5. both (3) and (4) apply, as the case may be. Where the Initial Statement confirms any of (2) through (5), once registered with the shareholder resolution, the winding-up has

5 Page 5 commenced. It will be finished once the company's assets have been realised, any liabilities satisfied and any surplus assets distributed and a second statement is registered confirming (1) above (a "Final Statement"). However, where the Initial Statement confirms (1) above, the company is simply dissolved upon its registration along with a copy of the shareholders resolution. Directors' Liability A director that makes a declaration of solvency without having reasonable grounds for the opinion that the company is and will continue to be able to discharge, pay or provide for its debts in full as they fall due commits an offence and is liable on summary conviction to a fine of ten thousand dollars. The directors must have reasonable grounds to make such solvency statements or face a fine of ten thousand dollars and/or imprisonment of two years. A director must make full enquiry into the company s affairs before signing a solvency statement. If he has no reasonable grounds for making such statement then he is guilty of an offence punishable by up to two years' imprisonment or a fine or both following its registration. Duties of a liquidator The BC Act sets out the principal duties of a voluntary liquidator, which are to: 1. take possession of, protect and realise the assets of the company; 2. identify all creditors of and claimants against the company; Each liquidator, as a fiduciary, is subject to the general fiduciary duties of acting honestly, exercising powers vested in him bona fide for proper purpose and ensuring that his personal interest does not conflict with his duty. Although the liquidators may call meetings of creditors and contributories to ascertain their wishes, they is not bound to follow those wishes because such A company is not obliged to appoint a liquidator to carry out the summary winding up but may do so by way of special resolution. On the appointment of a liquidator the directors cease to be authorised to exercise their powers in respect of the company and those vest in the liquidator. It is relatively unusual to appoint a liquidator in a solvent winding up and so incur those additional costs, save where the

6 Page 6 3. pay or provide for the payment of, or to discharge, all claims, debts, liabilities and obligations of the company; meetings are designed for consultation rather than direction. The liquidators must act impartially and independently. affairs of the company are particularly complicated, or some other compelling reason suggests it would be appropriate. 4. distribute the surplus assets of the company to the members in accordance with the memorandum and articles; 5. prepare or cause to be prepared a statement of account in respect of the actions and transactions of the liquidator; and 6. send a copy of the statement of account to all members if so required by the liquidation plan. A voluntary liquidator is a fiduciary and subject to the usual duties of a fiduciary. Liability of liquidator A voluntary liquidator must comply with certain filing, notice and advertising requirements. A resolution to appoint a liquidator is void and of no effect unless the voluntary liquidator files notice of his appointment on or before the The liquidators must comply with certain filing and notice requirements. A liquidator who fails to comply with these requirements commits an offence and is liable to a fine of ten thousand dollars. A liquidator has the same potential personal liability for solvency statements that he signs as directors do (described above).

7 Page 7 fourteenth day following his appointment. Importantly the liquidation of the company does not commence until such time that the liquidator files notice of his appointment with the Registrar of Corporate Affairs (the "Registrar") in accordance with the BC Act. Notice The directors or members must, as soon as practicable after a voluntary liquidator is appointed, give the liquidator notice of his/her appointment. A resolution to appoint a liquidator is void and of no effect unless the voluntary liquidator files notice of his appointment on or before the fourteenth day following his appointment. Notice of the appointment of liquidators, the liquidators' consent to act and a declaration of solvency are filed with the Registrar of Companies (the "Registrar"). Solvency statements and special resolutions, which are filed at the Registrar, will shortly thereafter be publicly available. When appointed, the voluntary liquidator must, within fourteen days of his appointment, file: 1. a notice of his appointment with the Registrar; 2. the declaration of solvency made by the director or an extract thereof complying with the Regulations; and 3. a copy of the liquidation

8 Page 8 plan. The statement of assets and liabilities need not be filed with the declaration of solvency, however a copy of the declaration of solvency with the statement of assets and liabilities attached must be kept at the office of the registered agent of the company. Advertisements Within 30 days of commencement of the liquidation, the liquidator must advertise notice of his appointment in the manner prescribed by the Regulations. A statutory advertisement is placed in the Cayman Islands Gazette advertising the appointment of the liquidators. The liquidators will then advertise in appropriate newspapers for all creditors and contributories to submit proofs of debt in the liquidation. It is usual for the advertisement to require such creditors and contributories to submit their proofs of debt within a specified time period. However, this deadline is not binding on the creditors and is not a bar to the submission of claims. No advertisement is required. Interim dividend The BC Act does not distinguish between the making of interim or final distributions. In order to perform the duties imposed on him/her under the BC Act, a voluntary liquidator has all the powers of the company that Should the liquidators believe it appropriate to pay an interim dividend they must, prior to declaring this dividend, give notice of their intention to do so to all creditors whose addresses are known and who have not proved their debts. It is usual in this notice If the company has only assets, these may be realised and distributed among the members according to their rights as provided for in its M&A. Where the company has liabilities which will be satisfied within six

9 Page 9 are not reserved to the members under the BC Act or the M&A, including but not limited to, the power 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. for the liquidators to set a date within which proofs may be lodged. This date must not be less than 21 days from that of the notice. Should a creditor fail to submit his proof of debt within that time period, at the discretion of the liquidators, they may or may not deal with that proof in the payment of any interim dividend. However, that creditor still is entitled to have his proof of debt processed and, on the assumption that the company is solvent, paid in full by the end of the liquidation. months, the directors may pay interim dividends after the registration of the solvency statement, if they reasonably believe that the company will continue to be able to pay any remaining liabilities as they fall due. The provisions relating generally to distributions contained in the Companies Law do not apply during the course of a summary winding up. Final dividend The liquidation plan must state whether the liquidator is required to send to all members of the company a statement of account prepared or caused to be prepared by the liquidator in respect of his actions or transactions. The liquidators give notice of intention to pay a final dividend to the creditors and (if solvent) contributories of the company. They also send to them their final account of the affairs of the liquidation along with a notice of final meeting with proxy form seeking their approval and the liquidators' release. As soon as a company has completed the distribution of its assets, a Final Statement should be signed and, once registered, the company is dissolved. Expedited distribution of assets In order to perform the duties imposed on him/her under the BC Act, a voluntary liquidator has all the powers of the company that are not reserved to the members under the BC Act or the M&A, including but not limited to the power to make any distribution in money or in other property or It is possible to make a distribution of assets shortly after the liquidators are appointed. This would include in specie distributions of property. The liquidators would usually request that they be provided with an indemnity in such circumstances. See above for interim and final.

10 Page 10 partly in each, and if in other property, to allot the property, or an undivided interest therein, in equal or unequal proportions. Completion of liquidation The liquidation plan must state whether the liquidator is required to send to all members of the company a statement of account prepared or caused to be prepared by the liquidator in respect of his actions or transactions. The final meeting is held at least one month after the publication of the notice of the final meeting and the liquidators accounts are approved. The liquidators make their final return to the Registrar informing the Registrar that the liquidation has been completed. Winding-up is complete when all assets have been realised, liabilities settled and any remaining assets distributed, at which time a Final Statement should be signed and registered. Once the liquidation has been completed, the liquidator must file a statement of completion with the Registrar. There is no statutory requirement for the liquidator to convene a meeting of members prior to completion of the liquidation. Dissolution Upon receiving the statement of completion from the voluntary liquidator, the Registrar must strike the company off the Register and issue a certificate of dissolution certifying that the company has been dissolved. The dissolution of the company is effective from the date of the issue of the certificate. Three months after the liquidators have submitted their final return the company is deemed to be dissolved and, from that point on, ceases to exist. As soon as the Final Statement is registered by the Registrar the company is dissolved. Timing The minimum time within which a company can be wound up and dissolved is approximately six The minimum time within which a company can be wound up and dissolved is approximately four and A summary winding up in Jersey is often a simple procedure and there is no minimum time set down in law

11 Page 11 weeks from the date of appointment of the liquidator. A voluntary liquidator may not carry on the business of the company in voluntary liquidation for a period of more than two years, without the permission of the BVI Court. a half months. In the case of a voluntary liquidation that continues for more than a year, the liquidators must summon a general meeting of the company at the end of the first and each subsequent year of the liquidation and lay before such meeting an account showing the liquidators' acts and dealings and the manner in which the liquidation has been carried out in the preceding year. within which it can occur. Costs For a straightforward voluntary liquidation the legal costs would be in the region of US$5,000 together plus disbursements of approximately US$500. For a straightforward voluntary liquidation the legal costs would usually be in the region of US$5,000 together with disbursements in the region of US$1,150. For a straightforward summary winding up the legal costs would usually be in the region of GBP 2,500 together with disbursements in the region of GBP 50. The fees of the liquidator will be in the region of US$3,000 to US$5,000 for a straightforward liquidation of a non-regulated entity (assuming a BVI licensed insolvency practitioner is appointed). The costs of an independent liquidator, if required, would be in the region of US$5,000 for a straightforward liquidation. Dated March 2013

12 Page 12 For further information please refer to your usual contact or: British Virgin Islands - Sandie Corbett, Partner Cayman Islands - Neil Lupton, Partner Cayman Islands - Colette Wilkins, Partner Hong Kong - Fraser Hern, Partner Jersey - Alex Carus, Partner +44 (0) The information contained in this memorandum is necessarily brief and general in nature and does not constitute legal or taxation advice. Appropriate legal or other professional advice should be sought for any specific matter.

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