Cayman Islands Winding Up a Company

Transcription

1 Cayman Islands Winding Up a Company Introduction This memorandum explains the procedure for both a compulsory and a voluntary winding up of a Cayman Islands' company, and sets out the duties of a liquidator. It also considers the advantages and disadvantages of striking a company from the Register. Compulsory winding up Presenting a petition to the Court The company itself, a contributory or a creditor (including any contingent or prospective creditors) of a Cayman Islands company may present a winding up petition at the Grand Court seeking its winding up on the grounds: 1. that a special resolution has been passed by the members of the company; 2. that the company has not commenced its business within a year from its incorporation or has suspended its business for a whole year; 3. the period (if any) fixed for the duration of the company by the articles of association expires; 4. an event occurs which the articles of association provide that the company is to be wound up; 5. that the company is unable to pay its debts as they fall due; or 6. that the Court is of the opinion that it is just and equitable that the company should be wound up. The Cayman Islands Monetary Authority ("CIMA") may present a winding up petition in respect of any company which is carrying on business locally upon the grounds that it is not duly licensed or registered to do so under applicable regulatory or other laws. Unable to pay its debts The usual ground on which a company is wound up is based upon a creditor s petition on the basis that a company is unable to pay its debts. A company is deemed to be unable to pay its debts if: 1. a creditor has served a statutory demand at the registered office of the company and the company has failed to pay the debt within 21 days; 2. a judgement, decree or order obtained in Court in favour of any creditor at law or in equity in any proceedings against the company is returned unsatisfied in whole or in part; or

2 Page 2 3. it is proved to the satisfaction of the Court that it is unable to pay its debts. Affidavit required A petition is presented at the Grand Court in the Cayman Islands supported by an affidavit confirming the contents of the petition and setting out any other relevant facts. The petition must also be supported by an affidavit sworn by the proposed official liquidator in respect of his consent to act, independence, insurance provision and qualifications. Similar requirements apply in respect of proposed foreign liquidators. Hearing date The Court will list a petition for a hearing date usually not less than 30 days after the petition is filed at Court. Service of petition The petition must be served on the registered office of the company and such service must be proved by an affidavit specifying the manner of service and exhibiting a sealed copy of the Petition. For regulated mutual funds, the petition and affidavit must be served on CIMA. Statutory advertisement A statutory advertisement must be placed in a newspaper having circulation in the Cayman Islands. In addition, if the company is carrying on business outside the Cayman Islands the petition must be advertised in a newspaper having circulation in a country in which it is most likely to come to the attention of the company's creditors and contributories in which case the advertisement must be published in the official language of said country. The statutory advertisement must be made to appear: 1. if the petitioner is the company itself, not less than seven days before the day appointed for the hearing; 2. otherwise, not less than seven days after service of the petition on the company nor less than seven days before the day of the hearing. Appointment of liquidators At the hearing of the petition the Court will consider whether the creditor has shown that the company is unable to pay its debts and if so satisfied shall place the company into official liquidation. The order will appoint partners in accountancy practices on the island to act as the Joint Official Liquidators. Proof of debt Upon their appointment and in any event, within 28 days of the order being made, the Joint Official Liquidators will advertise: 1. in the Cayman Islands Gazette; and 2. whatever newspaper the statutory advertisement was placed in, their appointment in respect of the company. The advertisements will also request that creditors submit proofs of debt. Liquidation process The Joint Official Liquidators will thereafter take steps to liquidate or otherwise take under their control the assets of the company. The Joint Official Liquidators will thereafter resolve creditors claims through the

3 Page 3 proof of debt process. Depending on the amount of time the proof of debt process takes and whether any claims take time to agree/settle, the Joint Official Liquidators will usually declare an initial dividend based upon a percentage of the assets to be paid pari passu to those creditors with accepted proofs of debt. Thereafter, should other creditors have their proofs accepted, when paying further dividends, the Joint Official Liquidators will bring those creditors up to the same level of dividend as those previously paid through a hotch pot. Thereafter, creditors will receive dividends on a pari passu basis. Dissolving the company The length of time required to complete the liquidation depends on its complexity. Once the Joint Official Liquidators are of the view that they have fully wound up the affairs of the company, they apply to the Court for their release and for an Order that the company be dissolved. From that point on, the company ceases to exist. Voluntary winding up EGM required The Directors of the company convene a board meeting at which the rationale for the winding up of the company is discussed. A board resolution based upon a simple majority is passed to requisition an Extraordinary General Meeting ("EGM") 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, their remuneration and the provisions of any liquidator s indemnities. It is also usual for the board meeting to delegate the board s power to convene the meeting to one of the directors who, thereafter, can prepare and sign on behalf of the board all the relevant documentation. The company prepares a pro forma notice of EGM setting out the resolutions to be considered by the meeting along with an attached proxy form. The meeting is called in accordance with the articles of association of the company. Special resolution required The EGM is held and a resolution approving the company s voluntary liquidation, the appointment of liquidators, their remuneration and the granting of an indemnity to the liquidator 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. Declaration of solvency Unless the supervision of the Court is being sought, each director of the company is required to execute a solvency declaration 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. Directors must have reasonable grounds to make such solvency statements or face a fine and/or imprisonment. Appointment of liquidators and advertisement Notice of the appointment of liquidators, the liquidator's consent to act and a declaration of solvency from the directors is filed with the Registrar of Companies and a statutory pro forma advertisement is placed in the Cayman Islands Gazette. Creditors to submit proof of debt 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.

4 Page 4 Liquidation process The liquidator takes steps to wind down in an orderly manner the affairs of the company including realisation of its assets. Interim process Should the liquidators believe it appropriate to pay an interim dividend they must, prior to declaring this dividend, give notice of his intention to do so to all creditors whose addresses are known and who have not proved their debts. It is usual in this notice 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. Final dividend 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 its approval and the liquidators release. Completion of liquidation 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 of Companies informing the Registrar that the liquidation has been completed. Dissolving the company 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. Duties of a liquidator General duties The general duties of a liquidator can be summarised as follows: 1. The 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. 2. A liquidator is not specifically charged with a duty to wind up a company, although his functions in respect of both a compulsory and voluntary liquidation are stated so as to impose a duty to get in the company s property, protect it, draw up a list of contributories, settle claims, and having realised the property, apply it in payment of creditors and/or contributories. 3. A liquidator does not owe a fiduciary duty to individual creditors or contributories (Leon v York-O-Matic Ltd [1966] 1 WLR 1450) but given his position and the breadth of his duties and powers he must act in the interests of the creditors and contributories generally. Thus a liquidator may not profit from his office (Re Gertzenstein Ltd [1937] Ch 115). 4. Although a liquidator may call meetings of creditors and contributories to ascertain their wishes, he is not bound to follow those wishes because such meetings are designed for consultation rather than direction.

5 Page 5 5. A liquidator must act impartially and independently. This applies equally to compulsory and voluntary liquidations (Re Lubin, Rosen & Associates Ltd [1975] 1 WLR 122). Compulsory liquidator A compulsory liquidator is an officer of the Court and must be seen to be acting honourably and properly in the administration of the insolvency (applying the principle in Re Condon, ex pt James (1874) 9 Ch App 609). Voluntary liquidator Although a liquidator in a voluntary winding up is not an officer of the Court, there is authority to suggest that the same principles of acting honourably and properly in the administration of the insolvency apply. (Bailey, Groves & Smith in Corporate Insolvency Law and Practice consider that the same principle applies, notwithstanding that Re Temple Fire and Accident Assurance Co. (1910) 129 LT Jo 115 which is authority for such a proposition was overruled in Re TH Knitwear (Wholesale) Ltd [1987] 1 WLR 371. It is interesting to note that Fletcher in The Law of Insolvency considers the effect of Re TH Knitwear (Wholesale) Ltd to be that a voluntary liquidator is no longer subject to the duties that would bind an officer of the Court. Sir Nicholas Browne-Wilkinson V-C s words were in fact But even on that assumption [i.e. that the ex pt James principle applies] I am unable to accept that the principle, whatever its proper ambit, can apply to the present case. It is my opinion that this is not sufficient to totally extinguish the authority in Re Temple Fire and Accident Assurance Co). In addition, a voluntary liquidator can be said to be under a number of duties as a result of his functions as imposed by changes to the Companies Law in The duties apply equally to several liquidators should more than one be appointed pursuant to s119 of the Companies Law (2011 Revision) (as amended) (the "Companies Law"). These duties are: 1. Subject to preferential and secured creditors, the liquidator must apply the company property pari passu in satisfaction of the company s liabilities and thereafter distribute it amongst the members of the company according to their rights and interests in the company). 2. The liquidator must wind up the affairs and distribute the company property. 3. The liquidator must pay the debts of the company and adjust the rights of the contributories amongst themselves. 4. Arguably, the liquidator should apply to Court for directions to determine questions arising in the liquidation where there is real doubt as to the way forward. Section 129 of the Companies Law provides this facility for a voluntary liquidator, but the use of the word may in that section does not cause it to be a duty as such. However, a parallel can be drawn with s168 of the Insolvency Act 1986 of the UK which also uses the word may in the context of a compulsory liquidation. The decision in Craig v Humberclyde Industrial Finance Group Limited indicates a common law upgrade from may to should in difficult cases. 5. In the case of a voluntary liquidation that continues for more than a year, the liquidator must summon a general meeting of the company at the end of the first and each subsequent year of the liquidation and to lay before such a meeting an account showing the liquidator s acts and dealings and the manner in which the liquidation has been carried out in the preceding year (s126). 6. Once the affairs of the company are fully wound up, the liquidator must make an account showing the manner in which the liquidation has been conducted and the manner in which the property has been disposed of. He shall then call a general meeting of the company by public notice (or otherwise as the Registrar shall direct) at least one month before the meeting and lay the account before it (s127).

6 Page 6 7. The liquidator must make a return to the Registrar of such a meeting pursuant to s127. Striking a company off the Register - alternative to liquidation An alternative to liquidation is for the directors of the company to invite the Registrar to strike the company off the Register of Companies pursuant to s156 of the Companies Law. Such an invitation would take the form of an affidavit of one or more of the directors of the company (or the sole shareholder) delivered to the Registrar with a letter stating that the company is no longer active and has no assets or liabilities. The application and affidavit should be approved in resolutions of the directors of the company, although copies of the resolutions do not need to be forwarded to the Registrar. The fee is currently CI$50.00 (approx US$61.00). The company will be dissolved when the striking off takes place. This method of dissolving a company is cheaper and generally faster to achieve than a liquidation, but there are a few differences between the two methods that should be noted. 1. Generally a strike off is used for a company that has not traded. 2. If the company has been struck off the Register, any member or creditor of the company may, within two years after the date the company was struck off (or such longer period as the Governor in Cabinet may allow not exceeding ten years) apply to the Court pursuant to s159 of the Companies Law for the restoration of the company to the Register. 3. Striking a company from the Register does not affect the liability of any director, manager, officer or member of the struck off company, and such liability shall continue and may be enforced as if the company had not been dissolved. 4. Any property vested in or belonging to any company struck off the Register is vested in the Financial Secretary for the benefit of the Islands and may be disposed of by the Governor in Council. In a liquidation, once any liabilities have been satisfied, any balance is distributed amongst the shareholders of the company. For further information please refer to your usual contact or: Cayman Islands - Neil Lupton, Partner neil.lupton@walkersglobal.com Cayman Islands - Colette Wilkins, Partner colette.wilkins@walkersglobal.com Hong Kong - Fraser Hern, Senior Counsel fraser.hern@walkersglobal.com 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.