Cayman Islands - Duties and Liabilities of Directors

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1 Cayman Islands - Duties and Liabilities of Directors Introduction This Memorandum provides a summary of duties and liabilities of directors of companies incorporated under the laws of the Cayman Islands. It is not intended to be an exhaustive statement of the law in this area but merely to be of some guidance to persons who act as directors of such companies. Particular circumstances or transactions should be the subject of specific legal advice given on the relevant facts at the relevant time. Companies formed in the Cayman Islands and the duties and liabilities of their directors (both executive and non-executive) are governed by the Companies Law (2013 Revision) of the Cayman Islands (the "Companies Law") and the common law so far as it has not been amended by statutory provisions. The Cayman Islands' courts would regard as highly persuasive the decisions of the English courts in relation to such matters. Statutory duties of directors Maintain registers The Companies Law requires each company incorporated under it to maintain certain registers. The Directors are responsible for ensuring that such registers are kept in the appropriate location and maintained in good order. The registers are: 1. The Register of Members. This must be kept at the registered office of the company in the Cayman Islands (except in the case of an exempted company when it can be kept at any other location, whether in the Cayman Islands or elsewhere). The register contains the names and addresses of and details of shares issued to the company's members. 2. The Register of Directors and Officers. This must be kept at the registered office of the company. The register contains the names and addresses of each of the company's directors and officers. 3. The Register of Mortgages and Charges. This must be kept at the registered office of the company. The register contains details of all mortgages and charges given by the company over any of its assets. Reporting obligations The directors are also responsible for ensuring that the company complies with all reporting requirements of the Companies Law. These are: 1. An annual return must be filed with the Registrar of Companies in January of each year accompanied by the payment of the annual government fee to keep the company in good standing. Failure to pay the fee and file the annual return by 31 March in any year will result in late payment or filing penalties as follows:

2 Page 2 Payment or filing made between Penalty 1 April and 30 June 33.33% of the annual fee 1 July and 30 September 66.66% of the annual fee 1 October and 31 December 100% of the annual fee Failure to pay the fee or file the annual return by 31 December in the year in which it is due, will result in the company being liable to be struck off the Register. Should this happen, all assets owned by the company will be forfeited to the Financial Secretary of the Cayman Islands for credit to the general revenue. 2. Any change in the directors or officers of the company must be notified to the Registrar of Companies within 30 days. 3. Any change in the registered office of the company must be notified to the Registrar of Companies within 30 days. 4. Any special resolution adopted by the company (eg a resolution to change its name or its Memorandum or Articles of Association) must be notified to the Registrar of Companies within fifteen days. Books of account The directors are also responsible for ensuring that the company complies with the requirements of the Companies Law to maintain proper books of account, ie such books, contracts and invoices as are necessary to give a true and fair view of the state of the company's affairs and to explain its transactions. The books of account are to be retained for a minimum of five years from the date on which they were prepared. A company that knowingly and wilfully contravenes this requirement is liable to be fined. Registered office The directors are also responsible for ensuring that the company complies with the requirements of the Companies Law to maintain a registered office in the Cayman Islands, and to ensure that its name is properly displayed at its registered office, as well as on its stationery etc. Annual general meeting The shareholders of a company (but not an exempted company) must hold at least one general meeting in every calendar year, although this meeting does not need to be held in the Cayman Islands. Failure to hold such meeting will result in the company not being in a position to file its annual return and being subject to the penalties referred to above. Registration The Directors Registration and Licensing Law, 2014 (the "DRL Law") requires that each director of a mutual fund registered with the Cayman Islands Monetary Authority ("CIMA") is either registered or licensed in accordance with the DRL Law. There is an annual fee to be paid to CIMA.

3 Page 3 Other duties of directors Fiduciary duties Apart from the specific duties referred to above, the Companies Law does not (unlike the current English statute) specify the general or fiduciary duties of directors. However, in the case of Cayman Islands News Bureau Limited v Cohen and Cohen Associates Limited [ ] CILR 195 it was held, per Harre J, that the fiduciary obligations of a senior manager with major responsibilities was the same as that of a director or trustee, and these duties were listed as "the observance of general standards of loyalty, good faith, and the avoidance of a conflict of duty and self interest". English case law is highly persuasive and the Cayman Islands Courts have adopted the English common law principles relating to directors' duties which can generally be summarised as follows: 1. a duty to act in what the directors bona fide consider to be the best interests of the company (and in this regard it should be noted that the duty is owed to the company and not to associate companies, subsidiaries or holding companies; what is in the best interests of the group (if any) of companies to which the company belongs is not necessarily in the best interests of the company); 2. a duty to exercise their powers for the purposes for which they are conferred; 3. a duty of trusteeship of the company's assets; 4. a duty to avoid conflicts of interest and of duty; 5. a duty to disclose personal interest in contracts involving the company; 6. a duty not to make secret profits from the directors' office; and 7. a duty to act with skill, care and diligence. Of these the duties of loyalty, honesty and fidelity are considered to be the core fiduciary duties. (followed in Renova Resources Private Equity Limited v Gilbertson [2009] CILR 268) Standard of skill and care: objective test In recent years the English and Commonwealth authorities have moved towards a primarily-objective test for the standard of skill, care and diligence. Recent cases in the Grand Court make it clear that the Cayman Islands Courts follow these authorities: 1. In Re D'Jan of London Limited [1994] 1BCLC 561, Hoffmann J, (now Lord Hoffmann) held that the common law duty of care owed by a director was accurately stated in section 214 of the English Insolvency Act Consequently the conduct required of a director in the Cayman Islands (whether executive or non-executive) is the conduct of: "A reasonably diligent person having both (a) the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by that director in relation to the company, and (b) the general knowledge, skill and experience that that director has." 3. Therefore, there is a minimum objective standard based upon the functions given to the director in question but the standard can be raised where the director in question has more knowledge, skill and experience than would normally be expected.

4 Page 4 4. Given the way that the modern test is framed it would be wise whenever a director is appointed to define his functions specifically. 5. In Re Barings Plc (No 5) [2000] BCLC 523 the English Court of Appeal approved the summary given by Jonathan Parker J at first instance in that case in the following terms: (a) (b) (c) "Directors have, both collectively and individually, a continuing duty to acquire and maintain a sufficient knowledge and understanding of the company's business to enable them properly to discharge their duties as directors. Whilst directors are entitled (subject to the articles of association of the company) to delegate particular functions to those below them in the management chain, and to trust their competence and integrity to a reasonable extent, the exercise of the power of delegation does not absolve a director from the duty to supervise the discharge of the delegated functions. No rule of universal application can be formulated as to the duty referred to in (b) above. The extent of the duty, and the question whether it has been discharged, must depend on the facts of each particular case, including the director's role in the management of the company." This summary has been adopted as constituting Cayman Islands law by Jones J in Weavering Macro Fixed Income Fund Limited (in Liquidation) v Peterson and Ekstrom in the Grand Court August There is now a positive duty to act and a duty to exercise independent judgment. The Combined Code on Corporate Governance published by the English FRC for reporting years beginning on/after 1 November 2003 is a good point of reference. Although not directly binding in the Cayman Islands, it is best practice. The code provides that directors have, both collectively and individually, a continuing duty to acquire and maintain sufficient knowledge and understanding of a company's business to enable them properly to discharge their duties as directors. 7. Notwithstanding the above, by definition the duty of care is not absolute. Therefore it is still proper for the board of directors to delegate management functions, especially in large companies. Particular functions may be further delegated to others in the company. However, delegation does not absolve a director from the duty to supervise the discharge of the delegated functions. Nevertheless the Cayman Islands Courts will examine the conduct of the director in any individual case to ascertain whether he met the standard required of him as described above. In Weavering, Jones J confirmed that although it was usual in the context of a hedge fund that investment management, administration and accounting functions be delegated to contracted professionals, the exercise by the directors of their powers of delegation in this way does not absolve them from the duty to supervise the delegated functions: "They must apply their minds and exercise independent judgment, in the ordinary course of business, in respect of all matters falling within the scope of their supervisory responsibilities". It follows that each separate set of circumstances should be the subject of specific legal advice, which takes into account the prevailing factors. Liabilities of directors Generally speaking, directors are not personally liable for the debts, liabilities or obligations of a company except for those debts, liabilities or obligations which arise out of the negligence, fraud or breach of fiduciary duty on the part of an individual director, or an action not within his authority and not ratified by the company. The analysis of directors' liability is assessed under two separate heads: 1. liability to the company and its shareholders; and 2. liability to third parties outside the company.

5 Page 5 Liability to company and shareholders Under the first heading the question would arise where the director provides negligent advice or acts negligently with the result that the company's assets are diminished and as an indirect consequence the market value of the shares falls. The general principle laid down by the English case of Foss v Harbottle (1843) 2 Hare 461 would apply in that the directors' duties are taken to be to the company and not to its individual shareholders. This can give rise to difficulties where, for example, the directors have voting control of a company and use that control to block any action by the company against them. There are, however, several exceptions where the shareholders can bring action against the directors but this action (called a "derivative action") is raised by the shareholders (or one or more of them) acting on behalf of the company. The shareholders are merely seeking to obtain a remedy for the company itself for the wrong done to the company. Generally speaking, it is possible for minority shareholders to sue on behalf of the company where some reason can be shown that, unless they are permitted to do so, the interests of justice will be defeated. The law relating to derivative actions is extremely complex and the foregoing remarks are intended only to highlight the manner in which shareholders could take action against the company's directors. Liability of other directors The mere fact that one director is liable to the company for a breach of duty does not of itself render the remaining directors also liable. Thus, for example, in the absence of negligence the director is not liable for a breach of duty by other directors of which he was ignorant. Decided English cases have held that failure to attend board meetings does not of itself make a director liable for the act done at those meetings by his co-directors, and agreement to a course of practice resulting in loss does not create a liability where a director has taken no part in the specific action giving rise to the loss. However, a director will be liable if he has failed to supervise the activities of a guilty director in circumstances where his duty of care obliges him to do so, or where he has knowingly participated in or has sanctioned conduct which constitutes a breach of duty and in these circumstances a comparatively slight degree of participation is sufficient to create liability. Liability to third parties The directors can also in certain circumstances incur personal liability to third parties eg a director is potentially liable in tort for his acts as a director. By way of example, if a director makes a negligent statement to a third party relating to the company's clients or its business generally and the third party suffers a loss as a result of reliance upon such statement, the director could incur personal liability. Again, the circumstances in which the third party could take such action vary and depend also on the degree of professional skill exercised by the director in providing advice to the third party. Powers of liquidator Mention should also be made of the provisions of sections 136 and 137 of the Companies Law by virtue of which the liquidator of a company is empowered to take action against any past or present director, manager, officer or member of the company if it appears in the course of the winding up that such person has been guilty of a criminal offence in relation to the company. Indemnities Cayman Islands laws do not prohibit or restrict a company from indemnifying its directors and officers against personal liability for any loss they may incur arising out of the company's business. The indemnity extends only to liability for their own negligence and breach of duty other than breaches of fiduciary duty and not where there is evidence of dishonesty, wilful default or fraud. Accordingly, and subject to the above exception, many companies registered in the Cayman Islands include an indemnity for the benefit of all their directors and officers in the Articles of Association. The company will then usually insure against its own liability under the indemnity.

6 Page 6 Where wilful neglect or default in carrying out a duty of skill, care and diligence is found there will be no relief from liability as amply demonstrated by the US$111million judgment in the Weavering case. Authority of directors to act Authority under the articles The constitutional documents of a Cayman Islands company consist of its Memorandum of Association and Articles of Association. The Memorandum of Association generally sets out the objects and powers of the company and the Articles of Association deal with matters related to its internal workings. The Articles of Association generally authorise the directors to transact the business of the Company and to exercise all its powers, usually without the participation of the shareholders. It is open to the directors to delegate (if they are permitted by the Articles of Association to do so) any specific function to any one of their number or to committees or to the company's officers. Without such delegation and in the absence of any provision in the Articles of Association to the contrary, no director or officer or other person is empowered to individually act to bind the company. There is the exception of "ostensible authority" where in certain circumstances it may appear to a bona fide third party that a director or officer is empowered to act for the company and the company may be bound thereby, but any director attempting to proceed in reliance of this should exercise caution. It is advisable that the delegation of any power to any particular director, officer or other individual to act on behalf of the company be fully considered and expressly approved by the board of directors. Authority under the memorandum Section 7(4) of the Companies Law provides that: "The memorandum of association may specify objects for which the proposed company is to be established and may provide that the business of the company shall be restricted to the furtherance of the specified objects. If no objects are specified or if objects are specified but the business of the company is not restricted to the furtherance of those objects, then the company shall have full power and the authority to carry out any object not prohibited by this or any other Law." A company's Memorandum may therefore restrict capacity and powers to act to the furtherance of specified objects (although it should be noted that this is the exception rather than the rule). Any action of the company decided on by the directors for which the company is without capacity or which is not in furtherance of the specified objects will be ultra vires. Ultra vires With regard to lack of capacity or powers of a company and ultra vires acts, section 28(1) of the Companies Law provides that: "No act of a company and no disposition of real or personal property to or by a company shall be invalid by reason only of the fact that the company was without capacity or power to perform the act or to dispose of or receive the property, but the lack of capacity or power may be asserted: (a) (b) in proceedings by a member or a director against the company to prohibit the performance of any act, or the disposition of real or personal property by or to the company; and in proceedings by the company, whether acting directly or through a liquidator or other legal representative or through members of the company in a representative capacity, against the incumbent or former officers or directors of the company for loss or damage through their unauthorised act."

7 Page 7 In addition, section 27(2) the Companies Law provides that no act or disposition will be ultra vires by reason of lack of corporate benefit to the company. Transactions entered into with third parties will therefore not be rendered invalid by virtue of lack of capacity or lack of corporate benefit. Neither actions of the company that are ultra vires the Memorandum of Association nor the directors' breach of duty to the company in entering into such an ultra vires transaction are ratifiable, even by a unanimous vote of all the shareholders. However, actions taken by the directors of a company that are ultra vires the powers vested in the directors by the Articles of Association (eg in respect of which the directors lacked the capacity to act, or where there is no benefit to the company) can be ratified by the company in general meeting. The difference between acting ultra vires the Memorandum of Association and acting ultra vires the Articles of Association is important as, if the directors effect an unauthorised act, their personal liability for so doing may depend upon whether such act is capable of ratification and is subsequently ratified by the company in general meeting. Shadow directors A shadow director means any person in accordance with whose directions or instructions the directors of the company are accustomed to act (although his name does not appear on the register of directors). Managers, in particular investment managers of funds, should be made aware of this extension in the Companies Law on the basis that directors are often accustomed to following the instructions of such managers and, depending on the factual scenario, the manager, or any of its principals, could be construed as a shadow director. The definition of shadow directors does however state that a person is not deemed to be a shadow director by reason only that the directors act on advice given by him in a professional capacity. Ultimately, directors need to independently consider the advice that is given by managers (for example, an investment manager in a fund) and act accordingly. There is a risk that to the extent sufficient consideration is not given to the recommendations of the manager and they are blindly followed, the manager could be construed as a shadow director. Although it is likely that the manager will seek to rebut this argument on the basis that it is solely providing advice in a professional capacity (as stated in the relevant investment management agreement) and the actions of the directors are their own. This may ultimately come down to a question of fact and degree. Shadow directors are now potentially liable under the Companies Law pursuant to section 134 (fraud in anticipation of winding up), section 136 (misconduct in the course of winding up) and section 137 (material omissions from statement relating to company's affairs). Each is a criminal offence and the penalty in respect of each of the aforementioned sections is a fine and/or imprisonment for a term of five years. Segregated portfolio companies Directors of any Exempted Segregated Portfolio Company (an "SPC") have additional duties and liabilities pursuant to Part XIV of the Companies Law. These include: 1. the duty to establish and maintain the segregation of a portfolio's assets from other segregated portfolios and the general assets of the SPC; and 2. the duty to ensure that the SPC states the capacity in which it is contracting in relevant transaction documentation. For further information see the Walkers' memorandum on Segregated Portfolio Companies. Updated: 10 July 2014

8 Page 8 For further information please refer to your usual contact or: Cayman Islands - Antonia Hardy, Partner antonia.hardy@walkersglobal.com Dubai - Daniel Wood, Partner daniel.wood@walkersglobal.com Hong Kong - Denise Wong, Partner denise.wong@walkersglobal.com London - Alexandra Corner, Partner alexandra.corner@walkersglobal.com +44 (0) Singapore - John Rogers, Partner john.rogers@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.