MANAGEMENT AND ADMINISTRATION

Registered Office and Name.

Registered office of company [Gib 140]

174. (1) As from the day on which a company begins to carry on business or as from the twenty-eighth day after the date of its incorporation, whichever is the earlier, the company shall have a registered office in Gibraltar to which all communications and notices may be addressed.

(2) Notice of the address of the registered office, and of any change of registered office, shall be given within 28 days after the date of the incorporation of the company or of the change, as the case may be, to the Registrar who shall record the same.

(3) The inclusion in the annual return of a company of a statement as to the address of its registered office shall not be taken to satisfy the obligation imposed by subsection (2) unless that return shall have been due and made within 28 days of the change.

(4) If default is made in complying with this section, the company and every officer of the company who is in default shall be guilty of an offence and liable on summary conviction to a default fine.

(5) A company or officer of a company may send a notice in the prescribed form to the Registrar stating that the company does not have authority to use the address it has registered in accordance with the preceding provisions of this section.

(6) An company or undertaking which holds a licence under the Financial Services (Investment and Fiduciary Services Act) which enables that company or undertaking to provide company or corporate administration services by way of the provision of a registered office, may send a notice in the prescribed form to the Registrar stating that the company does not have authority to use the address it has registered in accordance with the preceding provisions of this section.

(7) Notwithstanding the filing of a notice in accordance with subsections (5) and (6) the address of the registered office shall remain as registered in accordance with this section and all communications and notices may be served on the company at that address in accordance with section 474.

Publication of name by company [Gib 141]

175. (1) Every company–

(a) shall paint or affix, and keep painted or affixed, its name on the outside of every office or place in which its business is carried on, clearly visible, in letters easily legible;

(b) shall have its name mentioned in legible characters in all notices, advertisements and other official

publications of the company, and in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company, and in all bills of parcels, invoices, receipts and letters of credit of the company.

(2) If a company does not paint or affix (and keep painted or affixed) its name in the manner directed by this Part, the company and every officer of the company who is in default shall be guilty of an offence and liable on summary conviction to a fine of one half of the amount at level 1 on the standard scale.

(3) If a company fails to comply with paragraph (b) of subsection (1), the company shall be guilty of an offence and liable on summary conviction to a fine at level 2 on the standard scale.

(4) A director, manager or officer of a company or any person on its behalf who –

(a) issues or authorises the issue of any notice, advertisement or other official publication of the company, or signs or authorises to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods, where its name is not mentioned in the manner required by this Part, or (b) issues or authorises the issue of any bill of parcels, invoice, receipt or letter of credit of the company, where its name is not mentioned in the manner required by this Part,

shall be guilty of an offence and liable on summary conviction to a fine at level 2 on the standard scale, and is further personally liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods, for the amount as stated, unless it is duly paid by the company.

Particulars to be shown on letterheads, etc. [Gib 142]

176. (1) Every company shall have the following particulars mentioned in legible characters in all business letters, order forms and on the homepage of its website (if any), that is to say –

(a) the place of registration of the company;

(b) the number with which it is registered;

(c) the address of its registered office;

(d) in the case of a limited company exempt from the obligation to use the word “Limited” as part of its name, the fact that it is a limited company;

(e) in the case of an investment company (as defined in Schedule 17) the fact that it is such a company;

(f) where appropriate, that the company is being wound up,

and, if in the case of a company having a share capital there is on the stationery used for any such letters or on the order forms a reference to the amount of the share capital, the reference shall be to paid-up share capital.

(2) Company websites shall state clearly on their homepage all the information referred to in subsection (1).

(3) If a company fails to comply with subsection (1) and (2), the company shall be guilty of an offence and liable on summary conviction to a fine at level 2 on the standard scale; and if an officer of a company or any person on its behalf issues or authorises the issue of any business letter or order form not complying with subsection (1), he shall be guilty of an offence and liable on summary conviction to a fine at level 2 on the standard scale.

Restrictions on Commencement of Business.

Restrictions on commencement of business [Gib 143]

177. (1) This section shall not apply to a private company.

(2) Where a company, having a share capital has issued a prospectus inviting the public to subscribe for its shares, the company shall not commence any business or exercise any borrowing powers unless–

(a) shares held subject to the payment of the whole amount in cash have been allotted to an amount not less in the whole than the minimum subscription; and

(b) every director of the company has paid to the company on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares offered for public subscription; and

(c) there has been delivered to the Registrar for registration a statutory declaration by the secretary or one of the directors, in the prescribed form, that the conditions referred to in this section have been complied with.

(3) Where a company having a share capital has not issued a prospectus inviting the public to subscribe for its shares, the company shall not commence any business or exercise any borrowing powers, unless–

(a) there has been delivered to the Registrar for registration a statement in lieu of prospectus; and

(b) every director of the company has paid to the company, on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares payable in cash; and

(c) there has been delivered to the Registrar for registration a statutory declaration by the secretary or one of the directors in the prescribed form that paragraph (b) of this subsection has been complied with.

(4) The Registrar, on the delivery to him of a statutory declaration, and, in the case of a company which is required by this section to deliver a statement in lieu of prospectus, of that statement, shall certify that the company is entitled to commence business, and that certificate shall be conclusive evidence that the company is so entitled.

(5) Nothing in this section affects the validity of any transaction entered into by a company; but if a company enters into a transaction in contravention of this section and fails to comply with its obligations within 21 days from being called upon to do so, the directors of the company shall be jointly and severally liable to indemnify the other party to the transaction in respect of any loss or damage suffered by him by reason of the company’s failure to comply with those obligations.

(6) Nothing in this section shall prevent the simultaneous offer for subscription or allotment of any shares and debentures or the receipt of any money payable on application for debentures.

(7) If a company commences business or exercises borrowing powers in contravention of this section, every person who is responsible for the contravention shall be guilty of an offence and, without prejudice to any other liability, liable on summary conviction to a fine at level 2 on the standard scale for every day during which the contravention

continues.

Register of Members.

Register of members [Gib 144]

178. (1) Subject to subsection (2) every company shall keep in one or more books a register of its members, and enter the following particulars -

(a) the names and addresses, and the occupations (if any) of the members, and in the case of a company having a share capital a statement of the shares held by each member, distinguishing each share by its number and of the amount paid or agreed to be considered as paid on the shares of each member;

(b) the date at which each person was entered in the register as a member; and (c) the date at which any person ceased to be a member.

(2) Where a company has converted any of its shares into stock and given notice of the conversion to the Registrar, the register shall show the amount of stock held by each member instead of the amount of shares and the particulars relating to shares specified in paragraph (a) of subsection (1).

(3) If default is made in complying with this section, the company and every officer of the company who is in default shall be guilty of an offence and liable on summary conviction to a default fine.

Changes in membership of private company [Gib 145]

179. (1) If the number of members of a private company limited by shares or by guarantee falls to one there shall upon the occurrence of that event be entered in the company’s register of members–

(a) the name and address of the sole member;

(b) a statement that the company has only one member; and

(c) the date on which the company became a company having only one member.

(2) If the membership of a private company limited by shares or by guarantee increases from one to two or more members there shall upon the occurrence of that event be entered in the company’s register of members, with the name and address of the person who was formerly the sole member, a statement that the company has ceased to have only one member together with the date on which that event occurred.

(3) If a company makes default in complying with this section the company and every officer of it who is in default shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale and, for continued contravention, to a daily fine not exceeding one-tenth of level 2 on the standard scale.

Index of members of company [Gib 146]

180. (1) Every company having more than 50 members shall, unless the register of members is in such a form as to constitute in itself an index, keep an index of the names of the members of the company and shall, within fourteen days after the date on which any alteration is made in the register of members, make any necessary alteration in the index.

(2) The index, shall in respect of each member contain a sufficient indication to enable the account of that member in the register to be readily found.

(3) If default is made in complying with this section, the company and every officer of the company who is in default shall be guilty of an offence and liable on summary conviction to default fines.

Provisions as to entries in register in relation to share warrants [Gib 147]

181. (1) On the issue of a share warrant the company shall strike out of its register of members the name of the member then entered as holding the shares specified in the warrant as if he had ceased to be a member, and shall enter in the register the following particulars, namely –

(a) the fact of the issue of the warrant;

(b) a statement of the shares included in the warrant, distinguishing each share by its number; and (c) the date of the issue of the warrant.

(2) Subject to the memorandum and articles of the company, the bearer of a share warrant shall be entitled, on surrendering it for cancellation, to have his name entered as a member in the register of members.

(3) The company shall be responsible for any loss incurred by any person by reason of the company entering in the register the name of a bearer of a share warrant in respect of the shares specified without the warrant being surrendered and cancelled.

(4) Until the warrant is surrendered, the particulars specified in subsection (1) shall be deemed to be the particulars required by this Part to be entered in the register of members, and, on the surrender, the date of the surrender must be entered.

(5) Subject to the provisions of this Part, the bearer of a share warrant may, if the memorandum or articles of the company so provide, be deemed to be a member of the company within the meaning of this Part, either to the full extent or for any purposes defined in the memorandum or articles.

Inspection of register of members [Gib 148]

182. (1) The register of members, commencing from the date of the registration of the company, and the index of the names of members, shall be kept at the registered office of the company.

(2) Subject to subsection (3), except when the register is closed under the provisions of this Part, it shall during business hours be open to the inspection of any member without charge and shall also be open to the inspection of any other person on payment of the prescribed sum for each inspection.

(3) The requirement for the register to be open to inspection during business hours shall be subject to such reasonable restrictions as the company in general meeting may impose, so that not less than 2 hours in each day shall be allowed for inspection.

(4) Any member or other person may require a copy of the register, or of any part of it, on payment of the prescribed sum for every hundred words or fractional part required to be copied; and the company shall send any copy so required by any person to that person within a period of 10 days commencing on the day next after the day on which the request is received by the company.

(5) If any inspection required under this section is refused or if any copy required under this section is not sent within the proper period, the company and every officer of the company who is in default shall be guilty of an offence and liable on summary conviction in respect of each offence to a fine of one fifth of the amount at level 1 on the standard scale, and further to a default fine of the same amount.

(6) If any refusal or default occurs, the court may by order compel an immediate inspection of the register and index or direct that the copies required shall be sent to the persons requiring them.

Power to close register [Gib 149]

183. On giving notice by advertisement in any newspaper circulating in Gibraltar, a company may close the register of members for any time or times not exceeding in the whole 30 days in each year.

Power of court to rectify register [Gib 150]

184. (1) If –

(a) the name of any person, without sufficient cause, is entered in or omitted from the register of members of a company, or

(b) default is made or unnecessary delay takes place in entering on the register the fact of any person having ceased to be a member,

the person aggrieved, or any member of the company, or the company, may apply to the court for rectification of the register.

(2) Where an application is made under this section, the court may either refuse the application or may order rectification of the register and payment by the company of any damages sustained by any party aggrieved.

(3) On an application under this section the court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or alleged members, or between members or alleged members on the one hand and the company on the other hand, and generally may decide any question necessary or expedient to be decided for rectification of the register.

(4) In the case of a company required by this Part to send a list of its members to the Registrar, the court when making an order for rectification of the register, shall by its order direct notice of the rectification to be given to the Registrar.

Trusts not to be entered on register [Gib 151]

185. No notice of any trust, express, implied or constructive, shall be entered on the register, or be receivable by the Registrar.

Register to be evidence [Gib 152]

186. The register of members shall be prima facie evidence of any matters directed or authorised to be inserted by this Act.

Annual Return.

Annual return to be made by company having a share capital [Gib 153 Draft 6]

187. (1) Every company having a share capital shall deliver to the Registrar successive annual returns each of which is made up to a date not later than the date which is from time to time the company’s “return date”, that is–

(a) the anniversary of the company’s incorporation, or

(b) if the company’s last return delivered in accordance with this Act was made up to a different date, the anniversary of that date.

(2) Each return shall–

(a) be in the form prescribed in Schedule 5;

(b) contain the information required by this Act; and (c) be signed by a director or the secretary of the company,

and subject to subsection (3) shall be delivered to the Registrar within 28 days after the date to which it is made up.

(3) In the case of a company to which section 188 applies, the annual return shall be delivered to the Registrar within 6 months after the date to which it is made up.

(4) Subject to subsection (5), the list specified in Schedule 5 -

(a) must state the names, addresses and occupations of all the past and present members mentioned; and (b) must state the number of shares held by each of the existing members at the date of the return, specifying shares transferred since the date of the last return, or, in the case of the first return, of the incorporation of the company by persons who are still members and have ceased to be members respectively and the dates of registration of the transfers; and

(c) if the names are not arranged in alphabetical order, must have annexed to it an index sufficient to enable the name of any person in the list to be readily found.

(5) Where a company has converted any of its shares into stock and given notice of the conversion to the Registrar, the

(5) Where a company has converted any of its shares into stock and given notice of the conversion to the Registrar, the