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An Ordinance to provide for the establishment of business
corporations in the Republic of New Lemuria and to provide for matters
incidental or consequential thereto. (continued)
Part X.
Merger or Consolidation
Definitions
89. Whenever used in this part:
"Merger" means a procedure whereby any two or more
corporations merge into a single corporation, which is any one of the
constituent corporations;
"Consolidation" means a procedure whereby any two or more
corporations consolidate into a new corporation formed by the consolidation;
"Constituent Corporation" means an existing corporation that
is participating in the merger or consolidation with one or more other
corporations;
"Surviving Corporation" means the constituent corporation
into which one or more other constituent corporations are merged; and,
"Consolidated Corporation" means the new corporation into
which two or more constituent corporations are consolidated.
Merger or Consolidation of Domestic Corporations
90. (1) Two or more domestic corporations may merge or
consolidate as provided in this part.
(2) The board of each corporation proposing to participate in
a merger or consolidation shall approve a plan of merger or consolidation
setting forth:
(i) The name of each constituent corporation, and if the name
of any of them has been changed, the name under which it was formed; and the
name of the surviving corporation, or the name, or the method of determining it,
of the consolidated corporation;
(ii) As to each constituent corporation, the designation and
number of outstanding shares of each class and series, specifying the classes
and series entitled to vote and further specifying each class and series, if any
entitled to vote as a class;
(iii) The terms and conditions of the proposed merger or
consolidation, including the manner and basis of converting the shares of each
constituent corporation into shares, bonds or other securities of the surviving
or consolidated corporation, or the cash or other consideration to be paid or
delivered in exchange for shares of each constituent corporation, or a
combination thereof;
(iv) In case of merger, a statement of any amendment in the
articles of incorporation of the surviving corporation to be effected by such
merger; in case of consolidation all statements required to be included in
articles of incorporation for a corporation formed under this Ordinance, except
statements as to facts not available at the time the plan of consolidation is
approved by the board; and,
(v) Such other provisions with respect to the proposed merger
or consolidation as the board considers necessary or desirable.
(3) The board of each constituent corporation, upon approving
such plan of merger or consolidation, shall submit such plan to a vote of
shareholders of each such corporation in accordance with the following:
(i) Notice of the meeting, accompanied by a copy of the plan
of merger or consolidation, shall be given to each shareholder, whether or not
entitled to vote; and,
(ii) The plan of merger or consolidation shall be authorized
at a meeting of shareholders by vote of the holders of a majority of outstanding
shares entitled to vote thereon, unless any class of shares of any such
corporation is entitled to vote thereon as a class, in which event, as to such
corporation, the plan of merger or consolidation shall be approved upon
receiving the affirmative vote of the holders of a majority of the shares of
each class entitled to vote thereon as a class and of the total shares entitled
to vote thereon. The shareholders of the outstanding shares of a class shall be
entitled to vote as a class if the plan of merger or consolidation contains any
provisions which, if contained in a proposed amendment to articles of
incorporation, would entitle such class of shares to vote as a class.
(4) After approval of the plan of merger or consolidation by
the board and shareholders of each constituent corporation, the articles of
merger or consolidation shall be executed in duplicate by each corporation by
its president, vice president or managing director and by its secretary or an
assistant secretary, and shall set forth:
(i) The plan of merger or consolidation, and , in case of
consolidation, any statement required to be included in articles of
incorporation for a corporation formed under this Ordinance;
(ii) The date the articles of incorporation of each
constituent corporation were filed with the Registrar of Companies; and,
(iii) The manner in which the merger or consolidation was
authorized with respect to each constituent corporation.
(5) The articles of merger or articles of consolidation shall
be filed with the Registrar of Companies in accordance with the provisions of
Section 4 of Part I.
Merger of Subsidiary Corporations
91. (1) Any domestic corporation owning at least ninety
percent of the outstanding shares of each class of another domestic corporation
or corporations may merge such other corporation or corporations into itself
without the authorization of the shareholders of any corporation. Its board
shall approve a plan of merger, setting forth:
(i) The name of each subsidiary corporation to be merged and
the name of the surviving corporation, and if the name of any of them has been
changed, the name under which it was formed;
(ii) The designation and number of outstanding shares of each
class of each subsidiary corporation to be merged and the number of such shares
of each class owned by the surviving corporation;
(iii) The terms and conditions of the proposed merger,
including the manner and basis of converting the shares of each subsidiary
corporation to be merged not owned by the surviving corporation, into shares,
bonds or other securities of the surviving corporation, or the cash or other
consideration to be paid or delivered in exchange for shares of each such
subsidiary corporation or a combination thereof; and,
(iv) Such other provisions with respect to the proposed
merger as the board considers necessary or desirable.
(2) A copy of such plan of merger or an outline of the
material features thereof shall be delivered, personally or by mail, to all
holders of shares of each subsidiary corporation to be merged not owned by the
surviving corporation, unless the giving of such copy or outline has been waived
by such holders.
(3) The surviving corporation shall deliver duplicate
originals of the articles of merger to the Registrar of Companies. The articles
shall set forth;
(i) The plan of merger;
(ii) The date when the articles of incorporation of each
constituent corporation were filed with the Registrar of Companies; and,
(iii) If the surviving corporation does not own all the
shares of each subsidiary corporation to be merged, either the date of the
giving to holders of shares of each such subsidiary corporation not owned by the
surviving corporation or a copy of the plan of merger or an outline of the
material features thereof, or a statement that the giving of such copy or
outline has been waived, if such is the case.
The articles of merger shall be filed with the Registrar of
Companies in accordance with the provisions of Section 4 of Part I.
Effect of Merger or Consolidation
92. (1) The merger or consolidation shall be effective upon
the filing of the articles of merger or consolidation with the Registrar of
Companies or on such date subsequent thereto, not to exceed thirty days, as
shall be set forth in such articles.
(2) When such merger or consolidation has been effected:
(i) Such surviving or consolidated corporation shall
thereafter consistently with its articles of incorporation as altered or
established by the merger or consolidation, possess all the rights, privileges,
immunities, powers and purposes of each of the constituent corporations;
(ii) All the property, real and personal, including
subscriptions to shares, causes of action and every other asset of each of the
constituent corporations, shall vest in such surviving or consolidated
corporation without further act or deed;
(iii) The surviving or consolidated corporation shall assume
and be liable for all the liabilities, obligations and penalties of each of the
constituent corporations. No liability or obligation due or to become due, claim
or demand for any cause existing against any such corporation, or any
shareholder, officer or director thereof, shall be released or impaired by such
merger or consolidation. No action or proceeding, whether civil or criminal,
then pending by or against any such constituent corporation, or any shareholder,
officer or director thereof, shall abate or be discontinued by such merger or
consolidation, but may be enforced, prosecuted, settled or compromised as if
such merger or consolidation has not offered, or such surviving or consolidated
corporation may be substituted in such action or special proceeding in place of
any constituent corporation;
(iv) In the case of a merger, the articles of incorporation
of the surviving corporation shall be automatically amended to the extent, if
any, that changes in its articles of incorporation are set forth in the plan of
merger, and, in the case of consolidation, the statements set forth in the
articles of consolidation and which are required or permitted to be set forth in
the articles of incorporation of a corporation formed under this Ordinance,
shall be its articles of incorporation; and,
(v) Unless otherwise provided in the articles of merger or
consolidation, a constituent corporation which is not the surviving corporation
or the consolidated corporation, creases to exist and is dissolved.
Merger or Consolidation of Domestic and Foreign Corporations
93. (1) One or more foreign corporations may be merged or
consolidated with one or more domestic corporations in the following manner, if
such merger or consolidation is permitted by the laws of the jurisdiction under
which each such foreign corporation is established:
(i) Each domestic corporation shall comply with the
provisions of this Ordinance with respect to the merger or consolidation, as the
case may be, of domestic corporations and each foreign corporation shall comply
with the applicable provisions of the laws of the jurisdiction under which it is
organized;
(ii) If the surviving or consolidated corporation is to be
governed by the laws of any jurisdiction other than the Republic of New Lemuria,
it shall file with the Registrar of Companies;
1. An agreement that it will promptly pay to the dissenting
shareholders of any such domestic corporation the amount, if any, to which they
shall be entitled under the provision of this Ordinance with respect to the
rights of dissenting shareholders.
2. A certificate of merger or consolidation issued by the
appropriate official of the foreign jurisdiction.
(2) The effect of such merger or consolidation shall be the
same as in the case of the merger or consolidation of domestic corporations if
the surviving or consolidated corporation is to be governed by the laws of this
jurisdiction. If the surviving or consolidated corporation is to be governed by
the laws of any jurisdiction other than the Republic of New Lemuria, the effect
of such merger or consolidation shall be the same as in the case of the merger
or consolidation of domestic corporations except insofar as the laws of such
other jurisdiction provide otherwise.
(3) The effective date of a merger or consolidation in cases
where the surviving or consolidated corporation is to be governed by the laws of
any jurisdiction other than the Republic of New Lemuria shall be determined by
the filing requirements and laws of such other jurisdiction.
(4) The procedure for the merger of a subsidiary corporation
or corporation under Section 91 of Part X shall be available where either a
subsidiary corporation or the corporation owning at least ninety percent of the
outstanding shares of each class of a subsidiary is a foreign corporation, and
such merger is permitted by the laws of the jurisdiction under which such
foreign corporation is incorporated.
Sale, Lease, Exchange or Other Disposition of Assets
94. (1) A sale, lease, exchange or the disposition of all or
substantially all the assets of a corporation, if not made in the usual or
regular course of the business actually conducted by such corporation, shall be
authorized only in accordance with the following procedure:
(i) The board of Directors shall approve the proposed sale,
lease, exchange or other disposition and direct its submission to a vote of
shareholders;
(ii) Notice of meeting shall be given to each shareholder,
whether or not entitled to vote; and,
(iii) At such meeting the shareholders may authorize the
board to fix any or all terms and conditions thereof and the consideration to be
received by the corporation therefor. Such authorization shall require the
affirmative vote of the holders of two-thirds of the shares of the corporation
entitled to vote thereon unless any class of shares is entitled to vote thereon
as a class, in which event such authorization shall require the affirmative vote
of the holders of a majority of the shares of each class of shares entitled to
vote as a class thereon and of the total shares entitled to vote thereon.
(2) The board of directors may authorize any mortgage or
pledge of, or the creation of a security interest in, all or any part of the
corporate property, or any interest therein, wherever situated. Unless the
articles of incorporation provide otherwise, no vote or consent of shareholders
shall be required to authorize such action by the board of directors.
Right of Dissenting Shareholder to Receive Payment for
Shares
95. Any shareholder of a corporation shall have the right to
dissent from any of the following corporate actions and receive payment of the
fair value of his shares:
(i) Any plan of merger or consolidation to which the
corporation is a party; or
(ii) Any sale or exchange of all or substantially all of the
property and assets of the corporation not made in the usual and regular course
of its business, including a sale in dissolution, but not including a sale
pursuant to an order of a court having jurisdiction in the premises or a sale
for cash on terms requiring that all or substantially all the net proceeds of
sale be distributed to the shareholders in accordance with their respective
interests within one year after the date of sale.
Procedure to Enforce Shareholder's Right to Receive Payment
for Shares
96. (1) A shareholder, intending to enforce his rights under
section 87 of Part IX or Section 95 of Part X to receive payment for his shares,
if the proposed corporate action referred to therein is taken, shall file with
the corporation, before the meeting of shareholders at which the action is to be
submitted to a vote, or at such meeting but before the vote, written objection
to the action. The objection shall include a statement that he intends to demand
payment for his shares if the action is taken. Such objection is not required
from any shareholder to whom the corporation did not give notice of such meeting
in accordance with this Ordinance or where the proposed action is authorized by
written consent of shareholders without a meeting.
(2) Within twenty days after the shareholders' authorization
date, which term as used in this section means the date on which the
shareholders' vote authorizing such action was taken, or the date on which such
consent without a meeting was obtained from the requisite shareholders, the
corporation shall give written notice of such authorization or consent by
registered mail to each shareholder who filed written objection or from whom
written objection was not required, excepting any who voted for or consented in
writing to the proposed action.
(3) Within twenty days after the giving of notice to him, any
shareholder to whom the corporation was required to give such notice and who
elects to dissent shall file with the corporation a written notice of such
election, stating his name and residence address, the number and classes of
shares as to which he dissents, and a demand for payment of the fair value of
his shares. Any shareholder who elects to dissent from a merger under section 91
of Part X shall file a written notice of such election to dissent within twenty
days after the giving to him a copy of the plan or merger or an outline of the
material features thereof under section 91 of Part X.
(4) A shareholder may not dissent as to fewer than all the
shares that he owns beneficially. A nominee or fiduciary may not dissent on
behalf of any beneficial owner as to fewer than all the shares of such owner
held of record by such nominee or fiduciary.
(5) Upon filing a notice of election to dissent, the
shareholder shall cease to have any of the rights of a shareholders except the
right to be paid the fair value of his shares.
(6) Within seven days after the expiration of the period
within which shareholders may file their notices of election to dissent, or
within seven days after the proposed corporate action is consummated, whichever
is later, the corporation or, in the case of a merger or consolidation, the
surviving or consolidated corporation, shall make a written offer by registered
mail to each shareholder who has filed such notice of election to pay for his
shares at a specified price which the corporation considers to be their fair
value. If within thirty days after the making of such offer, the corporation
making the offer and any shareholder agree upon the price to be paid for his
shares, payment therefor shall be made within thirty days after the making of
such offer upon the surrender of the certificates representing such shares.
(7) The following procedures shall apply if the corporation
fails to make such offer within such period of seven days, or if it makes the
offer and any dissenting shareholder fails to agree with it within the period of
thirty days thereafter upon the price to be paid for shares owned by such
shareholder.
(i) The corporation shall, within twenty days after the
expiration of whichever is applicable of the two periods last mentioned,
institute a special proceeding in the High Court to determine the rights of
dissenting shareholders and to fix the fair value of their shares. If, in the
case of merger or consolidation the surviving or consolidated corporation is a
corporation without an office in the Republic of New Lemuria, such proceeding
shall be brought in the appropriate court where the office of the corporation,
whose shares are to be valued, was located;
(ii) If the corporation fails to institute such proceedings
within such period of twenty days, any dissenting shareholder may institute such
proceeding for the same purpose not later than thirty days after the expiration
of such twenty day period. If such proceeding is not instituted within such
thirty day period, all dissenter's rights shall be lost unless the Court, for
good cause shown, shall otherwise direct;
(iii) All dissenting shareholders, excepting those who have
agreed with the corporation upon the price to be paid for their shares, shall be
made parties to such proceeding, which shall have the effect of an action
quasi in rem against their shares. The corporation shall serve a copy of
the petition in such proceeding upon each dissenting shareholder in the manner
provided by law for the service of a summons;
(iv) The Court shall determine whether each dissenting
shareholder, as to whom the corporation requests the court to make such
determination, is entitled to receive payment for his shares. If the corporation
does not request any such determination or if the Court finds that any
dissenting shareholder is so entitled, it shall proceed to fix the value of the
shares, which for the purpose of this section, shall be the fair value as of the
close of business on the day prior to the shareholders' authorization date,
excluding any appreciation or depreciation directly or indirectly induced by
such corporate action or its proposal. the Court may appoint an appraiser to
receive evidence and recommend a decision on the question of fair value; and,
(v) The final order in the proceeding shall be entered
against the corporation in favor of each dissenting shareholder who is a party
to the proceeding and is entitled thereto for the value of his shares so
determined. Within sixty days after the final determination of the proceeding,
the corporation shall pay each dissenting shareholder the amount found to be due
him, upon surrender of the certificates representing his shares.
(8) Shares acquired by the corporation upon the payment of
the agreed value therefor or of the amount due under the final order, as
provided in this section, shall become treasury shares or be canceled except
that, in the case of a merger or consolidation, they may be held and disposed of
as the plan of merger or consolidation may otherwise provide.
(9) the enforcement by a shareholder of his right to receive
payment for his shares in the manner provided herein shall exclude the
enforcement by such shareholder of any right to which he might otherwise be
entitled by virtue of share ownership, except that this section shall not
exclude the right of such shareholder to bring or maintain an appropriate action
to obtain relief on the ground that such corporate action will be or is illegal
or fraudulent as to such shareholder.
Part XI
Dissolution
Manner of Effecting Dissolution
97. (1) except as otherwise provided in its articles of
incorporation, a corporation may be dissolved if, at a meeting of shareholders,
the holders of two-thirds of all outstanding shares entitled to vote on a
proposal to dissolve, by resolution consent that the dissolution shall take
place. A certified copy of such resolution shall be filed with the articles of
dissolution.
(2) Whenever all the shareholders entitled to vote on a
proposal to dissolve shall consent in writing as to dissolution, no meeting of
shareholders shall be necessary. The writing or writings, or a certified copy of
same, evidencing the consent shall be filed with the articles of dissolution.
(3) Articles of dissolution shall be signed and delivered to
the Registrar of Companies. They shall set forth the name of the corporation,
the date its articles of incorporation were filed with the Registrar of
Companies, the name and address of each of its directors and officers, that the
corporation elects to dissolve, and the manner in which the dissolution was
authorized. The articles of dissolution shall be filed with the Registrar of
Companies in accordance with the provisions of Section 4 of Part I.
(4) The dissolution shall become effective as of the filing
date stated on the articles of dissolution.
Judicial Dissolution
98. A shareholders meeting to consider adoption of a
resolution to institute a special proceeding on any of the grounds specified
below, may be called, notwithstanding any provision in the articles of
incorporation, by the holders of ten percent of all outstanding shares entitled
to vote thereon, or if the articles of incorporation authorize a lesser
proportion of shares to call the meeting, by such lesser proportion. A meeting
under this section may not be called more often than once in any period of
twelve consecutive months. Except as otherwise provided in the articles of
incorporation, the holders of one-half of all outstanding shares of a
corporation entitled to vote in an election of directors may adopt at the
meeting a resolution and institute a special proceeding in the Republic of New Lemuria for dissolution on one or more of the following grounds:
(i) That the directors are so divided respecting the
management of the corporation's affairs that the votes required for action by
the board cannot be obtained;
(ii) That the shareholders are so divided that the votes
required for the election of directors cannot be obtained;
(iii) That there is internal dissension and two or more
factions of shareholders are so divided that dissolution would be beneficial to
the shareholders;
(iv) That the acts of the directors are illegal, oppressive
or fraudulent; and,
(v) That the corporate assets are being misapplied or
wasted.
If it appears, following due notice to all interested persons
and hearing that any of the foregoing grounds for dissolution of the corporation
exists, the High Court shall make a judgment that the corporation shall be
dissolved. The Registrar of the High Court shall transmit certified copies of
the judgment to the Registrar of Companies. Upon filing with the Registrar of
Companies, the corporation shall be dissolved.
Dissolution on Failure to pay Annual Registration Fee or
Appoint or Maintain Registered Agent
99. (1) On failure of a corporation to pay the annual
registration fee or to maintain a registered agent for a period of two years,
the Registrar of Companies on or after the first day of the month next following
said two year period, shall cause a notification to be sent to the corporation
through is last recorded registered agent which shall indicate that its articles
of incorporation will be revoked unless within ninety days of the date of
notice, payment of the annual registration fee has been received or a registered
agent has been appointed, as the case may be. On the expiration of the ninety
day period, the Registrar of Companies, in the event the corporation has not
remedied its default, shall issue a declaration that the articles of
incorporation have been revoked and the corporation dissolved as of the date
stated in the declaration. The declaration of the Registrar of Companies shall
be filed in his office, published in the Dominion Gazette or other publication
that may from time to time be recognized by the Registrar of Companies and he
shall mark on the record of the articles of incorporation of the corporation
named in the declaration the date of revocation and dissolution, and he shall
give notice thereof to the last recorded registered agent. Thereupon the affairs
of the corporation shall be wound up in accordance with the procedure provided
in this Part XI.
(2) Whenever it is established to the satisfaction of the
Registrar of Companies that the articles of incorporation were erroneously
annulled, he may restore the corporation to full existence retroactive to the
date of annulment by publishing and filing in his office a declaration to that
effect.
(3) Any corporation which has been annulled pursuant to
subsection (1) above for non-payment of fees may be restored to full existence
within three years of such annulment upon payment to the Registrar of Companies
all arrears and such other penalties and fees as required.
Winding up affairs of corporation after dissolution.
100.(1) All corporations, whether they expire by their own
limitations or are otherwise dissolved, shall nevertheless be continued for the
term of three years from such expiration or dissolution as bodies corporate for
the purpose of prosecuting and defending suits by or against them, and of
enabling them gradually to settle and close their business, to dispose of and
convey their property, to discharge their liabilities, and to distribute to the
shareholders any remaining assets, but not for the purpose of continuing the
business for which the corporation was organized. With respect to any action,
suit, or proceeding begun by or against the corporation either prior to or
within three years after the date of its expiration or dissolution, and not
concluded within such period, the corporation shall be continued as a body
corporate beyond that period for the purpose of concluding such action, suit or
proceeding and until any judgment, order, or decree therein shall be fully
executed.
(2) Upon the dissolution of any corporation, or upon the
expiration of the periods of its corporate existence, the directors shall be
trustees thereof, with full power to settle the affairs, pay the outstanding
debts, sell and convey the property, real and personal, as may be required by
the laws of the jurisdiction where situated, prosecute and defend all such suits
as may be necessary or proper for the purposes aforesaid, distribute the money
and other property among the shareholders after paying or adequately providing
for payment of its liabilities and obligations, and do all other acts which
might be done by the corporation, before dissolution, that may be necessary for
the final settlement of the unfinished business of the corporation.
(3) At any time within three years after the filing of the
articles of dissolution, the High Court, in a special proceeding instituted
under this section, upon the petition of the corporation, or of a creditor,
claimant, director, officer, shareholder for shares, or of a creditor, claimant,
director, officer, shareholder, subscriber for shares, or incorporator or any
other person in interest, may continue the liquidation of the corporation under
the supervision of the court in the Republic of New Lemuria and may make all such orders as it may
deem proper in all matters in connection with the dissolution or in winding up
the affairs of the corporation, including the appointment or removal of a
receiver, who may be a director, officer, or shareholder of the corporation.
Settlement of claims against corporation
101. (1) Any time within one year after dissolution, a
corporation may give notice requiring all creditors and claimants, including any
with unliquidated or contingent claims and any with whom the corporation has
unfulfilled contracts, to present their claims in writing and in detail at a
specified place and by a specified day, which shall not be less than six months
after the first publication of such notice. Such notice shall be published at
least once a week for four successive weeks in a newspaper of general
circulation in the jurisdiction in which the office of the corporation was
located at the date of dissolution, or if none exists, in a newspaper of general
circulation in the DOM. On or before the date of the first publication of such
notice, the corporation shall mail a copy thereof, postage prepared and
addressed to his last known address, to each person believed to be a creditor of
or claimant against the corporation whose name and address are known to or can
with due diligence be ascertained by the corporation. The giving of such notice
shall not constitute a recognition that any person is a proper creditor or
claimant, and shall not revive or make valid or operate a recognition of the
validity of, or a waiver of any defense or counter claim in respect of any claim
against the corporation, its assets, directors, officers or shareholders, which
has been barred by any statute of limitation or which has become invalid by any
cause, or in respect of which the corporation, its directors, officers or
shareholders, have any defense or counterclaim.
(2) Any claims which shall have been filed as provided in
such notice and which shall be disputed by the corporation may be submitted for
determination to the High Court. Any person whose claim is, at the date of the
first publication of such notice, barred by any statute of limitations is not a
creditor or claimant entitled to any notice under this section. The claim of any
such person and all other claims which are not timely filed as provided in such
notice except claims which are the subject of litigation on the date of the
first publication of such notice, and all claims which are so filed but are
disallowed by the High Court, shall be forever barred as against the
corporation, its assets, directors, officers and shareholders, except to such
extent, if any, as the court may allow them against any remaining assets of the
corporation in the case of a creditor who shows satisfactory reason for his
failure to file his claim as so provided.
(3) Notwithstanding this section, tax claims and other claims
by the government shall not be required to be filed under this Ordinance, and
such claims shall not be barred because not so filed, and distribution of the
assets of the corporation, or any part thereof, may be deferred until
determination of any such claims.
Part XII
Transfer of Domicile to Republic of New Lemuria.
Definitions
102. As used in this Part, unless the context otherwise
requires, the term:
Articles of Incorporation, when referring to a Foreign
Corporation means the articles of incorporation, certificate of incorporation,
charter, statute, memorandum or other instrument defining the constitution of
the corporation.
Corporation, includes any incorporated organization, private
law corporation, public law corporation, or similar entity.
Foreign Domicile, means the seat siege social, registered
office, or any other equivalent thereto under applicable law.
Foreign Corporation, means any corporation, incorporated,
created or formed in any jurisdiction other than Republic of New Lemuria and which derives no income
from operations in DOM.
When Transfer of Domicile is Permitted
103. (1) Any Foreign corporation may, subject to and upon
compliance with the further provisions of this Part, transfer its domicile into
the DOM, and may perform the acts described in the provisions of this Part, so
long as the laws of the Foreign Domicile do not expressly prohibit such
transfer.
(2) Nothing in this Ordinance shall be regarded as permitting
a foreign corporation which transfers its domicile to the Republic of New Lemuria to transfer
business operations to the DOM.
Application to Transfer Domicile
104. Any Foreign Corporation may transfer its domicile to the Republic of New Lemuria by filing with he Registrar of Companies an application to transfer Domicile
which shall be executed in accordance with section 107. of this Part and filed
and recorded in accordance with section 4 and Part 1 of this Ordinance.
Contents of Application to Transfer Domicile
105. Said Application must contain:
(i) the date on which and the jurisdiction where the
corporation was formed, incorporated, created or otherwise came into existence;
and
(ii) the name of the corporation; and
(iii) the foreign jurisdiction that constitutes the
domicile; and
(iv) a declaration that the transfer of domicile has been
approved by all necessary corporate action; and
(v) a declaration that the transfer of domicile is made in
good faith and will not serve to hinder, delay or defraud existing shareholders,
creditors, claimants or other parties in interest; and
(vi) the name and address of the corporation's registered
agent in the DOM; and
(vii) any other pertinent information required to be set
forth in articles of incorporation under Section 25 of the Ordinance; and
(viii) the amendments of its Articles of Incorporation or
their equivalent, that are to be effective upon filing the application to
transfer domicile.
Documentation to be submitted with application
106. The Application to Transfer shall be submitted to the
Registrar of Companies together with:
(i) a certificate evidencing its corporate existence issued
by an authorized officer of the Foreign Domicile; and
(ii) a certified copy of the Articles of Incorporation, with
amendments, if said documents are not in English translation thereof under oath
of the translator.
Who May execute Application
-
The Application to Transfer Domicile shall be in English
and notwithstanding the requirements of Section
-
(3) of Part I of this Ordinance, shall be signed by any
corporation officer, director, agent, trustee,
manager, partner or any other person performing functions
equivalent to those of any officer or director, however named or described and
who is authorized to sign such Application to Transfer Domicile on behalf of the
corporation.
Certificate of Transfer of Domicile to the DOM
-
Upon the filing of the Application to Transfer Domicile
and the Documents referred to in Sections 105 and
-
above, together with the fees prescribed in Section 6 of
Part I of this Ordinance if the Registrar of
Companies shall find that such documents are in proper form
and satisfy the requirements of this Part, and if the name of the corporation
meets the requirements of Section 22 of Part IV of this Ordinance, then the
Registrar of Companies shall deliver to the corporation a certificate of
Transfer of Domicile and the corporation shall become domiciled and domesticated
in the Republic of New Lemuria as a corporation of the Republic of New Lemuria and shall thereafter be subject to all
the provisions of this Ordinance, and the corporation shall be deemed to have
commenced its existence on the date the corporation was first formed,
incorporated, created or otherwise came into existence and shall have continued
its existence in the DOM; and thereafter the corporation shall promptly adapt
its bylaws, its registration, management and records to comply with the Republic of New Lemuria law.
Prior Obligations and Liabilities
109. The transfer of domicile of any corporation to the Republic of New Lemuria
shall not be deemed to affect any obligations or liabilities of said corporation
incurred prior to such transfer.
Applicable Law
110. The filing of an Application to Transfer Domicile shall
not affect the choice of law applicable to prior obligations and rights of the
corporation except that from the date the application to Transfer Domicile is
filed, the laws of the DOM, including the provisions of this Ordinance, shall
applying to the corporation to the same extent as if the corporation had been
originally incorporated as a corporation of the Republic of New Lemuria on that date; and title to
the corporation's assets shall also be governed by Republic of New Lemuria law.
Departure
111. Any corporation formed, incorporated, created, or
otherwise existing under or subject to this Ordinance may become domiciled in
any foreign jurisdiction upon compliance with this Ordinance and the laws of the
jurisdiction into which the corporation seeks to become domiciled.
Certificate of Departure
112. Any corporation described in section 111 of this Part
shall submit for filing with the Registrar of Companies a Certificate of
Departure which shall be executed in the same manner as an application to
transfer domicile. The Certificate of Departure shall set forth:
(i) The names and addresses of the corporation's creditors
and the total amount of its indebtedness to such creditors, and the names and
addresses of all persons or entities which have notified the corporation in
writing of a claim in excess of One Thousand Dollars and the total amount of
such claims; and
(ii) That the intended departure from the Republic of New Lemuria and transfer of
domicile to a foreign jurisdiction is unlikely to be detrimental to the rights
or property interests of any creditor of or claimant against the corporation;
and
(iii) That the corporation at the time of application to the
foreign jurisdiction is not in breach of any duty or obligation imposed upon it
by this Ordinance or any other law of the DOM; and
(iv) That the transfer of domicile to the foreign
jurisdiction is made in good faith and will not serve to hinder, delay or
defraud existing shareholders or other parties in interest; and
(v) A consent and agreement by the corporation that it may be
served with process in the Republic of New Lemuria in any proceeding arising out of actions or
omissions occurring prior to its departure from the DOM, which agreement shall
include the appointment of the Minister of Finance as the agent of the
corporation to accept such service of process and shall set forth an address to
which a copy of such process shall be forwarded by mail.
Effective Date of Departure
113. Upon payment of all fees outstanding in the DOM, and
upon proper compliance with this Ordinance and applicable laws for transfer of
domicile to the foreign jurisdiction, the departing corporation shall notify the
Registrar of Companies as to the effective date of the transfer of domicile
outside of the DOM. As of the date of such transfer to the foreign jurisdiction,
said corporation shall be deemed to have ceased to be a corporation domiciled in
the DOM.
Jurisdiction of Courts after Departure
114. Nothing in this Part shall obviate, diminish or affect
the jurisdiction of any court in the Republic of New Lemuria to hear and determine any proceeding
commenced therein by or against the corporation arising out of actions or
omissions which occurred before the corporation ceased to be domiciled in the
DOM.
Part XIII
Tax Exemption Status
115. (1) Any corporation subject to this Ordinance which does
no business in the Republic of New Lemuria shall not be subject to any corporate tax, income tax,
withholding tax, stamp tax, asset tax, exchange controls or other fees or taxes
based upon or measured by assets or income originating outside of the Republic of New Lemuria or in
connection with other activities outside of the Republic of New Lemuria or in connection with
matters of corporate administration which may occur in the DOM, except as
provided in sections 6 and 7 of Part I of this Ordinance.
(2) For purposes of this section, no corporation shall be
considered to be doing business in the Republic of New Lemuria solely because it engages in any or
all of the following activities:
(i) maintaining bank accounts in the DOM;
(ii) holding meetings of directors or shareholders in the
DOM;
(iii) maintaining corporate or financial records in the DOM;
(iv) maintaining an administrative or managerial office in
the Republic of New Lemuria with respect to assets or activities outside of the DOM;
(v) maintaining a registered agent in the DOM; and
(vi) investing in stocks or entities of the Republic of New Lemuria corporations
or being a partner in a Republic of New Lemuria partnership or a beneficiary of a Republic of New Lemuria trust or
estate.
Dividends and Distributions
116. In addition, any dividend or distribution by a
corporation which does no business in the Republic of New Lemuria to another such corporation, or to
individuals or entities which are not citizens or residents of the DOM, shall be
exempt from any tax or withholding provisions the Republic of New Lemuria law which would otherwise
be applicable to such corporation or the recipient of the dividend or
distribution.
Part XIV
Miscellaneous
Savings Provision
117. This Ordinance shall not affect any cause of action,
liability, penalty, or action or special proceeding which on the effective date
of this Ordinance is accrued, existing, incurred or pending, but the same may be
asserted, enforced, prosecuted, or defended as if this Ordinance had not been
enacted.
Penalty for Default
118. Any person, natural or corporate, found in default of
one or more provisions shall be liable upon summary conviction to a fine not to
exceed ten thousand dollars USD.
Form a Republic of New Lemuria corporation
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