Fundamentals of Cayman Islands Companies Article by: David Lloyd, Managing Director 21 March 2016 The Cayman Exempted Limited Company An exempted company is the most commonly used type of Cayman Islands company for international transactions. Often used for private wealth, cross-border transactions in structured finance, securitisations, asset backed finance and secured leasing (including aircraft and ship finance), capital markets private placements, project finance, infrastructure finance, operating companies, holding companies and investment funds. Nature of business permitted The objects of a Company will be set forth in the Memorandum. In a majority of cases, the objects clause will be worded very broadly using a formulation such as, "the objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by any law". A Company may not trade in the Cayman Islands with any person, firm or corporation except in furtherance of the business of the Company carried on outside the Cayman Islands. A Company that is not listed on the Cayman Islands Stock Exchange is prohibited from making any invitation to the public in the Cayman Islands to subscribe for any of its securities. Certain activities are regulated in the Cayman Islands and a Company may be required to obtain a licence or to register with CIMA if it wishes to carry on such activities e.g. banking business, trust business, company management, insurance business, mutual fund administration, business of a mutual fund and securities investment business. Legal Environment The Cayman Islands are a British Overseas Territory. Cayman Islands law is based on English common law, together with local statutes appropriate for both international and local business.
Name It is not necessary for a Company's name to contain words or abbreviations such as 'Limited', 'Ltd', 'Inc', 'Corp' etc. There are certain restricted names, for example, those including the words 'royal', 'imperial', 'bank', 'assurance', 'insurance'. Number of Shareholders A Company must have a minimum of one shareholder at any time. Unless provided for in the Articles, there is no maximum number of shareholders. A Company must have at least one share in issue, but there is no minimum paid-in capital requirement. Fractional shares may be issued if the Articles so permit. Share Capital There is no minimum share capital requirement Time to Incorporate 2-3 business days or 24 hours upon the payment of an “express fee” to the Cayman Islands Government. The express fee is currently US$488. Registered Office or Registered Agent Each Cayman company must have a registered office by law to which all notices and communications may be addressed. Taxation There is no direct taxation. No corporation, property, capital gains or withholding taxes. This legislation is backed by a 20-year government guarantee (rising to 30 years on application) Company may apply for an undertaking from the Governor to the effect that, for a period of twenty years from the date of such undertaking (extendable by a further ten years), enabling long term business planning: 1. no law which is thereafter enacted in the Cayman Islands imposing any tax to be levied on the profits, income, gains or appreciations shall apply to the Company or its operations; and 2. no such tax nor any tax in the nature of estate duty or inheritance tax will be payable by the Company: I. II.
on or in respect of the shares, debentures or other obligations of the Company; or by way of the withholding in whole or in part of any relevant payment.
Confidentiality The Register of Directors and Officers and the Register of Shareholders of exempted companies are not available for inspection by members of the public. There is no requirement in the Cayman Islands for the accounts or financial statements of the company to be publicly filed.
Stamp Duty On Share Transfers The Cayman Islands does not impose stamp duty on the transfer of shares except in relation to the transfer of shares in a company which holds real estate in the Cayman Islands. Annual Fees & Annual Return An Annual Return must be submitted to the Registrar in January of each year following incorporation along with the appropriate annual return fee. Bell Rock will attend to the filing of the annual return and all statutory compliance. At the date of writing the current annual government fees are between US$854 and US$3,132 (depending on the Company's authorised share capital – For most companies the annual fee is US$854) Please note: Annual returns cannot be submitted unless cleared funds have been received. Therefore, to ensure that the company does not fall into default, it is important to settle invoices promptly. Non-Payment of Annual Fees A Company which has not filed its annual return or paid its annual return fee within 12 months of its due date is liable to be struck off the Register. Any assets held by a company which is struck off the Register automatically vest with the Cayman Islands Government. Meetings Exempted Companies are not obligated to hold annual meetings of shareholders. The frequency and procedures relating to convening meetings of shareholders and directors are governed by the provisions of the Articles of Association. Furthermore, Directors are not required by law to hold an annual meeting in the Cayman Islands. Directors Exempted Companies are required to have a minimum of one director (unless the Company is registered with the Cayman Islands Monetary Authority (“CIMA”)). There is no legal requirement for the director(s) to be resident in the Cayman Islands though Bell Rock provides experience and qualified directors to a wide range of companies for clients looking to demonstrate tax neutrality in Cayman and the comfort that someone is appointed who understands the regulatory and compliance requirements. Our directors are registered with CIMA under the Director Registration & Licensing Law 2014. Company Registers Under the Companies Law each company must maintain the following registers: 1. Register of Directors & Officers This register contains the name, address, date of appointment and date of resignation of each director and officer. The register is not a public document although details of the directors and officers must be filed with the Registrar of Companies and be maintained at the registered office in the Cayman Islands. 2. Register of Shareholders
This register contains the name and address of each of the company’s shareholders; the number, type and class of shares held; whether shares are fully paid; the distinguishing number of shares (if any); the date of entry as a member, the date of transfer; and the person to whom the shares are transferred. The register may be kept in an electronic format or any other medium, and can now be freely maintained anywhere in the world. Although this is not required by statute the register is usually held at the registered office. Bell Rock, as a regulated entity, requires, as a matter of “Know Your Customer” policy, that details of all shareholders and beneficial owners are held at the registered office and that all changes are notified to us promptly. The register of members is not open to public inspection and there is no statutory right for any person (including members or creditors) to review it. The only publicly available information in respect of a Company is its name, company number, date of incorporation, registered office, the type of company (eg exempted) and whether the Company is active or has been struck off. The memorandum and articles of association are not publicly available. 3. Register of Mortgages & Charges This register contains details of the mortgages and charges specifically affecting the property of the company. If any mortgage or other form of security interest is granted, full particulars must be provided immediately and the register written-up. This register can be inspected by any member or creditor of the company and must be maintained at the registered office in the Cayman Islands. Security documents which are brought to or executed in the Cayman Islands will be subject to stamp duty.
Filing Procedures - Penalties for Late Filing The Companies Law provides for daily penalties for non-compliance with a number of requirements (e.g., filing deadlines, requirement to have a registered of office). There are statutory time constraints for notification. It is important that clients provide the information to Bell Rock, as the registered office provider, promptly to avoid fines or penalties which will be levied. The following events must be notified to the registered of office in order that the Registrar of Companies may be notified and the appropriate fee paid. As a general rule, only the Registered Office in the Cayman Islands may make filings with the Registrar of Companies. For this reason, all significant corporate events should be notified promptly to us for the appropriate filing by us, if required, with the Registrar. The time limits for notification of the following significant events are: Changes in the name of a company: 15 days Alterations to the Memorandum or Articles of Association: 15 days
Any other special resolution passed by the shareholders: 15 days Changes of location of the registered of Office: 30 days Changes in directors or of officers: 60 days Increases in the authorised capital of the company: 30 days
Penalties Late flings relating to changes to the Register of Directors and Officers will attract a penalty against the Company of US$609.76 on day 61, irrespective of the number of changes; maximum aggregate of penalty of US$3,048.78 where the breach occurs with 5 or more companies. However, if the Registrar is satisfied that the breach has been knowingly and willfully authorized or permitted, the penalty per company is US$1,219.51 and US$1,219.51 penalty for every director and officer of the company to which the breach relates, plus US$121.95 for every day during which default continues. Late filing of an increase in authorized share capital or the company having no registered office provider will incur a penalty of US$12 per day, up to a maximum of US$609.76. Minute Book A minute book should be maintained. Although there is no requirement that the minute book be maintained at the Registered Office most companies follow this practice. The minute book and statutory records of the company should contain: Certificate of Incorporation (we retain the original Certificate of Incorporation for safekeeping) Certified copy of the Memorandum and Articles of Association Original or duplicate originals of the minutes of directors’ and shareholders’ meetings (and any attachments referred to in the minutes) Written resolutions of the directors and shareholders (and any attachments referred to in the minutes) The resignation letters of directors or officers Consent to Act letters for the directors and secretary Copies of share certificates as issued and the original share certificate stubs Share transfer forms, Applications for Shares and the Share Register Copies of Certificates of Good Standing or Incumbency (if obtained) z Annual returns Tax concessions certificate It is important to ensure that all relevant information and paperwork is provided to keep the statutory records up-to-date irrespective of where the documents originate. Maintaining all parts of the statutory records at the Cayman Registered Office will ensure compliance with the statutory obligations of the Company and expedite the issuance of legal opinions. Duplicate statutory records may be maintained. Books of Account All companies must maintain proper books of account, although they need not necessarily be kept at the Registered Office. The books of account must be such as are necessary to give a fair and true view of the state of the company’s affairs and explain its transactions. All
books of account must be maintained for a minimum of seven years from the date on which they are prepared. Failure to do so may result in a penalty of US$6,097.56. If a company is regulated by CIMA it must have its financial statements audited annually and lodged with CIMA by its auditors. Name Display The name of the company must be displayed at the Registered Office in the Cayman Islands. Where Bell Rock provides the registered of Office, we will attend to this requirement. Seal A company may have a common seal. The previous statutory requirement for each company to have a common seal has been repealed. If a common seal is used, the Articles of Association normally will provide that it be kept at the Registered Office. A duplicate seal may be approved for use outside the Cayman Islands when the directors are non- resident. This may be a facsimile of the common seal, which may, but is not required to, have imprinted the district, territory or place where it is to be used. Procedure to Change Directors & Officers Letters of resignation and Consent to Act letters should be sent to the Registered Office, along with the resolutions of the directors (or shareholders where a sole director has resigned) appointing new directors and officers and accepting the resignation of the retiring directors and officers. Copies of resolutions should be provided to the Registered Office promptly so that Bell Rock can update the Register of Directors and Officers and make required filings electronically with the Registrar of Companies. There are significant penalties for late filing of changes of directors and officers. Generally, directors may be removed by an ordinary resolution of the shareholders passed at a general meeting of the shareholders. An ordinary resolution requires a simple majority of those shareholders present and entitled to vote at the meeting voting in favour of the resolution. Officers may usually be removed by a resolution of the directors. Alternatively, directors and officers may be removed by resolutions signed by all shareholders or directors respectively, in lieu of a formal meeting. The Articles of Association and minute book must be checked to ensure compliance with any special provisions relating to the appointment and removal of directors. Share Transactions The issuance of new shares is usually approved by a resolution of the directors. If the Registered Office maintains the Register of Members, the original resolution should be lodged with the Registered Office for entry to the Register of Members, along with a copy of the Minutes of the meeting at which the resolution was passed to enable the Register to be amended and the share certificate(s) issued. Shares must be issued in consideration of additional paid in capital. Shares may be issued at a premium. If existing shares are transferred, a share transfer form must be signed and placed on the minute book. The directors should pass a resolution approving the transfer and issue of a
new share certificate, which may not be issued until the old share certificate is surrendered to the registered of Office for cancellation, unless the shares are in registered form only and certificates are not issued. Bearer shares may only be issued into the custody of an Authorized Custodian as defined in the relevant Law. Bearer shares which were not deposited with an Authorized Custodian by the deadline are deemed null and void. Directors commit an offence if they make or permit a false annual return declaration with regard to the custody of Bearer shares. The Articles of Association and minute book must be checked to ensure compliance with any restrictions on the transfer of shares. Amendment of constitution Amendments of the Memorandum or Articles, or the name of the Company, may only be made by special resolution of the voting shareholders. A resolution is a special resolution when: 1. it has been passed by a majority of not less than two-thirds (or such greater number as may be specified in the Articles) of such members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of which notice specifying the intention to propose the resolution as a special resolution has been duly given; or 2. if authorised by the Articles, it has been approved in writing by all of the members entitled to vote at a general meeting of the Company. Powers and liabilities of directorsThe Articles most often provide that the business of the Company shall be managed by the directors. Shareholders do not generally participate in the management of the Company's business. Directors owe fiduciary duties to the Company. These duties include a duty: 1. 2. 3. 4. 5. 6. 7.
of loyalty/duty to act in best interests of the Company; to act for a proper purpose; not to fetter director's discretion; to avoid conflicts; not to make secret profits from the director's position as director; to act fairly as between different shareholders; and to act with skill and care.
These duties are owed to the Company itself, and not generally to individual shareholders. This article is intended to merely provide a brief overview and general guidance only. For further information please feel free to contact us: [email protected]