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De-Registration of a Cayman Islands Exempted Company and Transfer by Way of Continuation

posted 9 years ago

Introduction

Under the Companies Law (as Revised) (the “Companies Law”) of the Cayman Islands, the Registrar of Companies (the “Registrar”)
will de-register a Cayman Islands exempted compa- ny incorporated and
registered with limited liability and a share capital (the “Applicant”)
which proposes to be registered by way of continuation as a body
corporate limited by shares under the laws of any jurisdiction outside
the Cayman Islands (the “Relevant Jurisdiction”) if:

1.1  the Applicant proposes to be registered by way of continuation in a
jurisdiction which permits or does not prohibit the transfer of the
Applicant;

1.2  the Applicant has paid to the Registrar a fee equal to three (3)
times the annual fee that would have been payable in the January
immediately preceding the application for deregistration; and

1.3  the Applicant has filed with the Registrar, notice of any proposed
change in its name and of its proposed registered office or agent for
service of process in the Relevant Jurisdiction.

Transfer Procedure

In order to be effective the transfer must be approved in accordance
with the Applicant’s Memorandum and Articles of Association. Usually, a
special resolution of the shareholders of the Applicant will be
required. Depending on the terms of the Applicant’s Articles of Associa-
tion, it may even be necessary to amend the Applicant’s Memorandum and
Articles of Associ- ation to permit de-registration. The directors of
the Applicant must approve the de-registration and transfer by way of
continuation.

An affidavit must be sworn by a director of the Applicant. The director
must swear that, having made due enquiry, he or she is of the opinion
that:

i.  no petition or other similar proceeding has been filed and remains
outstanding or order made or resolution adopted to wind up or liquidate
the Applicant in any jurisdiction;

ii.  no receiver, trustee or administrator or other similar person has
been appointed in any ju- risdiction and is acting in respect of the
Applicant, its affairs or its property or any part thereof;

iii.  no scheme, order, compromise or other similar arrangement has
been entered into or made whereby the rights of creditors of the
Applicant are and continue to be suspended or restricted;

iv.  the Applicant is able to pay its debts as they fall due;

v.  the application for de-registration is bona fide and not intended to defraud creditors of the Applicant;

vi.  any consent or approval to the transfer required by any contract
or undertaking entered in- to or given by the Applicant has been
obtained, released or waived, as the case may be;

vii.  the transfer is permitted by, and has been approved in accordance
with, the Memorandum and Articles of Association of the Applicant;

viii.  the laws of the Relevant Jurisdiction with respect to transfer have been or will be complied with; and

ix.  once re-registered the Applicant will continue as a body corporate
limited by shares under the laws of the Relevant Jurisdiction.

The affidavit must also include a statement of the assets and
liabilities of the Applicant made up to the latest practicable date
before the making of the affidavit.

The Applicant must deliver to the Registrar an undertaking signed by a
director that notice of the transfer has been or will be given within 21
days to the secured creditors of the Applicant (if there are no secured
creditors an appropriate negative statement to that effect may be in-
cluded in the director’s affidavit).

The Registrar is required to publish in the Cayman Islands Gazette
details of the de- registration, the jurisdiction under whose laws the
Applicant will be registered or existing and the name of the Applicant
if changed from the current name.

In so far as it is possible, it is advisable that the re-registration
of the Applicant in the Relevant Jurisdiction is co-ordinated with its
de-registration in the Cayman Islands so that both events take place on
the same day. If not there could be a period in which the Applicant is
not regis- tered in any jurisdiction (or is registered in two at the
same time).

The Registrar, if he is not aware of any other reason why it would be
against public interest to de-register the Applicant, will issue a
de-registration certificate under his hand and seal of office stating
that the Applicant has been de-registered as an exempted company and
enter into the Register of Companies the date of de-registration.

Effect of De-Registration

From the date of the de-registration the Applicant shall cease to be an
exempted company under and subject to the Companies Law.

From the date of de-registration the Applicant shall continue as a
company under the laws of the Relevant Jurisdiction provided that this
shall not operate to:

i.  create a new legal entity;

ii.  prejudice or affect the identity or continuity of the Applicant as previously constituted;

iii.  affect the property of the Applicant;

iv.  affect any appointment made, resolution passed or any other act or
thing done in relation to the Applicant pursuant to a power conferred
by the Memorandum and Article of Association of the Applicant or by the
laws of the Cayman Islands;

iv.  affect the rights, powers, authorities, functions and abilities or obligations of the Applicant or any other person; or

vi.  render defective any legal proceedings by or against the Applicant
any legal proceedings that could have been continued or commenced by or
against the Applicant before its de-registration may, notwithstanding
re-registration, be continued or commenced by or against the Applicant
after de-registration.

Please note that we only advise on matters of Cayman Islands law and it
is therefore essential that you obtain appropriate advice in the
jurisdiction to which the Applicant is to transfer as to the procedure
for, and implications of, transferring a Cayman Islands company.

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