Company Formation and Administration in Seychelles
INTERNATIONAL LAW & CORPORATE SERVICES (PTY) LTD
COMPANY FORMATION & ADMINISTRATION IN SEYCHELLES
INTRODUCTION
The Seychelles has two corporate statutes. The Companies Act (Cap. 40) (the “Companies Act”)
is, in it’s original version, over 25 years old and resembles fairly closely the
1948 English Companies Act. It is
used, for the most part, to incorporate companies to do business within the
Seychelles.
The International Business Companies Act (Cap100A) (the IBC Act) was
passed in 1994 and provides for the incorporation of the International Business
Company, an offshore company which is used worldwide, not only for holding
companies and investment companies but also to carry on business within other
jurisdictions.
This memorandum deals first, and in greater depth, with the
International Business Company since it forms by far the greater number of
incorporations in the Seychelles.
1.
INTERNATIONAL BUSINESS COMPANIES (‘IBC’s)
A.
SIGNIFICANT FEATURES OF IBCs
1.
An IBC can be incorporated for any object or purpose not prohibited
under the IBC Act or under any other law for the time being in force in
Seychelles. This means that an IBC
can have one very simple objects clause and does not need to set out pages of
objects in its Memorandum.
In addition, IBCs have statutory power to perform all acts and engage in
all activities necessary or conducive to the conduct, promotion or attainment of
the objects or purposes of the company irrespective of corporate benefit.
2.
An IBC is exempt from the provisions of the Seychelles Income Tax Act as
are shareholders of an IBC if they are not resident in the Seychelles
3.
An IBC is exempt from Seychelles tax or stamp duty on documents in
respect of transactions carried out by it or relating to its shares, debt
obligations or other securities.
4.
No public record is maintained as to the identity of shareholders or
directors but a register of
shareholders must be maintained and a copy of it must be kept in the registered
office of the IBC in the Seychelles. A
member of the IBC may make a request to inspect the register and other corporate
documents “in furtherance of a proper purpose ” but the IBC will not
have to grant the request if it resolves, by resolution of directors, that it is
not in the best interests of the company or any other member of the company to
do so; the member can then apply to the Seychelles Supreme Court for an order to
allow the inspection.
Public
records of an IBCs consist only of the Certificate of Incorporation, the
Memorandum and Articles of Association (and any amendments), the name and
address of the registered agent and the record of payment of the annual fees. An IBC has the option of filing other documents such as its
register of shareholders.
5.
An IBC may have a single shareholder and it may also have a single
director, both of which may be corporate and non-resident.
Resolutions of either may be consented to in writing.
6.
An IBC may issue bearer shares and nominee shareholders may be used.
7.
An IBC may purchase and own its shares.
8.
Shares may be issued with or without par value.
Fractional shares may be issued.
9.
There is no distinction between private and public IBCs and therefore,
no additional regulations for a public IBC.
10.
Subject to the provisions in the Memorandum and Articles of Association,
the members may, by a simple majority, amend the Memorandum and Articles of
Association to increase the authorised capital, change the name of the company
etc. Power to amend the Memorandum and Articles of Associations may be given to
the directors.
11.
Reduction in authorised and paid up capital requires the minimum
formalities compatible with the protection of creditors and minorities.
12.
A foreign company may continue as an IBC without there being necessary
any reciprocal arrangement in the jurisdiction of incorporation and
notwithstanding any provisions to the contrary in the laws of the jurisdiction
in which the foreign company is incorporated.
13.
A foreign company may provisionally continue as an IBC conditional upon
instructions for continuation being given to the Companies Registrar by a
nominated third party. This allows
foreign companies, concerned that they may have to relocate quickly, to do so in
a very short space of time.
14.
An IBC may change its domicile to another jurisdiction.
15.
An IBC may merge, consolidate or enter into arrangements with other
IBC’s, with companies incorporated under the Companies Act and with foreign
companies.
16.
An IBC may indemnify officers and agents from corporate funds in
accordance with the provisions of the IBC Act.
17.
The directors may protect the assets of an IBC for the benefit of the
company, it’s creditors and its members and for any persons having direct or
indirect interests in the company, by transferring the assets of the IBC to
trustees or to another company or legal entity.
18.
Where a foreign government expropriates or imposes confiscatory taxes
upon the shares or other interests in an IBC, the IBC or any person holding
shares or other interests, may apply to the court in the Seychelles for an order
that the IBC disregard the action of the foreign government and continue to
treat as members or interest holders those persons whose shares or interests
were subject to the action by the foreign government.
19.
There are provisions in the IBC Act enabling 90 % of the shareholders of
an IBC to force the IBC to redeem the shares of the minority 10% (subject to any
provisions to the contrary in the Memorandum and Articles of Association).
20.
There are provisions in the IBC Act entitling minority shareholders to
be bought out of the company for fair value, in certain circumstances.
21.
The procedures for the voluntary winding up of an IBC are very simple
and can be commenced either by a resolution of directors or a resolution of
members depending on the provisions of the Memorandum and Articles of
Association.
22.
An IBC may rescind voluntarily winding up proceedings after their
commencement.
23.
An IBC may apply to a judge in chambers in the Seychelles Supreme court,
without the necessity of joining any other party, for a declaration on any
question of interpretation of its Memorandum and Articles of Associations or of
the IBC Act.
B.
FORMATION
An IBC is formed by filing a Memorandum of Association (
“Memorandum”) and Articles of Associations (“Articles”) with
the Registrar of Companies together with the requisite incorporation fee.
The Articles, which are similar to by-laws in the United States, must be
filed simultaneously with the Memorandum which is similar to a US certificate of
incorporation.
1.
MEMORANDUM OF ASSOCIATION
The Memorandum must contain the following information:
(1)
NAME
The name of an IBC can be in any language which uses the roman
alphabet, there is, however, a system in place which allows the English name to
be followed by the name in Chinese characters.
An IBC’s name must include one the following words or phrases or its
abbreviation (as shown in brackets):
(a)
Limited; (Ltd)
(b)
Corporation; (Corp.)
(c)
Incorporated; (Inc.)
(d)
Société Anonyme or Sociedad Anonima (S.A.)
(e)
Public Limited Company; (PLC)
(f)
Société à Responsabilité Limitée;
(S.àr.l)
(g)
Berhad; (Bhd)
(h)
Proprietary ; (Pty)
(i)
Namloze Vennootschap; (N.V)
(j)
Besloten Vennootschap; (B.V)
(k)
Aktiengesellschaft; (A.G.)
(l)
Limited Life Company; (LLC)
(m)
Spolecnost s. rvcenin omezenym; (S.R.O.)
(n)
Limita; (LTDA.)
(o)
Compagnie; (CIE)
(p)
Company; (CO.)
(q)
Società per Azioni; (S.P.A.)
(r)
Societè par action; (S.a.r.l.)
(s)
Részvény Társaság; (R.T.)
(t)
Osakkeyhtiä; (Oy)
(u)
Részvénytársaság; (Rt)
(v)
Akciová spole nost or Akciová spolo nos; (a.s.)
(w)
Dioni ko društvo; (d.d.)
(x)
Delniska druzba; (D.D.)
(y)
Aktsionernoye Obschestvo; (A.O.)
(z)
Osakeyhtiö; (OY)
(aa)
Anstalt; (Est)
(bb)Gesellschaft
mit beschränkter Haftung; (GmbH)
(cc)
Anpartsselskab; (ApS)
(dd)Aktieselskab;
(A/S)
(ee)
Società a responsabilità Limitada; (S.r.l.)
(ff)
Sociedad Limitada; (S.L.)
(gg)
Spóka Akcyjna; (S.A.)
(hh)
Spólka z organiczon odpowiezialno co; (Sp.z)
(ii)
Private limited company; (o.o.)
(jj)
Close Corporation; (CC)
(kk)(Proprietary)
Limited; ((Pty) Ltd)
(ll)
Eteria periorismenis efthynis; (E.P.E.)
(mm)
Societe, a Responosabilité Limitée; (S.A.R.L.)
The
following words or phrases, or words conveying similar meaning, are prohibited,
unless written permission is granted by the Registrar of Companies,
(a)
Assurance;
(m)
Indemnity
(b)
Bank;
(n) Guarantee
(c)
Building Society
(o)
Municipal
(d)
Chamber of Commerce
(p)
Foundation
(e)
Trust
(q) Trust Corporation
(f)
Chartered
(r) Trustee Company
(g)
Cooperative
(s) Trustee
(h)
Imperial
(t) Savings
(i)
Insurance
(u) Savings and Loan
(j)
Reinsurance
(v) Underwriting
(k)
Surety
(l)
Casualty
Any
words suggesting the patronage of or any connection with the Seychelles or the
Government of Seychelles or with any other country or the Government of that
country are also prohibited.
An
IBC cannot be incorporated with a name that is identical to the name of a
company which is already in existence in the Seychelles.
The Registrar may allow an IBC to incorporate with a name which closely
resembles the name of another company already in existence if the company in
existence gives its consent.
The
companies Registry has an on-line system for the purpose of checking the
availability of a chosen name and an available name may be reserved for up to 30
days.
(2)
REGISTERED
AGENT’S NAME AND ADDRESS
Every
IBC is required to have a registered agent in Seychelles at all times. A registered agent is frequently set up as a company, it has
to be licensed in Seychelles and is regulated in Seychelles.
The registered agent generally deals with filing formalities and payment
of annual licence fees on behalf of the IBC.
The registered agent can subscribe to the Memorandum and Articles to
incorporate the IBC. The registered
agent is not required to hold shares in the IBC; an IBC can be incorporated and
usually is incorporated before any shares are issued or a director appointed.
(3)
REGISTERED
OFFICE ADDRESS
An
IBC has to maintain a registered office in Seychelles and usually it will be
maintained by the registered agent and will be the same address as the
registered agent’s address.
(4)
OBJECTS
OR PURPOSE
An
all purpose clause is permitted, usually in the following terms:”The
objects or purpose of the Company is to engage in any act or activity that is
not prohibited under any law for the time being in force in the
Seychelles.”
It
is possible to limit the objects by specific provisions in the Memorandum and by
statute. An IBC is prohibited from
carrying on certain activities which is required to list in its Memorandum as
follows :
An
IBC may not:
(a)
Carry on business with persons resident in Seychelles;
(b)
Own an interest in real property situate in Seychelles other than a lease
for use as an office;
(c)
Carry on banking, insurance reinsurance or trust business;
(d)
Carry on business of providing the registered office or the agent for
companies incorporated in the Seychelles.
These
matters are set out in section 5 (1) of the IBC Act; section 5 (1) must be set
out verbatim in the Memorandum.
The
IBC Act provides that certain matters do not constitute “carrying on
business with persons resident in Seychelles and although these matters are not
required to be set out in the Memorandum, generally they are as follows:
An
IBC shall not be treated as carrying on business with persons resident in
Seychelles by reason only that :
(a)
it makes or maintain deposits with a person carrying on banking business
in Seychelles,
(b)
it makes or maintain professional contact with counsel and attorneys,
accountants, bookkeepers, trust companies, investment advisors or similar
persons carrying on business within Seychelles.
(c)
it prepares or maintain books and records within Seychelles.
(d)
it holds within Seychelles meetings of its directors or members.
(e)
it holds a lease of property for use as an office from which to
communicate with members or where books and records are prepared or maintained.
(f)
it holds shares, debt obligations or other securities in an IBC
incorporated in Seychelles or a company incorporated under the companies Act,
(g)
it holds bonds, treasury bills and other securities issued by the
Government of Seychelles or the Central Bank of Seychelles.
(h)
it owns or manages a vessel registered in the Republic under the
Merchant Shipping Act, an aircraft, so registered under the Civil Aviation Act.
(i)
Shares , debt obligations or other securities in the IBC are owned by
any person resident in Seychelles or a company incorporated under the companies
Act.
(5)
CURRENCY
OF SHARES TO BE ISSUED.
Shares
may be issued in one or more foreign currencies.
(6)
AUTHORISED
CAPITAL
The
authorised capital and number of shares into which it is divided and the par
value of each share or the number of shares, the company is authorised to issue
with no par value. Generally, if an
IBC issues shares with no par value, it will have no authorised capital (and this should be stated in the Memorandum ).
The capital of the IBC, in this case, will be amount (if any) designated
as capital by the directors upon the issue of shares.
(7)
CLASSES
AND SERIES OF SHARES
The
number of classes and series of shares and the number of shares of each such
class and series.
(8)
DESIGNATION OF POWERS
The
powers, preferences, rights, qualifications, limitations or restrictions of each
class and series of authorised shares must be set out.
Alternatively, an express grant of authority to the directors to fix the
same by resolution may be included
and the rights and preferences etc., limitations or restrictions will not need
to be set out in full.
(9)
REGISTERED
AND BEARER SHARES
The
number of shares to be issued as registered shares and the number of shares to
be issued as bearer shares or an express grant of authority to the directors
that they are authorised to determine at their discretion whether the shares are
to be issued as registered shares or bearer shares.
(10)
EXCHANGE
OF SHARES
Whether
registered shares may be exchanged for bearer shares and vice versa
(11)
NOTICE
TO HOLDERS OF BEARER SHARES.
If
the IBC is authorised to issue bearer shares, the manner in which any notices
required to be given to members are to be given to the holders of bearer shares.
See further under Section C “Administration” at paragraph 7.
The
memorandum will also usually include a clause stating how it can be amended and
particulars of all limitations or restrictions on its amendment.
The
memorandum must be signed by the registered agent in the presence of a witness
who must also sign his or her name as witness.
2.
ARTICLES
OF ASSOCIATION
The
Articles prescribe regulations for the IBC.
There are very few requirements as to what must be included in the
Articles, these are set out below.
(1)
An IBC must state whether or not certificates in respect of its shares
will be issued.
(2)
The number of directors of the IBC must be fixed by the Articles. This is usually done by stating a minimum and maximum number
of directors.
There
are however, a number of matters where the provisions of the IBC Act will
prevail unless the matter is dealt with in the Memorandum or Articles.
The following is a list of the most important matters (which are usually
dealt with in the Articles).
(1)
Unless the quorum for a meeting of directors is set out in the Memorandum
or Articles, it will be one half of the total number of directors present in
person or by alternate.
(2)
Unless the Memorandum or Articles specify that directors can appoint
directors, only members can do so.
(3)
Unless the Memorandum and Articles specify that directors can amend the
Memorandum and Articles , only members can do so (other than where the IBC Act
permits the directors to amend).
(4)
Directors have to be given not less than 2 days notice for a meeting of
directors although the Memorandum or Articles can specify a longer notice
period. All of the directors, or
the majority entitled to vote at the meeting can waive notice of the meeting
(5)
Unless the Memorandum and Articles provide for a lesser percentage, the
directors will have to call a meeting of shareholders on the request of members
holding more than 50% of the votes.
(6)
Directors have to give not less than 7 days notice of meetings to
shareholders although the Memorandum or Articles can fix a longer notice period;
they cannot fix a shorter notice period although notice may be waived by 90% of
the shareholders or a lesser amount if specified in the Memorandum or Articles.
(7)
Unless a quorum for a meeting of shareholders is fixed by the Memorandum
or Articles the quorum will be one half of the votes of the shares of each class
entitled to vote as a class on a matter to be decided at the meeting.
(8)
Unless provided otherwise in the Memorandum or Articles, all shares have
one vote.
(9)
Unless otherwise specified in the Articles both shareholders and
directors can execute resolutions by way of written consent as well as by
attending a meeting.
(10
) Unless resolutions of directors and members are otherwise defined in
the Articles they can be passed on the affirmative vote of a simple majority
present at the meeting entitled to vote and who do not abstain; written
resolutions require an absolute majority.
3.
FEES
ON INCORPORATION
An
IBC has to pay a fee on incorporation as follows :
(1)
US$100 – where the authorised capital is US$5,000 or less.
(2)
US$300 – where the authorised capital of the IBC does not exceed
US$50,000 and all shares have par value.
(3)
US$1,000 – where the authorised capital of the IBC exceeds US$50,000
(4)
US$350 – – where the authorised capital of the IBC does not exceed
US$50,000 and some or all shares have no par value or the IBC has no authorised
capital and all shares have no par value.
C.
ADMINISTRATION
1.
DIRECTORS
The
first directors have to be appointed by the registered agent which is the
subscriber to the Memorandum and Articles.
Frequently, the registered agent will appoint a nominee company as
director and pass initial resolutions dealing with the basic formalities such as
adoption of the corporate seal and issuing the first shares before appointing
new directors and resigning. After
the appointment of the first directors by the registered agent, members have the
right to elect directors and the Articles may also specify that the directors
may elect directors.
The
IBC Act provides that the business and affairs of the IBC shall be managed by
the board of directors.
2.
MEETING
OF DIRECTORS
Meetings
of directors can be held whenever it is deemed necessary by the directors, there
is no requirement that the directors meet once a year, although certain acts can
only be done by a resolution of
directors, for instance the
appointment of agents, the designation of committees of directors and the
refusal of a request by a member to inspect the books and records of the
company. Directors can appoint alternates to attend meetings and vote
in their place. Resolutions can be
passed by written consent without the need for a meeting.
3.
SHARES
After
the IBC has been incorporated the first step is for the directors to issue
shares. Shares with a par value cannot be issued for less than par
value. Shares have to be fully paid
on issue unless issued for a written binding obligation to make payment.
Shares issued for a promissory note or other binding obligation to pay
cash may be forfeited after the compliance with certain statutory requirements
if the obligations to pay is not met.
4.
SHARE
CERTIFICATE
If
the Memorandum and Articles provide that share certificates are to be issued by
the IBC such certificates must be signed by two directors or two officers of the
IBC or by one director or one officer, alternatively the certificate may be
under the common seal of the IBC with or without the signature of any one
director or officer.
5.
TRANSFER
OF SHARES
(1)
Registered Shares – A transfer of registered shares is generally made in
writing signed by the transferor containing the name and address of the
transferee but the directors may accept such evidence as to transfer of shares
as they consider appropriate.
(2)
Bearer Shares – A bearer share is transferable by delivery of the
certificate relating to the share.
6.
MEETINGS
OF SHAREHOLDERS
Directors
can call shareholders meetings as when they deem it necessary and there is no
requirement for an annual general meeting.
The directors have to convene a meeting on the written request of more
than 50% shareholders or such lesser percentage as may be specified in the
Memorandum or Articles. There is no
distinction between ordinary and special resolutions, anything that is required
to be done by resolution of shareholders will only require a simple majority of
votes present at a meeting or an absolute majority of votes for a written
resolution unless the Articles provide otherwise.
7.
SPECIAL
PROVISIONS FOR BEARER SHARES
The
Memorandum must provide for serving notices on holders of bearer shares. Usually, the holder will be required to provide the company
with the name and address of an agent for service of any notice but if this is
not given the Memorandum will specify that publication of any notice in a
newspaper, in the most appropriate location, will be sufficient notice.
The
Articles usually set out the way in which holders of bearer shares can pass
resolutions. Usually the Articles provide that for the purposes of attending a shareholders meeting, the
production of the share certificate is sufficient evidence of the right to vote
as a member. For the purpose of executing a written consent of shareholders , the signature of the bearer
shareholder will have to be authenticated by a person in a position of
responsibility such as a notary public or a bank manager.For the purposes of receiving dividends, the holder of the bearer share
will have been provided with coupons or talons which he can present to the IBC.
8.
AMENDMENTS
TO THE MEMORANDUM AND ARTICLES
The
Memorandum and Articles can be amended by the members or the directors if
permitted by the Memorandum and Articles. An
extract of the relevant resolution, certified as a true copy by either a
solicitor or the registered agent of the IBC must be filed at the Companies
Registry in Seychelles and the amendment will only take effect from the time the
amendment is registered by the Registrar of Companies.
9.
BOOKS
AND RECORDS
(1)
An IBC must keep a share register in such form as may be approved by the
directors. A copy of the share
register must be kept at the registered office of the IBC.
(2)
An IBC is also required to keep minutes of all meetings of directors,
members, committees of directors, committees of officers and committees of
members and is required to keep copies of all resolutions consented to by
directors, members, committees of directors, committees of officers and
committees of members.
(3)
An IBC may keep a register of directors and may file it at the Companies
Registry. There is , however, no
objection to do so.
(4)
An IBC has to keep such accounts and records as the directors consider
necessary or desirable in order to reflect the financial position of the IBC.
10.
REGISTER
OF MORTGAGES AND CHARGES
An
IBC can enter into a mortgage , charge or other encumbrance over any of its
assets wherever these may be situated and such mortgage, charge or other
encumbrance can be in accordance with the law of any jurisdiction.
An
IBC may create a register of mortgages and charges; the creation of such a
register will not affect the validity of any mortgage or charge but will affect
the priorities of the mortgage or charge. If an application is made to the Seychelles courts to enforce any mortgage , charge
or other encumbrance and the assets of the IBC are subject to two or more
mortgages or charges, notwithstanding the provisions of any other law priorities
shall be determined in accordance with the date of entry in any register of
mortgages and charges created by the IBC .If an IBC has a register of mortgages and charges it has to be held at
the registered office of the IBC in Seychelles, the IBC has the option of filing
it at the Companies Registry in Seychelles.
11.
COMPANY
SEAL AND EXECUTION OF DOCUMENTS
An
IBC has to have a common seal and an imprint of such seal has to be kept at the
registered office of the IBC.
Share
certificates may require to be executed under seal.
Any deed governed by Seychelles law should be done in the presence of one
director or any other person authorised by a resolution of directors.
12.
POWER
OF ATTORNEY
A
power of attorney granted by the company must be in writing but need not be
under its seal.
13.
FEES
An
IBC is required to pay an annual licence fee to the Government to enable it to
remain in good standing, the amount of which depends on the amount of authorised
capital of the IBC on the licence fee payment date as follows :
(1)
US$100 – Where the
authorised capital is US$5000 or less.
(2)
US$300 – Where the
authorised capital of the does not exceed US$50,000 and all shares have par
value.
(3)
US$1,000 – Where the
authorised capital of the IBC exceeds US$50,000.
(4)
US$350 – Where the
authorised capital of the IBC does not exceed US$50,000 and some or all shares
have no par value or the IBC has no authorised capital and all shares have no
par value.
Fees
are also payable on the filing of documents at the Companies Registry
such as amendment to the Memorandum and Articles, the filing of articles
of merger, the filing of an article of continuation or arrangement as the case
may be.
14.
TAXES
An
IBC is exempt from all provisions of the Seychelles Income Tax Act.
All dividends interests, royalties, compensations and other payments made
by an IBC to persons who are not resident in Seychelles are also exempt from the
Seychelles Income Tax Act. There is no withholding tax, capital gains tax, capital transfer, estate duty or
inheritance tax or corporation tax which is applicable to an IBC in Seychelles.
An
IBC is exempted from stamp duty in Seychelles.
The
exchange control Act does not apply to an IBC or to any transaction relating to
any transaction relating to the securities of or in such company between the
holders of such securities.
II.
COMPANIES
INCORPORATED UNDER THE COMPANIES ACT (“Cap 40 Companies)
A.
SIGNIFICANT
FEATURES
1.
Although Cap 40 Companies are used mainly as vehicles to conduct business
in Seychelles (since one of the prohibitions on an IBC is may not carry on
business with persons resident in Seychelles)
they are also used by persons wishing to carry on business outside
Seychelles since these companies can be incorporated with a corporate structure
same as an IBC ie where member’s liability is limited by shares.
2.
An annual meeting of members is required.
3.
A proprietary or private company has to have two or more members, it has
to restrict the transfer of it’s shares, it is prohibited from inviting members
of the public to subscribe for its shares and the number of its members is
limited to fifty; a public company has to havetwo or more members but has none of the above restrictions.
4.
Subscribers to the Memorandum and Articles of Association have to take
shares.
5.
Filing requirements are more onerous than for IBCs.
There are also different filing requirements depending on whether the
company is a public company or a proprietary company.
6.
Cap 40 Companies are subjects to Seychelles income tax but dividends are
exempt from tax. Non-resident Cap 40 Companies are only subject to income tax on income arising or received in
Seychelles.
7.
Cap 40 Companies cannot issue bearer shares although public companies
with a capital limited by shares may issue warrants to bearer.
B.
FORMATION
Like
an IBC, the constitutional documents of a Cap 40 Company are its Memorandum of
Associations and Articles of Association which (in most cases ) have to be filed
simultaneously at the Companies Registry together with the requisite
incorporation fee.
1.
MEMORANDUM
OF ASSOCIATION (” Memorandum”)
(1)
The following matters must be set out in the Memorandum for all Cap 40
Companies.
(i)
Name – There are similar restrictions on the choice of name as for an
IBC. The name of Cap 40 Company
must end in the word ” Limited.”
(ii)
The address of the registered office in Seychelles.
(iii)
Objects or Purposes – Unlike the Memorandum of an IBC, the Memorandum of
a Cap 40 Company has to set out in full the objects and purposes for which the
company is incorporated.
(2.)
The company must, in addition, set out the following
matters.
(i)
A declaration that the liability of the members is limited.
(ii)
The amount of capital with which the company proposes to be registered
divided into shares of a certain fixed amount.
(iii)
The number of shares to be taken by each subscriber (not less than one)
which must be set against each subscriber’s name.
The
Memorandum has to be signed by each subscriber in the presence of a witness who
must also sign the Memorandum. In the case of a company with share capital, the subscriber agrees that it will
take the number of shares set out opposite its name.
2.
ARTICLES
OF ASSOCIATION (“Articles”)
The
articles prescribe regulations for the company.
A
cap 40 Company limited by shares does not have to register Articles of
Association with its Memorandum of Association but if it does not do so the
regulations applicable to the company will be those contained in Table A of the
First Schedule of the Companies Act. If it does register Articles of Association it can either exclude Table A or adopt
it in its entirety or in parts but the provisions of Table A will apply where they are not modified or excluded.
The
Articles have to be signed by each subscriber in the presence of a witness who
must also sign the Articles.
3.
FEES
ON INCORPORATION
A
Cap 40 Company has to pay a fee on incorporation as follows :
(1)
For a company with a capital divided into shares :
(a)
US$150 – Where its nominal capital does not exceed US$2,000, and
(b)
US$200 – plus US$15 for every subsequent increase of US$2,000 or part
thereof where its nominal capital exceeds US$2,000.
C.
ADMINISTRATION
1.
DIRECTORS
There
are very few provisions in the Companies Act with regard to directors. All
Cap 40 Companies having a share are required to file details of the directors of
the company with their annual return or details of those who occupy the position
of directors within the company.
The
companies Act contains no provisions about directors meetings and resolutions
which therefore allows for a certain amount of flexibility as to these provisions in the Articles.
2.
SHARES
Shares
can be issued without being fully paid; they are deemed to be held subject to
payment of the full amount in cash unless payment is to be in a form other than
cash. Shares redeemable at the option of either the company or the holder may be issued but a redemption can
only take place after the filing of a solvency declaration with the Registrar.
Shares can be held by nominees.
3.
REGISTER
OF MEMBERS
Every
company has to keep a register of members at its registered office which has to
be open for inspection. In the case of a company with a capital limited by shares, the register of members must
include a statement of the shares held by each member.
4.
ANNUAL
RETURN
A
company having a capital divided into shares is required to file an annual
return with the Registrar. It must include full details of the share capital, shareholders and directors. In addition, a public company must file an audited balance sheet and provide details of redeemable shares and a proprietary company must
file a certificate that it has not breached any of the conditions permitting it to be a proprietary company.
5.
REGISTER
OF DIRECTORS
Every company is required to keep a register of directors as its registered office and
to file a copy of the register and any changes with the Registrar.
6.SHAREHOLDERS
MEETINGS
Every
Cap 40 Company has to hold a general meeting of members at least once a year.
7.SHAREHOLDERS
RESOLUTIONS
The
companies Act provides for special resolutions of members which have to be
passed by two-thirds of the members of the company entitled to vote.
Most matters requiring a resolution of members under the provisions of
the Companies Act require a special resolution.
An
ordinary resolution is not defined under the companies Act but is passed by a
simple majority of those present at the meeting and voting.
8.
REGISTER
OF MORTGAGES AND CHARGES
Every limited Cap 40 Company has to keep a register of all mortgages and charges
affecting property of the company which has to be open to inspection by any
creditor or member of the company at all times.
9.
TAXES
INCOME
TAX
If the company is deemed to be “resident in Seychelles it will pay income tax
of 15% on its worldwide income. Whether or not it is resident will depend on the location at which the company is
managed and controlled; it is deemed to be resident in Seychelles if more than
one half of the members of the board of directors are resident in Seychelles. A company which is deemed
“non-resident” is only liable to tax of 15 % on the profits arising or received in Seychelles. If however, the companyis resident but is an “offshore trading company”meaning that 90% of its profits arise from business carried on exclusively outside of Seychelles, it is only liable to pay income tax at the rate of 1 % rather than 15%.
Dividends
paid to resident of Seychelles Cap 40 Companies are exempt from Seychelles
income tax. Dividends paid to non-residents are subject to 15% tax where as
interests paid to non-residents are liable to tax of 10%.
STAMP
DUTY
A
Cap 40 Company is liable to stamp duty in accordance with the provisions of the
Stamp Duty Act of Seychelles and will, therefore, have to pay stamp duty on
documents relating to transactions undertaken in the Seychelles or transactions
involving Seychelles entities or property.
Shareholders
will have to pay stamp duty on the transfer of shares effected by an instrument
in writing. If the transfer is not by way of sale, the stamp duty is nominal.
This article is intended as a brief guide to the incorporation of companies in
Seychelles but is not intended to render legal advice and should not be relied
upon. Persons interested in the establishment or administration of companies should seek legal advice in
Seychelles based on their specific requirements and circumstances.
For further information please contact:
International Law & Corporate Services (PTY) LTD.
Head Office : 2nd Floor,
Allied Building Annex, Francis Rachel Street
P.O. Box 1137, Victoria, Mahe, Seychelles.
Tel: (248) 323850/321217 Fax : (248) 225432/247913
E-mail: ilcs@seychelles.net
