Formation and Registration
Any one or more persons associated for a lawful purpose may by subscribing their names to a memorandum of association form a company the liability of the members of which may, according to the memorandum, be limited either to the amount, if any, unpaid on the shares respectively held by them (i.e. a company limited by shares), or to such amount as the members may respectively undertake by the memorandum to contribute to the assets of the company in the event of it being wound up (i.e. a company limited by guarantee).
Any of the subscribers to the memorandum of association of a company, or a person acting on their behalf, may on delivering the memorandum to the Registrar of Companies and on payment of the prescribed registration fee apply for the registration of an incorporated company with limited liability. There must also be delivered to the Registrar of Companies articles of association if they differ from the model articles.
A company limited by shares must state in its memorandum of association the maximum number of shares that the company is authorised to issue and the minimum amount per share (which may be expressed in any currency or currencies) to be received by the company for shares issued by it (i.e. the stated value of a share). No subscriber to the memorandum of a company limited by shares may take less than one share.
A company limited by guarantee must state in its memorandum of association the number of members with which the company proposes to register and the amount of the guarantee (which may be expressed in any currency or currencies) that each member is required to contribute to cover the debts and liabilities of the company in the case of it being wound up.
Companies may limit their period of existence.
The name of a company must end with the word “Limited” (or the abbreviation “Ltd.”), “Corporation” (or the abbreviation “Corp.”) or “Incorporated” (or the abbreviation “Inc.”).
A company can use any name provided that the name chosen is not considered misleading or otherwise undesirable by the Registrar of Companies.
Public and Private Companies
A company which has 51 or more members is deemed to be a public company.
A private company is a company which is not a public company but if it should make an invitation to the public to acquire or apply for any shares and debentures issued by it, or interest in any such shares or debenture, or rights to acquire any of the foregoing, it will become a public company even if it has fewer than 51 members unless such an invitation is addressed exclusively to a restricted circle of persons.
Corporate Capacity and Transactions
The doctrine of ultra vires in its application to companies is abolished and accordingly a company has the capacity and, subject to certain other provisions of the Companies Act, the same rights, powers and privileges as an individual.
Where a transaction purports to be entered into by a company, or by a person as agent for a company, at a time when the company has not been formed, then, unless otherwise agreed by the parties to the transaction, the transaction has effect as one entered into by the person purporting to act for the company or as agent for it, and he will be personally bound by the transaction and entitled to its benefits.
No person is deemed to have notice of any record by reason only that they are made available by the Registrar of Companies, or by a company, for inspection.
Register of Members and Share Certificates
Every company must keep a register of members but inspection of the register by persons who are not members or officers of the company is not permitted in the case of a private company which is an exempt company (i.e. a company which is exempt from all taxes under the Companies Act).
Subject as otherwise provided in the Companies Act, every company must issue share certificates in respect of shares allotted by it.
A private company which is an exempt company may issue bearer certificates in respect of fully paid-up shares but these certificates must be kept in St. Kitts at the offices of a person authorised to carry on finance business.
No share certificate issued by a company shall in any manner whatsoever bear any indication of the stated value of the shares comprised in it.
All companies must have a registered office in the Federation to which communications and notices may be addressed.
A private company must have at least one director and a public company must have at least three directors of whom at least two are not employed by the company or any of its related companies.
Every company must have a secretary who is resident in the Federation and may have one or more assistant secretaries who, or each of whom, may be an individual or a body corporate. The secretary of a private company which is an exempt company must be a person authorised to carry on either trust or corporate business.
Every company must hold an annual general meeting but if all the members of a private company agree in writing that an annual general meeting should be dispensed with, then so long as that agreement has effect, that company is dispensed from holding an annual general meeting.
In the case of an equality of votes the chairman of a meeting (whether it is a meeting of the members of the company or of its directors) has a second or casting vote in addition to any vote which he may have.
Where a company has only one member or, if all the shares of a particular class of shares are held by only one member, that member present in person or by proxy constitutes a meeting. If a private company has only one director, that director present in person constitutes a meeting.
All companies must keep accounting records and prepare annual accounts.
Where a company is a public company; or the articles of the company so require; or a resolution of the company in general meeting so directs, then that company must appoint auditors to audit its annual accounts.
A public company must deliver to the Registrar of Companies a copy of its audited annual accounts. A private company which is an ordinary company (i.e. a company which is not an exempt company) must deliver to the Registrar of Companies either a copy of its audited annual accounts or a certificate of solvency.
A private company which is an exempt company (i.e. a company which is not an ordinary company) is not required to deliver to the Registrar of Companies any accounts.
Winding-up and Dissolution
A company may be wound-up and dissolved either by a summary winding-up if the company is solvent, a winding up by the Court if the Court is of the opinion that it is just and equitable that the company should be wound up, or by a creditor’s winding up if the company is insolvent.
A company will be dissolved without formal winding up if the Registrar of Companies strikes off the company’s name from the register of companies, but the liability of every director and member of the company continues and may be enforced as if it had not been dissolved.
Tax and Other Exemptions
Companies are exempt from all taxes as long as they conduct their business exclusively with person who are not resident in the Federation.
A company is called an exempt company if it qualifies for the tax exemption mentioned above and an ordinary company is a company which is not an exempt company.
Ordinary companies will not pay income tax on dividends, interest and royalties received from a qualifying participating interest in another body corporate.
No estate, inheritance, succession or gift tax, rate, duty, levy or other charge is payable by any person with regard to any property owned by, or securities issued or created by or in respect of, an exempt company.
No stamp duty or other tax is payable by any person with regard to any transaction in any securities issued or created by or in respect of an exempt company.
We strongly recommend that Clients should seek professional advice from a reputable lawyer specialised in International Tax Planning or from one of the leading international firms of chartered or certified public accountants before acquiring any offshore structure or entity. Clients should specifically ensure that their professional advisers inform them about all restrictions and reporting requirements which will apply to them once they have acquired any offshore structure or entity.