BVI Business Companies Act User Guide No. 3 - The Memorandum and Articles of Association

Summary

This is User Guide No. 3 issued by the BVI Financial Services Commission's Registry of Corporate Affairs, explaining the memorandum and articles of association requirements under the BVI Business Companies Act. It is general guidance, not legal advice, and explains what must be included in a company's constitutional documents and how they can be amended.

• Memorandum and articles required: Every company must have a memorandum of association complying with the Act, and every company (except an unlimited company not authorised to issue shares) must also have compliant articles of association.
• Mandatory memorandum content: The memorandum must state the company's name, type, address of first registered office, name of first registered agent, and (for guarantee companies) details of members' guarantees; companies limited by or authorised to issue shares must also state maximum shares issuable, share classes, and whether bearer shares are authorised.
• Mandatory articles content: Articles of a company limited by or authorised to issue shares must state the circumstances in which share certificates will be issued.
• Binding effect: The memorandum and articles bind the company and each member, and bind members to each other, once a person becomes a member.
• Filing on incorporation: The memorandum and articles of a proposed company, signed by the registered agent as incorporator, must be filed with the application to incorporate.
• Ongoing filing and inspection: The up to date memorandum and articles of a company must be filed with the Registry and are available for public inspection.
• Amendment rules: Members may generally amend the memorandum and articles, subject to any entrenching provisions under section 12; directors may only amend if expressly permitted and cannot restrict members' amendment rights or the required voting threshold.
• Notification of amendments: The Registry must be notified of any amendment, and (unless a Court orders otherwise) the amendment does not take effect until registered.
• Restated documents: A company may file a restated memorandum or articles at any time, consolidating the original document with all registered amendments.
• Member copy requests: An up to date copy of the memorandum and articles must be provided to any member who requests it, subject to payment of any reasonable charge set by the directors.

Key obligations

• Every company must maintain a memorandum of association that complies with the Act, and (except certain unlimited companies) articles of association that comply with the Act
• The memorandum must state the company's name, type, registered office address, registered agent's name, and, for shares companies, maximum shares, share classes, and bearer share authorisation
• Articles of a company limited by or authorised to issue shares must state the circumstances in which share certificates will be issued
• The memorandum and articles, signed by the registered agent as incorporator, must be filed with the application to incorporate a company
• The up to date memorandum and articles must be filed with the Registry and kept available for public inspection
• The Registry must be notified of any amendment to the memorandum or articles, and the amendment does not take effect until registered by the Registry (unless the Court orders otherwise)
• A company may file a restated memorandum or articles consolidating the original document with all registered amendments
• A company must provide an up to date copy of the memorandum and articles to any requesting member, subject to a reasonable charge determined by the directors

Applies to

BVI business companies, company members, directors, registered agents