Re-registration of Companies Act Companies Under the BVI Business Companies Act, User Guide No. 6 (Revised 01/09)

Summary

This is User Guide No. 6 issued by the BVI Registry of Corporate Affairs, explaining how companies formed under the old Companies Act (called CapCos) are re-registered under the BVI Business Companies Act. It describes the difference between voluntary and automatic re-registration and the consequences of each, so that directors and shareholders of CapCos can decide which route is preferable.

• Voluntary re-registration: A CapCo applies to the Registrar with a new memorandum and articles fully compliant with the Act; the company becomes a fully fledged BVIBC from the date of re-registration and can use the Act's full flexibility. No Registrar fee is payable for this.
• Automatic re-registration: Any CapCo that does not voluntarily re-register is automatically re-registered on 1 January 2009 but keeps its old Companies Act memorandum and articles; certain Companies Act rules (e.g. court approval for capital reduction, mandatory annual general meeting) continue to apply instead of the Act until the company later adopts compliant Act documents.
• Registered agent requirement: Every BVI business company, including re-registered CapCos, must appoint and continuously maintain a licensed registered agent (a licensed company manager or trust company), who files documents and holds statutory records on the company's behalf.
• Consequences of non compliance: Failure to appoint a registered agent (for automatically re-registered CapCos, within the stated timeframe) can result in the company being struck off the Register of Companies.

The guide is explanatory only and directs readers to the Act's Schedule 2 transitional provisions and to related User Guides (No. 3 on memorandum and articles, No. 5 on liquidation and administrative strike off) for further detail. Although the key statutory dates referenced (30 November 2008, 1 January 2009, 28 February 2009) have passed, the document remains useful for understanding the legal status and continuing obligations of companies that went through this transition.

Key obligations

• A CapCo re-registering voluntarily must adopt a new memorandum and articles of association complying with the Act, approved by a members' resolution, before applying to the Registrar.
• A CapCo applying for voluntary re-registration must first appoint a person to act as its registered agent, who signs and files the new memorandum and articles plus the registered agent's consent to act with the Registrar.
• An automatically re-registered CapCo must appoint a registered agent and file a notice of that appointment with the Registrar within 2 months of automatic re-registration (on or before 28 February 2009), or risk being struck off the Register of Companies.
• Every BVI business company (including re-registered CapCos) must appoint and continuously maintain a registered agent throughout its life.
• An automatically re-registered CapCo that wishes to become a fully fledged BVIBC must file a compliant new memorandum and articles together with a notice of election with the Registrar.
• An automatically re-registered CapCo must continue to hold at least one general meeting of members each year until it files Act-compliant memorandum and articles.

Applies to

Companies Act companies (CapCos), BVI business companies (BVIBCs), registered agents (licensed company managers or trust companies)

Deadlines

• 30 November 2008: Last date on which a CapCo could apply to re-register voluntarily under the Act.
• 1 January 2009: Date on which all CapCos that had not voluntarily re-registered were automatically re-registered under the Act.
• 28 February 2009: Last date for an automatically re-registered CapCo to appoint a registered agent and file notice of the appointment with the Registrar (within 2 months of automatic re-registration).