Companies Act, Cap. 308 and the Companies Regulations, 1984
An Act to revise and amend the laws relating to companies and to provide for related and consequential matters. View the Act. View the Regulations
- An up-to-date and accurate record of the basic and beneficial ownership of the Company whether incorporated or registered in Barbados (Sec 170(2)(d) 2015-1 and 2019-2nd amendment)
- The articles and by-laws and all amendments made thereto and a copy of any unanimous shareholder agreement and amendments thereto;[Section 170(1)(a)]
- All minutes of meetings and shareholders resolutions; [Section 170(1)(b)]
- Copies of all notices required to be filed effecting any changes in the directors of the company (Form 9) and any changes in he Registered Office (Form 4); [Section 170(1)(c)]
- A register of shareholders showing the name and last known address of each shareholder, the shares held by each shareholder, and the date on which each person was entered on the register and the date on which each person ceased to be a shareholder; [Section 170(2)]
- Where debentures are issued, a register of debentures; [Section 170(3)]
- Where conversion privileges, options, or rights to acquire shares are issued, a register of persons to whom such privileges, options or rights have been granted; [Section 170(3)]
Section 414 of the Companies Act provides that a notice or document may be served on the company by leaving it at or sending it to the registered office of the company.
It is therefore important that changes in the location of a company’s registered office be notified to the Registrar in a timely manner as required by law.
Registration Of A Domain Name
The advent of the Internet has spawned new ways of doing business which have come into conflict with and have challenged to the traditional framework within which business is regulated in Barbados and around the world. As commercial activity on the Internet has increased, domain names have become part of the standard communication apparatus used by businesses to identify themselves, their products, services and activities.
The relative ease with which someone desirous of establishing a presence on the Internet, can register a domain name (without regard for prior rights such as trade marks or established trade or corporate names or other traditional business identifiers) has already come into conflict with the well established territorially based intellectual property system around the world.
For example, the problem of abusive, bad faith registration of domain names in deliberate violation of trade mark rights, became so widespread that in 1999 the World Intellectual Property Organization (WIPO) established, and now successfully operates, a dispute resolution mechanism for resolving Internet domain name disputes.
It has also become common place nowadays to speak of “dot.com” companies as if the mere establishment of an Internet web site has automatically created some legal corporate personality known to the law.
It should, however, be pointed out that in the eyes of the law the establishment of an Internet web site does not have the same legal effect or significance as the incorporation of a company which still remains the internationally recognized manner in which a corporate entity with a separate legal personality is created.
During the year 2000, it became popular for the owners or operators of Internet web sites to seek to incorporate a legal company using the registered internet domain name as the company name. The domain name “dot.com” company phenomenon caused the Barbados Corporate Affairs and Intellectual Property Office (which also has responsibility for trade mark registrations) to revise its working policies and procedures and to make some adjustments in the way in which requests for company names for domain name “dot.com” companies are processed.
The following administrative policy is currently employed when the Department is processing applications under the Companies Act for incorporation of a domain name “dot.com” company in Barbados:
- The applicant must file (along with the usual incorporation documents) a Statutory Declaration for the information of the Registrar of Corporate Affairs and Intellectual Property in Barbados declaring the following:-
- Address of the applicant; *
- The name of the website and the fact that it is for all intents and purposes legally owned by the applicant;
- The full and complete domain name of the website and contact details of the domain name registrar/administrator;
- That there are no known disputes concerning the use or ownership of the domain name;
- That the website owner has consented to the domain name being used for the incorporation of a company under the Laws of Barbados;
- That if the domain name becomes involved in any disputes in any way that the applicant undertakes to notify the Registrar and to request a change of name in accordance with the Companies Act, Cap. 308 of the Laws of Barbados.
A director is a person appointed or elected according to law, who is authorized to manage and direct the business and affairs of a company or corporation.
When a company or corporation has more than one (1) director, these directors collectively form the board of directors. Section 58 of the Companies Act imposes a general duty on the directors of a company to exercise the powers of the company directly or through the employees and agents of the company and to manage and direct the business and affairs of the company. This general duty is however subject to any unanimous shareholder agreement which may be put in place by the shareholders of a company which may restrict in the powers of the directors to manage the business and affairs of the company.
- borrow upon the credit of the company;
- issue, re-issue, sell or pledge debentures of the company;
- subject to section 53, give a guarantee on behalf of the company to secure performance of an obligation of any person; and
- mortgage, charge, pledge or otherwise create to secure any obligation of the company a security interest in all or any property of the company that is owned or subsequently acquired by the company.
Section 95 of the Act provides that every director and officer of a company in exercising his powers and discharging his duties must:-
- act honestly and in good faith with a view to the best interests of the company;
- exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
In determining what are the best interests of the company, directors are required to have regard to the interests of the company’s employees in general as well as to the interests of its shareholders.
REGISTRATION OF PROSPECTUSES
A “prospectus” is defined in section 288 (c ) of the Companies Act, Cap. 308 to include “any notice …or other document that invites applications from the public, or invites offers from the public, to subscribe for or purchase…any shares or debentures of the company or any units of any such shares or debentures of the company.”
Part II Division D of the Companies Act, Cap. 308 contains detailed provisions designed to protect investors and to regulate the manner in which company promoters as well as companies may go about raising money from the public with which to finance the operation of public companies. Other prospectus requirements are also prescribed in the First and Second Schedules to the Companies Regulations, 1984 made under the Act.
The statutory prospectus requirements seek to ensure that companies make the fullest disclosure about the company’s state of affairs to members of the public who are being invited to invest in the enterprise. Accordingly, the Act requires disclosure of such matters, inter alia, as the number of founders or management or deferred shares, if any, the nature and extent of the interest of the holders in the property and profits of the company, any commissions payable and any material contracts referred to in the prospectus.
Sections 290(1) and 297(1) of the Companies Act, Cap. 308 expressly provide that no person shall issue a prospectus or any form of application for shares or debentures unless a prospectus has been registered by the Registrar of Companies and the prospectus states on its face the fact of the registration and the date on which it was effected.
Although the prohibition is directed at “persons” generally, the requirement to register the prospectus is in practical terms directed to the company promoters and directors of companies who are seeking to raise funds from the public in the name of the company through the medium of a prospectus.
The willful contravention of the requirement to register a prospectus is a criminal offence under section 433(1)(c ) of the Companies Act, Cap. 308. A person found guilty of the offence is liable on summary conviction to a fine of $5,000 or to imprisonment for a term of 6 months or both.
- A copy of the prospectus. Such copy to be lodged with the Registrar for filing on or before the date of its issue and signed by every director and by every person named in the prospectus as a proposed director, or by his duly authorized agent;
- A copy of a written consent by an expert agreeing to the inclusion in the prospectus of an opinion or statement made by the expert in relation to the prospectus as required by section 299 of the Act;
- Copies of all material contracts referred to in the prospectus;
- Where such material contracts are not reduced to writing, a memorandum giving full particulars of the contract must be lodged with the Registrar together with the prospectus. Prior to going to print with the final text of the prospectus and to lodging same with the Registrar for registration, it is advisable for the company to obtain the preliminary views of the Registrar of Companies (as well as the Securities Exchange of Barbados) on the draft text of the proposed prospectus. In practice, this approach will save unnecessary printing costs and ensure that there are no last minute surprises which can jeopardize the legality of the public offering.
Since the Registrar of Companies also functions as adjudicator of stamp duty under the Stamp Duty Act, Cap. 91, an inquiry may be made by the Registrar in relation to whether any material contracts referred to in the prospectus attract Government stamp duty. Accordingly, companies should ensure that the documents are appropriately stamped at the time they are lodged for registration; If it appears from the Registrar’s examination of the prospectus as well as of the company file kept at the Corporate Registry that the company is not in good-standing by reason of the company’s failure to file annual returns or to notify the Registrar about changes in directorships or changes in the registered office or any other matter, the Registrar may require such changes to be filed before proceeding with the registration of the prospectus.
It is therefore important that companies ensure that the company records are kept up to date as required by the Companies Act so that the processing of the prospectus will not be unnecessarily delayed or held-up.
The above advice is especially apposite where a prospectus is lodged for registration by or on behalf of an external company wishing to make a public offering in Barbados. External companies have special obligations under section 342 of the Companies Act to notify “fundamental company changes” to the Barbados Registrar within 30 days of such changes taking place.
Failure by an external company to notify such fundamental changes to the Barbados Registrar within 60 days of the change will result in the registration of the external company ceasing to be valid in Barbados. In such circumstances, the external company will not be in good standing in Barbados and the prospectus will not be registered by the Registrar, placing the public offering in jeopardy. Continuance: Corporate emigration and immigration
Annual Return - Form 35
In accordance with Section 15A(2) of the Companies Act, Cap.308 as amended, every company except an external company to which Section 343 applies, shall file with the Registrar an annual return in the manner and form prescribed; and at the time of filing under paragraph (a) pay the prescribed fee.
A company where incorporated between 1st January and 30th June in any year shall file its annual return no later than 30th June; between 1st July and 31st December in any year shall file its annual return no later than 31st December in every succeeding year after incorporation.
A company that is in default in complying with the requirements of subsections (1) and (2) is liable to a penalty, not exceeding BDS$3000.00, of BDS$10.00 payable to the Registrar for every day during which the default continues and every director and officer of the company who knowingly and wilfully authorises or permits the default is also liable to that penalty. 15A(1)(a)(b), (2)(a)(b), (3)1. 2. 4 COMPANIES (AMENDMENT) (NO. 2) ACT, 2019–51
Pursuant to section 412, the Registrar may strike off the register a company that neglects or refuses to file an annual return required under this section. The Registrar may issue guidelines or administrative directions for the efficient administration of this section including directions in respect of the submission of the annual return in electronic format.
A director or an authorised officer of a company shall certify in an annual return filed under subsection (1), that information related to shareholders and beneficial ownership is maintained at the registered office of the company in accordance with section 170.
Subsection (1) does not apply to an exempt insurance company; an international business company; an international society with restricted liability; an international financial service entity; a private trust company; a foreign sales corporation; an entity that holds a valid foreign currency permit; a company, the gross revenue of which, as shown in the most recent financial statements referred to in section 147, exceeds $1000 000; and such other entity as the Minister may by order designate.