How Does a Corporation Change Domicile to the British Virgin Islands?
Full Question:
Answer:
The legal restrictions will be governed primarily by corporate law and the BVI Business Companies Act. Delaware does allow a change of domicile. Please see the statute and links below to determine applicable restrictions. A shareholder's vote will confirm that they accept the corporation's change of domicile.
To incorporate a company under the Business Companies Act, the memorandum and articles of association (“articles”) (except in the case of an unlimited company that is not authorized to issue shares) signed by the registered agent must be filed with the Registrar of Corporate Affairs (“the Registrar”), together with the registered agent’s consent to act in the approved form, and any other documents that may be prescribed. For segregated portfolio companies, the written approval from the FSC must also be filed. Only the registered agent can file an application for incorporation; the Registrar will not accept it from any other person. If he is satisfied that all the requirements of the new Act have been met, the Registrar will register the documents, allot a unique number to the company, and issue a certificate of incorporation.
Please see also:
http://www.harneys.com/files/legal-guides/key%20features.pdf
http://en.wikipedia.org/wiki/BVI_Business_Companies_Act
Please see the following Delaware statute:
8 Del. C. § 390. Transfer, domestication or continuance of domestic
corporations.
(a) Upon compliance with the provisions of this section, any
corporation existing under the laws of this State may transfer to or
domesticate or continue in any foreign jurisdiction and, in connection
therewith, may elect to continue its existence as a corporation of this
State. As used in this section, the term:
(1) "Foreign jurisdiction" means any foreign country, or other foreign
jurisdiction (other than the United States, any state, the District of
Columbia, or any possession or territory of the United States); and
(2) "Resulting entity" means the entity formed, incorporated, created or
otherwise coming into being as a consequence of the transfer of the
corporation to, or its domestication or continuance in, a foreign
jurisdiction pursuant to this section.
(b) The board of directors of the corporation which desires to transfer
to or domesticate or continue in a foreign jurisdiction shall adopt a
resolution approving such transfer, domestication or continuance
specifying the foreign jurisdiction to which the corporation shall be
transferred or in which the corporation shall be domesticated or
continued and, if applicable, that in connection with such transfer,
domestication or continuance the corporation's existence as a corporation
of this State is to continue and recommending the approval of such
transfer or domestication or continuance by the stockholders of the
corporation. Such resolution shall be submitted to the stockholders of
the corporation at an annual or special meeting. Due notice of the time,
place and purpose of the meeting shall be mailed to each holder of stock,
whether voting or nonvoting, of the corporation at the address of the
stockholder as it appears on the records of the corporation, at least 20
days prior to the date of the meeting. At the meeting, the resolution
shall be considered and a vote taken for its adoption or rejection. If
all outstanding shares of stock of the corporation, whether voting or
nonvoting, shall be voted for the adoption of the resolution, the
corporation shall file with the Secretary of State a certificate of
transfer if its existence as a corporation of this State is to cease or a
certificate of transfer and domestic continuance if its existence as a
corporation of this State is to continue, executed in accordance with
§ 103 of this title, which certifies:
(1) The name of the corporation, and if it has been changed, the name
under which it was originally incorporated.
(2) The date of filing of its original certificate of incorporation with
the Secretary of State.
(3) The foreign jurisdiction to which the corporation shall be
transferred or in which it shall be domesticated or continued and the
name of the resulting entity.
(4) That the transfer, domestication or continuance of the corporation
has been approved in accordance with the provisions of this section.
(5) In the case of a certificate of transfer, (i) that the existence of
the corporation as a corporation of this State shall cease when the
certificate of transfer becomes effective, and (ii) the agreement of the
corporation that it may be served with process in this State in any
proceeding for enforcement of any obligation of the corporation arising
while it was a corporation of this State which shall also irrevocably
appoint the Secretary of State as its agent to accept service of process
in any such proceeding and specify the address to which a copy of such
process shall be mailed by the Secretary of State. Process may be
served upon the Secretary of State under this subsection by
means of electronic transmission but only as prescribed by the Secretary of
State. The Secretary of State is authorized to issue such rules and regulations
with respect to such service as the Secretary of State deems necessary or
appropriate. In the event of service upon the Secretary of State in accordance
with this subsection, the Secretary of State shall forthwith notify such
corporation that has transferred out of the State of Delaware by letter,
directed to such corporation that has transferred out of the State of Delaware
at the address so specified, unless such corporation shall have designated in
writing to the Secretary of State a different address for such purpose, in
which case it shall be mailed to the last address designated. Such letter shall
be sent by a mail or courier service that includes a record of mailing or
deposit with the courier and a record of delivery evidenced by the signature of
the recipient. Such letter shall enclose a copy of the process and any other
papers served on the Secretary of State pursuant to this subsection. It shall
be the duty of the plaintiff in the event of such service to serve process and
any other papers in duplicate, to notify the Secretary of State that service is
being effected pursuant to this subsection and to pay the Secretary of State
the sum of $50 for the use of the State, which sum shall be taxed as part of
the costs in the proceeding, if the plaintiff shall prevail therein. The
Secretary of State shall maintain an alphabetical record of any such service
setting forth the name of the plaintiff and the defendant, the title, docket
number and nature of the proceeding in which process has been served, the fact
that service has been effected pursuant to this subsection, the return date
thereof, and the day and hour service was made. The Secretary of State shall
not be required to retain such information longer than 5 years from receipt of
the service of process.
(6) In the case of a certificate of transfer and domestic continuance,
that the corporation will continue to exist as a corporation of this State
after the certificate of transfer and domestic continuance becomes
effective.
(c) Upon the filing of a certificate of transfer in accordance with
subsection (b) of this section and payment to the Secretary of State of all
fees prescribed under this title, the Secretary of State shall certify that
the corporation has filed all documents and paid all fees required by this
title, and thereupon the corporation shall cease to exist as a corporation
of this State at the time the certificate of transfer becomes effective in
accordance with § 103 of this title. Such certificate of the Secretary of
State shall be prima facie evidence of the transfer, domestication or
continuance by such corporation out of this State.
(d) The transfer, domestication or continuance of a corporation out of
this State in accordance with this section and the resulting cessation of
its existence as a corporation of this State pursuant to a certificate of
transfer shall not be deemed to affect any obligations or liabilities of
the corporation incurred prior to such transfer, domestication or
continuance, the personal liability of any person incurred prior to such
transfer, domestication or continuance, or the choice of law applicable to
the corporation with respect to matters arising prior to such transfer,
domestication or continuance. Unless otherwise agreed or otherwise provided
in the certificate of incorporation, the transfer, domestication or
continuance of a corporation out of the State of Delaware in accordance
with this section shall not require such corporation to wind up its affairs
or pay its liabilities and distribute its assets under this title and shall
not be deemed to constitute a dissolution of such corporation.
(e) If a corporation files a certificate of transfer and domestic
continuance, after the time the certificate of transfer and domestic
continuance becomes effective, the corporation shall continue to exist as a
corporation of this State, and the law of the State of Delaware, including
this title, shall apply to the corporation to the same extent as prior to
such time. So long as a corporation continues to exist as a corporation of
the State of Delaware following the filing of a certificate of transfer and
domestic continuance, the continuing corporation and the resulting entity
shall, for all purposes of the laws of the State of Delaware, constitute a
single entity formed, incorporated, created or otherwise having come into
being, as applicable, and existing under the laws of the State of Delaware
and the laws of the foreign jurisdiction.
(f) When a corporation has transferred, domesticated or continued
pursuant to this section, for all purposes of the laws of the State of
Delaware, the resulting entity shall be deemed to be the same entity as the
transferring, domesticating or continuing corporation and shall constitute
a continuation of the existence of such corporation in the form of the
resulting entity. When any transfer, domestication or continuance shall
have become effective under this section, for all purposes of the laws of
the State of Delaware, all of the rights, privileges and powers of the
corporation that has transferred, domesticated or continued, and all
property, real, personal and mixed, and all debts due to such corporation,
as well as all other things and causes of action belonging to such
corporation, shall remain vested in the resulting entity (and also in the
corporation that has transferred, domesticated or continued, if and for so
long as such corporation continues its existence as a corporation of this
State) and shall be the property of such resulting entity (and also of the
corporation that has transferred, domesticated or continued, if and for so
long as such corporation continues its existence as a corporation of this
State), and the title to any real property vested by deed or otherwise in
such corporation shall not revert or be in any way impaired by reason of
this title; but all rights of creditors and all liens upon any property of
such corporation shall be preserved unimpaired, and all debts, liabilities
and duties of such corporation shall remain attached to the resulting
entity (and also to the corporation that has transferred, domesticated or
continued, if and for so long as such corporation continues its existence
as a corporation of this State), and may be enforced against it to the same
extent as if said debts, liabilities and duties had originally been
incurred or contracted by it in its capacity as such resulting entity. The
rights, privileges, powers and interests in property of the corporation, as
well as the debts, liabilities and duties of the corporation, shall not be
deemed, as a consequence of the transfer, domestication or continuance, to
have been transferred to the resulting entity for any purpose of the laws
of the State of Delaware.
(g) In connection with a transfer, domestication or continuance under
this section, shares of stock of the transferring, domesticating or
continuing corporation may be exchanged for or converted into cash,
property, or shares of stock, rights or securities of, or interests in, the
resulting entity or, in addition to or in lieu thereof, may be exchanged
for or converted into cash, property, or shares of stock, rights or
securities of, or interests in, another corporation or other entity or may
be cancelled.
(h) No vote of the stockholders of a corporation shall be necessary to
authorize a transfer, domestication or continuance if no shares of the
stock of such corporation shall have been issued prior to the adoption by
the board of directors of the resolution approving the transfer,
domestication or continuance.
(i) Whenever it shall be desired to transfer to or domesticate or continue
in any foreign jurisdiction any nonstock corporation, the governing body shall
perform all the acts necessary to effect a transfer, domestication or
continuance which are required by this section to be performed by the board of
directors of a corporation having capital stock. If the members of a nonstock
corporation are entitled to vote for the election of members of its governing
body or are entitled under the certificate of incorporation or the bylaws of
such corporation to vote on such transfer, domestication or continuance or on a
merger, consolidation, or dissolution of the corporation, they, and any other
holder of any membership interest in the corporation, shall perform all the
acts necessary to effect a transfer, domestication or continuance which are
required by this section to be performed by the stockholders of a corporation
having capital stock. If there is no member entitled to vote thereon, nor any
other holder of any membership interest in the corporation, the transfer,
domestication or continuance of the corporation shall be authorized at a
meeting of the governing body, upon the adoption of a resolution to transfer or
domesticate or continue by the vote of a majority of members of its governing
body then in office. In all other respects, the method and proceedings for the
transfer, domestication or continuance of a nonstock corporation shall conform
as nearly as may be to the proceedings prescribed by this section for the
transfer, domestication or continuance of corporations having capital stock. In
the case of a charitable nonstock corporation, due notice of the corporation's
intent to effect a transfer, domestication or continuance shall be mailed to
the Attorney General of the State of Delaware 10 days prior to the date of the
proposed transfer, domestication or continuance.