Nevis Limited Liability Company Ordinance
THE NEVIS LIMITED LIABILITY
COMPANY ORDINANCE, 1995 as amended.
PART I
GENERAL PROVISIONS
Short Title and commencement
1. This Ordinance may be cited as the NEVIS LIMITED
LIABILITY COMPANY ORDINANCE, 1995.
Interpretation
2. In this Ordinance, unless the context otherwise requires, the term:
"Articles of organization" includes (i) the original articles of organization or any other instrument filed or issued under any law to form a domestic or foreign limited liability company, amended, supplemented, corrected or restated by articles of amendment, merger or consolidation, or other instruments of like effect filed or issued under any law; or (ii) a special law or charter creating a domestic or foreign limited liability company as amended, supplemented or restated;
"Business entity" means a corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, custodian, nominee, government, governmental subdivision, agency, instrumentality, or any other legal or commercial entity, whether foreign or domestic;
"Capital contribution" means any cash, property, services rendered, or a promissory note or other obligation to contribute cash or property or to perform services, which a person contributes to a limited liability company in his capacity as a member;"Corporation" means any incorporated organization or similar entity formed under the laws of any country or jurisdiction;"Court" means a court of law having jurisdiction in any country;"Distribution" means a transfer of money, property or other benefit from a limited liability company to, or for the benefit of a member in his capacity as a member, or to,
or for the benefit of, an assignee of a member's interest in the limited liability company,
in respect of their limited liability company interest;"Foreign limited liability company" means an entity that is an unincorporated association organized under the laws of any foreign country or other foreign jurisdiction that affords its members, pursuant to the laws under which it is organized, limited
liability with respect to the liabilities of the entity;"High Court" means the High Court having jurisdiction in St. Kitts and Nevis;"Insolvent" means being unable to pay debts as they become due in the usual course of the debtor's business;."Limited liability company", "domestic limited liability company" and "company"
means a limited liability company formed under this Ordinance;
"Manager" means -
(a) a person or persons, whether or not a member, designated and authorized in the operating agreement to manage the limited liability company or to otherwise act as agent of the limited liability company, either to execute management duties generally or to execute certain management duties as specified in the operating agreement
(b) where the operating agreement does not designate a person or persons as a manager or managers, or the operating agreement designates as managers all of the members, in their capacity as members, references in this Ordinance to managers shall mean each of the members of the limited liability company, to the extent management duties are assigned to the members in the operating agreement, or if not so assigned, then without limitation;
(c) where the operating agreement designates one or more members as a manager or managers, or one or more manager or managers who are not members of the limited liability company, references in this Ordinance to managers shall mean each of the managers of the limited liability company so designated, to the extent management duties are assigned to each such member in the operating agreement, or if not so assigned, then without limitation;"Member" means a person who has been admitted to a limited liability company as a member pursuant to section 37 of this Ordinance, or, in the case of a foreign limited liability company, in accordance with the laws of the foreign country or foreign
jurisdiction under which the foreign limited liability company is organized;"Member's interest" means a member's share of the profits, losses, income, gain, deductions and credits of the limited liability company, the right to receive distributions from the limited liability company and all of the member's rights and obligations under this Ordinance, the articles of organization, and the operating agreement;
"Minister of Finance" means the Minister for the time being charged with the responsibility of Finance in the Nevis Island Administration;"Operating agreement" means the agreement, and any amendments thereto, of the members as to the affairs of a limited liability company, the conduct of its business, and
the relations among the members;"Person" means an individual or a business entity;"Registrar of Companies" means the person appointed by the Minister to perform the duties of Registrar under this Ordinance;"Termination of a member's interest" means a complete cessation of a member's
continued. membership in a limited liability company for any reason;"Transfer" means the sale, assignment, mortgage, creation or permission to subsist of any pledge, lien, charge or encumbrance over, conveyance, lease, gift, grant of any interest or other rights in or other disposition of any member's interest, any part thereof or any interest therein, whether by agreement, operation of law or otherwise.
Application of this Ordinance
3. Any limited liability company formed or subject to this which does business in Nevis shall be subject to and Ordinance comply with all requirements of the Companies Act (Cap. 335) in the same manner as a company formed thereunder.
Form of instruments instrument filing
4. (1) Whenever any provision of this Ordinance requires any to be filed with the Registrar of Companies, such instrument shall comply with the provisions of this Part unless otherwise expressly provided by law.
(2) Every instrument reference herein, filed or required to be filed, shall be in the English language, except that the corporate name may be in another language if written in English letters or characters.
(3) All instruments shall be signed by at least one manager duly authorized by the limited liability company to sign such instruments on behalf of the company, or such other person duly delegated such authority by the manager or managers in whom such authority resides.
(4) Whenever any provision of this Ordinance requires an instrument to be acknowledged, such requirement means in the case of execution of an instrument within Nevis that:
(a) the person signing the instrument shall acknowledge that it is his act
and deed or that it is the act and deed of the limited liability company, as the case may be; and
(b) the instrument shall be acknowledged before a notary public, commissioner for oaths or other person authorized to take acknowledgements, who shall attest that he knows the person making the
acknowledgement to be the person who executed the instrument.
(5) In the case of the execution of an instrument outside of Nevis, an
acknowledgment shall mean;
(a) the person signing the instrument shall acknowledge that it is his act and deed or that it is the act and deed of the limited liability company, as the case may be; and
(b) the instrument shall be acknowledged before a notary public or any other person authorized to take acknowledgements according to the laws of the place of execution, or a consul or vice-consul of St. Christopher and Nevis or other governmental official of St. Christopher and Nevis authorized to take acknowledgements or, in their absence, a consular official of another government having diplomatic relations with St. Christopher and Nevis, and such notary, person, consul or vice-consul shall attest that he knows the person making the acknowledgement to be the person who executed the instrument; and.
(c) when the acknowledgment shall be taken by a notary public or any
other person authorized to take acknowledgments, except a governmental official of St. Christopher or Nevis or foreign consular official, the signature of such person who has authority shall be attested
to by a consul or vice-consul of the Federation of St. Christopher and Nevis or, in his absence, by a consular official of another government having diplomatic relation with St. Christopher and Nevis or a
government official of the place of execution who is authorized to make such attestation, or an Apostille according to the Convention de la Haye 5 Octobre 1961.
(6) Whenever any provision of this Ordinance requires any instrument to be filed with the Registrar of Companies, such requirement means that:
(a) an appropriate receipt evidencing payment of all appropriate fees shall be delivered to the office of the Registrar of Companies and, within ten days of the date of the receipt, the original instrument together with a duplicate instrument, both signed and acknowledged;
(b) upon delivery of the original signed and acknowledged instrument with the required receipt and an exact signed and acknowledged copy the Registrar of Companies shall certify that the instrument has been filed in his office by endorsing the word "Filed" and the date of the required receipt upon the original instrument. Said date shall be the filing date;
(c) the Registrar of Companies shall compare the duplicate signed and acknowledged copy with the original signed and acknowledged instrument, and if he finds that the text is identical shall affix on the
duplicate copy the same endorsement of filing as he affixed on the original. The said original, as endorsed shall be returned to the limited liability company. The endorsement constitutes the certificate of the Registrar of Companies that the document is a true copy of the instrument filed in his office and that it was filed as of the date stated in the endorsement; and
(d) any instrument filed in accordance with this subsection shall be effective as of the filing date stated thereon.
(7) Any instrument relating to a domestic or foreign limited liability company and filed with the Registrar of Companies under this Ordinance may be corrected with respect to any error apparent on the face or defect in the execution thereof by filing with the Registrar of Companies a certificate of correction, executed and acknowledged in the manner required for the original instrument. The certificate of correction shall specify the error or defect to be corrected and shall set forth the portion of the instrument in correct form. The corrected instrument when filed shall be effective as of the date the original
instrument was filed.
Certificates or certified copies
5. All certificates issued by the Registrar of Companies in accordance with the provisions of this Ordinance and all copies as as evidence evidence of documents filed in his office in accordance with the.provisions of this Ordinance shall, when certified by him, be taken and received in all courts, public
offices and official bodies as prima facie evidence of the facts therein stated and of the execution of such instruments.
Fees on filing articles of organization
6. (1) The Minister of Finance is hereby empowered to promulgate and shall so promulgate a schedule of fees for the filing and issuance of documents under this Ordinance. and other Fees payable in respect of this Ordinance shall be payable documents in Eastern Caribbean dollars, or upon the authorization of the Minister of Finance, in any other currency.
(2) Fees for certifying copies of documents and for filing, recording or indexing
papers shall be fixed by the Minister of Finance.
Annual registrationfee
7. Every limited liability company shall pay to the Minister of Finance an annual fee a prescribed in the schedule required to be promulgated by the Minister of Finance under this Ordinance
Waiver of notice
8. Whenever any notice is required to be given to any member or manager of a limited liability company or to any other person under the provisions of this Ordinance or the operating agreement of the limited liability company, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed to be equivalent to the giving of
such notice.
Notice to members
9. Any notice or information required to be given to members shall be provided in the manner designated in the limited liability company's operating agreement or, if the notice can no longer be provided as stated therein, the notice shall be published in a publication of general circulation in Nevis or in a place where the limited liability company has a place of business. Any notice requiring a shareholder to take action in order to secure a right or privilege shall be published or given in time to allow a reasonable opportunity for such action to be taken.
Information and records
10. (1) Each member of a limited liability company has the right, at his own expense and subject to such reasonable standards (including standards governing what information and documents are to be furnished) as may be set forth in the operating agreement or otherwise established by the managers, to obtain from the limited liability company from time to time upon reasonable demand for any purpose
reasonably related to the member's interest as a member of the limited liability company such information and records as the limited liability company may maintain.
(2) Each manager shall have the right to examine all of the information described in subsection (1) for a purpose reasonably related to his position as a manager.
(3) The manager of a limited liability company shall have the right to keep confidential from the members, for such period of time as the manager deems reasonable, any information which the manager reasonably believes to be in the nature of trade secrets or other information the disclosure of which the manager in good faith believes is not in the best interest of the limited liability company or could damage the limited liability company or its business or which the limited liability company is required by law or by agreement with a third party to keep confidential.
(4) Any demand by a member under this section shall be in writing and shall state the purpose of such demand.
(5) Any action to enforce any right arising under this section shall be brought in the High Court.
(6) Failure of the limited liability company to keep or maintain records shall not be grounds for imposing liability on any manager, officer, member or agent of the limited liability company for debts, obligations and liabilities of the limited liability company.
Construction
11. In construing this Ordinance, or any part hereof, the Courts or any other person shall
refer to the common law or to the construction of the same or similar acts in other
jurisdictions.
|