BERMUDA 1995 : 33 COMPANIES AMENDMENT ACT 1995 [Date of Assent 7 July 1995] [Operative Date 7 July 1995] WHEREAS it is expedient to amend the Companies Act 1981: Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Senate and the House of Assembly of Bermuda, and by the authority of the same, as follows: Citation 1 This Act which amends the Companies Act 1981 (hereinafter referred to as "the principal Act") may be cited as the Companies Amendment Act 1995. Amends section 26(2) of principal Act 2 Section 26(2) of the principal Act is amended by deleting paragraph (a) and substituting the "(a) that the prospectus contains the particulars required by section 27(1) and is accompanied by a written statement from the auditor of the company, dated within seven days prior to the date of such filing, which confirms (i) the auditor's consent to the inclusion of his name in the prospectus to be issued by the 187 1
COMPANIES AMENDMENT ACT 1995 company as having accepted the appointment as auditor of the company; or (ii) the auditor's consent to the inclusion in that prospectus of any or all reports prepared by him; or;". Amends section 27(1) of principal Act 3 Section 27(1) of the principal Act is amended (a) by inserting next after paragraph (g) the "(h) financial statements of the company prepared in such manner and containing such information and copies of such documents as may be required by rules made under section 34;"; (b) by relettering paragraphs (h) and (i) as paragraphs (i) and (j) respectively; and (c) in paragraph (i), by inserting next after the word "report" the words "or statement" and by deleting the words "and copies of such documents". Repeals and replaces section 34 of principal Act 4 Section 34 of the principal Act is repealed and replaced by the "Rules 34 The Minister after consultation with the Institute of Chartered Accountants of Bermuda may make rules providing for (a) the information that shall be contained in, and the copies of documents that shall be attached to, any financial statement required to be attached to a prospectus by section 27(1)(h); and (b) the information that shall be contained in any report or statement of an auditor required to be attached to a prospectus by section 27(1)(i).". Amends section 82 of principal Act 5 Section 82 of the principal Act is amended in subsections (1) and (2) by inserting next after the word "member" wherever it appears, the words "or director". 2 188
Repeals and replaces section 91B of principal Act 6 Section 91B of the principal Act is repealed and replaced by the "Directors entitled to receive notice of meetings, etc. 91B (1) The directors of a company shall upon written request deposited at the registered office of the company be entitled to receive notice of, and to attend and be heard at, any or all general meetings. (2) Notwithstanding section 75 (length of notice for calling meetings) a notice given under subsection (1) shall be valid if in all the circumstances, such notice is reasonable.". Amends section 84 of principal Act 7 Section 84 of the principal Act is amended (a) by deleting subsection (1A) and substituting the "(1A) The notes mentioned in subsection (1)(a)(iiiA) shall include a description of the generally accepted accounting principles used in the preparation of the financial statements which principles may be (a) those of Bermuda or a country or jurisdiction other than Bermuda; or (b) such other generally accepted accounting principles as may be appointed by the Minister under subsection (5) for the purpose of this subsection, and, where the generally accepted accounting principles used are other than those of Bermuda, the notes shall identify the generally accepted accounting principles so used."; and (b) by inserting next after subsection (4) the "(5) The Minister may, after consultation with the Institute of Chartered Accountants of Bermuda, appoint generally accepted accounting principles promulgated by an accounting standard setting body and shall cause the appointment to be published in an appointed newspaper.". 189 3
COMPANIES AMENDMENT ACT 1995 Amends section 90 of principal Act 8 Section 90 of the principal Act is amended (a) by deleting subsection (3) and substituting the "(3) The generally accepted auditing standards referred to in subsection (2) may be those of Bermuda or a country or jurisdiction other than Bermuda or such other generally accepted auditing standards as may be appointed by the Minister under subsection (4) for the purpose of this subsection; and where the generally accepted auditing standards used are other than those of Bermuda, the report of the auditor shall identify the generally accepted auditing standards used."; and (b) by inserting next after subsection (3) the "(4) The Minister may, after consultation with the Institute of Chartered Accountants of Bermuda, appoint generally accepted auditing standards promulgated by an audit standard setting body and shall cause the appointment to be published in an appointed newspaper.". Amends section 97 of principal Act 9 Section 97 of the principal Act is amended by deleting subsection (3). Amends section 98 of principal Act 10 Section 98 of the principal Act is amended. (a) by deleting the heading thereto and substituting the "Exemption, indemnification and liability of officers, etc."; (b) by inserting the following as subsection (1) (1) Subject to subsection (2), a company may in its bye-laws or in any contract or arrangement between the company and any officer, or any person employed by the company as auditor, exempt such officer or person from, or indemnify him in respect of, any loss arising or liability attaching to him by virtue of any rule of law in respect of any negligence, default, 4 190
breach of duty or breach of trust of which the officer or person may be guilty in relation to the company or any subsidiary thereof."; and (c) by renumbering the section as subsection (2) and by deleting the words "Subject to this section and section 98A, any" and substituting the word "Any". Amends section 98A of principal Act 11 Section 98A of the principal Act is amended by deleting the words "Notwithstanding section 98 a company" and substituting the words "A company". Amends section 156F of principal Act 12 Section 156F of the principal Act is amended by deleting the words "and 54(1)(b)" and substituting the words ",54(1)(b), 65(6) and 66". Amends section 158 of principal Act 13 Section 158 of the principal Act is amended (a) in paragraph (d), by deleting the words ",or other company having a share capital,"; and (b) by inserting next after paragraph (e) the (ee) in the case of an unlimited liability company there shall be no limitation on the liability of any member;". Amends section 255 of the principal Act 14 Section 255 of the principal Act is amended by deleting subsections (2) and (3) and substituting the "(2) No responsibility shall rest on the company, the liquidator or any person to whom the custody of the books and papers has been committed, by reason only of any book or paper not being forthcoming to any person claiming to be interested therein provided that the company, liquidator or person, as the case may be, retains custody of such books and papers (i) (ii) in the case of a company dissolved pursuant to Section 213, for a period of at least ten years; in the case of a company dissolved pursuant to Section 261, for a period of at least twenty years; and 191 5
COMPANIES AMENDMENT ACT 1995 (iii) in any other case, for a period of at least two years, commencing on the date of the dissolution of the company. (3) The Minister may make rules for enabling the Registrar to prevent, for such period from the dissolution of the company, as the Registrar thinks proper, the destruction of the books and papers of a company which has been wound up, and for enabling any creditor or contributory of the company to make representations to the Registrar and to appeal to the Court from any direction which may be given by the Registrar in the matter, provided that such period shall not exceed (a) in the case of a company dissolved pursuant to Section 213, ten years; (b) in the case of a company dissolved pursuant to Section 261, twenty years; and (c) in any other case, two years, commencing on the date of the dissolution of the company.". Amends section 260 of principal Act 15 Section 260 of the principal Act is amended (a) by deleting subsection (1) and substituting the "(1) Where a company has been dissolved the Court may (a) in the case of a dissolution pursuant to section 213, at any time not later than ten years from the date of such dissolution; and (b) in any other case, at any time not later than two years from such date, on an application being made for the purpose by the liquidator of the company or by any other person who appears to the Court to be interested, make an order declaring the dissolution to have been void."; and (b) by inserting next after subsection (2) the 6 192
"(2A) Where an order is made and registered pursuant to this section, the company shall be deemed to have continued in existence as if it had not been dissolved.". 193 7