Loeb Smith has been shortlisted in the Best Law Firm – Fund Domicile category at the US Emerging Manager Awards 2023!

We are pleased to announce that Loeb Smith has been shortlisted for the Hedgeweek US Emerging Manager Awards 2023 in the Best Law Firm – Fund Domicile category.

Pre-selection data for the fund manager awards was provided by Bloomberg, based on 2022 Calendar Year fund performance (31st December, 2021 to 31st December, 2022).

For the service provider categories, the nominated firms are based on a widespread survey of more than 100 fund managers. We have been shortlisted as we were nominated in a survey completed by 100+ emerging hedge fund managers. Winners are decided by a majority vote. The voting period ended on Monday, April 24th.

We are proud to provide a high quality of service that is consistently appreciated by our clients and we look forward to continue working with them to find successful outcomes and solutions to their day-to-day issues and complex, strategic matters.

This article follows our previous article of 5 January 2023 which considered, in broad terms, the changes to the BVI Business Companies Act, 2004 (the Companies Act) of the British Virgin Islands (BVI) brought about by The Business Companies (Amendment) Act, 2022 (the Amendment Act). This article will consider in more detail the changes introduced by the Amendment Act to the provisions of the Companies Act which deal with the restoration of companies which have been struck-off or dissolved.
In this article, references to the Amended Companies Act are references to the Companies Act as amended by the Amendment Act.

The Business Companies (Amendment) Act, 2022 (Companies Amendment Act) of the British Virgin Islands (BVI) which amends the BVI Business Companies Act, 2004 (Companies Act), came into force on 1 January 2023. The BVI Business Companies (Amendment) Regulations, 2022 (Companies Amendment Regulations) which amends the BVI Business Companies Regulations, 2020, also came into effect at the same time as the Companies Amendment Act.

The amendments introduced by the Companies Amendment Act and the Companies Amendment Regulations represent the commitment of the BVI to ensure that its financial services industry is aligned with international best prac­tices and compliant with the standards imposed by the Financial Action Task Force. The changes also embody the policy decisions of the Company Law Review Advisory Committee following public consultation in 2021.

A list of key changes introduced are as follows:

1. BVI residency requirement for liquidators in solvent liquidations
Prior to 1st January 2023, there was no residency requirement for an individual appointed as liquidator to conduct a solvent voluntary liquidation of a BVI company under Part XII of the Companies Act. The Companies Amendment Act has introduced a residency requirement for liquidators. To qualify, an individual must have physically lived in the BVI for at least 180 days, either continuously or in aggregate, prior to their appointment.

However, where joint liquidators are appointed, at least one of the joint liquidators is required to satisfy the BVI residency requirement but the BVI residency requirement shall not apply to the other joint liquidator if he or she is resident outside the BVI.

2. Names of Current Directors of a BVI Company are now publicly avail­able
Although the Register of Directors of a BVI company (with names, addresses, nationality, date of birth and other information required to be filed with the Registrar under Sections 118A and 118B relating to current and past Directors) continues to be a matter of private record, it is now possible to obtain a list of the names of the current directors of a BVI company through the Virtual Integrated Registry and Regulatory General Information Network (VIRRGIN), which is the online information platform maintained by the BVI Financial Services Commission for filing and accessing information regarding BVI entities. The personal particulars of the current direc­tors (e.g. addresses, nationality, date of birth and other information) will remain confidential and the names of any past directors will not be disclosed.

In addition, the name of a current director of a BVI company is only available by way of a search against a particular company. It is not be possible to search against names of individuals to see if that person is a director of any company.

3. New financial reporting rules
Although every BVI company must maintain financial records to ade­quately show and explain its transactions, there was no requirement for an unregulated com­pany to maintain records in any prescribed form, or to have such records audited or filed with any regulatory or supervisory authority.

As from 1 January 2023, BVI companies are now required to file an annual financial return (which will include specific financial information) with their BVI registered agent within nine (9) months of the end of the finan­cial year to which it relates. The actual form of annual financial return will likely consist of a relatively simple form balance sheet and profit and loss account.

The annual financial return will not be publicly available or accessible (though the registered agent will have an obligation to inform the Registrar of Corporate Affairs within thirty (30) days after the annual financial return was due, if it has not received the annual financial return), and there will be no requirement that the financial information included in an annual return be audited. The requirement to file an annual financial return will not apply to:

(i) companies whose shares are listed on a recognized exchange;
(ii) a company that is regulated under BVI financial services legislation and already provides financial statements to the BVI Financial Services Commission in accordance with the requirements of that financial services legislation, and
(iii) a company that already files its annual tax return with the BVI tax authority.

A company that fails to file an annual financial return may be fined and ultimately struck-off.

4. Bearer shares
Bearer shares will be phased out in the BVI, and from 1 January 2023 it is no longer permissible to issue bearer shares, or to convert or exchange registered shares into bearer shares. From 1 July 2023, any existing bearer shares will automatically be converted into regis­tered shares to be held by the relevant company on trust for the owner of the shares.

5. Register of members
Unless such information is already included in a BVI company’s memoran­dum and articles of association, a company’s regis­ter of members will need to include the nature of any voting rights. This may, as an example, include whether such voting rights are conditional or unconditional.

6. Continuation outside the BVI
The Companies Amendment Act has introduced a requirement for a BVI company intending to continue or redomicile out of the BVI to undertake the following at least fourteen (14) days before filing to continue out:

• advertise notice of its intention to redomicile from the BVI in the BVI’s Official Gazette and on its own website (if any) and specify the jurisdiction to which it intends to continue; and
• notify all of its members and creditors in writing of its intention.

7. Striking off, dissolution and restoration
The previous striking-off regime in the BVI under which companies that were struck off had a seven-year grace period before being dissolved, has been overhauled. As of 1 January 2023, every BVI company that is struck off from that date will be dissolved on the date that the BVI Registrar of Corporate Affairs publishes a notice of striking-off in the BVI Gazette (i.e. almost immediately). A company will be given 90 days’ grace notice to remedy the default actions (e.g. payment of fees) and regularise its status before it becomes liable to be struck off.

Subject to meeting certain prescribed conditions, a BVI company may be restored within five (5) years of being struck off and dissolved by making an application to the BVI Registrar of Corporate Affairs or the Court. Importantly, an application to the BVI Registrar of Corporate Affairs will only be permitted if the company was carrying on business or in oper­ation at the date of its striking-off and dissolution.

8. Public register of beneficial ownership
The BVI has previously committed to introducing a public register of beneficial ownership subject to such registers becoming an international standard. In line with this commitment, a framework will be enacted pursuant to which the BVI may introduce a public register of beneficial ownership by way of future regulations.

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This publication is not intended to be a substitute for specific legal advice or a legal opinion. For specific advice on changes to the BVI Business Companies Act, please contact your usual Loeb Smith attorney or any of the following:

E: gary.smith@loebsmith.com
E. peter.vas@loebsmith.com
E: robert.farrell@loebsmith.com
E: elizabeth.kenny@loebsmith.com
E: vivian.huang@loebsmith.com
E: yun.sheng@loebsmith.com
E: faye.huang@loebsmith.com

The Register of Members for Cayman Islands’ exempted companies is not required by the Companies Law to be held in the Cayman Islands, but is usually held at the Company’s registered office, along with the other statutory Registers and corporate records maintained by the Company. If the Directors would prefer the Register of Members to be kept elsewhere other than at the Company’s registered office, they need to pass a Board resolution to that effect.

The Register of Members needs to state (i) the names and addresses of shareholders of the Company; (ii) the number and class of shares held by each shareholder (including any distinguishing numbers in respect of those shares); (iii) the amount paid up or agreed to be considered as paid on the shares; (iv) the date on which the name of any person was entered in the Register as a member and the date the person ceased to be a member of the Company; and (v) whether each relevant class of shares held by a shareholder carries voting rights under the Articles of Association of the Company (including the right to appoint or remove directors) and if so, whether such voting rights are conditional.

All existing and all newly incorporated companies should ensure that their Register of Members show whether each class of shares held by a shareholder carries voting rights and if so, whether such voting rights are conditional.

This publication is not intended to be a substitute for specific legal advice or a legal opinion. For specific advice, please contact your usual Loeb Smith attorney or any of:

E: gary.smith@loebsmith.com
E: ramona.tudorancea@loebsmith.com
E: vivian.huang@loebsmith.com
E: yun.sheng@loebsmith.com
E: elizabeth.kenny@loebsmith.com
E: santiago.carvajal@loebsmith.com
E: benjamin.wrench@loebsmith.com

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The Cayman Islands Monetary Authority (“CIMA”) published an updated Rule and Regulatory Procedure on 17 August 2022 in respect of the cancellation of certificates of registration (“De-registration”) of both mutual funds regulated under the Mutual Funds Act (2021 Revision) (“MFA”) and private funds regulated under the Private Funds Act (2021 Revision) (“PFA”).

What has changed?

The updated Regulatory Procedure for both mutual funds and private funds have both removed the concept of “Licence Under Liquidation” (“LUL”) and “Licence under Termination” (“LUT”).

Previously, a Fund could (i) provide liquidation as the reason for De-registration and be granted LUL status pending completion of liquidation of the Fund, or (ii) apply to CIMA for De-registration by paying the required surrender fee of US$731.71, returning the original certificate of registration (if issued instead of an electronic certificate) and a certified copy of the operators’ resolution and be placed in LUT, pending receipt of all the documents required by CIMA to confirm De-registration (e.g. submission of the audited accounts or confirmation of an audit waiver by CIMA).

Instead, now a Fund can only apply for De-registration if it is in good standing (i.e. all fees have been paid, the audited financial statements have been submitted or an audit waiver obtained and there are no outstanding queries from CIMA). Furthermore, the Fund must comply with the Notification Deadline in order to avoid incurring administrative fines.

This change also impacts regulated mutual funds which operate as master funds (“Master Funds”), as a Master Fund cannot complete its De-registration until its regulated feeder fund has been completely terminated by CIMA (i.e. until such time as the regulated feeder fund is also in good standing with CIMA).

The updated Regulatory Procedures further provides details of a “non-fund arrangement” ground for De-registration, where a Fund does not meet the definition of a “mutual fund” under the MFA or a “private fund” under the PFA.

What is the implication for Cayman domiciled Funds?

Previously, a Fund could submit a De-registration application before 31 December, be placed in either LUL or LUT status and benefit from either a reduction or waiver of the CIMA annual fees due by 15 January, the immediately following year, provided that the Fund completed any actions required in order to complete De-registration within a prescribed time period set by CIMA.

The revised two-step notification and application process for De-registration means that in order to avoid incurring CIMA renewal fees for the next financial year, a Fund will need to schedule to complete any actions to wind-down the Fund (i.e. final distributions, preparation of final accounts or applying and obtaining an audit waiver from CIMA) in good time ahead of 31 December in the relevant year.

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This publication is not intended to be a substitute for specific legal advice or a legal opinion. For specific advice on Cayman Mutual Funds and Private Funds, please contact your usual Loeb Smith attorney or :

E: gary.smith@loebsmith.com
E: elizabeth.kenny@loebsmith.com
E: vivian.huang@loebsmith.com
E: yun.sheng@loebsmith.com
E: santiago.carvajal@loebsmith.com
E: faye.huang@loebsmith.com
E: robert.farrell@loebsmith.com
E: peter.vas@loebsmith.com

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David M. Harby

 

Head of Commercial Disputes and Litigation
+1345 749 7494
david.harby@loebsmith.com

 

Loeb Smith is pleased to welcome David M. Harby to the firm as Head of Commercial Disputes and Litigation in the Cayman office, where his practice focuses on advising investment funds, financial institutions, shareholders, banks, public and private companies, and high net worth individuals.

 

David has previously practised at the English Bar and has extensive experience of corporate and commercial litigation and advocacy in England and the British Virgin Islands. His practice is primarily focused on cross-border corporate insolvency and restructuring, minority shareholder disputes and derivative actions, merger disputes, trust litigation and fraud and asset tracing. David also has a broad experience of alternative dispute resolution (ADR). He is an Associate Member of the Chartered Institute of Arbitration (ACIArb) and a mediator accredited by the Centre for Effective Dispute Resolution (CEDR).

 

 

David’s addition adds greater depth and expertise to the firm’s commercial disputes and litigation practice for its international clients.

 

BAR ADMISSIONS

• • Cayman Islands
  • British Virgin Islands

EDUCATION

• • University of London,Master of Laws (LL.M)
  • University of Birmingham, Bachelor of Laws (LL.B Hons)

 

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Loeb Smith Attorneys adds to its expanding Corporate Team with the hire of English Solicitor, Elizabeth Kenny.

The Cayman Islands Monetary Authority (“CIMA”) released a Notice on 19 April 2021 to confirm that the deadline for the first filing of audited accounts for Private Funds and the Fund Annual Return (FAR) form which is also required to be filed annually has been extended to 30 September 2021.

The extension relates only to the audited accounts and FAR forms for Private Funds and does not apply to open-ended mutual funds registered under the Mutual Funds Act (2021 Revision). The audited accounts and FAR forms for mutual funds are still required to be filed within six (6) months of each relevant Fund’s financial year end.

This article was first published in Asia Business Law Journal which can be accessed here: https://law.asia/side-letter-cayman-subscription-financing/

Subscription facilities dominated the Asian fund finance industry in 2020. However, as a result of widespread concerns about liquidity and an uncertain macroeconomic outlook, it has become more important than ever for a lender to undertake proper due diligence on an investment fund prior to providing new financing.

This article examines the most important issues pertaining to side letters to the limited partnership agreement (LPA) of a Cayman Islands exempted limited partnership (ELP), which are relevant to a lender looking to advance a subscription facility. ELPs remain the vehicle of choice for subscription financing transactions in Asia. The following are examples of side letter provisions that a lender will typically scrutinise:

Limitations on the incurrence of debt and collateral support

Side letters should not prohibit, restrict or impose limitations on the incurrence of debt, the giving of a guarantee and/or the granting of security, if that cuts across the terms of the proposed subscription financing. To the extent that an investor wishes to include such provisions in a side letter, carve-outs should be included to accommodate the financing transaction.

Excuse rights

An investor may wish to be excused from honouring a drawdown notice with respect to immoral investments, or in geographies or industries to which the investor is politically sensitive. These types of rights are relatively common, and are typically accommodated by most lenders. However, a lender will usually seek to exclude such an excused investor from the relevant ELP’s borrowing base, and may insist on a default event if the excused commitments exceed a specified threshold. This is typically negotiated, as excuse rights are investor-specific and generally unrelated to the creditworthiness of an investor.

Confidentiality restrictions

Any restrictions that prevent the disclosure of investor information are likely to lead the lender to exclude the applicable investor from the relevant ELP’s borrowing base because a lender may not be able to enforce its security if it does not have details of the investor, or be in a position to satisfactorily complete legally required “know your customer” checks. A compromise may be to agree to disclosure on a default, or to reassure investors that the lender has robust confidentiality safeguards.

Limitations of direct obligations to a lender

A lender will usually take issue with a provision which provides that an investor only owes direct obligations to the fund parties, as this may undermine its ability to enforce any security. If an investor is concerned about granting broad powers or rights to a non-fund party, such as a lender, a compromise may be to make clear that any limitations are not intended to prohibit or limit a lender from taking enforcement action on a default.

Limitations on documents from an investor

An investor may wish to receive side letter comfort that it will not have to sign or provide any documentation to a lender in connection with a subscription financing. Provided that the LPA includes customary representations and covenants that prospective financiers have the benefit of, this may prove sufficient from a lender’s perspective. The LPA could impose an obligation on the relevant ELP to use its best endeavours to avoid any requests to investors.

Sovereign immunity

A lender may exclude an investor that has the benefit of immunity from the relevant ELP’s borrowing base, but that will ultimately depend on the specific credit analysis that is undertaken. As a minimum, an investor that has such benefit will usually be asked to confirm that its obligations to the ELP are not subject to such immunity.

Transfers to an affiliate

An investor may wish to have the option to transfer its interest in the relevant ELP to an affiliate specified by it. A lender may seek to exclude such an affiliate from the relevant ELP’s borrowing base from a credit perspective. A compromise may be to permit transfers to affiliates, as long as this does not breach the ELP’s borrowing base.

Most favoured nation (MFN) provisions

As a final point, it is important to note that any adverse consequences for a lender of side letter terms may be multiplied if MFN provisions are included. A cost-friendly solution may be to include a carve-out with respect to provisions that detrimentally impact a lender in a subscription financing.

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Peter Vas
Partner Loeb Smith Attorneys
Hong Kong
T: +852 5225 4920
E. peter.vas@loebsmith.com