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Bahamas Numbered Acts |
THE FOUNDATIONS ACT, 2004 |
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ARRANGEMENT OF SECTIONS |
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PART I |
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PRELIMINARY |
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1. Short title and commencement. |
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2. Interpretation. |
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3. Definition of foundation. |
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4. Purpose and objects of a foundation. |
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PART II |
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ESTABLISHMENT |
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5. Mode of establishment of foundation. |
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6. Charter of a foundation. |
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7. Articles of a foundation. |
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8. Assets. |
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9. Powers and obligations of founder. |
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PART III |
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OFFICERS |
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10. Appointment and qualification of officers. |
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11. Duties, etc. of officers. |
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12. Appointment and qualification of secretary. |
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13. Registered office. |
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14. Appointment and qualification of foundation council. |
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15. Duties etc. of foundation council. |
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16. Appointment and qualification of auditor, etc. |
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PART IV |
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NAME |
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17. Restriction on registration of foundations by certain names. |
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18. Change of name. |
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19. Power to require foundation to change name. |
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20. Misleading name. |
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PART V |
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REGISTRATION |
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21. Registration of foundation. |
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22. Effect of registration. |
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23. Conclusiveness of certificate of registration. |
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24. Effect of charter and articles. |
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25. Pre-registration actions. |
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PART VI |
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CAPACITY |
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26. Limitation on the capacity of a foundation. |
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27. Power of officers to bind the foundation. |
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28. No duty to enquire as to capacity. |
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29. Execution of contracts, deeds, instruments and other documents. |
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30. Publication of name by foundation. |
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31. Particulars to be shown on letterheads, etc. |
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32. Disclosure by members of governing bodies, etc. |
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33. Provisions as to liability of members of governing bodies, etc. |
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PART VII |
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MEETINGS |
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34. Meetings of officers. |
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35. Annual meeting of officers. |
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36. Convening of meeting of officers on requisition. |
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37. Provisions as to meetings and votes. |
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38. Minutes of proceedings of meetings. |
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39. Inspection of minute books. |
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40. Meeting of members of foundation council. |
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41. Rights of a beneficiary to information. |
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PART VIII |
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FINANCIAL |
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42. Keeping of books of account. |
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43. Income and expenditure account and balance sheet. |
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44. Assets to be set out separately in balance sheet. |
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45. Balance sheet to include particulars as to companies. |
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46. Accounts to contain particulars as to loans to, and remuneration of officers. |
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47. Signing of balance sheet. |
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48. Right to receive copies of balance sheets and auditor's report. |
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49. Special Audit. |
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PART IX |
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AMENDMENT AND DISSOLUTION |
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50. Revocation and amendment of charter. |
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51. Power of foundation to redomicile. |
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52. Liquidation. |
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53. Winding-up. |
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54. Removal from the Register. |
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55. Restoration to Register. |
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PART X |
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REGISTRAR |
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56. Documents to be kept at the registered office. |
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57. Delivery to the Registrar of documents in printed form |
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58. Delivery to the Registrar of documents otherwise than printed form. |
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59. Keeping of the Register by the Registrar. |
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60. Inspection, production and evidence of documents kept by the Registrar. |
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61. Enforcement of duty of foundation to file documents with the Registrar. |
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61. Official notification. |
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63. Confidentiality. |
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64. Certificate of Good Standing. |
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PART XI |
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MISCELLANEOUS |
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65. Indemnification. |
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66. In terrorem provisions. |
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67. Restriction against alienation. |
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68. Forced heirship. |
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69. Exemptions. |
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70. Default provisions. |
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71. Public Foundation or foundation created by a corporate entity. |
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72. Offences |
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73. Notice. |
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74. Fees. |
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75. Regulations and forms. |
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No. 23 of 2004 |
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AN ACT TO PERMIT THE ESTABLISHMENT OF |
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FOUNDATIONS IN THE BAHAMAS, TO DETERMINE |
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THE LEGAL STATUS OF SUCH FOUNDATIONS, |
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TO ESTABLISH THE PURPOSES FOR WHICH |
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SUCH FOUNDATIONS MAY BE USED, AND |
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THE CREATION, OPERATION AND |
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MANAGEMENT THEREOF, AND TO PROVIDE |
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FOR THE WINDING-UP OF ANY FOUNDATION |
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SO CREATED AND FOR MATTERS INCIDENTAL |
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THERETO, INCLUDING BUT NOT LIMITED TO, |
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THE ESTABLISHMENT AND CONDUCT OF A |
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REGISTER OF FOUNDATIONS. |
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[Date of Assent - 13th October, 2004] |
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Enacted by the Parliament of The Bahamas. |
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PART I |
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PRELIMINARY |
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1.(1)
This Act may be cited as the
Foundations Act, 2004.
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Short title and commencement. Interpretation. |
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(2)
This Act shall come into
operation on such day as the Minister may, by notice published in
the Gazette, appoint.
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2.(1)
In this Act, unless the
context otherwise requires -
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Ch. 364. |
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"articles" mean the regulations provided for in section 7; |
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"assets" mean property in whatever form; |
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"auditor" means a professionally qualified auditor, or an accountant licensed to practise as such under the Public Accountants Act; |
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"authorised signatories" mean - |
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(a)
the persons authorised by a
foundation in accordance with its charter or articles (if any) to
sign, as resolved by the officers from
time to time, (including
whether singly or jointly) on behalf of, and thereby to bind, the
foundation, to the extent so authorized;
or
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(b)
all the officers for the time
being of a foundation signing jointly;
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"beneficiary" means a person - |
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(a)
designated as such in the
charter or articles (if any) of a foundation; or
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(b)
where no beneficiary is so
designated, and the foundation has not been formed to benefit the
public at large, a person identified
as such -
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(i)
by the person or body appointed
for this purpose in the charter, or
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(ii)
in the absence of such a person
or body or following the refusal by such a person or body to make
any designation, by the foundation
council of the foundation (if
any);
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and includes any remaining beneficiaries and may include the founder if so designated. |
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(c)
designated as such by the Court
where the body or council in paragraph (a) or (b) is in
disagreement as to the designation of a beneficiary.
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"Court" means the Supreme Court or a Judge thereof; |
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"to endow" means to pass, or covenant to pass, the title in property, absolutely, with or without consideration, to a foundation so that the property is the asset of that foundation and to pass, for the purposes of this definition includes whatever act may be necessary in relation to that property to transfer title effectively; |
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"foundation" means the legal entity defined in section 3; |
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"foundation charter" and "charter" mean the duly executed will or other document, as the case may be, provided for in section 6; |
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"foundation council" and "council" mean the council of a foundation, if any, as the case may be provided for in section 14; |
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"founder" means - |
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(a)
the person who, by transfer of
title subscribes his name to the charter establishing a foundation
acting either for himself or on
behalf of another and who endows
that foundation with its initial assets; or
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(b)
in the case of establishment of
a foundation by the duly executed will of a deceased person, the
testator, whose estate by transfer
of title endows that foundation
with its initial assets;
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"governing bodies", in relation to a foundation, means - |
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(a)
the officers;
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(b)
the foundation council, if any;
and
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(c)
any other supervisory person or
persons (including but not limited to a protector, or committee or
protectors), if any, specified
or identified by the charter or the
articles (if any),
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acting jointly or singly, as may be required by this Act, the charter or the articles (if any); |
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"initial assets" means assets endowed by the founder or founders, as the case may be, at the time of establishment of a foundation and vested in and being the property of that foundation; |
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"legal person" means a company, a corporation or any other legal entity having separate personality; |
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"Minister" means the Minister charged with responsibility for this Act; |
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"Model Foundation Charter" means the charter provided for in section 6(3) and set forth in the Schedule; |
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"natural person" means an individual; |
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"officer", means the officer of the foundation provided for in section 10; |
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"person" means a legal or natural person; |
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"protector" or "committee of protectors" mean the person or persons (if any) appointed in accordance with the relevant provisions of a foundation's charter provided however that in such capacity they shall not be deemed to be officers of the foundation; |
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"Register" means the register of foundations to be kept by the Registrar in compliance with section 59; |
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"registered" in relation to a foundation means registered as a foundation under this Act; |
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"Registrar" means the Registrar of Foundations; |
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"Registrar of Foundations" means the Registrar General; |
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"remaining beneficiary" means that person or those persons who, according to the charter or the articles (if any) of a foundation, or the application or either, shall be entitled to receive any assets remaining after the dissolution or winding up of a the foundation; |
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"secretary" means the secretary of the foundation provided for in section 12; |
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"supervisory person" means any person having supervisory powers such as an officer, member of a financial council or protector; and |
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"The Bahamas" means the Commonwealth of The Bahamas. |
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(2)
For the purposes of sections
10 and 14, "direct line of relationship" means a relationship of
parent, child, grandparent, grandchild
and further levels of such
relationships in direct line; and
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"collateral line of relationship" means brother or sister, uncle or aunt, niece or nephew or cousin, and shall include the spouse of such person and "parent" and "child", etc. shall include a parent or child by adoption as well as by birth, whether legitimate or illegitimate, and shall include the spouse of a parent or child and the parent or child of the spouse. |
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3.(1)
An entity -
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Definition of foundation. |
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(a)
established by a foundation
charter and in accordance with this Act; and
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(b)
which is registered,
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shall be a foundation within the meaning of this Act. |
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(2)
A foundation satisfying
subsection (1) shall be -
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(a)
a legal entity;
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(b)
resident and domiciled in The
Bahamas; and
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(c)
able to sue and be sued in its
own name.
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(3)
A foundation shall hold assets
which have been effectively transferred to that foundation for the
purposes or objects described in
sub-section (6). Such assets shall
be of a value not less than B$10,000.00 or US$10,000.00 or the
equivalent in any other currency.
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(4)
In the absence of fraud,
assets effectively transferred to a foundation shall be the
property of that foundation (with full legal
and beneficial title),
shall cease to be the property of the founder and shall not become
the property of a beneficiary unless distributed
in accordance with
the provisions of the foundation charter or the articles (if any),
and this Act.
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(5)
The assets of a foundation may
originate from any lawful business and may consist of present or
future assets of any nature.
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(6)
The assets of a foundation
shall be exclusively managed, including being realized, applied,
administered, invested and disbursed in
accordance with the
foundation charter or the articles (if any), and this Act for the
attainment of the purpose or objects -
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(a)
specified in the foundation
charter, and
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(b)
permissible under this Act.
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4.(1)
A foundation's main purposes
or objects shall include the management of its assets.
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Purpose and objects of a Foundation. |
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(2)
A foundation may in the course
of the management of its assets do such things and exercise such
powers as are necessary for their
proper administration, including
but not limited to buying and selling of such assets and engaging
in any other acts or activities
that are not prohibited under any
law for the time being in force in The Bahamas, but such acts and
activities shall be ancillary
or incidental to its main purposes or
objects.
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(3)
A purpose or object of a
foundation need not be, but may be, charitable.
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(4)
A foundation's main purpose or
purposes may also include any purpose or object which is not
unlawful, immoral or contrary to any public
policy in The
Bahamas.
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(5)
Subject to subsection (2), the
permitted purposes or objects of a foundation shall not include
-
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(a)
carrying on of an activity
prohibited in or from within The Bahamas; or
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(b)
carrying on in or from within The
Bahamas of any activity in respect of which a licence or
authorisation under any statute or regulation
is required and no
such licence or authorisation has been granted to the
foundation.
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(6)
A foundation which carries on
an activity in breach of subsection (5) shall be in default and the
provisions of sections 52(4), 54
and 70 shall apply.
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PART II |
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ESTABLISHMENT |
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5.(1)
A person or persons may by
subscribing his name or their names, as the case may be, to a
charter of a foundation and otherwise complying
with the
requirements of this Act, establish a foundation as a legal entity
having separate personality.
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Mode of establishment of foundation. |
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(2)
A foundation may be
established by means of a duly executed will and in that
case-
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(a)
subject to subsection (13), there
shall be one founder only, who shall be the testator;
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(b)
in this Act, where the context so
requires, reference to the will shall be substituted for reference
to the charter; and
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(c)
the procedure set out in
subsections (4) to (11) shall apply.
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(3)
The formation and
establishment in The Bahamas of a foundation shall not be completed
until -
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(a)
the foundation has been
registered under the provisions of section 21; and
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(b)
the certificate of the Registrar
has been issued in accordance with section 22.
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(4)
Where the charter is the will
of the founder, the executor of the estate of the founder shall
-
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(a)
act as if he were the founder for
the purpose of appointing officers and registering the proposed
foundation; and
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(b)
as soon as may be appoint
officers in accordance with the charter or the articles (if any)
and this Act.
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(5)
The executor referred to in
subsection (4) shall periodically, and in any case at intervals of
no more than sixty days, keep the officers
appointed according to
that subsection informed of the progress of probate of the will
constituting the charter.
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(6)
Where the provisions of
section 21 in respect of registration cannot be satisfied at the
end of a period of twelve months after the
death of the founder, an
application shall be made by the executor or if no application is
made by the executor, by a person named
or identified in the will
as an officer of the proposed foundation, to the Court for the
appointment of a person to act as administrator
for the purpose of
ensuring -
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(a)
the proper appointment of
officers;
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(b)
the endowment of property to be
the assets of the proposed foundation in accordance with the
provisions of the charter; and
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(c)
the registration of the proposed
foundation under this Act,
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and the Court may appoint a fit and proper person as the administrator. |
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(7)
An administrator appointed
under subsection (6) shall be subject to the supervision of the
Court.
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(8)
Where provision is made in the
charter for the appointment of a foundation council, the
administrator appointed under subsection (6)
shall appoint a
foundation council in accordance with the charter and the
provisions of this Act.
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(9)
Where an administrator is
appointed under subsection (6) he shall -
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(a)
if no officers have been
appointed in accordance with subsection (4), appoint -
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(i)
the persons specified in the
charter as officers of the proposed foundation, or
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(ii)
where neither the charter nor
the articles (if any) specify either by name or by some other
identifying description the persons to
be appointed officers, as
officers fit and proper persons qualified under the terms of this
Act to be officers of the proposed a
foundation and who have
consented in writing to act as officers of the proposed
foundation;
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(b)
take steps, including, if, in his
opinion, it is necessary, the institution of legal proceedings in
The Bahamas or elsewhere, to ensure
that the initial assets are or
shall be duly acquired by the proposed foundation;
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(c)
administer, or cause to be
administered, in a proper manner and to the best advantage to
conserve and improve without undue risk the
property to be the
initial assets of the proposed foundation until such time as such
assets are vested in the foundation; and
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(d)
take such steps as are, in his
opinion, necessary to ensure that title in the assets is properly
vested in the foundation.
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(10)
The Court, as soon as it is
satisfied that the documents specified in section 21(1) are
available and the application for registration
under such section
has been made, shall cause the appointment of the administrator
under this section to terminate.
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(11)
The costs of the administrator
appointed under this section, including his remuneration, approved
by the Court, shall be met by the
executor -
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(a)
out of the property specified in
the charter as the assets of the foundation; or
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(b)
in the event that the foundation
is not registered, out of the property of the estate of the
founder.
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(12)
Where a founder dies after
subscribing his name to a charter but before the registration of
the foundation under this Act, notwithstanding
that the founder was
not the sole founder, the provisions of subsection (4) to (11)
shall apply mutatis mutandis as if the charter
was contained in his
will.
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(13)
Where two or more testators
have made mutual wills and those wills take effect simultaneously,
the testators shall be deemed to be
one founder for the purpose of
complying with subsection (2)(a).
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(14)
Registration of a foundation
on the grounds that the will purporting to establish same was not
duly executed may only be contested
within a period of three years
from the date upon which probate of such will was granted.
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6.(1)
The charter of a foundation
shall state -
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Charter of a foundation. |
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(a)
the name of the foundation with
the word "Foundation" or, in the discretion of the Registrar, a
foreign language version of the word
"Foundation" as the last word
of the name;
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(b)
details of the founder, that is
to say -
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(i)
the name and address of the
founder,
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(ii)
where the founder is a legal
person, the number and place of registration of that legal person,
and
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(iii)
the address in The Bahamas for
service of documents on the founder;
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(c)
the purpose or purposes and
objects of the foundation;
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(d)
the endowment of the assets to be
the initial assets of the foundation upon registration and a
statement of those assets;
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(e)
the designation of the
beneficiary or the identification of a body by which the
beneficiary is to be ascertained, or a statement that
a foundation
has been formed to benefit the public at large;
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(f)
a statement of whether the
foundation is established for an indefinite period or a definite
period and, where it is established for
a definite period, that
period;
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(g)
the name and address in The
Bahamas of the secretary to the foundation and the address of the
registered office in The Bahamas of
the foundation, which shall be
the same address as the address of the secretary; and
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(h)
a statement that the foundation
may not have assets with a total value of less than B$10,000.00 or
US$10,000.00 or the equivalent
thereof in any other currency.
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(2)
Subject to the provisions of
this Act, the charter of a foundation may without limitation
include provisions -
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(a)
for the reservation of rights or
powers to the founder;
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(b)
for the appointment, removal,
period of office and representative authority of officers of the
foundation, including the number and
descriptions of such
persons;
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(c)
for the appointment, removal and
period of office of the auditor, if any, to the foundation and may
provide that the appointment of
an auditor is at the discretion of
the foundation council;
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(d)
for the appointment of a
foundation council or other supervisory persons (including but not
limited to a protector or committee of
protectors) for the
maintenance of the objects of the foundation their relationship to
the officers and amongst themselves and the
appointment of persons
by power of attorney or otherwise to carry out particular duties on
behalf of the foundation;
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(e)
specifying the duties, functions,
powers and rights to remuneration of a protector or committee of
protectors (if appointed), their
relationship to the officers and
the foundation council and how they shall be appointed or removed
and how they shall conduct themselves
whilst in office;
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(f)
specifying the circumstances in
which it may be necessary to appoint a foundation council, and,
where it proves necessary to appoint
a foundation council, for the
appointment, removal, period of office and representative authority
of the members of that council;
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(g)
permitting amendment to the
charter and specifying circumstances in which it may be
amended;
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(h)
requiring or permitting the
making of articles;
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(i)
providing for the endowing of
supplementary assets of the foundation in addition to the initial
assets;
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(j)
for the addition or removal of
beneficiaries;
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(k)
providing for the circumstances,
if any, in which the foundation may be redomiciled and the
conditions to be satisfied in respect
of such
redomiciliation;
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(l)
except where the charter is
contained in a will, for the revocation of the foundation.
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(3)
The charter of a foundation
may adopt all or any of the provisions contained in the Model
Foundation Charter and, in so far as the
foundation charter does
not exclude or modify the provisions contained in that Model, those
provisions shall, so far as applicable,
be the terms of the charter
of the foundation in the same manner and to the same extent as if
they were contained in the charter.
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(4)
In the absence from the
charter of a provision on any of the matters specified in
subsection (2), the provisions of this Act in respect
of that
matter shall apply.
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(5)
Except as is provided for in
subsection (6), the charter of a foundation shall be in the form of
a document and shall -
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(a)
where a founder is a natural
person, be signed by each such founder in the presence of a notary
public or the secretary named therein,
or
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(b)
where a founder is a legal
person, be signed on behalf of such founder by the person or
persons authorised for that purpose in the
presence of a notary
public or the secretary named therein.
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(c)
be duly and properly executed by
the founder.
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(6)
The charter of a foundation
established on the death of the founder shall be in the form of a
duly executed will -
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7.(1)
Where the charter of a
foundation provides that articles shall be made or may be made,
such articles may without limitation include
regulations -
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Articles of a foundation. |
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(a)
concerning distributions of
assets made, or to be made, by the governing bodies of the
foundation;
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(b)
more specifically providing for
the identification of any initial beneficiaries or any
beneficiaries to be designated at a later date,
of the
foundation;
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(c)
determining the minimum level of
assets of the foundation in the absence of which no distribution to
any beneficiary may be made;
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(d)
providing for the identification
of the remaining beneficiary upon a winding up of the
foundation;
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(e)
providing for the regulation of
any governing bodies of the foundation.
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(2)
In -
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(a)
the absence of articles of a
foundation; or
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(b)
the absence from such articles of
a regulation on any matter,
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the provisions of this Act in respect of that matter shall apply. |
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(3)
Except as is provided for in
subsection (4), the articles shall -
|
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(a)
where a founder is a natural
person, be signed by each such founder in the presence of a notary
public or the secretary; or
|
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(b)
where a founder is a legal
person, be signed on behalf of each such founder by a person or
persons authorised for that purpose in
the presence of a notary
public or the secretary.
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(4)
The articles established on
the death of a founder shall be in the form of a duly executed
will.
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(5)
The articles shall -
|
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(a)
be typed or printed;
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(b)
be divided into paragraphs
numbered consecutively; and
|
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(c)
be duly and properly executed by
the founder.
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8.(1)
The Registrar shall not
register a foundation unless the charter requires the foundation to
have assets of a value of not less than
B$10,000.00 or US$10,000.00
dollars or the equivalent thereof in any other currency.
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Assets. |
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(2)
From the time of the
establishment of the foundation a foundation shall hold assets
which have been effectively transferred to that
foundation for the
purposes and objects described in section 4. Such assets shall be
of a value of not less than $10,000.00 Bahamian
or United States
dollars or the equivalent thereof in any other currency.
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9.(1)
Where in respect of a
foundation there is more than one founder, the powers of the
founder under the foundation charter, the articles,
if any, and
this Act, may only be exercised by all the founders acting jointly
and in common, unless the charter otherwise provides,
and then in
accordance with that charter.
|
Powers and obligations of founder. |
|
(2)
The rights of a founder in
respect of the formation of a foundation shall not devolve upon his
successors in title or assigns.
|
||
(3)
A person who endows assets to
a foundation after its registration shall not thereby acquire the
powers of a founder.
|
||
(4)
Where a founder has made an
undertaking, recorded in the charter of the foundation, to endow
assets to a foundation, the foundation
-
|
||
(a)
may enforce that undertaking
against the founder; and
|
||
(b)
shall do so in respect of the
initial assets of the foundation, if at the end of a period of
twelve months from the date of registration,
the property
representing same has not become the assets of the
foundation.
|
||
(5)
Where a charter contains a
covenant by the founder to endow assets to a foundation on a
specified date -
|
||
(a)
subsection (4)(b) shall have
effect as if the reference to the date of registration was a
reference to the specified date; and
|
||
(b)
the period of twelve months
therein referred to shall be the period of twelve months from that
date.
|
||
PART III |
||
OFFICERS |
||
10.(1)
The founder or founders, or
where the foundation charter is a will, an executor of that will or
an administrator appointed under section
5(6), shall before
registration of a proposed foundation appoint at least one person
(natural or legal person) who is not prohibited
from being an
officer by virtue of subsection (2) to be an officer of the
foundation, and on appointment each such person shall be
an officer
of that foundation.
|
Appointment and qualification of officers. |
|
(2)
A person shall not be
appointed as or remain an officer of a foundation -
|
||
(a)
in the case of a natural person,
if he is an undischarged bankrupt;
|
||
(b)
in the case of a legal person, if
it is the subject of any proceedings which may result in the legal
person being wound up or otherwise
dissolved;
|
||
(c)
in the case of a natural person
who is or becomes mentally incapacitated;
|
||
(d)
in the case of a natural person
who is convicted of a crime other than a minor traffic
offence;
|
||
(e)
if such person's interests are or
have become incompatible with the interests of the founder (s) or
any beneficiary;
|
||
(f)
if he, his spouse, or persons in
a direct line or in a collateral line of relationship with the
person is a member of the council
of that foundation;
|
||
(g)
where an officer of a foundation
is a legal person, if any shareholder, director, secretary,
manager, partner or controller (which
expression shall include any
person in accordance with whose instructions any shareholder,
director, secretary, manager, partner
or controller is accustomed
to act) of that legal person, his or her spouse as well as any
person in a direct line or in a collateral
line of relationship
with such person, is a member of the council of that foundation;
or
|
||
(h)
unless before appointment -
|
||
(i)
he complies with any requirement
of this or any other Act to be satisfied by a person to be so
appointed; and
|
||
(ii)
he has by himself, or by his
agent authorized in writing, signed and delivered to the founder,
an executor or the administrator appointed
under section 5(6) or
the foundation, as the case may be, a consent in writing to act as
such an officer.
|
||
(3)
Where, by virtue of this
section the appointment of an officer in relation to a foundation
is required, the founder, executor, or
administrator or the
officers shall -
|
||
(a)
appoint a person satisfying the
requirements to be an officer of the foundation;
|
||
(b)
ensure that a sufficient number
of persons to satisfy the requirements of this Act and the charter
is so appointed;
|
||
(c)
deliver to the Registrar the name
and address of every person who has been appointed as, and who has
consented in writing to be, an
officer of the foundation.
|
||
(4)
The appointment of a person as
an officer is personal to that person and may not be assigned by
him.
|
||
(5)
A person appointed as an
officer in relation to a foundation, shall, in the event that he
ceases to comply with any of the requirements
of this section, give
notice in writing of that event to the foundation and the
Registrar, within seven days after the occurrence
thereof.
|
||
(6)
An officer appointed in
relation to a foundation who intends to cease acting as an officer
in relation to that foundation shall give
notice in writing of his
intention to the foundation and lodge with the Registrar a
declaration that he has given such notice, and
such notice shall be
given and such declaration lodged no later than seven days before
the officer intends to cease to so act.
|
||
(7)
Subject to sub-section (13),
where a person is appointed as an officer of a foundation, he shall
so continue and the provisions of
this Act shall apply to that
person until-
|
||
(a)
the discharge of that person as
an officer in accordance with the foundation charter or the
articles (if any);
|
||
(b)
the expiration of a period of
seven days after the date on which a declaration is lodged under
subsection (6);
|
||
(c)
the foundation ceases to be a
foundation registered under this Act;
|
||
(d)
the winding up or dissolution, as
the case may be, of the foundation;
|
||
(e)
the death or bankruptcy of the
person;
|
||
(f)
the winding up or dissolution, as
the case may be, of the legal person being the officer; or
|
||
(g)
the occurrence of any other event
which disqualifies the person from acting as an officer,
|
||
whichever event occurs first, whereupon he shall cease to be an officer. |
||
(8)
Where the Registrar receives
notice under subsection (3)(c), (5) or (6) he shall file and retain
the notice in the Register.
|
||
(9)
Where for the time being no
officer is appointed to a foundation or the number of officers
appointed is less than that required by
the foundation charter or
this Act, an application may be made to the Court by a founder, an
officer or a member of the foundation
council or some other
supervisory person, for the appointment by the Court of one or more
officers for the purpose of complying with
the requirements of the
charter or this Act.
|
||
(10)
Where the Court is satisfied
that -
|
||
(a)
an application made under
subsection (9) or (11) is well founded; and
|
||
(b)
without the order of the Court
the requirements of the charter or this Act in respect of the
appointment of officers will not be met,
|
||
the Court may appoint one or more fit and proper consenting persons who comply with this section as officers. |
||
(11)
Where an officer has failed to
comply with subsections (2) or (5) or has failed to carry out, or
failed to carry out properly, the
duties required of him in
fulfillment of his obligations under the charter, the articles (if
any) or this Act, on an application
to the Court by a founder, an
officer or a. member of the foundation council or some other
supervisory person or a beneficiary, the
Court may order the
removal of such officer and the appointment in his place as an
officer of a fit and proper consenting person
who complies with
this section.
|
||
(12)
The provisions of the charter
and this Act in respect of officers shall apply to a person
appointed as an officer in accordance with
subsection (10) or (11)
as they apply to an officer appointed in any other way provided for
in this Act or the charter.
|
||
(13)
Notwithstanding that a person
has ceased to be an officer, any liability to the foundation which
he may have incurred as an officer
shall continue to be a liability
enforceable against him by the foundation.
|
||
(14)
The acts of an officer of a
foundation are valid notwithstanding any defect that the foundation
may afterwards discover in his appointment
or qualification.
|
||
11.(1)
The duties and
responsibilities of an officer shall be primarily administrative,
rather than fiduciary, in nature.
|
Duties, etc. of officers. |
|
(2)
An officer of a foundation
shall take all such steps and do or cause to be done all such
things as may be necessary to properly administer
the foundation to
achieve the purposes or objects of that foundation.
|
||
(3)
An officer of a foundation
shall exercise reasonable care and skill in the conduct of the
affairs of the foundation, including exercising
due skill and care
in the management and investment of the foundation's assets.
|
||
(4)
An officer of a foundation
shall act in accordance with the charter and the articles, if
any.
|
||
(5)
Subject to subsection (6) and
in the absence of the appointment of a foundation council or other
supervisory person or persons, the
officers of a foundation acting
jointly shall be the governing body of the foundation and, as
against a third party, the officers
so acting shall represent the
foundation.
|
||
(6)
Where, in accordance with
section 6(2), there is provision in the charter of a foundation for
the appointment of a foundation council,
and a foundation council
has been appointed, the powers of the officers of the foundation
shall not include those powers reserved
to the foundation
council.
|
||
(7)
Except where the charter of a
foundation otherwise provides, the officers of the foundation shall
act unanimously and may so act by
circulation of a written document
duly signed by each officer, subject to -
|
||
(a)
section 34 in respect of a
meeting, section 35 in respect of an annual meeting and section 43
in respect of the account and balance
sheet and officers'
report;
|
||
(b)
the right of a founder, the
foundation council or other supervisory person pursuant to section
36 to call a meeting of the officers
at which the business of the
foundation, or a particular item of that business, is to be
conducted; and
|
||
(c)
the right of any officer to
object on any occasion to the conduct of business in this
way.
|
||
(8)
Except where the charter of a
foundation otherwise provides, no distribution to a beneficiary
shall be validly made unless it is signed
by all the officers then
appointed.
|
||
(9)
The officers of a foundation
shall authorise a distribution to a beneficiary only in accordance
with this Act the charter and the
articles (if any).
|
||
(10)
No distribution to a
beneficiary shall be made for the purpose of defeating, or where
the effect of so doing would be to defeat, the
claim of any
creditor of the foundation.
|
||
(11)
Except where the charter of a
foundation otherwise provides -
|
||
(a)
the officers acting unanimously
may delegate to any one of themselves by a document signed by each
of them any power of the officers;
|
||
(b)
a power so delegated shall be
exercised as provided for in the document of delegation;
|
||
(c)
subsection (5) shall apply to the
officer to whom the power is delegated in the exercise of that
power as if the reference in that
subsection to the officers acting
jointly was a reference to the officer exercising the delegated
power.
|
||
(12)
Except where the charter of a
foundation otherwise provides, the officers of the foundation shall
be remunerated in accordance with
the duties they are required to
perform and taking account of the financial position of the
foundation.
|
||
(13)
A dispute in respect of the
amount of the remuneration of the officers of a foundation may be
referred by the officers, or an officer,
or the foundation council,
or the auditor, to the Court, which shall determine that
remuneration.
|
||
12.(1)
There shall be a secretary
appointed in respect of a foundation and the person so appointed
shall be an officer of the foundation.
|
Appointment and qualification of secretary. |
|
(2)
The founder or founders of a
foundation or, where the charter is a will, an executor of that
will or an administrator appointed under
section 5(6), shall before
registration of a foundation appoint a person, satisfying the
requirements set out in subsection (4),
to be the secretary of that
proposed foundation.
|
||
(3)
The founder or founders, the
executor, the administrator, as the case may be, or, after
registration of a foundation, the officer
or officers shall -
|
||
(a)
ensure that, prior to
registration and while a foundation is registered, a person
satisfying the requirements set out in subsection
(4) is at all
times appointed as secretary;
|
||
(b)
deliver to the Registrar the name
and address of every person who has been appointed as secretary and
who has consented in writing
to be the secretary of the
foundation.
|
||
(4)
The requirements referred to
in subsection (3)(a) are that the secretary is duly licensed as a
provider of financial and corporate
services under the Financial
and Corporate Service Providers Act, or as a trust company under
the Banks and Trust Companies Regulation
Act, and is not precluded
from being appointed as an officer by section 10(2).
|
Ch. 369 ; Ch. 316. |
|
(5)
The appointment of a person as
secretary is personal to that person and may not be assigned by
him.
|
||
(6)
A secretary appointed to a
foundation, shall, in the event that he ceases to comply with any
of the requirements of subsection (4),
give notice in writing of
that event to the foundation and the Registrar within seven days
after the occurrence thereof.
|
||
(7)
A secretary appointed to a
foundation who intends to cease acting as the secretary to that
foundation shall -
|
||
(a)
give notice in writing of his
intention to the foundation; and
|
||
(b)
lodge with the Registrar a
declaration that he has given such notice,
|
||
and such notice shall be given and such declaration lodged no later than seven days before the secretary intends to cease to so act. |
||
(8)
The person appointed as
secretary shall have the duties, powers and obligations provided
for in this Act in respect of an officer
and a secretary as
provided in this Act, the foundation charter or articles (if any)
and in particular, but without limiting the
generality of the
foregoing, shall, on behalf of the foundation accept service of all
documents in respect of legal proceedings against
the foundation
which may be served on the foundation under the provisions of this
Act or any other statute or law and, where in this
or in any other
statute or law there is reference to any notice being served on a
foundation or any requirement being made of a foundation,
the
foundation shall be deemed to have notice of that service or
knowledge of that requirement if the secretary appointed to that
foundation shall have been served with the notice or shall have had
notice of the requirement.
|
||
(9)
The duties prescribed by
subsection (8) shall be in addition to and shall not derogate from
any other duties prescribed in relation
to the secretary to a
foundation by or under this Act or any other written law.
|
||
(10)
Subject to sub-section (12),
where a secretary is appointed to a foundation, the provisions of
this section shall apply to that secretary
until -
|
||
(a)
the appointment by the foundation
of another secretary;
|
||
(b)
the expiration of a period of
seven days after the date on which a declaration is lodged under
subsection (7);
|
||
(c)
the foundation ceases to be a
foundation registered under this Act;
|
||
(d)
the winding up or dissolution, as
the case may be, of the foundation;
|
||
(e)
the mental incapacitation, death
or bankruptcy of the natural person being the secretary;
|
||
(f)
the winding up or dissolution, as
the case may be, of the legal person being the secretary; or
|
||
(g)
the occurrence of any other event
which disqualifies the person from acting as an officer,
|
||
whichever event occurs first, whereupon he shall cease to be the secretary. |
||
(11)
Where the Registrar receives
notice under subsections (3)(c), (6) or (7)(b) he shall file and
retain the notice in the Register.
|
||
(12)
Notwithstanding that a person
has ceased to be a secretary, any liability to the foundation which
he may have incurred as secretary
shall continue to be a liability
enforceable against him by the foundation.
|
||
(13)
The acts of any secretary of a
foundation are valid notwithstanding any defect that the foundation
may discover afterwards in his
appointment or qualification.
|
||
(14)
A foundation established under
this Act shall at all times be subject to the regulatory oversight
by the regulator that has licensed
the secretary.
|
||
13.(1)
A foundation shall have a
registered office in The Bahamas which shall be the address of the
secretary to that foundation, to which
all communications and
notices may be addressed.
|
Registered office. |
|
(2)
Notice of any change in the
situation of the registered office shall be given within
twenty-eight days of the change to the Registrar,
who shall file
and retain the notice in the Register,
|
||
(3)
Where by virtue of the
application of this Act a person ceases to be the secretary to a
foundation -
|
||
(a)
the address office of that person
shall cease to be the registered office of that foundation;
and
|
||
(b)
until such time as the Registrar
has received notice of the situation of a new registered office in
accordance with subsection (2)
-
|
||
(i)
the foundation and any officer
of that foundation shall be in default;
|
||
(ii)
the address of the registered
office shall be deemed to be the address in The Bahamas of any
officer of the foundation and the requirements
of this section and
of section 12 in respect of the service of any document shall be
satisfied by service at that address.
|
||
14.(1)
Where provision is made in the
charter of a foundation for the appointment of a foundation
council, such foundation council may consist
of two or more natural
persons or a legal person and one or more natural persons or a
legal person by itself.
|
Appointment and qualifications of foundation Council. |
|
(2)
A foundation council or a
member of a foundation council shall be appointed in accordance
with the requirements of the charter and
this Act and -
|
||
(a)
if appointed before registration,
may be appointed by the founder, or, where the charter is a will,
an executor of that will or an
administrator appointed under
section 5(6);
|
||
(b)
if a person has been empowered by
the founder in the charter or articles (if any), may be appointed
by such person; or
|
||
(c)
otherwise shall be appointed by
the officers, subject to the requirements of the charter or the
articles (if any) or this Act.
|
||
(3)
Persons who are officers or
the auditor, or a member of the firm of which the auditor is a
member, of a foundation, the spouse of
such a person, or persons in
a direct line or in a collateral line of relationship with the
officers shall not be appointed as a
foundation council or member
of same.
|
||
(4)
Where an officer or an auditor
of a foundation is a legal person, the provisions of subsection (3)
shall apply to any natural person
who is a shareholder, director,
secretary, manager, partner or controller (which expression shall
include any person in accordance
with whose instructions any
shareholder, director, secretary, manager, partner or controller is
accustomed to act), of that officer,
his or her spouse, as well as
any person in a direct line or in a collateral line of relationship
with such person, as if the reference
to an officer or an auditor
were a reference to such a natural person.
|
||
(5)
A person shall not be
appointed as or remain a member of a foundation council if he is an
undischarged bankrupt or, being a legal
person, is being wound up
or dissolved, and unless, before appointment he complies with any
relevant requirement of this Act, and
he has signed and delivered
to the founder, the executor or the administrator, or the officers,
as the case may be, a consent in
writing to act as such.
|
||
(6)
The appointment of a person as
a member of a foundation council is personal to that person and may
not be assigned by him.
|
||
(7)
A person appointed as a member
of a foundation council shall, in the event that he ceases to
comply with any of the requirements of
this section, give notice in
writing of that event to the foundation within 7 days after the
occurrence thereof.
|
||
(8)
A person appointed as a member
of a foundation council who intends to cease acting in that
capacity shall give notice in writing of
his intention to the
foundation no later than seven days before the person intends to
cease to so act.
|
||
(9)
Where a person is a member of
a foundation council, this section and section 15 shall apply to
that person until -
|
||
(a)
the discharge of that person as a
member of the foundation council in accordance with the charter or
the articles (if any);
|
||
(b)
the foundation ceases to be
registered under this Act;
|
||
(c)
the winding up or dissolution, as
the case may be, of the foundation;
|
||
(d)
the mental incapacitation, the
death or bankruptcy of the member; or
|
||
(e)
the occurrence of any other event
which disqualifies the person from being a member,
|
||
whichever event occurs first, whereupon he shall cease to be a member of the council. |
||
(10)
Where for the time being no
foundation council is appointed to a foundation or the number of
members appointed is less than that required
by the charter or this
Act, application may be made to the Court by a founder, an officer
or a member of the foundation council or
some other supervisory
person, for the appointment by the Court of one or more persons to
be members of the foundation council for
the purpose of complying
with the requirements of the charter or this Act.
|
||
(11)
Where the Court is satisfied
that -
|
||
(a)
an application made under
subsection (10) or (12) is well founded; and
|
||
(b)
without the order of the Court
the requirements of the charter or this Act in respect of the
appointment will not be met,
|
||
the Court may appoint one or more fit and proper consenting persons who comply with this section as a member of the foundation council. |
||
(12)
Where a foundation council or
member of a foundation council has failed to comply with subsection
(5) or (7) or has failed to carry
out, or failed to carry out
properly, the duties required of him in fulfillment of his
obligations under the charter or articles
(if any) or this Act, on
an application to the Court by a founder, an officer or a member of
the foundation council or some other
supervisory person or a
beneficiary, the Court may order the removal of that person and the
appointment of a fit and proper consenting
person who complies with
this section as a member of the foundation council.
|
||
(13)
The provisions of the charter
and this Act in respect of members of a foundation council shall
apply to a person appointed as such
in accordance with subsection
(11) or (12) as they apply to a member appointed in any other way
provided for in this Act.
|
||
(14)
Notwithstanding that a person
has ceased to be a member of a foundation council, any liability to
the foundation which he may have
incurred in such capacity shall
continue to be a liability enforceable against him by the
foundation.
|
||
(15)
Where provision is made in the
charter or the articles (if any) for the appointment of some other
supervisory person or persons or
governing body, the provisions of
this section, section 11 (6) and section 15 shall apply mutatis
mutandis, subject to the charter,
to that appointment and that
person or persons or governing body.
|
||
15.(1)
The council of a foundation
shall -
|
Duties, etc. of foundation council. |
|
(a)
take such action as it may deem
necessary to ensure compliance by the foundation and the officers
with the provisions of -
|
||
(i)
the charter and the articles (if
any); and
|
||
(ii)
this Act;
|
||
(b)
supervise generally the
management and conduct of the foundation by the officers.
|
||
(2)
The foundation council shall,
as against the officers, represent the foundation and, subject to
subsection (3), for the purpose of
ensuring compliance with the
terms of the charter and the articles (if any) and the provisions
of this Act, the officers of the foundation
shall act in accordance
with the instructions of the foundation council.
|
||
(3)
Subject to subsections (1) and
(2), the charter or the articles (if any) may specify the powers of
the foundation council and provide
for powers in addition to those
provided for in this Act.
|
||
(4)
The foundation council shall
have the powers of an auditor contained in section 16(9) in respect
of access to the books, records and
accounts and vouchers of the
foundation.
|
||
(5)
In addition to the rights of
the foundation council provided for in the charter or the articles
(if any) or elsewhere in this Act,
the foundation council shall
have the right -
|
||
(a)
to be informed of all meetings of
the officers;
|
||
(b)
to attend and be heard but not to
vote at such meetings;
|
||
(c)
where any business of a
foundation is conducted by -
|
||
(i)
the circulation of documents, to
be included in the circulation of documents at the time that they
are circulated to the officers;
|
||
(ii)
the delegation of powers to an
officer, to be informed of the terms and any exercise of the
delegation.
|
||
(6)
References in subsections (4)
and (5) to the foundation council apply to the members of a
foundation council acting jointly and severally.
|
||
(7)
A member of a foundation
council shall exercise reasonable care and skill in performing his
duties and exercising his powers.
|
||
16.(1)
Where -
|
Appointment and qualification of auditor, etc., |
|
(a)
there is provision in the charter
for the appointment of an auditor, the founder or the officers
shall in accordance with that provision,
and in any case within one
month of the registration of the foundation; or
|
||
(b)
there is provision in the charter
for the appointment of an auditor and -
|
||
(i)
no appointment has been made in
accordance with paragraph (a); and
|
||
(ii)
there is a foundation council
appointed, the foundation council shall in accordance with that
provision; or
|
||
(c)
there is no provision in the
charter for the appointment of an auditor and there is a foundation
council or some other supervisory
person appointed, the foundation
council or the other supervisory person may,
|
||
appoint a person satisfying the requirements of this section in respect of auditors as an auditor, in accordance with that provision, and the person so appointed shall hold office as auditor unless he is removed or resigns in accordance with this section and the charter. |
||
(2)
Where, because of the removal
of an auditor or his resignation or for some other reason, there is
no auditor appointed in respect
of a foundation -
|
||
(a)
if there is a requirement in the
charter that an auditor be appointed, the foundation council, or
where there is no foundation council,
the officers shall no later
than one month from the date on which there ceased to be an auditor
appointed, and
|
||
(b)
if there is no requirement in the
charter that an auditor be appointed, the foundation council
may,
|
||
appoint as an auditor a person satisfying the requirements of this section. |
||
(3)
Where there is a requirement
under the charter or by virtue og a decision of the foundation
council that an auditor be appointed and
-
|
||
(a)
an appointment of an auditor is
not made in accordance with subsection (1) or (2), as the case may
be; or
|
||
(b)
it appears to the foundation
council or any officer that the auditor appointed -
|
||
(i)
does not satisfy the
requirements of this section; or
|
||
(ii)
is not fulfilling his functions
in accordance with this section,
|
||
then on the application of an officer or the foundation council to the Court, the Court may appoint an auditor to the foundation or order the removal of an auditor and the appointment of a new auditor. |
||
(4)
The remuneration of the
auditor shall be determined by the foundation council except that
-
|
||
(a)
the remuneration of an auditor
appointed before the registration of the foundation may be
determined by the founder, or, where the
foundation charter is a
will, an executor of that will or an administrator appointed under
section 5(6);
|
||
(b)
where an auditor is appointed by
virtue of a requirement in the charter the remuneration of that
auditor shall be determined by the
officers;
|
||
(c)
where an auditor is appointed by
the Court the remuneration of that auditor shall be determined by
the Court.
|
||
(5)
The appointment of a person as
an auditor is personal to that person and may not be assigned by
him.
|
||
(6)
An auditor who intends to
cease acting as auditor or cease to comply with any of the
requirements of this section shall give notice
in writing of either
such event -
|
||
(a)
to the foundation;
|
||
(b)
where he is appointed by the
foundation council, to the foundation council and the foundation;
or
|
||
(c)
where he is appointed by the
Court, to the foundation and the Court,
|
||
and such notice shall be given no later than 7 days before the auditor intends to cease to so act or ceases to so comply. |
||
(7)
Where an auditor is appointed
in relation to a foundation, the provisions of this section shall
apply to that auditor until -
|
||
(a)
the termination of his
appointment in accordance with the charter and this Act;
|
||
(b)
the expiration of a period of
seven days after the date on which notice is served under
subsection (6);
|
||
(c)
the foundation ceases to be a
foundation registered under this Act;
|
||
(d)
the winding up or dissolution, as
the case may be, of the foundation;
|
||
(e)
the death or bankruptcy of the
natural person being the auditor;
|
||
(f)
the winding up or dissolution, as
the case may be, of the firm being the auditor; or
|
||
(g)
the occurrence of any event which
disqualifies the person from acting as auditor,
|
||
whichever event occurs first, whereupon the auditor shall cease to be the auditor of the foundation. |
||
(8)
The auditor shall within four
months of the end of the financial year of any foundation examine
the accounts of the foundation and
make a report to the foundation
council, or, in the absence of a foundation council, to the
officers, and the report shall state
-
|
||
(a)
whether or not he has obtained
all the information and explanations he has required; and
|
||
(b)
whether, in his opinion, the
balance sheet referred to in the report is properly drawn up so as
to exhibit a true and correct view
of the state of the foundation
affairs according to the best of his information and the
explanations given to him, and as shown by
the books of the
foundation.
|
||
(9)
The auditor shall have a right
of access at all times to the books, records, accounts and vouchers
of the foundation, and shall be
entitled to require from the
officers of the foundation such information and explanation as may
be necessary for the performance
of the duties of the
auditor.
|
||
(10)
The auditor shall be entitled
to attend any meeting of the officers of the foundation at which
any accounts which have been examined
or reported on by him are to
be laid before the meeting and to make any statement or explanation
he desires with respect to the accounts.
|
||
(11)
The auditor shall not be under
a duty of confidentiality such as to preclude him from disclosing
-
|
||
(a)
to any member of the governing
body information obtained from another member of the governing body
of the foundation; and
|
||
(b)
to persons assigned auditing
functions in the charter information he has obtained in the course
of his duties under this section.
|
||
(12)
In the event of a dispute
between an auditor of a foundation and a governing body of a
foundation concerning the interpretation and
application of
statutory requirements as well as of the charter and the articles
(if any), or concerning his appointment or the termination
thereof
or his remuneration, the auditor or the governing body may refer
the matter to the Court, which shall determine the matter.
|
||
PART IV |
||
NAME |
||
17.(1)
No proposed foundation shall
be registered by a name -
|
Restriction on registration of foundations by certain names. |
|
(a)
which includes -
|
||
(i)
"limited" or an abbreviation of
"limited" ;
|
||
(ii)
"company" or an abbreviation of
"company" ;
|
||
(iii)
"partnership" or an abbreviation
of "partnership" ;
|
||
(iv)
a translation of any words
conveying a similar meaning to "limited", "company" or
"partnership" in the language or practice of any
other country;
or
|
||
(v)
an abbreviation of any such
translation as is referred to in sub-paragraph (iv);
|
||
(b)
which is the same as or similar
to the name of an existing Bahamian company, partnership,
foundation or other body, except where such
company, partnership,
foundation or other body is in the course of being dissolved and
signifies its consent in such manner as the
Registrar
requires;
|
||
(c)
which is the same as or similar
to the name of an existing Bahamian company, partnership,
foundation or other body, except where such
company, partnership,
foundation or other body signifies its consent in such manner as
the Registrar requires;
|
||
(d)
which is the same as or similar
to a business name registered under the Registration of Business
Names Act;
|
Ch. 330. |
|
(e)
the use of which by the
foundation would in the opinion of the Registrar constitute a
criminal offence;
|
||
(f)
which in the opinion of the
Registrar is offensive;
|
||
(g)
which contains "Chamber of
Commerce" ; or
|
||
(h)
which contains "Bank",
"Co-operative", "Building Society", "Insurance", "Stock Exchange"
or "Trust" or such other word or expression
as in the opinion of
the Registrar suggests or is calculated to suggest an activity to
which section 4(5)(a) refers.
|
||
(2)
Except with the consent of the
Registrar a proposed foundation shall not be registered by a name
which contains the words "Royal"
or "Imperial" or "Empire" or
"Windsor" or "Crown", or which in the opinion of the Registrar
suggests, or is calculated to suggest,
the patronage of Her Majesty
or of any member of the Royal Family.
|
||
(3)
Except with the consent of the
Registrar a proposed foundation shall not be registered by a name
which -
|
||
(a)
contains the word "Bahamas", or
in the opinion of the Registrar is calculated to suggest a
connection with the Government of The Bahamas
or any department
thereof;
|
||
(b)
contains the words "Municipal" or
"Chartered" or in the opinion of the Registrar suggests, or is
calculated to suggest, connection
with any municipality or other
local authority or with any society or body incorporated by Royal
Charter; or
|
||
(c)
in the opinion of the Registrar
is undesirable.
|
||
(4)
In determining for the
purposes of subsection (1) (b) or (c) whether one name is the same
as another or so similar to as may in the
opinion of the Registrar
result in confusion between names, there are to be disregarded
-
|
||
(a)
the definite article, where it is
the first word of the name;
|
||
(b)
"Foundation" where that word
appears at the end of a name; and
|
||
(c)
type and case of letters,
accents, spaces between letters and punctuation marks; and "and"
and "&" are to be taken as the same.
|
||
(5)
The Registrar may reserve
names for prospective foundations for such period or periods as he
shall in his absolute discretion deem
appropriate.
|
||
(6)
The Registrar shall enter the
names of all foundations in the Register.
|
||
18.(1)
A foundation may, if permitted
to do so by its charter and as provided for in section 50, change
its name.
|
Change of name. |
|
(2)
Where a foundation changes its
name, the Registrar shall enter the new name in the Register in
place of the former name, and shall
issue a certificate of
registration altered to meet the circumstances of the case.
|
||
(3)
The change of name shall not
affect any rights or obligations of the foundation, or render
defective any legal proceedings by or against
the foundation, and
any legal proceedings that might have been continued or commenced
against it by its former name may be continued
or commenced against
it by its new name.
|
||
(4)
The provisions of section 17
shall apply in respect of the name to which the foundation proposes
to change as they apply to the name
by which it was first
registered.
|
||
19.(1)
Where a foundation has been
registered by a name which -
|
Power to require foundation to change name. |
|
(a)
is the same as or, in the opinion
of the Registrar, too similar to a name appearing at the time of
registration in the Register;
|
||
(b)
is the same as or, in the opinion
of the Registrar too similar to the name which should have appeared
in the Register at that time;
or
|
||
(c)
in the opinion of the Registrar
is undesirable;
|
||
the Registrar may direct the foundation in writing to change its name within such period as he may specify. |
||
(2)
Section 17(4) applies in
determining under subsection (1) whether the name is the same as or
too similar to another.
|
||
(3)
If it appears to the Registrar
that -
|
||
(a)
misleading information has been
given for the purpose of the registration of a proposed foundation
with a particular name; or
|
||
(b)
undertakings or assurances have
been given for that purpose and have not been fulfilled,
|
||
within two years of the date of the registration of the foundation with that name he may direct in writing the foundation to change its name within such period as he may specify. |
||
(4)
Where a direction has been
given under subsection (1) or (3) the Registrar may by a further
direction in writing extend the period
within which the foundation
shall change its name at any time before the end of that
period.
|
||
(5)
Section 17 applies to any name
to which a foundation may change under this section.
|
||
20.(1)
If, in the Registrar's
opinion, the name by which a foundation is registered gives so
misleading an indication of the nature of its
activities as to be
likely to cause harm to the public he may direct the foundation to
change its name.
|
Misleading name. |
|
(2)
A direction made under
subsection (1) shall, if not duly made the subject of an
application to the Court under the following subsection,
be
complied with within a period of six weeks from the date of the
direction or such longer period as the Registrar may see fit to
allow.
|
||
(3)
A foundation may, within a
period of three weeks from the date of a direction made under
subsection (1), apply to the Court to set
aside the direction, and
the Court may set the direction aside or confirm it and, if it
confirms it, the direction shall specify
the period within which
the foundation shall comply with the direction.
|
||
(4)
Section 17 applies to any name
to which a foundation may change under this section.
|
||
PART V |
||
REGISTRATION |
||
21.(1)
The following documents
together with an application for registration shall be delivered to
the Registrar, who shall retain and file
in the Register -
|
Registration of foundation. |
|
(a)
a statement signed by the
secretary to the foundation or the attorney at law engaged in the
formation of the foundation containing
the following particulars
extracted from the charter -
|
||
(i)
the name of the
foundation;
|
||
(ii)
the date of the charter and the
date of any amendment made prior to the submission of the statement
to the Registrar;
|
||
(iii)
the foundation's purpose or
purposes and objects;
|
||
(iv)
the date of the foundation's
articles (if any) and the date of any amendment made prior to the
submission of the statement to the
Registrar;
|
||
(v)
the name of the founder and his
address in The Bahamas for the service of documents;
|
||
(vi)
the name and address of the
secretary to the foundation;
|
||
(vii)
the name and address of the
foundation council or other governing body or supervisory
person;
|
||
(viii)
the address of the foundation's
registered office;
|
||
(ix)
the period for which the
foundation is established;
|
||
(x)
the value of the foundation's
initial assets and the statement in the foundation's charter that
the foundation may not have assets
with a total value of less than
B$10,000.00 or US$10,000.00 or the equivalent in any other
currency.
|
||
(xi)
such other particulars as the
secretary or the attorney at law shall in his absolute discretion
wish to include in the statement;
|
||
(b)
a list containing the names and
addresses of the foundation's first officers;
|
||
(c)
a statutory declaration by the
secretary to the foundation or attorney at law engaged in the
formation of the foundation of compliance
with all relevant
requirements of this Act, upon which the Registrar shall be
entitled to rely as sufficient evidence of that compliance.
|
||
(2)
The documents mentioned in
subsection (1) shall be accompanied by the prescribed fee.
|
||
(3)
The foundation's charter and
articles (if any) may, but need not be, delivered to the Registrar,
who shall retain and file same in
the Register upon payment of the
prescribed fee.
|
||
22.(1)
On the registration of the
documents and payment of the fee required to be delivered by
section 21 in respect of a proposed foundation
the Registrar shall
certify that the foundation is registered as a foundation,
specifying the. number with which it is registered.
|
Effect of registration. |
|
(2)
From the date of registration
mentioned in the certificate of registration the foundation shall
be a legal person by the name contained
in the charter, capable
forthwith of exercising all the functions of a foundation.
|
||
23.
A certificate of registration
given by the Registrar in respect of any foundation shall be
conclusive evidence that the foundation
is a foundation capable of
being registered and is duly registered under this Act.
|
Conclusiveness of certificate of registration. |
|
24.
Subject to the provisions of
this Act, the charter and the articles (if any) shall, when duly
and properly executed, bind the foundation
to the same extent as if
they had been signed by any person who subsequently endows assets
to the foundation, is appointed as an
officer, or is appointed as a
member of a foundation council or other similar governing body, and
contained covenants on the part
of each such person to observe all
the provisions of the charter and of the articles (if any).
|
Effect of charter and articles. |
|
25.(1)
Where -
|
Pre-registration actions. |
|
(a)
prior to the date of registration
mentioned in the certificate of registration of a proposed
foundation, any action has been carried
out in the name of that
foundation and purportedly by or on behalf of that foundation;
and
|
||
(b)
that foundation is not precluded
from doing so by its charter or articles (if any),
|
||
the foundation may after that date by. resolution of the officers ratify that action, and that action shall then be deemed to be the action of the foundation and the foundation shall be entitled to the benefit of that action, shall be liable in respect of that action, and any failure to take any steps necessary to give effect to that ratification shall be a failure by the foundation. |
||
(2)
Except where a foundation has
not ratified that action as provided for in subsection (1) or there
is an agreement to the contrary,
an action carried out in the name
of a foundation and purportedly by or on behalf of that foundation
prior to the date of registration
mentioned in the certificate of
registration of that foundation shall be the action of the person
or persons by whom it was carried
out and that person or those
persons shall be jointly and severally liable in respect of that
action and shall be entitled to the
benefit of that action.
|
||
PART VI |
||
CAPACITY |
||
26.(1)
The validity of an act done by
a foundation shall not be called into question on the ground of
lack of capacity by reason of anything
in the charter.
|
Limitation on the capacity of a foundation. |
|
(2)
A member of a governing body
of a foundation or a beneficiary may bring proceedings to restrain
the doing of an act which but for
subsection (1) would be beyond
the capacity of the foundation, save that no such proceedings shall
lie in respect of an act to be
done in fulfillment of a legal
obligation arising from a previous act of the foundation.
|
||
(3)
It remains the duty of the
officers of a foundation to observe any limitations on their powers
flowing from the charter and action
by the officers which but for
subsection (1) would be beyond the capacity of the foundation may
only be ratified by the foundation
-
|
||
(a)
where there is a foundation
council or other supervisory person or persons, by a unanimous
resolution of the foundation council or
those other person or
persons; or
|
||
(b)
in any case by a resolution
signed by all the officers for the time being.
|
||
(4)
A resolution ratifying an
action by the officers beyond the capacity of the foundation shall
not affect any liability incurred by
the officers or any other
person and relief from any such liability shall be agreed to
separately by resolution of the foundation
council or other
supervisory person or persons.
|
||
27.(1)
In favour of a person dealing
with a foundation in good faith, the power of the officers to bind
the foundation, or authorise others
to do so, may be assumed.
|
Power of officers to bind the foundation. |
|
(2)
Subject to subsection (3),
subsection (1) shall not affect any right of any member of a
governing body of a foundation or of the foundation
to bring
proceedings to restrain the doing of an act which is beyond the
powers of the officers.
|
||
(3)
No such proceedings as are
referred to in subsection (2) shall lie in respect of any act to be
done in fulfillment of a legal obligation
arising from a previous
act of a foundation.
|
||
(4)
Subsection (1) shall not
affect any liability incurred by the officers of a foundation or
any other person, by reason of the exceeding
of their powers by the
officers.
|
||
28.
A party to a transaction with
a foundation is not bound to enquire as to whether the transaction
is a transaction permitted by the
charter or the articles (if any)
of the foundation or as to any limitation on the powers of the
officers to bind the foundation or
to authorise others to do
so.
|
No duty to enquire as to capacity. |
|
29.(1)
A foundation may, but need
not, have a seal for use in The Bahamas and, unless otherwise
permitted by the charter or the articles
(if any), where it has
such a seal, the seal shall be affixed in the presence of and
witnessed to by an officer of the foundation.
|
Execution of contracts, deeds, instruments and other documents. |
|
(2)
Contracts, deeds, instruments
or other documents on behalf of a foundation may be made as follows
-
|
||
(a)
a contract which, if made between
natural persons, would by law be required to be in writing and
under seal may be made on behalf
of the foundation in writing
-
|
||
(i)
if the foundation has a seal for
use in The Bahamas, under that seal, or
|
||
(ii)
signed by the authorised
signatories of the foundation, each signing or under the seal of
the signatory, as the case may be;
|
||
(b)
a contract, instrument or other
document which if made between natural persons would by law be
required to be in writing, signed by
the parties to be charged
therewith, may be made on behalf of the foundation in writing
signed by the authorised signatories;
|
||
(c)
a contract which if made between
natural persons would by law be valid although made by parol only,
and not reduced into writing,
may be made by parol on behalf of the
foundation by any person acting under an express authority.
|
||
(3)
A contract, deed, instrument
or other document made according to this section shall be effectual
in law, and shall bind a foundation
and all other parties
thereto.
|
||
(4)
A contract made according to
this section may be varied or discharged in the same manner in
which it is authorised by this section
to be made.
|
||
(5)
Where a foundation executes a
deed, instrument or other document, whether or not the foundation
has a seal, it shall be sufficient
and the foundation and any other
party to that deed, instrument or document shall be bound if that
deed, instrument or other document
is signed by the authorised
signatories of the foundation intending it to be executed by way of
a deed.
|
||
(6)
A foundation may, by writing
-
|
||
(a)
if the foundation has a seal for
use in The Bahamas, under that seal; or
|
||
(b)
signed by the authorised
signatories of the foundation, each signing or under the seal of
the signatory, as the case may be,
|
||
empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds, instruments or other documents on its behalf in any place outside The Bahamas. |
||
(7)
A deed, instrument or other
document signed by an attorney appointed according to subsection
(6) for and on behalf of a foundation
-
|
||
(a)
if he has a seal, under that
seal; or
|
||
(b)
signed by him or, where the
attorney is a legal person, the authorised signatories of the
attorney,
|
||
shall bind the foundation and have the same effect as if the deed, instrument or other document had been sealed or signed as provided for in subsection (2). |
||
(8)
A foundation may have for use
in any territory, district or place outside The Bahamas, an
official seal, which -
|
||
(a)
if the foundation has a seal for
use in The Bahamas, shall be a facsimile of that seal; or
|
||
(b)
if the foundation does not have a
seal for use in The Bahamas, shall bear the name of the foundation
engraved in legible characters,
|
||
with the addition on its face of the name of every territory, district or place where it is to be used. |
||
(9)
Where a foundation executes a
deed, instrument or other document outside The Bahamas, whether or
not the foundation has an official
seal for use in the territory,
district or place outside The Bahamas, it shall be sufficient and
the foundation shall be bound if
that deed, instrument or document
is signed by the authorised signatories of the foundation intending
it to be executed by way of
a deed.
|
||
(10)
A foundation having an
official seal for use in any territory, district or place outside
The Bahamas may, by -
|
||
(a)resolution of the officers; or
|
||
(b)writing, sealed or signed as provided for in subsection
(2),
|
||
authorise any person appointed for the purpose in that territory, district or place, to affix the official seal to any deed or other document to which the foundation is party in that territory, district or place. |
||
(11)
The authority of a, person
appointed in accordance with subsection (10) shall, as between a
foundation and any person dealing with
that person, continue during
the period (if any) mentioned in the instrument conferring the
authority, or if no period is there mentioned,
then until notice of
the revocation or determination of the person's authority has been
given to the person dealing with him.
|
||
(12)
The person affixing any
official seal outside of The Bahamas shall, by writing under his
hand, certify on the deed or other instrument
to which the seal is
affixed, the date on which and the place at which it is
affixed.
|
||
(13)
The signature of an officer
when acting on behalf of a foundation shall be prefixed by the
statement that he is so acting.
|
||
(14)
A document or proceeding
requiring authentication by a foundation may be signed by the
authorised signatories of the foundation.
|
||
30.(1)
Every foundation -
|
Publication of name by foundation. |
|
(a)
shall have its name engraved in
legible characters on any seal; and
|
||
(b)
shall have its name mentioned in
legible characters in all notices, advertisements and other
official publications of the foundation,
and in all bills of
exchange, promissory notes, endorsements, cheques and orders for
money or goods purporting to be signed by or
on behalf of the
foundation, and in all bills of parcels, invoices, receipts and
letters of credit of the foundation.
|
||
(2)
If a foundation fails to
comply with paragraph (a) or paragraph (b) of subsection (1), the
foundation is in default.
|
||
(3)
An officer of a foundation or
any person on its behalf who -
|
||
(a)
uses or authorises the use of any
seal purporting to be a seal of the foundation on which its name is
not engraved as required by
subsection (1) (a); or
|
||
(b)
issues or authorises the issue of
any notice, advertisement or other official publication of the
foundation, or signs or authorises
to be signed on behalf of the
foundation any bill of exchange, promissory note, endorsement,
cheque or order for money or goods,
in which its name is not
mentioned as required by subsection (1) (b); or
|
||
(c)
issues or authorises the issue of
any bill of parcels, invoice, receipt or letter of credit of the
foundation, in which its name is
not mentioned as required by
subsection (1) (b),
|
||
is in default and is further personally liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods, for the amount thereof, unless it is duly paid by the foundation. |
||
31.(1)
Every foundation shall have
the following particulars mentioned in legible characters in all
business letters, order forms and receipts
for goods and services
of the foundation, that is to say, its legal name, the place of
registration of the foundation and the number
with which it is
registered, and the address of its registered office.
|
Particulars to be shown on letter heads, etc. |
|
(2)
If a foundation fails to
comply with the requirements of this section, or the foundation or
any person on its behalf issues or authorises
the issue of any
business letter, order form or receipt for goods or services not
complying with this section, such foundation and
person is in
default.
|
||
32.(1)
Subject to the provisions of
this section, it shall be the duty of an officer of a foundation
who is in any way, whether directly
or indirectly, interested in a
contract or proposed contract with the foundation -
|
Disclosure by members of governing bodies, etc. |
|
(a)
to declare the nature of his
interest at a meeting of the officers of the foundation; and
|
||
(b)
to advise the foundation council
or other supervisory person or persons of his interest.
|
||
(2)
In the case of a proposed
contract the declaration required by this section to be made by an
officer of a foundation shall be made
at the meeting of the
officers at which the question of entering into the contract is
first taken into consideration, or if the officer
was not at the
date of that meeting interested in the proposed contract, at the
next meeting of the officers held after he became
so interested,
and in a case where the officer becomes interested in a contract
after it is made, the said declaration shall be made
at the first
meeting of the officers held after the officer becomes so
interested.
|
||
(3)
For the purpose of this
section, a general notice given to the officers of a foundation by
an officer to the effect that he is a member
of a specified company
or firm and is to be regarded as interested in any contract which
may, after the date of the notice, be made
with that company or
firm shall be deemed to be a sufficient declaration of interest in
relation to any contract so made.
|
||
(4)
Where a foundation has no
foundation council, any contract made between the foundation and an
officer, other than a contract to serve
the foundation, shall
require the written approval or all the other officers.
|
||
(5)
Nothing in this section shall
be taken to prejudice the operation of any rule of law restricting
officers of a foundation from having
any interest in contracts with
the foundation.
|
||
(6)
This section shall apply to a
foundation council and any other supervisory person of a foundation
as if references to such a person
are substituted for the
references to an officer.
|
||
33.(1)
No officer of a foundation
shall be personally responsible for any liability of a foundation
unless such liability shall have been
incurred as a result of his
own gross negligence, willful default or misconduct, fraud or
dishonesty.
|
Provisions as to liability of members of governing bodies, etc. |
|
(2)
Subject to subsection (3), any
provision, whether contained in the charter or the articles (if
any) or in any contract with the foundation
or otherwise, for
exempting any officer of the foundation from or indemnifying him
against, any liability which by virtue of any
rule of law would
otherwise attach to him in respect of any negligence, default,
misconduct or breach of duty of which he may be
guilty in relation
to the foundation shall be void.
|
||
(3)
Notwithstanding anything
contained in this section, a foundation may, in pursuance of any
such provision as is referred to in subsection
(2), indemnify any
such officer against any liability incurred by him in defending any
proceedings, whether civil or criminal, in
which judgment is given
in his favour or in which he is acquitted or in connection with any
application under subsections (4) to
(6) in which relief is granted
to him by the court.
|
||
(4)
If, in any proceedings for
negligence, default, misconduct or breach of duty against an
officer of a foundation, it appears to the
Court that such person
is or may be liable in respect of the negligence, default,
misconduct or breach of duty, but that he has acted
honestly and
reasonably, and that, having regard to all the circumstances of the
case, including those connected with his appointment,
he ought
fairly to be excused for the negligence, default, misconduct or
breach of duty, the Court may relieve him, either wholly
or partly,
from his liability on such terms as the Court thinks fit.
|
||
(5)
Where an officer of a
foundation has reason to apprehend that any claim will or might be
made against him in respect of any negligence,
default, misconduct
or breach of duty, he may apply to the Court for relief, and the
Court on any such application shall have power
to grant him relief
in respect of such negligence, default, misconduct or breach of
duty.
|
||
(6)
Where any case to which
subsection (4) applies is being tried by a judge with a jury, the
judge, after hearing the evidence, may,
if he is satisfied that the
defendant ought in pursuance of that subsection to be relieved
either in whole or in part from the liability
sought to be enforced
against him, withdraw the case in whole or in part from the jury
and forthwith direct judgment to be entered
for the defendant on
such terms as to costs or otherwise as the judge may think
proper.
|
||
(7)
This section shall apply to a
foundation council, council member, any other supervisory person
and an auditor, of a foundation as
if references to such a person
are substituted for the references to an officer.,
|
||
PART VII |
||
MEETINGS |
||
34.(1)
Every foundation may, whenever
it sees fit, hold a meeting of the officers.
|
Meetings of officers. |
|
(2)
The officers present at the
meeting shall be at liberty to Discuss any matter relating to the
business of the foundation, whether
previous notice has been given
or not, but no resolution of which notice has not been given may be
passed.
|
||
(3)
The meeting may adjourn from
time to time, and at any adjourned meeting any resolution of which,
notice has been given, either before
or subsequently to the former
meeting may be passed, and the adjourned meeting shall have the
same powers as an original meeting.
|
||
35.(1)
Every foundation shall in each
year, hold at least one meeting of the officers as its annual
meeting in addition to any other of meeting
that year, and shall
specify the meeting as such in the notices calling it.
|
Annual meeting of officers. |
|
(2)
The founder or founders and
the members of the foundation council and any other supervisory
person shall be entitled to be notified
of the meeting, table
business to be considered at the meeting, and attend and be heard
at the meeting, but shall not be entitled
to vote at such a
meeting.
|
||
36.(1)
The officers of a foundation,
notwithstanding anything in the articles (if any) of the
foundations, shall, on the requisition of a
founder or the
foundation council or any other supervisory person, forthwith
proceed duly to convene a meeting of the officers of
the
foundation.
|
Convening of meeting of officers on requisition. |
|
(2)
The requisition shall state
the objects of the meeting, be signed by the requisitionist and be
deposited at the registered office
of the foundation.
|
||
(3)
If the officers of a
foundation do not within twenty-one days from the date of the
deposit of the requisition proceed duly to convene
a meeting, the
requisitionist may himself convene a meeting, but any meeting so
convened shall not be held after the expiration of
sixty days from
the said date.
|
||
(4)
A meeting convened under this
section by the requisitionist shall be convened in the same manner,
as nearly as possible, as that in
which meetings are to be convened
by officers.
|
||
meetings are to be convened by officers. |
||
(5)
Any reasonable expenses
incurred by the requisitionist by reason of the failure of the
officers duly to convene a meeting shall be
repaid to the
requisitionist by the foundation, and any sum so repaid shall be
retained by the foundation out of any sums due or
to become due
from the foundation by way of fees or other remuneration in respect
of their services to such of the officers as were
in default.
|
||
37.
The following provisions shall
have effect in so far as the charter or the articles (if any) of a
foundation do not make other provision
in that behalf -
|
Provisions as to meetings and votes. |
|
(a)
a meeting of a foundation may be
called by seven days' notice in writing;
|
||
(b)
notice of the meeting of a
foundation shall be served on every officer, founder, member of the
foundation council or other supervisory
person in writing in person
by post, by fax or electronically at the address last supplied to
the foundation for the purpose of serving
any notice;
|
||
(c)
two or more officers of the
foundation may call a meeting;
|
||
(d)
a quorum shall be at least two
officers where the foundation has two or more officers;
|
||
(e)
the officers present shall elect
from their number a chairman;
|
||
(f)
the officers shall pass
resolutions subject to the requirements of section 53 in respect of
winding up, by a simple majority of the
votes cast by the officers,
each officer having one vote and the chairman having a casting vote
in case of an equality of votes.
|
||
38.(1)
Every foundation shall cause
minutes of all proceedings at meetings of officers to be entered in
books kept for that purpose.
|
Minutes of proceedings of meetings. |
|
(2)
Any such minute as is provided
for in subsection (1), if purporting to be signed by the chairman
of the meeting at which the proceedings
were had, or by the
chairman of the next succeeding meeting, shall be evidence of the
proceedings.
|
||
(3)
Where minutes have been made
in accordance with the provisions of this section of the
proceedings at any meeting of the officers of
a foundation, then,
until the contrary is proved, the meeting shall be deemed to have
been duly held and convened, and all proceedings
had thereat to
have been duly had.
|
||
39.(1)
The books containing the
minutes or copies of the minutes of proceedings of any meeting of
the officers of a foundation shall be kept
at the registered office
of the foundation, and shall during business hours be open to the
inspection of any founder, officer, member
of the foundation
council, other supervisory person or the Attorney-General without
charge.
|
Inspection of minute books. |
|
(2)
Any person entitled to inspect
the books of minutes of proceedings shall be entitled to be
furnished, within seven days after he has
made a request in that
behalf to the foundation, with a copy of any such minutes without
charge.
|
||
(3)
If any inspection required
under this section is refused or if any copy required under this
section is not sent within the proper
time, the foundation and
every officer is in default.
|
||
(4)
In the case of any such
refusal or default, the Court may by order compel an immediate
inspection of the books in respect of all proceedings
of meetings
or direct that the copies required shall be sent to the persons
requiring them.
|
||
40.(1)
The following provisions shall
have effect in so far as the charter or the articles (if any) of a
foundation do not make other provision
in that behalf -
|
Meetings of members of foundation council. |
|
(a)
a meeting of the foundation
council may be called by seven days' notice in writing;
|
||
(b)
notice of the meeting of a
foundation council shall be served on every founder and member of
the foundation council in writing in
person, by post, by fax or
electronically at the address last supplied to the foundation for
the purpose of serving any notice;
|
||
(c)
one member of the foundation
council may call a meeting;
|
||
(d)
a quorum shall be at least two
members where the foundation council consist of two or more
members;
|
||
(e)
the members present shall elect
from their number a chairman;
|
||
(f)
the members shall pass
resolutions subject to the requirements of section 53 in respect of
winding up, by a simple majority of the
votes cast by the members,
each member having one vote and the chairman having a casting vote
in case of an equality of votes.
|
||
(2)
Minutes of all proceedings at
meetings of the foundation council shall be entered in books kept
for that purpose.
|
||
(3)
Any such minute as is provided
for in subsection (2), if purporting to be signed by the chairman
of the meeting at which the proceedings
were had, or by the
chairman of the next succeeding meeting, shall be evidence of the
proceedings.
|
||
(4)
Where minutes have been made
in accordance with the provisions of this section of the
proceedings at any meeting of the foundation
council then, until
the contrary is proved, the meeting shall be deemed to have been
duly held and convened, and all proceedings
had thereat to have
been duly had.
|
||
(5)
The books containing the
minutes of proceedings of any meeting of the foundation council
shall be kept at the registered office of
the foundation, and shall
during business hours be open to the inspection of any founder,
officer, member of the foundation council,
other supervisory person
or the Attorney-General without charge.
|
||
(6)
Any person entitled to inspect
the books of minutes of proceedings shall be entitled to be
furnished, within seven days after he has
made a request in that
behalf to the foundation, with a copy of any such minutes without
charge.
|
||
(7)
If any inspection required
under this section is refused or if any copy required under this
section is not sent within the proper
time, a foundation, every
member of the foundation council and every officer are in
default.
|
||
(8)
The foregoing provisions shall
also apply mutatis mutandis to meetings of other governing
bodies.
|
||
41.(1)
A beneficiary who has an
interest in all or some of a foundation's assets shall be notified
in writing by the officers of his interest
and shall be entitled
-
|
Rights of a beneficiary to information. |
|
(a)
to receive on request information
from the foundation in respect of the fulfillment of the objects of
the foundation;
|
||
(b)
on request to inspect and copy in
respect of the foundation -
|
||
(i)
the charter and any amendment
thereto;
|
||
(ii)
any articles of the foundation
and any amendment thereto;
|
||
(iii)
any audit report, including any
special audit report, books of account, any report on the financial
position of the foundation and
the annual accounts;
|
||
(iv)
any minutes of any officers
meeting or meetings of the foundation council or other supervisory
body.
|
||
(2)
A request to receive
information or inspect documents as provided for in subsection (1)
shall be made in writing to the secretary.
|
||
(3)
In the event that a foundation
does not comply with a request for information falling within
paragraph (a) of subsection (1) or does
not make documents
available for inspection in accordance with paragraph (b) of that
subsection within a reasonable time, the Court
may, upon
application by the beneficiary, order -
|
||
(a)
provision of the information
requested; and
|
||
(b)
inspection of the documents, if
appropriate by a person professionally qualified to assess the
information therein contained and report
to the beneficiary by whom
the application to the Court was made.
|
||
(4)
A person who, being an officer
of a foundation, fails to take all reasonable steps to secure
compliance by the foundation with the
requirements of this section,
or has by his own wilful act been the cause of any default by the
foundation hereunder, is himself
in default.
|
||
PART VIII |
||
FINANCIAL |
||
42.(1)
A foundation shall cause to be
kept proper books of account with respect to -
|
Keeping of books of account. |
|
(a)
all sums of money received,
expended and distributed by the foundation and the matters in
respect of which the receipt and expenditure
takes place;
|
||
(b)
all sales and purchases by the
foundation; and
|
||
(c)
the assets/and liabilities of the
foundation.
|
||
(2)
The books of account of a
foundation shall be kept at the registered office of the foundation
or at such other place as the officers
think fit, and shall at all
times be open to inspection by the officers, the foundation council
or any other supervisory person and
the auditor, (if any).
|
||
(3)
A person who, being an officer
of a foundation, fails to take all reasonable steps to secure
compliance by the foundation with the
requirements of this section,
or has by his own wilful act been the cause of any default by the
foundation thereunder, is himself
in default.
|
||
43.(1)
The officers of a foundation
shall (unless waived in writing by the foundation council or other
supervisory person) at some date not
later than eighteen months
after the registration of the foundation and subsequently once at
least in every calendar year lay before
the foundation at a meeting
an income and expenditure account for the period, in the case of
the first account, since the registration
of the foundation, and,
in any other case, since the preceding account made up to a date
not earlier than the date of the meeting
by more than three
months.
|
Income and expenditure account and balance sheet. |
|
(2)
The officers shall (unless
waived in writing by the foundation council or other supervisory
person) cause to be made out in every
calendar year, and to be laid
before the foundation in a meeting, a balance sheet as at the date
to which the income and expenditure
account is made up, and there
shall be attached to every such balance sheet a report by the
officers with respect to the state of
the foundation's affairs in
relation to the achievement of the object or objects of the
foundation.
|
||
(3)
A person who, being an officer
of a foundation, fails to take all reasonable steps to comply with
the provisions of this section is
in default.
|
||
(4)
Every balance sheet of a
foundation shall contain a summary of the assets and liabilities
together with such particulars as are necessary
to disclose the
general nature of the liabilities and the assets of the foundation
and shall state how the values of the assets have
been arrived
at.
|
||
(5)
The provisions of this section
are in addition to other provisions of this Act requiring other
matters to be stated in balance sheets.
|
||
44.
Where any of the assets of a
foundation consist of shares in, or amounts owing (whether on
account of a loan or otherwise) from a
company or companies, the
aggregate amount of those assets, distinguishing shares and
indebtedness, shall be set out in the balance
sheet of the
foundation separately from all its other assets, and where a
foundation is indebted, whether on account of a loan or
otherwise
to a company or companies, the aggregate amount of that
indebtedness shall be set out in the balance sheet of the
foundation
separately from all its other liabilities.
|
Assets to be set out separately in balance sheet. |
|
45.(1)
Where a foundation holds
shares either directly or through a nominee in a company (in this
section referred to as "a subsidiary company")
or in two or more
subsidiary companies, there shall be annexed to the balance sheet
of the foundation a statement, signed by the
persons by whom in
pursuance of section 47 the balance sheet is signed, stating how
the profits and losses of the subsidiary company,
or, where there
are two or more subsidiary companies, the aggregate profits and
losses of those companies, have, so far as they concern
the
foundation, been dealt with in, or for the purposes of, the
accounts of the foundation, and in .particular how, and to what
extent,
-
|
Balance sheet to include particulars as to companies. |
|
(a)
provision has been made for the
losses of a subsidiary company either in the accounts of that
company or of the foundation or of both;
and
|
||
(b)
losses of a subsidiary company
have been taken into account by the officers of the foundation in
arriving at the profits and losses
of the foundation as disclosed
in its accounts.
|
||
(2)
It shall not be necessary to
specify in any such statement as required by subsection (1) the
actual amount of the profits or losses
of any subsidiary company,
or the actual amount of any part of any such profits or losses
which has been dealt with in any particular
manner.
|
||
(3)
If in the case of a subsidiary
company the auditor's report on the balance sheet of that company
does not state without qualification
that the auditor has obtained
all the information and explanations he has required and that the
balance sheet is properly drawn up
so as to exhibit a true and
correct view of the state of the subsidiary company's affairs
according to the best of his information
and the explanation given
to him and as shown by the books of the subsidiary company, the
statement which is to be annexed to the
balance sheet of the
foundation shall contain particulars of the manner in which the
report is qualified.
|
||
(4)
For the purposes of this
section, the profits or losses of a subsidiary company mean the
profits or losses shown in any accounts of
the subsidiary company
made up to a date within the period to which the accounts of the
foundation relate, or, if there are no such
accounts of the
subsidiary company available at the time when the accounts of the
foundation are made up, the profits and losses
shown in the last
previous accounts of the subsidiary company which became available
within that period.
|
||
(5)
If for any reason the officers
of the foundation are unable to obtain such information as is
necessary for the preparation of such
statement, the officers who
sign the balance sheet shall so report in writing and their report
shall be annexed to the balance sheet
in lieu of the
statement.
|
||
46.(1)
The accounts which in
pursuance of this Act are to be laid before every foundation in a
meeting shall, subject to the provisions of
this section, contain
particulars showing -
|
Accounts to contain particulars as to loans to, and remuneration of officers. |
|
(a)
the amount of any loans which
during the period to which the accounts relate have been made
either by the foundation or by any other
person under a guarantee
from or on a security provided by the foundation to any officer of
the foundation, including any such loans
which were repaid during
the said period;
|
||
(b)
the amount of any loans so made
to any officer at any time before the period aforesaid and
outstanding at the expiration thereof;
and
|
||
(c)
the total of the amount paid to
the officers as remuneration for their services, inclusive of all
fees, percentages or other emoluments,
paid to or receivable by
them or from the foundation or by or from any subsidiary company
(as defined in section 45).
|
||
(2)
In this section, "emoluments"
include fees, percentages and other payments made or consideration
given, directly or indirectly, to
an officer as such, and the money
value of any allowances or perquisites belonging to his
office.
|
||
47.(1)
The balance sheet of a
foundation shall be signed by the sole officer or on behalf of the
officers by two of the officers and the
auditor's report (if any)
shall be attached or appended to or accompany the financial
statements, and the report shall be read before
the foundation in a
meeting, and shall be open to inspection as specified in this
Act.
|
Signing of balance sheets. |
|
(2)
If any copy of a balance sheet
which has not been signed as required by this section is issued,
circulated or published or where an
auditor is appointed, any copy
of a balance sheet is issued, circulated or published without
having a copy of the auditor's report
attached thereto, the
foundation and every officer who is knowingly a party to the
default, is in default.
|
||
48.
Any founder, officer or member
of the foundation council or other supervisory person shall be
entitled to be furnished, within seven
days after he has made a
request to the foundation, with a copy of the balance sheet and
auditor's report (if any) at no charge and
if default is made in
furnishing such a copy, the foundation and every officer is in
default.
|
Right to receive copies of balance sheets and auditor's report. |
|
49.(1)
Where, on an application by a
founder, an officer, the foundation council, any other supervisory
person, a beneficiary, the Registrar
or the Attorney-General to the
Court, the Court is satisfied that there is prima facie evidence of
a failure to comply with the charter
or the articles (if any)or the
requirements of this Act in the conduct of a foundation, the Court
may order the appointment of a
special auditor and the carrying out
of a special audit of the foundation.
|
Special audit. |
|
(2)
The appointment of a special
auditor under subsection (1) may be made conditional on the lodging
by the applicant with the Court of
an amount, to be determined by
the Court, by way of security for the costs of carrying out the
special audit.
|
||
(3)
The provisions of section 16
in respect of access to information shall apply to a person
appointed under this section.
|
||
(4)
The auditor appointed under
this section shall submit his report to the Court within such time
as the Court' may determine.
|
||
(5)
If, in the opinion of the
Court the report of the auditor is evidence of the failure
complained of, or any other serious failure to
comply with the
charter or the articles (if any) or the requirements of this Act in
the conduct of a foundation, the Court shall
make such orders as it
thinks fit for the purpose of maintaining the objects of the
foundation.
|
||
(6)
The Court shall make such
order as to costs as it thinks fit, taking into account whether or
not the application was well founded,
and where the application was
not well founded the Court may order that any loss or cost
occasioned to the foundation by the special
audit be met by the
applicant.
|
||
PART IX |
||
AMENDMENT AND DISSOLUTION |
||
50.(1)
Subject to section 6(5), where
there is provision in the charter of a foundation that the charter
may be revoked, the founder or,
where there is more than one
founder, the founders acting jointly and unanimously, or, if one
founder dies prior to the registration
of the foundation, the
remaining founder or founders, or, when so empowered in the
charter, the foundation council may revoke the
charter.
|
Revocation and amendment of charter. |
|
(2)
Subject to subsections (3) and
(4), the charter of a foundation may be!amended before the
registration of the foundation.
|
||
(3)
Where there is more than one
founder of a proposed foundation, in the event that, before
registration, one founder withdraws -
|
||
(a)
the charter shall not be
revoked;
|
||
(b)
the charter may be amended only
in accordance with the objects stated in the charter, to the extent
necessary to take account of the
withdrawal of the particular
founder or ip accordance with subsection (5), and the amendment
shall be in the same form as the charter
and signed by the same
person or persons who signed the charter and the secretary or be
notarised and form part of the charter.
|
||
(4)
Where there is one founder of
a proposed foundation, or there is only one remaining founder, in
the event that before registration
that founder withdraws -
|
||
(a)
the charter shall not be
revoked;
|
||
(b)
the charter may be amended only
in accordance with the objects stated in the charter, to the extent
necessary to permit compliance
with the provisions of section 21,
or in accordance with subsection (6), and the amendment shall be in
the same form as the charter
and signed by the same person or
persons who signed the charter and the secretary or be notarised
and form part of the charter.
|
||
(5)
The procedure referred to in
subsection (3)(b) shall be as follows -
|
||
(a)the founder or founders, or the officers, shall convene a
meeting of -
|
||
(i)
the remaining founder or
founders;
|
||
(ii)
the officers or the persons
identified as officers in the foundation charter; and
|
||
(iii)
the foundation council, if any,
or any other supervisory person, of the proposed foundation in
accordance with the requirements of
section 35;
|
||
(b)
the resolution for amendment of
the charter shall be adopted only if agreed to by all the remaining
founders, and by any officer,
or person identified as an officer,
and any foundation council or any other supervisory person, who was
nominated by or represented
the interest of the founder who has
withdrawn and such a person shall consent to the resolution if he
is satisfied that the amendment
is in accordance with subsection
(3)(b).
|
||
(6)
The procedure referred to in
subsection (4)(b) shall be as follows -
|
||
(a)
the officers shall convene a
meeting of -
|
||
(i)
the officers, or the persons
identified in the charter; and
|
||
(ii)
the foundation council, if any,
or any other supervisory person, of the proposed foundation in
accordance with the requirements of
section 35;
|
||
(b)
the resolution for amendment of
the charter shall be adopted only if agreed to by the officers, or
persons identified as officers
and the foundation council or all
other supervisory persons,
|
||
and such persons shall consent to the resolution if satisfied that the amendment is in accordance with subsection (4)(b). |
||
(7)
After the registration of a
foundation where, as provided for in section 6(2)(g), the charter
of a foundation makes provision for
the amendment of the charter
after registration, the charter may be amended in accordance with
that provision and the procedure contained
in subsection (8).
|
||
(8)
The procedure referred to in
subsection (7) is as follows -
|
||
(a)
the founders, or the officers,
shall convene a meeting of the remaining founder or founders, the
officers and the foundation council,
if any, or any other
supervisory person, of the foundation in accordance with the
requirements of section 35;
|
||
(b)
the resolution for amendment of
the charter shall be adopted only if agreed to by all remaining
founders and by the officers and the
foundation council or all
other supervisory persons.
|
||
(9)
In the event that it is not
possible to comply with the relevant provisions of this section in
respect of the amendment of a charter
of a foundation because
-
|
||
(a)
of the withdrawal of a
founder;
|
||
(b)
of a failure to reach agreement
between the founders or the remaining founders; or
|
||
(c)
no provision was made in the
foundation charter for amendment of the charter after
registration;
|
||
the officers of the foundation may resolve on such amendments as are necessary in the circumstances to maintain the objects of the foundation and shall submit the resolution containing such amendments to the Court for approval. |
||
(10)
Where the charter of a
foundation has been amended under subsection (3), (4) or (7),
application may be made to the Court for the
amendment to be
modified or cancelled and if an application is made under this
subsection, the amendment shall not have effect except
in so far as
it is confirmed by the Court.
|
||
(11)
Such an application as is
provided for in subsection (10) may be made by a founder, an
officer or a person identified as an officer,
the foundation
council or any other supervisory person, or an auditor, but an
application shall not be made by any person who has
consented to or
voted in favour of the amendment.
|
||
(12)
The application under
subsection (10) shall be made within twenty-one days after the date
on which the resolution altering the charter
was passed, and may be
made on behalf of the persons entitled to make the application by
such one or more of their number as they
may appoint in writing for
the purpose.
|
||
(13)
The Court may, on an
application made by a foundation pursuant to subsection (10), make
an order confirming the amendment either wholly
or in part and on
such terms and conditions as it thinks fit, and may -
|
||
(a)
if it thinks fit, adjourn the
proceedings in order that an arrangement may be made to its
satisfaction for the withdrawal of any dissentient
founder or
founders; and
|
||
(b)
give such directions and make
such orders as it thinks expedient for facilitating or carrying
into effect any such arrangement.
|
||
(14)
The order of the Court may (if
the Court thinks fit) provide for the withdrawal from the charter
of any founder, and for the reduction
accordingly of the capital of
the foundation, and may make such alterations in the charter and
articles (if any) as may be required
in consequence of that
provision.
|
||
(15)
If the order of the Court
requires a foundation not to make any, or any specified, amendment
to its charter the foundation or the
founders and officers of the
foundation shall not have power without the leave of the Court to
make any such amendment in breach
of that requirement.
|
||
(16)
The validity of an amendment
to the charter shall not be questioned on the ground that it was
not authorised according to the provisions
of. this section except
in proceedings taken for the purpose before the expiration of
twenty-one days after the date of the resolution
in that
behalf.
|
||
(17)
Where an amendment is made in
the charter every copy of the charter issued by or on behalf of the
foundation or by any officer of
the foundation after the date of
the amendment shall be in accordance with the amendment.
|
||
(18)
If, where any amendment has
been made to the charter, the foundation and any officer of the
foundation at any time after the date
of the amendment issues or
causes or permits to be issued any copies of the charter which are
not in accordance with the amendment,
such foundation and officer
are in default.
|
||
(19)
A notice (signed by the
secretary to the foundation) containing details of the amendment of
any of the particulars contained in the
statement filed pursuant to
section 21(1)(a) shall (within fourteen days of such amendment
taking effect) be delivered to the Registrar,
who shall retain and
file the notice in the Register.
|
||
51.(1)
This section shall apply to
foundations -
|
Power of foundation to redomicile. |
|
(a)
established outside The Bahamas
in another country which are to be redomiciled in The Bahamas;
and
|
||
(b)
registered in The Bahamas which
are to be redomiciled in another country.
|
||
(2)
In this section "another
country" means a country having regulation of foundations generally
or reasonably compatible with the provisions
of this Act.
|
||
(3)
Subject to sub-section (4), a
foundation established under the laws of another country shall be
entitled to redomicile as a foundation
established and registered
under this Act provided the laws of such country allow it to
redomicile.
|
||
(4)
A foundation established under
the laws of another country may, if it will satisfy the
requirements prescribed for a foundation by
section 4 and any other
relevant sections of this Act, redomicile in The Bahamas as a
foundation established and registered under
this Act by delivering
to the Registrar -
|
||
(a)
an application, written in the
English language, duly signed by the foundation's officers or
protector or their equivalent persons
or body and notarised and
(where applicable) apostilled, requesting the Registrar to register
the foundation under this Act;
|
||
(b)
a statement and statutory
declaration containing the particulars required by section 21 and
also evidence satisfactory to the Registrar
that the foundation is
in good standing, all (where applicable) apostilled; and
|
||
(c)
the prescribed fees specified in
section 21.
|
||
(5)
Sections 21, 22 and 23 shall
apply mutatis mutandis to foundations redomiciled and registered
under this section and such foundations
shall, after they shall
have been redomiciled and registered hereunder, be bound by this
Act as if they were new foundations duly
registered under this
Act.
|
||
(6)
From the time of the issue by
the Registrar of a certificate of registration under section 22
-
|
||
(a)the foundation to which the certificate relates shall
-
|
||
(i)
be capable of exercising all
powers of a foundation registered under this Act; and
|
||
(ii)
no longer be treated as a
foundation registered under the laws of the country from which it
was redomiciled;
|
||
(b)
all assets of the foundation,
including choses in action, shall continue to be vested in the
foundation;
|
||
(c)
the foundation shall continue to
be liable for all of its claims, debts, liabilities and
obligations;
|
||
(d)
no conviction, judgment, ruling,
order, claim, debt, liability or obligation due or to become due
and no cause existing, against the
foundation or against any
foundation council member or any officer or agent thereof, shall be
released or impaired by its registration
under this Act; and
|
||
(e)
no proceedings, whether civil or
criminal, then pending by or against the foundation or against any
foundation council member or any
officer or agent thereof, shall be
abated or discontinued by its registration under this Act, but the
proceedings may be enforced,
prosecuted, settled or compromised by
or against the foundation or against the foundation council member
or the officer or agent
thereof, as the case may be.
|
||
(7)
Subject to any limitations in
its foundation charter or articles (if any), a foundation
registered under this Act may redomicile and
register under the
laws of another country in the manner provided under those
laws.
|
||
(8)
A foundation registered under
this Act that redomiciles and registers under the laws of another
country, shall not cease to be a foundation
registered under this
Act unless the laws of the other country permit such
redomiciliation and registration and the foundation has
complied
with those laws.
|
||
(9)
Where a foundation registered
under this Act redomiciles and registers under the laws of another
country -
|
||
(a)
the foundation shall continue to
be liable for all of its claims, debts, liabilities and obligations
that existed prior to its registration
under the laws of the other
country;
|
||
(b)
no conviction, judgment, ruling,
order, claim, debt, liability or obligation due or to become due,
and no cause existing against the
foundation or against any
foundation council member or any officer or agent thereof, shall be
released or impaired by its registration
under the laws of the
other country; and
|
||
(c)
no proceedings, whether civil or
criminal, pending by or against the foundation or against any
foundation council member or any officer
or agent thereof, shall be
abated or discontinued by its registration as a foundation under
the laws of the other country, but the
proceedings may be enforced,
prosecuted, settled or compromised by or against the foundation
council member or the officer or agent
thereof, as the case may
be.
|
||
(10)
Where a foundation registered
under this Act is redomiciled and registered under the laws of
another country, the foundation shall
submit to the Registrar a
certified and (where applicable) apostilled copy of the certificate
of registration issued by the registrar
or other relevant competent
authority in that country and upon receiving such copy certificate
the Registrar shall strike the foundation
off the Register and
certify that the foundation has ceased to be a foundation
registered under this Act.
|
||
52.(1)
A foundation shall be
liquidated where -
|
Liquidation. |
|
(a)
the foundation was established
for a definite period and that period has expired;
|
||
(b)
in the circumstances specified in
subsection (2), the officers have resolved by unanimous resolution
to liquidate the foundation;
|
||
(c)
the foundation is unable to pay
its debts; or
|
||
(d)
the Court has ordered the
liquidation of the foundation.
|
||
(2)
The officers shall resolve
unanimously to liquidate a foundation if, but only if -
|
||
(a)
the effect of an amendment to the
charter under section 50 so requires;
|
||
(b)
the objects of the foundation
have been fulfilled or have become incapable of being
fulfilled;
|
||
(c)
any provision of the charter so
requires.
|
||
(3)
In the event that the officers
-
|
||
(a)
fail to pass the unanimous
resolution required to be passed by subsection (2); or
|
||
(b)
other than in one of the
circumstances listed in that subsection pass or purport to pass a
resolution to liquidate the foundation,
|
||
a founder, a member of the foundation council or other governing body of the foundation, the remaining beneficiary or any person appointed by the charter for this purpose may apply to the Court for an order in the case provided for in paragraph (a), requiring the liquidation of the foundation or in the case provided for in paragraph (b), precluding the liquidation. |
||
(4)
The Court shall order the
liquidation of a foundation which has adopted, whether in the
charter or in practice, objects precluded
by section 4(5), and
which has failed to comply with any order of the Court to remedy
the default in the time specified in the order.
|
||
(5)
The procedures specified in
regulations made for this purpose and in section 53, and
regulations made under that section, shall apply
to the liquidation
of a foundation under this section.
|
||
53.(1)
An application to the Court
for the winding up of a foundation shall be by petition, presented,
subject to the provisions of this
section and regulations made for
the purpose, either by the foundation, or by any creditor or
creditors (including any contingent
or prospective creditor or
creditors), or by all or any of those parties, together or
separately.
|
Winding-up. |
|
(2)
Where a foundation is being
wound-up voluntarily as a result of a decision, other than an order
of the Court, to liquidate the foundation
under section 52, a
winding-up petition may be presented by an official receiver of the
Court as well as by any other person so authorised
under subsection
(1), but the Court shall not make a winding-up order on the
petition unless it is satisfied that the voluntary winding-up
cannot be continued with due regard to the interests of the
creditors.
|
||
(3)
Subject to subsection (4), the
assets of a foundation remaining after the winding-up is completed
shall be the property of the remaining
beneficiary, to whom they
shall be transferred.
|
||
(4)
In the event that -
|
||
(a)
there is no remaining beneficiary
or the remaining beneficiary refuses to accept the transfer of the
remaining assets; and
|
||
(b)
there is no relevant provision in
the charter, the remaining assets shall be deemed to be bona
vacantia and shall accordingly belong
to the Treasurer of The
Bahamas and shall vest and may be dealt with in the same manner as
other bona vacantia accruing to the Treasurer
of The Bahamas.
|
||
(5)
In the absence of a provision
to the contrary in the charter or the articles (if any) of a
foundation, where there is more than one
remaining beneficiary
willing to accept the transfer of the remaining assets, the
remaining assets shall be divided equally between
them.
|
||
(6)
The procedures to be adopted
and the distributions to be made in a winding-up of a foundation
shall be those provided in regulations
made for the purpose and
-
|
||
(a)
different procedures may be so
provided in different circumstances; and
|
||
(b)
the regulations -
|
||
(i)
shall have effect in relation to
a foundation as if the provisions therein had been contained in
this Act;
|
||
(ii)
may, in the application of the
provisions of this Act to the winding-up of a foundation, make such
variation to the provisions of
this Act as may be necessary
properly to wind up the foundation.
|
||
(7)
The set-off provision in
section 37 of the Bankruptcy Act shall apply mutatis mutandis to a
foundation where the foundation is liquidated
or wound-up.
|
Ch. 69 |
|
54.(1)
Where the Registrar has
reasonable cause to believe that a foundation registered under this
Act no longer satisfies the requirements
prescribed for a
foundation by section 4(5), the Registrar shall serve on the
foundation a notice that the name of the foundation
may be removed
from the Register if the foundation no longer satisfies those
requirements.
|
Removal from the Register. |
|
(2)
If the Registrar does not
receive a reply within thirty days immediately following the date
of the service of the notice referred
in subsection (1), he shall
serve on the foundation another notice that the name of the
foundation may be removed from the Register
if a reply to the
notice is not received within thirty days immediately following the
date thereof and that a notice of the contemplated
removal will be
published in the Gazette.
|
||
(3)
If the Registrar -
|
||
(a)
receives from the foundation a
notice which does not satisfy him that the foundation meets the
requirements prescribed for a foundation
by section 4 (5), in reply
to a notice served on the foundation under subsection (1) or (2);
or
|
||
(b)
does not receive a reply to a
notice served on the foundation under subsection (2) as required by
the subsection,
|
||
he shall publish a notice in the Gazette that the name of the foundation will be removed from the Register unless the foundation or another person satisfies the Registrar that the name of the foundation should not be removed. |
||
(4)
At the expiration of a period
of ninety days immediately following the date of the publication of
the notice under subsection (3),
the Registrar shall remove the
name of the foundation from the Register, unless the foundation or
any other person satisfies the
Registrar that the name of the
foundation should not be removed, and the Registrar shall publish
notice of the removal in the Gazette.
|
||
(5)
If a foundation has failed to
pay any licence fee due under this Act, the Registrar shall publish
in the Gazette and serve on the
foundation a notice stating the
amount of the licence fee payable by it and stating that the name
of the foundation will be removed
from the Register if the
foundation fails to pay the licence fee within thirty days of the
date of such notice.
|
||
(6)
If a foundation fails to pay
the licence fee stated in the notice referred to in subsection (5)
within thirty days, the Registrar
shall then remove the name of the
foundation from the Register.
|
||
(7)
A foundation whose name has
been removed from the Register under this section remains liable
for all claims, debts, liabilities and
obligations of the
foundation, and the removal does not affect the liability of any of
its council members, officers or agents.
|
||
55.(1)
If the name of a foundation
has been removed from the Register under section 54, the
foundation, or a creditor or liquidator thereof,
may apply to the
Court to have the name of the foundation restored to the
Register.
|
Restoration to Register and effect of Removal. |
|
(2)
If upon an application under
subsection (1) the Court is satisfied that -
|
||
(a)
at the time the name of the
foundation was removed from the Register, the foundation did
satisfy the requirements prescribed for a
foundation by section 4
(5); and
|
||
(b)
it would be fair and reasonable
for the name of the foundation to be restored to the
Register,
|
||
the Court may order the name of the foundation to be restored to the Register upon payment to the Registrar of all outstanding licence fees and other fees due and payable under this Act and, upon restoration of the name of the foundation to the Register, the name of the foundation shall be deemed never to have been removed from the Register. |
||
(3)
If the name of a foundation
has been removed from the Register under section 54 due to
non-payment of licence fees, the foundation,
or a creditor or
liquidator thereof, may within five years immediately following the
date of the removal, apply to the Registrar
to have the name of the
foundation restored to the Register and, upon payment to the
Registrar of all outstanding licence fees and
other fees (if any)
due and payable under this Act, the Registrar shall restore the
name of the foundation to the Register and upon
restoration of the
name of the foundation to the Register, the name of the foundation
shall be deemed never to have been removed
free the Register.
|
||
(4)
Where the name of a foundation
has been removed from the Register, the foundation, its officers,
the foundation council and other
supervisory persons may not
-
|
||
(a)
carry on any business or in any
way deal with the assets of the foundation;
|
||
(b)
commence or defend any legal
proceedings, make any claim or claim any right for, or in the name
of the foundation; or
|
||
(c)
act in any way with respect to
the affairs of the foundation.
|
||
(5)
Notwithstanding subsection
(4), where the name of the foundation has been removed from the
Register, the foundation or a creditor
or liquidator thereof may
-
|
||
(a)
make application for restoration
of the name of the foundation to the Register;
|
||
(b)
continue to defend proceedings
that were commenced against the foundation prior to the date of the
removal; and
|
||
(c)
continue to carry on legal
proceedings that were instituted on behalf of the foundation prior
to the date of the removal.
|
||
(6)
The fact that the name of the
foundation is removed from the Register does not prevent -
|
||
(a)
that foundation from incurring
liabilities;
|
||
(b)
any creditor from making a claim
against that foundation and pursuing the claim through to judgment
or execution; or
|
||
(c)
the appointment by the Court of a
liquidator for that foundation.
|
||
PART X |
||
REGISTRAR |
||
56.(1)
Every foundation shall keep at
its registered office a file containing accurate copies of all
documents filed at the Registry as well
as accurate copies of its
foundation charter and articles (if any).
|
Documents to be kept at the registered office. |
|
(2)
. The copy documents required
to be kept by a foundation under this section shall during business
hours be open to the inspection
of any founder, officer, foundation
council member or other supervisory person.
|
||
(3)
If any inspection required
under this section is refused or if there is a failure to comply
with subsection (1) the foundation and
every officer is in
default.
|
||
(4)
In the case of such a refusal
as is referred to in subsection (3), the Court may by order compel
an immediate inspection of the file.
|
||
57.(1)
This section applies to the
delivery to the Registrar under any provision of this Act of
documents in printed form.
|
Delivery to the Registrar of documents in printed form. |
|
(2)
The document shall -
|
||
(a)
state in a prominent position the
name and the registered number of the foundation to which it
relates;
|
||
(b)
be in the form approved by the
Registrar; and
|
||
(c)
conform to such requirements as
the Registrar may specify for the purpose of enabling him to copy
any document.
|
||
(3)
If a document is delivered to
the Registrar which does not comply with the requirements of this
section, he may serve on the person
by whom the document was
delivered (or if there are two or more such persons, on any of
them), a notice indicating the respect in
which the document does
not comply.
|
||
(4)
Where the Registrar serves
such a notice as is specified in subsection (3), then, unless a
replacement document -
|
||
(a)
is delivered to him within
fourteen days after the service of the notice; and
|
||
(b)
complies with the requirements of
this section (or section 58) or is not rejected by him for failure
to comply with those requirements,
|
||
the original document shall be deemed not to have been delivered to him. |
||
(5)
For the purposes of any
provision requiring delivery within a specified period no account
shall be taken of the period between the
delivery of the original
document and the end of the period of fourteen days after service
of the Registrar's notice.
|
||
58.(1)
This section applies to the
delivery to the Registrar under any provisions of this Act of
documents other than in printed form.
|
Delivery to the Registrar of documents otherwise than in printed form. |
|
(2)
Any requirement to deliver a
document to the Registrar, or to deliver a document in the approved
form, is satisfied by the communication
to the Registrar of the
requisite information in any non-printed form approved by the
Registrar.
|
||
(3)
Where the document is required
to be signed or sealed, it shall instead be authenticated in such
manner as may be approved by the
Registrar.
|
||
(4)
A document shall -
|
||
(a)
contain in a prominent position
the registered number of the foundation to which it relates;
|
||
(b)
be in the form approved by the
Registrar; and
|
||
(c)
be furnished in such manner, and
conform to such requirements, as the Registrar may specify for the
purpose of enabling him to read
and copy the document.
|
||
(5)
If a document is delivered to
the Registrar which does not comply with the requirements of this
section, he may serve on the person
by whom the document was
delivered (or, if there were two or more such persons, on any of
them), a notice indicating the requirements
in respect of which the
document does not comply.
|
||
(6)
Where the Registrar serves
such a notice, then, unless a replacement document -
|
||
(a)
is delivered to him within
fourteen days after service of the notice; and
|
||
(b)
complies with the requirements of
this section (or section 57) or is not rejected by him for failure
to comply with those requirements,
|
||
the original document shall be deemed not to have been delivered to him. |
||
(7)
For the purposes of any
provision requiring delivery within a specified period no account
shall be taken of the period between the
delivery of the original
document and the end of the period of fourteen days after service
of the Registrar's notice.
|
||
59.(1)
The Registrar shall keep a
register of documents delivered to him and which he is required to
retain under this Act and he may retain
and store documents
delivered to him in compliance with any requirement of this Act in
whatever form he thinks fit provided it is
possible to inspect the
information contained in the document and to produce a copy of it
in printed form and this shall be sufficient
compliance with any
duty of his to register any document.
|
Keeping of the register by the Registrar. |
|
(2)
The originals of documents
delivered to the Registrar in printed form and which are to be
retained by him shall be kept by him for
the duration of the
foundation and thereafter for ten years, after which time they may,
in the Registrar's absolute discretion, be
destroyed.
|
||
60.(1)
Any person may, on payment of
the prescribed fee or fees, inspect the Register and may require a
copy in such form as the Registrar
considers appropriate of any
documents or information contained in the Register.
|
Inspection, production and evidence of documents kept by the Registrar. |
|
(2)
A copy of a document certified
in writing by the Registrar (whose official position it is
unnecessary to prove), to be an accurate
record of the document
delivered to him and retained by him under this Act, is in all
legal proceedings, admissible in evidence as
of equal validity with
the original document and as evidence of any facts stated therein,
of which direct oral evidence would be
admissible.
|
||
(3)
Copies of or extracts from
records furnished by the Registrar may, instead of being certified
by him in writing to be an accurate
record, be sealed with his
official seal.
|
||
(4)
Any person may require a
certificate of the registration of a foundation, signed by the
Registrar or authenticated by his official
seal.
|
||
(5)
Any requirement of this Act as
to the supply by the Registrar of a document may, if the Registrar
thinks fit, be satisfied by the
communication by the Registrar of
the requisite information in any non-printed form approved by
him.
|
||
(6)
Where the document is required
to be signed by him or sealed with his official seal and is a
communication in a non-printed form,
it shall instead be
authenticated in such manner as may be approved by the
Registrar.
|
||
61.(1)
If a foundation, having made
default in complying with any provision of this Act which requires
it to file with or deliver to the
Registrar any account or other
document, or to give notice to him of any matter, fails to make
good the default within fourteen days
after the service of a notice
on the foundation requiring it to do so, the Court may, on an
application made by a founder, an officer,
a foundation council
member or any other supervisory person, or a creditor, of the
foundation or by the Registrar, make an order
directing the
foundation and any officer thereof to make good the default within
such time as may be specified in the order.
|
Enforcement of duty of foundation to file documents with the Registrar. |
|
(2)
Any such order may provide
that all costs of and incidental to the application shall be borne
by the foundation or by any officer
of the foundation responsible
for the default.
|
||
62.(1)
The Registrar shall cause to
be published in the Gazette notice of the issue or receipt by him
of documents of any of the following
descriptions (stating in the
notice the name of the foundation, the description of the document
and the date of, issue or receipt)
-
|
Official notification. |
|
(a)
any copy of a winding-up order in
respect of a foundation;
|
||
(b)
any order for the dissolution of
a foundation; and
|
||
(c)
any notice of removal from the
Register of a foundation.
|
||
(2)
A foundation shall not be
entitled to rely against other persons on the happening of any of
the above events if the event had not
been officially notified at
the material time and is not shown by the foundation to have been
known at that time to the person concerned,
or if the material time
fell on or before the fifteenth day after the date of official
notification (or, where the fifteenth day
was a non-business day,
on or before the next day that was not) and it is shown that the
person concerned was unavoidably prevented
from knowing of the
event at that time.
|
||
(3)
In subsection (2), "official
notification" means the notification of the document relating to
that event in the Gazette under subsection
(1) and "officially
notified" shall be construed accordingly.
|
||
63.(1)
No person who has acquired
information in his capacity as: -
|
Confidentiality. |
|
(a)
an officer of a foundation;
|
||
(b)
a protector of a
foundation;
|
||
(c)
a member of a foundation
council;
|
||
(d)
a member of any other governing
body of a foundation;
|
||
(e)
any other supervisory
person;
|
||
(f)
a counsel and attorney for a
foundation, or
|
||
(g)
an auditor of a foundation;
|
||
shall, without the express or implied consent of the founder or founders and the beneficiary or beneficiaries of the foundation, disclose to any person any such information relating to the identity of the beneficiary or beneficiaries of the foundation or its assets, liabilities, transactions or accounts, except : - |
||
(i)
when lawfully required or
permitted to do so by any court of competent jurisdiction within
The Bahamas; or
|
||
(ii)
under the provisions of any law
of The Bahamas.
|
||
(2)
Nothing contained in this
subsection shall prejudice or derogate from the rights and duties
subsisting at common law between the above
persons and the founder
or founders and the beneficiary or beneficiaries of a
foundation.
|
||
(3)
Every person who contravenes
the provisions of subsection (1) shall be liable on summary
conviction to a fine not exceeding fifty
thousand dollars or to
imprisonment for a term not exceeding three years.
|
||
64.(1)
The Registrar shall, upon
request by any person and payment of the prescribed fee, certify
that a foundation registered under this
Act is of good standing in
the following respects if he is satisfied that -
|
Certificate of Good Standing. |
|
(a)
the name of the foundation is on
the Register; and
|
||
(b)
the foundation has paid all fees
required by this Act to be paid.
|
||
(2)
The Certificate of Good
Standing issued under subsection (1) shall indicate whether or not
the foundation is in the process of being
liquidated, wound up,
dissolved (if within his knowledge) or removed from the
Register.
|
||
PART XI |
||
MISCELLANEOUS |
||
65.(1)
Every officer, foundation
council member, other supervisory person and protector of a
foundation who acted honestly and in good faith
shall be
indemnified by the foundation against all costs, charges, losses,
expenses, and liabilities incurred by him in the execution
and
discharge of his duties or in relation thereto, and the amount for
which such indemnity is provided shall immediately attach
as a lien
on the property of the foundation, and have priority over any
claims of the foundation.
|
Indemnification. |
|
(2)
No officer, foundation council
member, other supervisory person or protector shall be personally
liable for the acts, receipts, neglects
or defaults of any other
officer, foundation council member, supervisory person or
protector, or for joining in any receipt or other
act for
conformity, or for any loss or expense incurred by the foundation
as a result of insufficiency or deficiency of title to
any property
acquired by order of the officers for or on behalf of the
foundation, or for the insufficiency or deficiency of any
security
in or upon which any of the moneys of the foundation shall be
advanced or invested, or for any loss or damage arising out
of the
bankruptcy, insolvency, or tortious or criminal act or omission of
any person with whom any money, securities or effects shall
be
deposited, or for any loss occasioned by an error of judgement,
omission, default or oversight on his part, or for any other loss,
damage or misfortune whatever which shall happen in the execution
of his office or in relation thereto, except where the same shall
happen through his own gross negligence, willful default or
misconduct, fraud or dishonesty.
|
||
66.
The charter or articles (if
any) of a foundation may make provision for a beneficiary or
beneficiaries to forfeit their benefits or
rights thereunder in the
event that they should challenge the establishment of the
foundation, the endowment of any of the foundation's
assets, the
charter or the articles (if any) or any provision thereof or any
decision of the foundation council or other supervisory
persons
that does not damage or seek to damage their benefits or rights and
such forfeiture shall be valid and enforceable when there
is no
discretion with regard to such enforcement.
|
In terrorem provisions. |
|
67.(1)
Notwithstanding any rule of
law or equity to the contrary, it shall be lawful for an instrument
of disposition to provide that any
estate or interest in any
property given or to be given by a foundation to a beneficiary
shall not during the life of the beneficiary,
or such lesser period
as may be specified in the instrument of disposition, be alienated
or pass by bankruptcy, insolvency or liquidation
or be liable to.
be seized, sold, attached, or taken in execution by process of law
and where so provided such provision shall take
effect
accordingly.
|
Restriction against alienation. |
|
(2)
Where property is given
subject to any of the restrictions contained in subsection (1), the
right to derive income from such property
by a beneficiary and any
income derived therefrom shall not pass by bankruptcy, insolvency
or liquidation or be liable to be seized,
attached or taken in
execution by process of law.
|
||
(3)
Where property is given
subject to a restriction against alienation then the right to
derive income from that property shall not be
alienable for as long
as that restriction remains in force.
|
||
(4)
A restriction imposed pursuant
to this section may at any time be removed in accordance with any
provisions for such removal in the
instrument of disposition and in
the manner specified therein.
|
||
(5)
Neither the founder nor any
other person donating property to a foundation may benefit from the
provisions of this section.
|
||
68.(1)
In this section -
|
Forced heirship |
|
"dispose" and "disposition", in relation to property, means every form of conveyance, transfer, assignment, lease, mortgage, pledge or other transaction by which any legal or equitable interest in property is created, transferred or extinguished; |
||
"formalities" in relation to a disposition of property means any documentary or other actions required generally by the laws of a relevant jurisdiction for all dispositions of like form concerning property of like nature, without regard to - |
||
(a)
the fact that the particular
disposition is made to a foundation;
|
||
(b)
the terms of the
foundation;
|
||
(c)
the circumstances of the parties
to the disposition; or
|
||
(d)
any other particular
circumstances; but includes any special formalities required by
reason that the party effecting the disposition
is not of full age
or is subject to a mental infirmity.
|
||
"heirship right" means any right, claim or interest in, against or to property of a person arising, accruing or existing in consequence of, or in anticipation of, that person's death, other than any such claim, or interest created by will or other voluntary disposition by such person or resulting from an express limitation in the disposition of the property of such person; |
||
"personal relationship" includes every form of relationship by blood or marriage, including former marriage and in particular relationship between two persons which exists if - |
||
(a)
one is the child of the other,
natural or adopted, whether or not the adoption is recognized by
law, legitimate or illegitimate;
|
||
(b)
one is married to the other,
whether or not the marriage is recognized by law;
|
||
(c)
one cohabits with the other or
so conducts himself or herself in relation to the other as to give
rise in any jurisdiction to any
rights, obligations or
responsibilities analogous to those of parents and child or husband
and wife; or
|
||
(d)
personal relationship exist
between each of them and a third person,
|
||
but no change in circumstances cause personal relationship once establishment to terminate. |
||
"property" means moveable and immovable property; |
||
"founder" means a natural person who is the founder of a foundation and endows same with assets. |
||
(2)
This section applies to every
foundation and disposition of property to a foundation established
and existing in The Bahamas.
|
||
(3)
Subject to subsection (4), all
questions arising in regard to a foundation established and
existing under this Act or in regard to
any disposition of property
to it, including, without prejudice to the generality of the
foregoing, questions as to -
|
||
(a)
the capacity of the
founder;
|
||
(b)
any aspect of the validity of the
foundation or disposition or the interpretation or effect
thereof;
|
||
(c)
the administration of the
foundation, whether the administration be conducted in The Bahamas
or elsewhere, including questions as
to powers, obligations,
liabilities and rights of the governing bodies or supervisory
persons of the foundation and their appointment
and removal;
or
|
||
(d)
the existence and extent of
powers, conferred or retained by the founder, including powers of
variation or revocation of the foundation
charter and validity of
any exercise thereof,
|
||
shall be determined in accordance with the laws of The Bahamas, without reference to the laws of any other jurisdictions with which the foundation or disposition may be connected. |
||
(4)
Subsection (3) -
|
||
(a)
shall not validate -
|
||
(i)
any disposition of property
which is neither owned by the founder nor the subject of a power in
that behalf vested in the founder;
|
||
(ii)
any disposition of immovable
property situate in a jurisdiction other than The Bahamas in which
such disposition is invalid according
to the laws of such
jurisdiction;
|
||
(iii)
any testamentary disposition
which is invalid according to the laws of the testator's
domicile;
|
||
(b)
shall not affect the recognition
of foreign laws in determining whether the founder is the owner of
the property or is the holder
of a power to dispose of such
property.
|
||
(c)
shall take effect subject to any
express term of a disposition to the contrary; and
|
||
(d)
shall not affect the recognition
of foreign laws prescribing generally, without reference to the
existence or terms of the foundation,
the formalities for the
disposition of property.
|
||
(5)
Without limiting the
generality of subsection (3), it is hereby expressly declared that
no disposition of property to be held by a
foundation established
and existing under this Act is void, voidable, liable to be set
aside or defective in any manner by reference
to a foreign law; nor
is the capacity of any founder to be questioned nor is the
foundation or any beneficiary or other person to
be subjected to
any liability or deprived of any right by reason that -
|
||
(a)
the laws of any foreign
jurisdiction prohibit or do not recognize the concept of a
foundation; or
|
||
(b)
the disposition avoids or defeats
rights, claims or interest conferred by foreign law upon any person
by reason of a personal relationship
to the founder or by way of
heirship rights or contravenes any rule of foreign law or any
foreign, judicial or administrative order
or action intended to
recognize, protect, enforce or give affect to any such rights,
claims or interest.
|
||
(6)
An heirship right conferred by
foreign law in relation to the property of a living person shall
not be recognized as -
|
||
(a)
affecting the ownership of
immovable property in The Bahamas or movable property wherever
situate for the purposes of paragraphs (a)
and (b) of subsection
(4) or for any other purpose; or
|
||
(b)
constituting an obligation or
liability for the purposes of the Fraudulent Dispositions Act or
for any other purpose.
|
Ch. 78. |
|
(7)
A foreign judgement shall not
be recognized or enforced or give rise to any estoppel insofar as
it is inconsistent with subsection
(5) or subsection (6).
|
||
(8)
This section shall apply to
every disposition of property to a foundation made after the
commencement of this Act, whether such property
is situate in The
Bahamas or elsewhere.
|
||
69.(1)
A foundation shall not be
subject to any business licence fee, income tax, capital gains tax
or any other tax on income or distributions
accruing to or derived
from such foundation or in connection with any transaction to which
that foundation is a party.
|
Exemptions. |
|
(2)
The Exchange Control
Regulations Act shall not apply to a foundation registered under
this Act or to any transaction by a foundation,
provided such
foundation does not have any founders or beneficiaries who are
treated as residents for Exchange Control purposes.
|
Ch. 360. |
|
(3)
No estate, inheritance,
succession or gift tax, rate, duty, levy or other charge is payable
by a founder or beneficiary with respect
to any interest given to
or received from a foundation.
|
||
(4)
Notwithstanding any provision
of the Stamp Act, all instruments to which a foundation is a party
-
|
Ch. 370. |
|
(a)
relating to transactions in
respect of the assets of a foundation; and
|
||
(b)
relating to other transactions
concerning the business of a foundation,
|
||
shall be exempt from the payment of stamp duty, provided in the case of assets no Bahamian real property or personality is included in such assets. |
||
70.(1)
Where a foundation or an
officer of a foundation is in default under any provision of this
Act, an application may be made to the
Court by a founder, an
officer, the foundation council or some other supervisory person, a
beneficiary, or the Attorney-General specifying
the default and
seeking a remedy.
|
Default provisions. |
|
(2)
Where the Court is satisfied
that it is just and equitable in the circumstances to do so, it may
order the remedy sought, or may make
such other order as it sees
fit for the attainment of the objects of this Act and to obtain
compliance with this Act.
|
||
(3)
Where the order of the Court
under subsection (2) has the effect of granting the application, it
shall order that the costs of the
applicant in bringing the
application as well as the costs of the action shall be met -
|
||
(a)
where the application and the
order are in respect of default by the foundation, by the
foundation;
|
||
(b)
where the application and the
order are in respect of default by the foundation but, in the
opinion of the Court, the default was
the responsibility of an
officer, by that officer;
|
||
(c)
where the application and the
order are in respect of default by an officer, by that
officer.
|
||
71.
Where a foundation is
established either as a public foundation for charitable purposes
or by a corporate entity such a foundation
shall be subject to the
compliance provisions, mutatis mutandis provided for under the
provisions of this Act, the Financial Transactions
Reporting Act
and any other law designed to maintain The Bahamas as a reputable
international financial center.
|
Public Foundation or foundation created by a corporate entity. Ch. 369. |
|
72.
An officer, member of the
foundation council, other supervisory person or an auditor of a
foundation shall be guilty of an offence
punishable on summary
conviction by a fine of ten thousand dollars or imprisonment for
two years or both if he knowingly and with
intent to deceive
-
|
Offences. |
|
(a)
falsely represents the financial
position of the foundation to any person;
|
||
(b)
withholds information relating to
the financial position of the foundation or any other matter
regulated by this Act from any person
entitled to receive that
information; or
|
||
(c)
falsifies any document -
|
||
(i)
to be delivered under this Act
to the Registrar;
|
||
(ii)
required by this Act to be
prepared in respect of the foundation.
|
||
73.(1)
Where there is provision in
this Act for the service of notice on any person, the notice shall
be in writing and may be served in
person, by post, by fax or
electronically.
|
Notice. |
|
(2)
In respect of service -
|
||
(a)
in person, the date of service
shall be the date on which the notice was deposited at the address
last notified to the secretary of
a foundation by the person
entitled to receive service as his address for service or, where no
address has been so notified, the
last known address of that person
for the receipt of written communications;
|
||
(b)
by post, the date of service
shall be the fifth day following the day upon which the properly
addressed and stamped envelope containing
the notice was delivered
to the Post Office and service shall be at the address last
notified to the secretary of a foundation by
the person entitled to
receive service as his address for service or, where no address has
been so notified, the last known address
of that person for the
receipt of written communications;
|
||
(c)
by fax or electronic means, the
date of service shall be the date of transmission recorded by the
transmitter and the address shall
be the fax number or electronic
address last notified to the secretary of a foundation by the
person entitled to receive service
as his number or address for
receipt of fax or electronic communications.
|
||
74.(1)
There shall be paid to the
Registrar in respect of the several matters mentioned in
regulations made for this purpose the annual fee
and other fees
therein specified and, without prejudice to the generality of the
foregoing, a fee may be so specified in respect
of the performance
by the Registrar of any function under this Act, including the
receipt by him of any notice or other document
which under this Act
is required to be delivered to him and in the absence of the
specified fee being paid, the Registrar shall not
be required to
perform any function.
|
Fees. |
|
(2)
Provision may be made in
regulations in respect of supplementary fees payable where any
notice or document, which under this Act is
required to be
delivered to the Registrar within a specified time, is delivered to
him after the specified time.
|
||
(3)
The Registrar may charge a fee
for any services provided by him otherwise than in pursuance of an
obligation imposed on him by this
Act.
|
||
75.(1)
The Minister may make
regulations for the purpose of prescribing anything required or
permitted by this Act to be prescribed and,
without prejudice to
the generality of the foregoing, shall make provision by regulation
for -
|
Regulations and forms. |
|
(a)
matters in relation to
redomiciliation for the purpose of giving effect to section
51;
|
||
(b)
such provisions in relation to
the -
|
||
(i)
liquidation;
|
||
(ii)
winding up; and
|
||
(iii)
removal from and restoring to
the Register, of a foundation as may be necessary for the purpose
of giving effect to sections 52, 53,
54 and 55.
|
||
(c)
the fees payable under this Act
as provided by section 74; and
|
||
(d)
providing for such other matters
as are reasonably necessary for or incidental to the due
administration of this Act,
|
||
and such regulations may contain different provisions in respect of different matters and may make such transitional provisions as the Minister may determine. |
||
(2)
Where by this Act any person
is required to -
|
||
(a)
make an application;
|
||
(b)
deliver a document;
|
||
(c)
provide an extract; or
|
||
(d)
confirm or certify any
information,
|
||
to the Registrar he shall, subject to the provisions of this Act, do so in a form and, where appropriate, on a form approved for the purpose by the Registrar. |
||
(3)
Subject to the provisions of
this Act, any certificate or other document to be issued by the
Registrar shall be in a form approved
by the Registrar.
|
||
SCHEDULE |
||
COMMONWEALTH OF THE BAHAMAS |
||
1.(1)
This deed shall provide for
the formal establishment of a Foundation in the Commonwealth of The
Bahamas ("The Bahamas") under the
Foundations Act, 2004 ("the
Act").
|
Preliminary |
|
(2)
The Foundation Charter will
address all of the statutory requirements for creating a Bahamian
foundation.
|
||
(3)
Once the appropriate
application, statement, list, statutory declaration and fee have
been filed and accepted by the Registrar of
Foundations in The
Bahamas ("the Registrar"), the Registrar will issue a certificate
of registration.
|
||
(4)
The Charter will convey legal
status to the foundation from the date of such certificate.
|
||
(5)
The Charter will be subject to
the overriding provisions of the Act and any statutory
regulations.
|
||
2.
Upon proper application,
registration and the issuance by the Registrar of a certificate,
all in accordance with the provisions of
the Act, this Foundation
shall become a legal entity and shall be known as the
___________________ Foundation ("the Foundation").
|
Foundation Name |
|
3.(1)
The Founder of the Foundation
is __________ of __________.
|
Founder |
|
(2)
The aforementioned address
shall be the address for service of documents on the Founder.
|
||
4.(1)
The Registered Office of the
Foundation is located in the Island of New Providence in The
Bahamas at ___________________.
|
Registered Office |
|
(2)
The aforementioned address
shall be the address in The Bahamas for service of documents on the
Foundation.
|
||
5.(1)
The Secretary of the
Foundation shall be __________ of ___________________, Nassau, The
Bahamas.
|
Secretary |
|
(2)
___________________ is duly
licensed as a provider of financial and corporate services under
the Financial and Corporate Services
Providers Act, 2000, or as a
trust company under the Banks and Trust Companies Regulation Act,
2000.
|
||
6.
The Foundation is established
for an indefinite period.
|
Duration of Foundation |
|
7.(1)
The initial endowment to the
Foundation shall consist of the sum of Ten thousand dollars
($10,000.00), which has been transferred,
without consideration,
into the Foundation and which shall form the initial assets of the
Foundation. The Founder hereby certifies
that he is the owner of
the endowment with good, valid and marketable title which is free
and clear of all liens, charges, encumbrances
and any third party
claims of any nature whatsoever, and that all actions necessary to
pass title to the Foundation have been effectively
and properly
carried out.
|
Initial Endowment |
|
(2)
Upon the vesting of assets in
the Foundation, such assets shall become the sole property of the
Foundation, shall no longer be the
property of the Founder and
shall not become the property of any Beneficiary unless distributed
in accordance with the provisions
of this Charter or the Articles
(if any).
|
||
(3)
The endowment of supplementary
assets, in addition to the initial assets, is hereby authorized,
provided, however, that any such further
endowment or endowments,
must be accepted by the unanimous approval of the Officers or the
Foundation Council.
|
||
8.(1)
The assets transferred by the
Founder, and now being the assets of the Foundation, shall be
managed, including being realized, applied,
administered, invested
and disbursed for the following purposes -
|
Objects |
|
(a)
to engage in any act, activity,
purpose or object, which is not unlawful, immoral or contrary to
any public policy in The Bahamas
or prohibited under the terms of
this Charter; and
|
||
(b)
to make gifts of its income
and/or capital as the Foundation's Officers may by unanimous
resolution determine after the Foundation
Council (if any) has
approved such gifts.
|
||
(2)
A purpose or object of the
Foundation may but need not be charitable.
|
||
(3)
The Foundation may not -
|
||
(a)
carry on any activity otherwise
prohibited in or from within The Bahamas; or
|
||
(b)
carry on in or from within The
Bahamas any activity in respect of which a license or authorization
under any statute or regulation
is required and no such license or
authorization has been granted to the Foundation.
|
||
(4)
The Foundation may in the
course of the management of its assets do such things as are
necessary for their proper administration,
including but not
limited to, buying and selling of such assets and engaging in any
other acts, activities or investments that are
not prohibited under
any law for the time being in force in The Bahamas, but such acts
and activities shall be ancillary or incidental
to its main purpose
or purposes.
|
||
9.(1)
The Foundation, acting through
the Officers or any other governing body, shall have such powers as
are permitted by law for the time
being in force in The Bahamas,
irrespective of Foundation benefit, and may perform all acts and
engage in all activities necessary
or conducive to the conduct or
attainment of the objects of the Foundation.
|
General Foundation Powers |
|
(2)
Except as otherwise provided
in the Articles (if any) or the Act, the Officers of the Foundation
shall act either by a simple majority
of the Officers present at an
ordinary meeting of the Officers or unanimously by the circulation
of a written document duly signed
by each Officer in lieu of a
meeting.
|
||
(3)
A party to a transaction with
the Foundation is not bound to inquire as to whether the
transaction is permitted under this Charter
or the Articles (if
any) or as to any limitation of the Officers to bind the
Foundation.
|
||
10.(1)
The Founder shall, before
registration, and as a statutory requirement to achieve legal
status for the Foundation, appoint one or
more persons who shall
satisfy the requirements and comply with the restrictions under the
Act, to be Officers of the Foundation,
one of whom shall be the
Secretary. The Founder may appoint such other initial Officers
before registration as the Founder may determine,
including one or
more assistants to any of the initial Officers so appointed.
Subsequent appointments of Officers or the filling
of vacancies
shall be dealt with in accordance with the Articles (if any).
|
Officers |
|
(2)
The duties and terms of office
of the Officers, including, but not limited to, the specification
of matters concerning their removal,
period of office, meetings and
representative authority of the Officers may be established under
the Articles (if any) of the Foundation.
Failing that, then such
duties and terms of office will be established at any time after
registration by a resolution of the Foundation
Council (if any) at
its sole discretion.
|
||
(3)
A document purporting to be a
copy of a resolution of the Officers or any extract from the
minutes of a meeting of the Officers which
is certified as such in
accordance with the Act shall be conclusive evidence in favour of
all persons dealing with the Foundation
upon the faith thereof that
such resolution has been duly passed or, as the case may be, that
such extract is a true and accurate
record of a duly constituted
meeting of the Officers.
|
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11.(1)
The Founder may, by a
memorandum in writing, before registration, appoint a person or
committee of persons to serve as a Foundation
Council to the
Foundation. In the absence of the Founder's appointment of a
Foundation Council, the Officers may appoint a Foundation
Council.
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Foundation Council |
|
(2)
The duties and terms of office
of the Foundation Council, including, but not limited to, the
specification of matters concerning their
removal, period of
office, meetings, remuneration and representative authority of the
Foundation Council, may be established' under
the Articles (if any)
of the Foundation or failing that then such duties and terms may be
established at any time after registration
by a resolution of the
Officers at their sole discretion.
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12.(1)
The initial and remaining
Beneficiary or Beneficiaries, and any supplementary Beneficiary or
Beneficiaries of this Foundation may
be those persons as designated
in the Articles (if any). Failing that, the Officers shall by
resolution, with the prior written consent
of the Foundation
Council, or failing the appointment of any Foundation Council, then
the Officers at their sole discretion, may,
select the initial and
remaining Beneficiary or Beneficiaries, and may select any
supplementary Beneficiary or Beneficiaries of the
Foundation
following registration.
|
Beneficiaries |
|
(2)
The rights and restrictions of
the Beneficiaries may be those as stipulated within the Articles
(if any) of the Foundation. Failing
that, the Officers, with the
prior written consent of any Foundation Council, or if there is no
Foundation Council, then the Officers
at their sole discretion will
establish the rights of any Beneficiary or Beneficiary by
resolution.
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||
13.(1)
The rights of the Founder in
respect of the formation of the Foundation shall not devolve upon
his successors in title or assigns.
|
Reservation of Founder Rights and Obligations |
|
(2)
Any person who shall endow
assets to the Foundation after its registration shall not thereby
acquire the powers of the Founder.
|
||
(3)
If, for whatever reason, the
Founder shall not have endowed the assets to the Foundation as
provided for herein either before or after
registration, then the
Foundation may enforce that endowment against the Founder.
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||
(4)
The Founder reserves the
following rights and powers prior to registration -
|
||
(a)
to appoint the initial Officer(s)
of the Foundation; and
|
||
(b)
to appoint a Foundation
Council,
|
||
and following registration, the Founder reserves the power to direct the investment activities of the Foundation. |
||
14.
The Foundation shall be
resident and domiciled in The Bahamas. For so long as the
Foundation is resident and domiciled in The Bahamas,
the proper law
of the Foundation is the law of The Commonwealth of The Bahamas and
its validity, construction and all rights hereunder,
are to be
governed by the laws of The Commonwealth of The Bahamas.
|
Residence and Governing Law |
|
15.(1)
The Foundation may at any time
after registration change its name or amend or modify this Charter
in any manner whatsoever, provided
that such changes or amendments
or modifications are consistent with the provisions of the Act and
provided that the certain procedures
set out in sub-paragraph (2)
are adhered to.
|
Amendment of Charter |
|
(2)
The procedure referred to in
sub-paragraph (1) is as follows -
|
||
(a)
the Founder or the Officers shall
convene a meeting of the Founder (if remaining), the Officers, the
Foundation Council (if any) or
any other supervisory person, in
accordance with the provisions for calling the Annual Meeting of
Officers as stipulated under Section
35 of the Act; and
|
||
(b)
the resolution for amendment or
modification of this Charter shall be adopted only if agreed to by
the Founder, if still alive, and
by all the Officers and by the
Founder Council (if any) or all other supervisory persons.
|
||
(3)
In the event that the founder
is no longer alive, the the Foundation Council may resolve to make
such amendments or modifications
as are necessary in the
circumstances to maintain the objects of the Foundation and shall
submit the resolution to the Supreme Court
of The Bahamas for
approval.
|
||
(4)
Where an amendment or
modification of the Charter has been made an application may be
made to the Court by the Founder, any single
Officer, the
Foundation Council (if any) or any other supervisory person or an
auditor, to have the amendment or modification cancelled,
provided
that no such person shall have already voted in favor of the
amendment or modification. Such an application must follow
the
procedures as stipulated under Section 50 (12) of the Act.
|
||
16.
The Foundation Charter may
only be revoked by the Founder.
|
Revocation |
|
17.
The making of Foundation
Articles is permitted but shall not be required.
|
Articles |
|
18.
The Foundation will have a
Seal, the safe custody of which shall be provided for by the
Officers. The procedures as to the proper
use of the Seal may be
provided for under the Articles (if any) or, failing that, the
Officers will by resolution establish such
procedures and imprint
of the Seal shall be kept at the Registered Office.
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Seal |
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19.
Any notice or document that
must be served on the Foundation may be served either by hand
delivery or by sending it through the post
in a prepaid letter, or
by fax or electronically, addressed to the Secretary of the
Foundation at the Registered Office of the Foundation.
In respect
of the manner, effectiveness and time of service, the provisions of
the Act shall apply.
|
Notices |
|
IN WITNESS WHEREOF, the Founder has hereunto set his hand for the purpose of forming a Foundation under the laws of the Commonwealth of The Bahamas on this the ______________ day of ___________________, 20______. |
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_________________________ |
||
Signed, by the Founder in the presence of:- |
||
________________________ |
||
the Secretary or Notary Public |
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URL: http://www.commonlii.org/bs/legis/num_act/fa2004148