Company Amalgamation in Guernsey – Which Companies, When and How?

• Amalgamation is an extremely useful process allowing two or more companies to merge

• It provides an efficient method of rationalising group structures, or for effecting mergers or takeovers

• This guide summarises the two procedures available under Guernsey's Companies Law to effect an amalgamation

It provides an alternative mechanism for implementation of a merger or takeover other than by way of a scheme of arrangement or otherwise. It can be an efficient method of rationalising group structures, particularly post acquisition of one group by another, which may lead to duplicated and dormant companies within a group.

The process by which two or more companies can amalgamate is set out in Part VI of the Companies (Guernsey) Law, 2008 (as amended) (the "Law"), in sections 60 – 74A.

The Law authorises two or more corporate bodies to amalgamate (the "Amalgamating Companies") and thereafter to continue as one corporate body. The continuing company (the "Amalgamated Company") may be either of the Amalgamating Companies, or a new company entirely.

The Law makes it possible for corporate entities of different types to amalgamate (provided that at least one of the amalgamating bodies is a Guernsey registered corporate entity) and accordingly, the amalgamating entities may be any of the following:

• protected cell companies;

• incorporated cell companies;

• incorporated cells of the same incorporated cell company; or

• non-cellular companies.

This also applies to the equivalent corporate bodies in jurisdictions outside Guernsey.

The Law provides for a "long-form" amalgamation procedure and a "short-form" procedure. Further details of each procedure are set out below.

Long-Form Amalgamation

An amalgamation proposal (the "Proposal") must be prepared which sets out the proposed terms of the amalgamation and in particular:

• the proposed name of the Amalgamated Company;

• the type of company it will be;

• its registered office;

• the particulars of its directors;

• if the Amalgamated Company is to have a share capital, details of:

• the shares;

• the aggregate value of the shares;

• the amount to be paid and unpaid on the shares;

• the rights attaching to the shares; and

• if there is to be more than one class of share, those details in respect of each class of shares;

• details of how the interests and liabilities of the existing members of the Amalgamating Companies will be converted in relation to the Amalgamated Company or, if these won’t be converted, the consideration that the members will receive in relation to their interests and liabilities;

• details of any other payments to be made to existing members or directors of either of the Amalgamating Companies; and

• details of any other arrangements necessary to complete the amalgamation.

The Proposal must also set out the date on which it is intended to take effect.

If the shares of one of the Amalgamating Companies are held by, or as nominee for, one of the other Amalgamating Companies, the Proposal must provide for the cancellation of those shares without payment or other consideration, as and when the amalgamation becomes effective. These shares cannot be converted into shares of the Amalgamated Company.

The directors of each of the Amalgamating Companies must reach the view that the amalgamation is in the best interests of that company. Further, the directors must be satisfied on reasonable grounds that, immediately following the proposed amalgamation, the Amalgamated Company will satisfy the solvency test (ie the Amalgamated Company will be able to pay its debts as they become due and the value of the Amalgamated Company's assets will be greater than the value of its liabilities).

The directors must record their resolution on these matters in a signed certificate (the "Solvency Certificate") which sets out these matters and, in particular, the directors’ grounds for their opinion on solvency. Under the Law, this solvency assessment requires the preparation of consolidated accounts for the Amalgamated Company, prepared on the presumption that the amalgamation has taken place.

The directors of each of the Amalgamating Companies must then give copies of the following documents to each member, not less than 28 days before the proposed amalgamation date:

• the Proposal;

• the Solvency Certificate;

• a summary of the principal provisions of the proposed memorandum and articles of incorporation (or a full copy of the memorandum and articles of incorporation) of the Amalgamated Company (the "Memorandum and Articles");

• a statement that, where the Memorandum and Articles have not been provided, a copy will be sent to those members who request it;

• a statement of the material interests of any of the directors or officers in the Proposal; and

• such further information as is necessary for the relevant member to understand the nature and implications for the Amalgamating Company and its members of the proposed amalgamation.

The directors of each Amalgamating Company must give every creditor of that company at least 28 days’ notice of the proposed amalgamation.

Copies of the Proposal must be available for inspection by members or creditors, or any other party to which an Amalgamating Company is under any obligation or liability, at the registered office or any other place specified by the directors during business hours. Such persons must be provided with copies of the Proposal free of charge, if and when requested.

The Proposal must be approved (the "Approval") by:

• a special resolution of the members of each of the Amalgamating Companies (requiring 75% of the voting members’ approval); and

• where the Amalgamating Company is required by its Articles to obtain the consent of a particular class of members, a special resolution of that class.

A special resolution in the context of the above provisions means, in relation to an overseas company, such resolution of the overseas company or such other action on the part of the overseas company or its members as the Registrar of Companies (the "Registrar") shall certify in writing as being equivalent to a special resolution of a company.

Short-Form Amalgamation

There is also a short-form amalgamation procedure available under the Law. This simplified procedure is only available in two specific instances. The first is where a subsidiary wishes to amalgamate with its parent, with the parent continuing as the Amalgamated Company.

The second is where two or more "sister" companies wish to amalgamate (ie where each company is a wholly-owned subsidiary of the same parent company).

Further, the short-form amalgamation process is only available where:

• each Amalgamating Company is a body corporate limited by shares, and at least one of them is a Guernsey company; and

• the amalgamation is approved by a resolution of the directors of each of the Amalgamating Companies, with those resolutions confirming that:

• all shares in each of the Amalgamating Companies will be cancelled (other the shares in the Amalgamated Company), without payment or other consideration;

• the memorandum and articles of incorporation for the Amalgamated Company shall be the same as those of the parent company (for a parent-subsidiary amalgamation) or the continuing "sister" company; and

• the directors are satisfied on reasonable grounds that the Amalgamated Company will satisfy the solvency test immediately after the amalgamation becomes effective.

Where companies wish to amalgamate using the short-form procedure:

• the directors of each Amalgamating Company shall give its creditors 28 days’ notice of the proposed amalgamation;

• the resolutions approving the amalgamation shall, taken together, constitute an approved Proposal (that is, there is no need to prepare a full proposal document and to obtain shareholder approval to the amalgamation – the resolutions of the directors of each Amalgamating Company are sufficient);

• the directors of each Amalgamating Company must sign a Solvency Certificate; and

• copies of the resolutions constituting the Proposal must be available for inspection by members or creditors, or any other party to which the Amalgamating Company is under any obligation or liability, at the registered office or any other place specified by the directors during business hours, with copies of the resolutions provided free of charge, if and when requested.

Provisions applicable to both Long-Form and Short-Form Amalgamations

Obtaining the Commission's Consent

The consent of the Guernsey Financial Services Commission (the "Commission") will be required where any of the Amalgamating Companies are:

• a supervised company;

• a cell company;

• an incorporated cell; or

• an overseas company.

The Commission can impose specific terms and conditions on the amalgamation and generally reserves the right to vary or revoke these terms and conditions or to impose new terms and conditions. If the Commission's consent is required to the amalgamation, the application for the Commission's consent must contain:

• the Proposal (and the Approval, if the amalgamation is a long-form amalgamation);

• the Solvency Certificate;

• a Declaration of Compliance (Amalgamation) (the "Declaration"), which is a declaration by a director that all requirements of the Law have been fulfilled;

• a copy of the Memorandum and Articles;

• the proposed name of the Amalgamated Company;

• where the claims of creditors in the Amalgamated Company will be greater proportionately than the creditors' claims were in respect of one or more of the Amalgamating Companies, a statement confirming that the creditors of the relevant Amalgamating Companies will not be prejudiced by the proposed amalgamation;

• a document confirming the consent of the proposed directors of the Amalgamated Company to act;

• any other information or documents which the Commission may require; and

• the fee prescribed by the Commission (set out below).

Application to the Registrar

Once the consent of the Commission has been obtained (if required), an application must be made to the Registrar attaching the Commission's consent, the Declaration, the relevant fee (set out below) and (where the Amalgamated Company is to be a new company) providing the details required for incorporation of a new company. The form of the amalgamation application can be found on the Guernsey Registry's website.

Upon receipt of an application, or at any time before such receipt where the Registrar has been informed in writing by the directors of each of the Amalgamating Companies that an application for the proposed amalgamation will be made, the Registrar will give notice of the proposed amalgamation in such manner and for such period as he thinks fit (usually 28 days). The notice will include a statement that information concerning the amalgamation can be obtained from the Amalgamating Companies. The ability for the Registrar to give notice in advance of receiving the full application allows the amalgamation process to be significantly accelerated, and unless there are sensitivities surrounding the public becoming aware of the amalgamation, we would recommend making the advanced notification to the Registrar as soon as possible.

If the Registrar approves the application, he will then issue a certificate of amalgamation and make the necessary changes in the Register of Companies. The Registrar must not issue a certificate of amalgamation until at least 28 days have passed since the date that the Registrar gave notice of the amalgamation. The amalgamation becomes effective on the date set out in the certificate (which may be a date later than the end of the 28 day notice period but not earlier).

Power of the Royal Court to intervene

Where the Royal Court of Guernsey is satisfied that the implementation of an amalgamation proposal would unfairly prejudice a member or creditor of an Amalgamating Company, or any other person to whom an Amalgamating Company is under any obligation or liability, it may at any time before the effective date of the amalgamation (or at any other time as the Court may allow) make such order as it thinks fit. Such order could include directing that effect will not be given to the Proposal, modifying the Proposal or directing the directors to reconsider the Proposal.

The effect of an Amalgamation

As a matter of Guernsey law, upon amalgamation:

•  all property, rights, debts, contracts and obligations of the Amalgamating Companies immediately prior to amalgamation become property, rights, debts, contracts and obligations of the Amalgamated Company;

• all actions and other legal proceedings which could have been instituted or continued by or against the Amalgamating Companies may be instituted or continued by or against the Amalgamated Company; and

• a conviction, ruling, order or judgment in favour of or against the Amalgamating Companies may be enforced by or against the Amalgamated Company.

The Law also specifies that an amalgamation shall not be regarded as:

• a breach of contract or confidence or otherwise as a civil wrong;

• a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of rights or liabilities; or

• giving rise to any remedy, by a party to a contract or other instrument, as an event of default under any contract or other instrument or as causing or permitting the termination of any contract or other instrument or of any obligation or relationship.

Fees

The relevant fees (as at 1 January 2025) are as follows:

• £2,950 payable to Commission (if consent required)

• £1,000 payable to Registrar (per amalgamation)

The information contained in this guide is necessarily brief and general in nature and does not constitute legal or taxation advice. Appropriate legal or other professional advice should be sought for any specific matter.