Companies Act (2022 Revision) of the Cayman Islands (the “Law“).
Registration on transfer by way of continuation (“Transfer BWOC“).
Authority to which application for Transfer BWOC must be submitted
The Registrar of Companies (“ROC“)
P.O. Box 123
Grand Cayman KY1 – 9000
Tel: +1 (345) 946-7922
Pre-requisites of non-Cayman entity for Transfer BWOC
An entity wishing to transfer to Cayman as an exempted company limited by shares (the “Transferring Entity”) must:
- be a body corporate, incorporated, registered or existing with limited liability;
- have a share capital; and
- be incorporated, registered or existing in a jurisdiction (the “Relevant Jurisdiction“) whose laws permit or do not prohibit the Transfer BWOC of the Transferring Entity.
On registration the ROC must be satisfied that the Transferring Entity is constituted in or substantially in a form which could have been incorporated as an exempted company limited by shares under the Law.
Conditions for Transfer BWOC
- The name of the Transferring Entity must be acceptable to the ROC otherwise the Transferring Entity must undertake to change the name within 60 days of registration.
- Payment of the registration fee (see section “Fees“).
- Filing with the ROC, notice of the address of the proposed registered office of the Transferring Entity in Cayman.
- ROC must be satisfied that it is not against the public interest to register the Transferring Entity.
- Issue of any licence which the Transferring Entity may be required to hold to carry on its business in or from Cayman.
Documents to be delivered to ROC with an application for Transfer BWOC
- Certified copy of the Transferring Entity’s certificate of incorporation or formation or equivalent document, issued by the relevant authority in the Relevant Jurisdiction (the “Relevant Authority“);
- Certificate of good standing for the Transferring Entity issued by the Relevant Authority OR director’s declaration that the Transferring Entity is in good standing;
- Certified copy of the constitutional documents (howsoever called) of the Transferring Entity as required to be filed in the Relevant Jurisdiction;
- List of names and addresses of the directors and officers of the Transferring Entity;
- Declaration by a director that the Transferring Entity’s operations will be conducted mainly outside the Cayman Islands;
- Undertaking by a director that notice of the transfer will be given to all secured creditors within 21 days; and
- Declaration or affidavit by a director (which shall include a statement of assets and liabilities of the Transferring Entity) that, having made due enquiry, the director is of the opinion that:
- no petition or other similar proceeding has been filed and remains outstanding or order made or resolution adopted to wind up or liquidate the Transferring Entity in any jurisdiction;
- no receiver, trustee, administrator or other similar person has been appointed in any jurisdiction and is acting in respect of the Transferring Entity, its affairs or its property or any part thereof;
- no scheme, order, compromise or other similar arrangement has been entered into or made in any jurisdiction whereby the rights of creditors of the Transferring Entity are and continue to be suspended or restricted;
- the Transferring Entity is able to pay its debts as they fall due;
- the application for registration is bona fide and not intended to defraud existing creditors of the Transferring Entity;
- any consent or approval to the transfer required by any contract or undertaking entered into or given by the Transferring Entity has been obtained, released or waived, as the case may be;
- the transfer is permitted by and has been approved in accordance with the charter documents of the Transferring Entity;
- the laws of the relevant jurisdiction with respect to transfer have been or will be complied with; and
- the Transferring Entity will, upon registration hereunder, cease to be incorporated, registered or exist under the laws of the relevant jurisdiction.
On payment of a fee, a Transferring Entity may apply to be provisionally registered where it satisfies the requirements other than:
- third party consents, corporate approvals or notices to creditors;
- compliance with the laws of the Relevant Jurisdiction with respect to the transfer;
- the grant of any business licence;
- Transfer is permitted and approved by the charter documents of the Transferring Entity; and
- the application is not intended to defraud creditors.
A Transferring Entity which is provisionally registered must in January of each year pay a fee and file a director’s declaration or affidavit with ROC as regards its’ solvency and constitutional form.
On registration the ROC will issue a certificate of registration by way of continuation as an exempted company and enter the Transferring Entity in the Register of Companies. The Transferring Entity shall thereafter continue as a body corporate for all purposes as if incorporated and registered as an exempted company under and subject to the Law.
The Transfer BWOC to Cayman will not operate to:
- create a new legal entity;
- prejudice or affect the identity or continuity of the Transferring Entity as previously constituted;
- affect the property of the Transferring Entity;
- affect any appointment made, resolution passed, or any other act or thing done in relation to the Transferring Entity pursuant to a power conferred by any of the charter documents of the Transferring Entity or by the laws of the jurisdiction under which the Transferring Entity was previously incorporated, registered or existing;
- except to the extent provided in the Law, affect the rights, powers, authorities, functions and liabilities or obligations of the Transferring Entity or any other person; or
- render defective any legal proceedings by or against the Transferring Entity and any legal proceedings that could have been continued or commenced by or against the Transferring Entity before its registration.
Post registration Requirements
If the constitutional documents of the Transferring Entity do not comply with Cayman law the Transferring Entity must amend them within 90 days following registration.
Registration and Annual Fees
The fee on registration and annual fees are charged by reference to authorised capital. The minimum fee is US$731.71 for authorised capital under US$50,000 and the maximum is US$3,009.76 for authorised capital exceeding US$2 million.
The provisional registration fee is approximately US$1,830 and the annual fee for a provisionally registered company is US$1,220.
 Only applicable where certificates of good standing not issued by the authority.
This note has been provided as a general guide only and should not be relied upon as a substitute for specific legal advice. If you would like further information on any aspect of this note or on any other Cayman Islands legal issue, please contact:
D. +1 345 815 2807