Pre-incorporation Considerations

Company versus A Business Company

has separate legal personality more formalities (paper work, cost, legal fees, etc) stringent reporting requirements under the Companies Act 2004 increased responsibilities for directors under the Companies Act 2004

Business
does not have separate personality from the owner(s) less formalities No reporting requirements to the REGISTRAR OF COMPANIES, however the entity still has other reporting requirements, for example the tax authorities. must be renewed every three years.

Other considerations

Membership/ Ownership Company

One or more persons may now form a company. The company formed may be limited by shares, limited by guarantee or unlimited, and may be public or private. The most common form of company is a private company which is limited by shares.

Business

A Business may be owned by a single individual ( sole proprietorship) A partnership can exist with two or up twenty persons A limited Company can apply to own a business

Registration of a Business Requirements at Registration

Completed Business Names Application form TRN card of each applicant Justification of proposed name where applicable

Relevant certification e.g. from Pharmacy Council of Jamaica Verification of Address of applicant Proof of nationality if applicant is not a citizen of the CSME.

Certificate of Registration

Certificate of Registration must be prominently displayed place of business

Changes to the Business

The Registrar must be notified of any changes that are made to the structure of the business. Three or more major changes to the business would require the closure of the business and a new business opened

Failure to report changes to the Registrar can result in prosecution

Closing a Business

Business Name certification is valid for three years Cost of closing the business is $600, however if the registration has expired the business must first be brought up to date and a late fee of $1000 paid. Closure is immediate.

While the forms have been simplified tremendously it is still recommended that persons get some form of legal advice about the legal implications of forming a company.
INCORPORATION UNDER THE COMPANIES ACT 2004

Before registering a company, you must choose a company name . A name search should be done on that name at the Companies Office of Jamaica to ensure that it is available. It is also possible to reserve the name of your company for up to Ninety (90) days before incorporation. This ensures that no other company can be registered with that name within the period of your reservation. The following documents must be submitted: 1. The Articles of Incorporation (Form 1A or 1B) which will contains the following information: (a) (b) (c) (d) (e) (f) The Name of the Company, which must include Limited as the last word of the name in the case of a Company limited by shares or by guarantee. The registered address of the company which must be situated in Jamaica; In the case of a Company having a share capital, the classes of shares, and the maximum number of shares the Company is authorized to issue; Restrictions, if any, on share transfers; Minimum and/or maximum number of Directors; Any restrictions on the business that the Company may carry on.

The Articles must be stamped at the Stamp Duty and Transfer Tax Department (111 Harbour Street , Kingston) 2. A Declaration of Compliance (Form 2) This is a Declaration by an Attorney-at- law or Chartered Secretary engaged in the formation of the company or a Director or Secretary named in the Articles of Incorporation, stating that all the requirements of the Companies Act 2004 were adhered to when the Articles of Incorporation were being prepared. It may be signed by (a) A Director or Secretary of the Company

(b)An Attorney-at-Law or Chartered Secretary engaged in the formation of the Company. and must be witnessed by a Justice of the Peace

3. A Registered Office Notice (Form 17) This document records the Registered or Legal Address of the Company. These documents are then examined to ensure that they are fully and accurately completed. If the documents are in order, then a Certificate of Incorporation is issued within five working days.

NAME RESERVATION Under the Companies Act 2004, it became possible for a company to reserve a name for up 90 days before it is actually registered. The advantages of name reservation include 1. Establishing that the name can be used 2. Protecting the name from use by others 3. Allowing company to use the name for pre-incorporation contracts with certainty Procedure In order to access this service, you will need to complete and submit a COMPANIES NAME SEARCH AND NAME RESERVATION FORM (form 6) at the Companies Office of Jamaica. The fee is $ 2,500.00. Upon completion of the process, you will be issued with a letter advising that the name is reserved for a period of Ninety days. Pointers for choosing a name 1. The Registrar of Companies has the right to refuse any name which likely to cause confusion with another name already on the Register of Companies. 2. Names containing obscene language or indicating an illegal activity will also be refused 3. Names implying connection with Royalty, or a Political Party must be justified 4. Certain names e.g. containing Engineering Pharmacy Medical e.t.c. must also be justified

During a Companys life, it is required to file certain documents to ensure compliance with the Companies Act. Each of these documents will attract late filing fees if they are not filed within the time specified by Act. Continued default in filing may lead to prosecution, suit or disqualification of the companys officers.

IMPORTANT DOCUMENTS FILED AT THE COJ Particulars of Directors or any change therein (Form 23) When? This document must be submitted to the Companies Office of Jamaica within fourteen (14) days of the incorporation of a Company or of any change in the Particulars of the Directors Why? It is important that the particulars of Directors of a company be filed with the Companies Office because i) Persons doing business with the company can ascertain who is capable of entering into transactions on behalf of the company. The liability of officers of the company at various points in time can be determined Persons wishing to contact the company will be able to identify the persons to whom communications to the company may be addressed.

ii) iii)

Notice of Appointment of Company Secretary (Form 20) When? This document must be submitted to the Companies Office of Jamaica within fifteen (15) days of the incorporation of a Company or of any change in the Company Secretary Why? It is important that the Notice of Appointment or Change of Company Secretary of a company be filed with the Companies Office because i) The Secretary of a Company is an officer of the company, whose appointment must form a part of the companys records.

The liability of officers of the company at various periods of time can be determined iii) Persons wishing to contact the company will be able to identify the persons to whom communications to the company may be addressed Who can file? This document must be signed by an existing Director / Authorized Official of the Company

ii)

Registered Office Notice ( Form 17) When? This document is filed along with the documents for incorporation. Changes in the address of the Registered Office must be filed within fourteen (14) days of the change Why? It is important that the Registered Office Notice of a company be filed with the Companies Office because Interested investors and members of the public can find out where to locate and/or contact the company ii) All communications and notices should be sent to the Registered Office of the company. In fact, a company is deemed to have received any correspondence which is sent or delivered to the address recorded at the Companies Office of Jamaica as the Registered Office of a Company Annual Returns ( Form 19 A or Form 19B) When? This document should be made up to a date on or before the anniversary of the incorporation of a company if the company is filing returns for the first time. The annual returns should be made up to a date on or before the anniversary of the last return filed in the case where previous returns have been filed. The company has 28 days from the date to which the return is made up before the return becomes overdue. Why? It is important that the Annual Returns of a company be filed with the Companies Office because i)

i) ii)

The Annual returns are important in identifying changes in the ownership or management of a company during the period for which the return is made These returns are also important in identifying changes in the value of shares and share transactions during the period for which the return is made.

* Companies limited by Guarantee must file Financial Statements along with their Annual Returns All Public Companies and other Companies, which meet certain criteria set out by the Act are also required to file Audited Financial Statements along with their Annual Returns All Companies whose names appear on the register of companies are required to comply with the statutory obligations under the Companies Act whether or not the company is actively doing business. Where a company has stopped doing business and wishes to be removed from the register, the procedure for removal may be followed. REMOVAL For removal of a company, you will need to do the following 1. File all outstanding documents 2. Present a letter from a Director of the Company requesting that the company be removed from the register 3. Present a letter from the Companies Auditors confirming that the company has neither assets nor liabilities 4. Pay the removal fee of Three Thousand Dollars and the Advertisement fee of One Thousand Five Hundred Dollars N.B. If the company still has assets and /or liabilities, you must proceed by way of Liquidation. RESTORATION If a company which has been removed from the register of companies wishes to be restored, it may apply to the Registrar of Companies to be restored. The company must fulfill the following requirements

1. The company must have been removed from the register within the last Twenty (20) years 2. The application should be made by a a) A company aggrieved by the removal b) A member of the removed company c) A creditor 3. The company should be able to show that a) It was carrying on business or in operation at the time of striking off b) It is just and equitable for the company to be restored to the Register 4. Upon submitting the application, the applicant will be given a date for a hearing to be held. 5. When the hearing has been conducted, if the Registrar is satisfied that the company fulfils the requirements for restoration, a restoration order will be granted. N.B. when a company has been restored, it is deemed to have continued in existence as if it had never been struck off

DOCUMENTS ISSUED BY THE COMPANIES OFFICE Certificates of Incorporation and Registration What are Certificates of Incorporation and Registration? These are the most important documents supplied by the Companies Office of Jamaica. For companies, the certificate of incorporation brings the company into existence and proves that it was created. For Business Names, the Certificate of Registration of Business Name shows that you have registered your business and your ownership of that business. Who requires these documents? Banking and other institutions, Other Government bodies and persons wishing to enter into business with companies will request these documents to verify the registration of your company or business.

Certified copies What is a certified copy? A certified copy is a copy of a document certified to have been filed with the Companies Office of Jamaica.

Who requires these documents? Banking and other institutions, Other Government bodies and persons wishing to enter into business with companies often request these documents. Why are they necessary? Copies of documents registered with the COJ are required to substantiate important information about the Company e.g. the persons authorized to act as Directors or other officers How are these documents certified. The Companies Office began using security paper in 2005. Certified copies of documents are now printed on this paper. The paper has a number of validation features, including a tampersafe hologram which changes when viewed at different angles and touchsafe which causes the word valid to appear when touched. a. Uncertified Copies From time to time, persons may want copies of documents filed at the COJ but do not need for these copies to be certified (for example, where someone has lost their file copy of a document filed by them, or needs information for their own use). Uncertified copies may be obtained from the COJ. NB. The COJ does not issue uncertified copies of Incorporation and Business Registration Certificates. Letters of Good standing What is a letter of Good standing? A letter of Good standing is a document that certifies that a company has satisfied all filing requirements and is is compliant with the Companies Act,

Who normally needs these documents? Banking and other institutions, and persons wishing to enter into business with companies often request these documents. Why are they necessary? These documents show that the company has fully complied with the requirements of the Act

Confirmation for Titles office What is a Confirmation for Titles Office? This is a certificate indicating that the Company is a registered company and has not been struck from the Register of Companies Who normally needs these documents? The Titles Office requires this document before a Company will be allowed to transfer land held by it. Why is it necessary? The Titles Office requires confirmation that the company still exists as a legal entity before any land transaction involving the company can be completed. A company that has been struck off the register no longer exists in law and as such, does not have the power to hold assets and cannot effect a transfer. Such a company must be restored to the register before it can complete a transaction such as the sale of land. Extracts from the Records In some cases, what the customer needs, rather than copies is a letter indicating that a particular document or

documents have been filed or confirm a particular piece of information. Such a letter may also be obtained.

What you cant get at the COJ 1. The COJ is not authorized to issue Copies of TRN numbers 2. Correspondence between any company and the COJ does not form a part of the public record, and copies will not be provided. 3. Copies of documents for companies which have been struck from the Register: once a company is removed from the Register of companies, copies of the various documents which it may have lodged are no longer available 4. Uncertified copies of Certificates of Incorporation and Business Registration Certificates. N.B. Documents to be certified by the COJ must be copied by the COJ from the original record. The COJ will not certify copies presented by a customer.