Wealth Management Services Ltd.- Antigua & Barbuda Managment

LLC ACT XIV

Part I

Part II

Part XIV - Miscellaneous

91. Confidentiality
92. Permissible disclosure of confidential information
93. Maintenance of confidential nature of information
94. Series of members, managers or limited liability company interests
95. Savings provisions
96. Translations
97. Regulations
98. Certificate of good standing
99. Form of certificate
100.Directions for commission
101.Appeal from decision of commission

PART XIV - MISCELLANEOUS

91. Confidentiality

(1) Except where this Act otherwise provides or pursuant to an order of a court in Antigua and Barbuda, no person shall disclose any of the documents referred to in subsection (2), their contents or the information contained in them relating to the establishment, administration, maintenance, business undertaking, affairs or property of the limited liability company to any other person.
(2) The documents referred to in subsection (1) are
- (a) a limited liability company operating agreement or management agreement, and a document relating to such an agreement;
- (b) a document relating to the exercise or proposed exercise of any function or duty conferred upon a manager or member, or disclosing any deliberations of a manager or member, or any of a manager or member’s directors, officers or employees, as to the manner in which a manager or member may exercise any function or duty, or disclosing the reasons for any particular exercise of any function or duty or the material upon which those reasons were, or might have been based;
- (c) a document relating in any way, directly or indirectly, to the finances, investments, assets, income, expenses, profits, losses, appreciation, depreciation, value, net worth or business activity of a limited liability company, its members or manager; and
- (d) a document relating in any way, directly or indirectly, to the rights, benefits or interests of any member of a limited liability company.
(3) A person who contravenes subsection (1) is guilty of an offence and liable on conviction to a fine of fifty thousand Eastern Caribbean dollars or imprisonment for a term of two years or to both.
(4) For the purposes of this section, “document” and “information” include any papers, deeds, declarations, appointments, minutes, notes, memoranda, records, correspondence, telexes, telegrams, tape recordings, facsimile transmissions, computer data, e-mail, files, discs, and videotapes, of all kinds, whether in printed, electronic or holographic form, or any other form.

92. Permissible disclosure of confidential information

(1) Nothing in this Act or an operating agreement or management agreement prohibits a manager or member, or any of the manager’s or member’s directors, officers or employees, from disclosing confidential information under the following circumstances:
- (a) upon an order of a court in Antigua and Barbuda, in connection with the presentation of evidence for the purpose of, or in the course of, the trial of a person in respect of a serious criminal offence recognised within Antigua and Barbuda, to the extent that the confidential information is required to prove the alleged offence;
- (b) upon an order of a court in Antigua and Barbuda, based upon the written request of the Government of Antigua and Barbuda, pursuant to a valid treaty or convention in force between the Government of Antigua and Barbuda and any other jurisdiction, pertaining to the exchange of information or legal assistance in connection with the investigation, prosecution or prevention of a serious criminal offence, if
  - (i) the request for the information or legal assistance identifies with specificity the offence, as well as the person or entity charged with, or under investigation for, the offence,
  - (ii) the offence is also a serious criminal offence under the laws of Antigua and Barbuda,
  - (iii) the request for exchange of information or legal assistance does not conflict with any existing laws, rules or regulations of Antigua and Barbuda, and
  - (iv) the Court has determined that the confidential information is required to prove the offence;
- (c) upon an order of a court in Antigua and Barbuda, based upon the written request of the Government of Antigua and Barbuda, pursuant to a valid treaty or convention in force between the Government of Antigua and Barbuda and any other jurisdiction pertaining to the exchange of information for purposes of determining, assessing and collecting tax, the recovery and enforcement of tax claims or the investigation or prosecution of criminal tax matters, if
  - (i) the request for information or legal assistance identifies with specificity the offence as well as the person or entity charged with, or under investigation for, the offence, and
  - (ii) the offence is also a serious criminal offence under the laws of Antigua and Barbuda;
- (d) upon an order of a court in Antigua and Barbuda, based upon written request of the Government of Antigua and Barbuda, for information regarding the identification of a manager or member, property or any transaction of a limited liability company, for the purpose of complying with the Antigua and Barbuda Money Laundering (Prevention) Act, 1996, or the Antigua and Barbuda Prevention of Terrorism Act, 2001;
  (e) upon written request, by the Government of Antigua and Barbuda or by a financial institution for information regarding the identification of a manager or member, of a limited liability company, the purpose of the limited liability company or the identification of limited liability company property or transactions, if
  - (i) the request is for the purpose of complying with customer due diligence guidelines as set by the Financial Services Regulatory Commission of Antigua and Barbuda, and
  - (ii) the requesting institution provides assurance satisfactory to the manager or member that the information shall be maintained as confidential by the requesting institution and shall not be disclosed to any third party;
- (f) to any person that a manager or member reasonably believes requires the information to carry out the management and administration of the limited liability company and its property in the ordinary course of business; or
- (g) to a legal practitioner in connection with a request for, or the receipt of, legal advice relating to the establishment, administration, maintenance, business undertaking, affairs, taxation or property of the limited liability company or for the prosecution or defense of any litigation relating to the establishment, administration, maintenance, business undertaking, affairs, taxation or property of the limited liability company.

93. Maintenance of confidential nature of information
Disclosure of confidential documents or information specified in section 92 shall not constitute a violation of section 91 and shall not defeat the confidential nature of the documents or information with regards to any other person, series of members, managers or limited liability company interests.

94. Series of members, managers or limited liability company interests

(1) An operating agreement may establish or provide for the establishment of one or more designated series of members, managers or limited liability company interests having separate rights, powers or duties with respect to specified property or obligations of the limited liability company or profits and losses associated with specified property or obligations, and any such series may have a separate objective.
(2) The debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular series shall be enforceable against the assets of that series only, and not against the assets of the limited liability company generally or any other series, and vice-versa, if separate and distinct records are maintained for each such series, and
- (a) the assets associated with each series are
  - (i) held in those separate records directly or indirectly, including through a nominee or otherwise; and
  - (ii) accounted for separately from the other assets of the limited liability company, or any other series;
- (b) the operating agreement so provides;
- (c) notice of the limitation on liabilities of a series is set forth in the articles of organisation of the limited liability company; and
- (d) subsections (6) to (10) are complied with.
(3) A general notice in a certificate of organisation of the limitation on liabilities of a series that does not reference any specific series shall be sufficient for all purposes, whether or not the limited liability company has established any series when the notice is included in the certificate of organisation.
(4) The fact that a certificate of organisation that contains the notice of the limitation on liabilities of a series is on file in the office of the Commission shall be presumed to constitute notice of the limitation on liabilities of a series.
(5) A limited liability company which creates a series shall be known as a series limited liability company or series LLC and the term “Series Limited Liability Company” or “Series LLC’ or “SLLC” must be part of its name. A series limited liability company shall be a single legal entity and each series of a series limited liability company does not constitute a separate legal entity from the series limited liability company.
(6) The limited liability company must segregate each series on its firm statements, books and records, or present separate financials for each series limited liability company, and the limited liability company may not imply or represent that general limited liability company assets are the assets of other series within the limited liability company.
(7) The limited liability company must segregate each series on its firm profits and loss statements, or present separate profit and loss statements for each series in the limited liability company.
(8) Title to property held by a series in a series limited liability company shall be designated, “___________ SLLC for and on behalf of _________________, a series of __________ SLLC.”
(9) An asset held by a series in the series limited liability company shall not be used in connection with the business activities or purposes of two or more series within the series limited liability company.
(10) Assets not designated as provided in this subsection, or not kept separate from the assets of other series of the series limited liability company shall be deemed to be the assets of the limited liability company and not of the series.
(11) Notwithstanding any other provision of this Act, an operating agreement or any other agreement, a member or manager may agree in writing to be obligated personally for any or all of the debts, obligations and liabilities of one or more series.
(12) Classes or groups of members or managers associated with a series may have the relative rights, powers and duties set out in the operating agreement.
(13) The operating agreement may make provision for the future creation in the manner provided in the operating agreement of additional classes or groups of members or managers associated with a series having the relative rights, powers and duties that may from time to time be established, including rights, powers and duties senior to existing classes and groups of members or managers associated with the series.
(14) An operating agreement may provide for the taking of an action, including the amendment of the operating agreement, without the vote or approval of any member or manager or class or group of members or managers, including an action to create under the provisions of the operating agreement a new class or group of the series of limited liability company interests.
(15) An operating agreement may provide that any member or class or group of members associated with a series shall have no voting rights.
(16) An operating agreement may grant to all or certain identified members or managers or a specified class or group of the members or managers associated with a series the right to vote separately or with all or any class or group of the members or managers associated with the series, on any matter. Voting by members or managers associated with a series may be on a per capita, number, financial interest, class, group or other basis.
(17) Unless otherwise provided in an operating agreement, the management decisions with respect to a series shall be by majority vote of the members associated with the series in proportion to the percentage or other interest of members in the profits of the series owned by all of the members associated with the series.
(18) If an operating agreement provides for the management of a series, in whole or in part, by a manager, the management shall then be vested in the manager in accordance with the operating agreement.
(19) The manager of a series shall hold the offices and have the responsibilities accorded to the manager set forth in the operating agreement. A series may have more than one manager.
(20) A manager shall cease to be a manager with respect to a series as provided in an operating agreement.
(21) An operating agreement that causes a manager to cease to be a manager with respect to a series shall not, in itself, cause the manager to cease to be a manager of the limited liability company or with respect to any other series.
(22) Notwithstanding any other provision of this Act, but subject to subsections (24) and (31), and unless otherwise provided in an operating agreement, at the time a member associated with a series becomes entitled to receive a distribution with respect to the series, the member is a creditor of the series with respect to the distribution.
(23) An operating agreement may provide for the establishment of a record date with respect to allocations and distributions with respect to a series.
(24) Notwithstanding any other provision of this Act, a limited liability company may make a distribution with respect to a series, so long as, after giving effect to the distribution,
- (a) all liabilities of the series, other than liabilities to members on account of their limited liability company interests with respect to the series and liabilities for which the recourse of creditors is limited to specified property of such series,
  exceed
- (b) the fair value of the assets associated with the series, including the value of property that is subject to a liability associated with particular assets to the extent that the fair value of that property exceeds that liability.
(25) For purposes of subsection (24), the term "distribution" does not include amounts constituting reasonable compensation for present or past services or reasonable payments made in the ordinary course of business pursuant to a bona fide retirement plan or other benefits program.
(26) A member who receives a distribution in violation of subsection (24) shall be liable to a series for the amount of the distribution only if the member knew at the time of the distribution that it violated this section.
(27) Unless otherwise provided in the operating agreement, a member shall cease to be associated with a series and to have the power to exercise any rights or powers of a member with respect to the series upon the assignment of all of the member's limited liability company interest with respect to the series.
(28) An operating agreement that causes a member to cease to be associated with a series, including a member who was the last remaining member associated with the series, shall not
- (a) cause the member to cease to be associated with any other series:
- (b) terminate the continued membership of the member in the limited liability company; or
- (c) cause the termination of the series.
(29) Subject to this Act, except to the extent otherwise provided in the operating agreement, a series may be terminated and its affairs wound up without causing the dissolution of the limited liability company.
(30) The termination of a series shall not affect the limitation on liabilities of the series.
(31) A series is terminated and its affairs shall be wound up upon the dissolution of the limited liability company under this Act or otherwise upon the first to occur of the following:
- (a) the time specified in the operating agreement;
- (b) the happening of events specified in the operating agreement;
- (c) unless otherwise provided in the operating agreement, the affirmative vote or written consent of the members who own more than two-thirds of the interest in the profits of the series or, if there is more than one class or group of members associated with the series, then of each class or group of members associated with the series; and
- (d) the termination of the series under subsections (32) to (36).
(32) Unless otherwise provided in the operating agreement, the persons referred to in subsection (33) may wind up the affairs of the series and, where paragraph (33)(b), (c) or (d) applies, the decision to wind up must be taken by more than fifty percent of the interest in the profit of the series associated with the series, class or group.
(33) The persons referred to in subsection (32) are
- (a) a manager associated with a series who has not wrongfully terminated the series;
- (b) if there is no manager associated with the series, the members associated with the series;
- (c) a person approved by the members associated with the series; and
- (d) if there is more than one class or group of members associated with the series, the classes or groups of members associated with the series.
(34) If the series has been established in accordance with this section, the court in Antigua and Barbuda, upon cause shown, may
- (a) wind up the affairs of the series upon application of any member associated with the series, or the member's personal representative or assignee; and
- (b) appoint a liquidating trustee.
(35) The persons winding up the affairs of a series
- (a) may, in the name of the limited liability company and for and on behalf of the limited liability company and the series, take all actions with respect to the series that are permitted under this Act; and
- (b) shall provide for the claims and obligations of the series and distribute the assets of the series as provided in this Act.
(36) Actions taken in accordance with this subsection shall not affect the liability of members and shall not impose liability on a liquidating trustee.
(37) On application by or for a member or manager associated with a series established in accordance with this section, the court may terminate the series whenever it is not reasonably practicable to carry on the business of the series in conformity with an operating agreement.

95. Savings provisions
This Act shall not affect any cause of action, liability, penalty, or action or special proceeding which, on the effective date of this Act, is accrued, existing, incurred or pending, and it may be asserted, enforced, prosecuted, or defended as if this Act had not been enacted.

96. Translations
Every document filed with the Commission that is not in English shall be accompanied by an English translation certified as true and correct by the translator, to the satisfaction of the Commission.

97. Regulations
The Minister may make regulations respecting

(a) the duties to be performed by the Commission under this Act;
(b) names that are not to be used for companies to which this Act applies;
(c) fees for the purposes of this Act; and
(d) any other thing that may be prescribed for the better functioning of this Act.

98. Certificate of good standing
The Commission shall, upon request by a registered agent, issue a certificate of good standing certifying that a limited liability company to which this Act applies is of good standing if the Commission is satisfied that

(a) the name of the limited liability company is on the register;
(b) the limited liability company has paid all fees required under this Act; and
(c) the limited liability company is not in contravention of any of the provisions of this Act or is in the process of being wound up and dissolved.

99. Form of certificate
Any certificate or other document required to be issued by the Commission under this Act shall be in such form as the Minister may prescribe.

100. Directions for Commission
The Commission may apply to the court in Antigua and Barbuda for directions in respect of any matter concerning its duties under this Act and the Court may give the directions and make further orders as it thinks fit.

101. Appeal from decision of Commission
A person who is aggrieved by a decision of the Commission may apply to the court in Antigua and Barbuda for an order requiring the Commission to modify or rescind its decision, and the Court may make any order it thinks fit.

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