Companies Act (Cap. 386), article 428

428. (1) As from the appointed day a commercial partnership shall not be formed and registered unless it complies with the provisions of this Act, and a commercial partnership formed and registered as aforesaid sha ll be regulated by this Act. (2) Subject to the provisions of this Part, as from the appointe d day all commercial partnerships formed and registered under the Ordinance shall be deemed to be formed and registered under thi s Act, and shall retain the same legal personality and maintain a ll existing rights and obligations. (3) Investment companies with variable share capital formed and registered before the appoin ted day shall comply with the provisions of this Act within one month from the appointed day and the provisions of sub-articles (4) to (13), other than sub-arti cle (8), shall not apply to them. (4) Unless otherwise provided in this article, and notwithstanding anything contained in the Memorandum or Articles or in the deed of partnership, as the case may be, as from the 1st March, 1998, the provisions of this Act shall apply to commercial partnerships form ed and registered under the Ordinance. Such commercial partn erships shall, before the 1st March, 1998, comply with the provisions of this Act and shall, until such time, continue to be r egulated by th e Ordinance: Provided that a commercial p artnership may, by complying with the provisions of this Act before such date, elect to be regulated by the provisions of this Act and for this purpose the company shall addition ally deliver a notice in writing to the Registrar for registration; and such election shall not take ef fect unless and until such notice is registered. (5) The provisions of Chapters IX and X of Part V of this Act shall, in regard to companies formed and registered under the Ordinance, apply to accounting periods commencing after 30th June 1996. (6) A private company formed and registered under the Ordinance shall, by complying with the provisions of this Act relating to private companies within the period specified in sub- article (4), continue as a private company under this Act unles s it changes its status to one of a public company in accordance wit h the provisions of article 213. (7) A public company formed and registered under the Ordinance shall, by complying with the provisions of this Act relating to public companies within the period specified in sub - article (4), continue as a public company under this Act unless it changes its status to one of a private company in accordance wi th the provisions of article 213. (8) If an investment company as is referred to in sub-article (3 ), fails to comply with the provisions of the said sub-article wit hin the period therein specified, that company shall be considered dissolved and the Registrar may, at any time, apply to the court in 272 CAP. 386.] COMP ANIES accordance with the provisions of Title II of Par t V of this Ac t: Provided that the court may, if it thinks fit, grant a further period not exceeding one year fro m the date of its decision in which the commercial par tnership may rem edy the failure. (9) A commercial partnership as i s referred to in sub-article (4 ) shall make the changes necessary in order to comply with the provisions of this Act by the 28th February, 1998. (10) Any changes necessitated by v irtue of sub-article (9) shall be made: (a) in the case of a partnership en nom collectif , with the consent of a partner or part ners having contributed at least fifty per cent of the contributions made to the partnership; (b) in the case of a partnership en commandite , with the consent of a general partner or partners having contributed at least fifty per cent of the contributions made by the general partners to the partnership, or holding at least fifty per cent of the nominal value of the shares of the partnership held by the general partners as the case may be, together with the consent of a limited partner or partners having contributed at least fifty per cent of the contributions made by the limited partners to the partnership or holding at least fifty per cent of the nominal value of the shares held by the limited partners as the case may be; (c) in the case of a company, notwithstanding anything contained in the Memorandu m or Articles, by means of a resolution, passed by a general meeting of the company called for the purpose, by - (i) fifty per cent of the members represented at the meeting and voting; or (ii) a number of members having between them not less than fifty per cent of the nominal value of the shares represented at that meeting, and voting thereat; and any provision relating to the quorum of members at that meeting shall not apply. The provisions of this sub-article shall not apply to any changes to the deed of partne rship or to the Memorandum or Articles, as the case may be, which are not strictly necessary in order to comply with the provisions of this Act. (11) An association en participation constituted before the appointed day shall comply with the provisions of this Act with in a period of two years from the appointed day. (12) Notwithstanding the other provisions of this article, artic le 127 shall come into effect on the appointed day. (13) The provisions of Parts VII, VIII and IX of this Act shall, in regard to companies formed and registered under the Ordinance, COMP ANIES [CAP. 386. 273 come into effect as from the appointed day; and a commercial partnership resulting from a conversion within the meaning of P art VII, a new commercial partners hip or an acquiring commercial partnership within the meaning of Title I of Part VIII, a new company or an acquiri ng company within the meaning of Title II of Part VIII and recipient companies or new companies resulting fr om a division within the meaning of Part IX, shall comply with and shall be regulated by this Act as from the date when the conver sion, amalgamation or the division becomes effective in terms of this Act, according to the case. (14) A commercial partnership as is referred to in sub-article ( 4) which fails to effect the changes necessary in order to comply with the provisions of this Act before the 1st March 1998 shall beco me liable to a penalty of one hundred and sixteen euro and forty-s even cents (116.47), and for every day thereafter during which the default continues, to a further penalty of four euro and sixty- six cents (4.66). The provisions of article 427(1) and (2) shall no t apply to the penalties impos ed under this sub-article. (15) Notwithstanding the pr ovisions of article 401(1)( d), until such time as the instrument or r esolution, or a copy thereof, g iving effect to the changes necessitate d by virtue of sub-article (4) is delivered to the Registrar for registration, and until such tim e as any penalties that may be incurr ed by virtue of sub-article (14 ) are paid, the Registrar shall not retain and register: - in the case of a company, any resolution, notice or return required to be registered under this Act, other than any resolu tion, notice, return or other document required to be delivered to th e Registrar in terms of the provisions of Title II of Part V and of articles 122, 146, 183 a nd 184 of this Act; and - in the case of any other commercial partnership any instrument giving effect to any alteration or addition to the d eed of partnership. (16) The Minister may by order in the Gazette, establish a date, being a date after the 31st Decem ber 1998, on which any company which fails to comply with the provisions of sub-article (4) sh all be deemed to be a company which is not carrying on business or is not in operation for the pur poses of article 325. Transitional provisions as to winding up of commercial partnerships.