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International Companies Amendment Act 1991

SAMOA

INTERNATIONAL COMPANIES AMENDMENT ACT 1991

______________

Arrangement of Provisions

Title

1. Short title and commencement
2. Interpretation
3. Restriction on shareholding in international and foreign companies
4. Permitted purposes for incorporation
5. Registered company auditors
6. Registers
7. Registration and incorporation
8. Requirements as to memorandum
9. Alteration of memorandum
10. Powers of companies
11. Pre-incorporation contracts
12. Names of companies
13. Alteration of articles
14. Copies of the memorandum and articles
15. Transactions and branches
16. Persons having dealings with international companies
17. Return as to allotments
18. Calls and forfeiture
19. Bearer shares and bearer share warrants
20. Share premiums
21. Proceeds of issue of shares of no par value
22. Effect of conversion of par value share capital into no par value share capital and vice versa
23. Currency of shares interest bearing share redeemable shares with special rights and gift shares
24. Redeemable shares and the repurchase of shares
25. Statement of cancellation
26. Dealing by a company in its own shares
27. Cancellation of re-acquired shares by an international company
28. Distribution from capital surplus of international company
29. Power to pay certain commissions
30. Issue of shares of par value at a discount
31. Issue price of shares of no par value requiring special resolution
32. Alteration of share capital
33. Capital maintenance dividends and other distributions
34. Debts to be taken into accounts in determining solvency
35. Variation of class rights
36. Division 2 Debentures
37. Power to issue debentures
38. Company to maintain register of debentures
39. Numbering of shares
40. Instruments of transfer
41. Official register of share warrants
42. Filing of charges
43. Duty to file charges and filing to pre-existing charges
44. Negation of the rule in Re
Charge Card services Limited
45. Application of Division
46. Publication of name
47. Discloser of interest in contracts, property offices etc
48. Codes for the establishment of liabilities of officers
49. Limitation of liability of officers
50. Secretary and agents
51. Register of directors and secretaries
52. Annual general meeting
53. Calling of meetings
54. Meetings
55. Proxies
56. Power of Registrar to direct meeting to be called
57. Filing of copies of certain resolutions and agreements
58. Minutes of proceedings
59. Where register to be kept
60. Inspection and closing of register
61. Consequences of default by agent
62. Branch registers
63. Annual Return
64. Accounts to be kept
65. Statement of accounts
66. Auditor need not be appointed in certain circumstances
67. Appointment and removal of auditors
68. Payment of certain debts out of assets subject to floating charges in priority to claims under charge
69. Effect on winding up
70. Circumstances in which company may be wound up voluntarily
71. Books of liquidator and company
72. Sales other than at proper value
73. Disclaimer of onerous property
74. Offences by officers of companies in liquidation
75. Liability where proper accounts not kept or debts incurred without reasonable expectation of payment
76. Personal liability for debts
77. Defunct companies
78. Foreign companies
79. Transfer from Western Samoa of companies incorporated under this Act
80. Translation of instrument
81. Procedure where none laid down
82. Power of exemption
83. Enforcement of indemnity
84. Secrecy
85. Form of company registers and records
86. Assets protection
87. Removal of prospectus requirements
88. Exemptions and privileges of international companies
89. Consequential amendments and repeals
90. Schedule 1

___________________

1991, No. 10

AN ACT to amend the International Companies Act 1987.

BE IT ENACTED by the Legislative Assembly of Western Samoa in Parliament assembled as follows:-

1. Short title and commencement-(1) This Act may be cited as the International Companies Act 1991 and shall be read together with and deemed part of the International Companies Act 1987 (hereinafter referred to as "the principal Act").

(2) This Act shall come into effect on the date of assent.

2. Interpretation – Subsection (1) of section 2 of the principal Act is hereby amended by –

(a) Omitting from the definition of "Audit period" the words "and, when used in relation to the appointment of an auditor, means a period expiring on the 30th day of June next after the expiry of the preceding audit period or if there be no preceding audit period, a period expiring on the 30th day of June next after the appointment of the auditor";

(b) Omitting the definition of the term "Creditor" and substituting the following definition:

"means any person capable of enforcing any debt (whether contingent or actual) against the company in Western Samoa (excluding for the avoidance of doubt, any taxation, fine or penalty imposed by any government of governmental or semi governmental authority of a country other than Western Samoa)":

(c) Inserting after the term "creditor" and its definition the following term and definition: "Debt" means any actual or contingent debt, but shall exclude any taxation, fine or penalty or any liability under any public law imposed by any foreign government and any other debt or obligation incapable of being enforced in Western Samoa:"

(d) Omitting the definition of the term "Director" and substituting the following definition:

"means any person occupying the position of director of an international company and any person held out by a company to be a director":

(e) Inserting after the term "Foreign company" and its definition the following term and definition:

"Foreign Government" means any government, governmental authority or agency or any semi governmental authority or agency (other than the government of Western Samoa or any governmental authority or agency or any semi governmental authority or agency of Western Samoa);"

(f) Inserting after the term "Lodged" and its definition the following term and definition:

"Meeting" shall have the extended meaning ascribed to it in section 96(4) of this Act;"

(g) Omitting the definition of the term "Person" and substituting the following definition:

"includes a natural person, a corporation sole, a company a partnership, a statutory body or office, an instrumentality of government, any other public authority any court or tribunal and any other body of persons whether corporate or incorporate":

(h) Omitting the term "Prospectus" and its definition;

(i) Inserting after the term "Registered company auditor" and its definition the following term and definition:

"Registered share" means any share issued by an international company standing in the register of members of the company in the name of a member;"

(j) Omitting the definition of the term "Resident secretary" and substituting the following definition:

"means a trustee company any wholly owned subsidiary thereof or any officer of a trustee company appointed to be such under section 90’"

(k) Omitting the term "Secured debenture" and its definition;

(l) Omitting the definition of the term "Share" and substituting the following definition:

"in relation to an international company means a share in the share capital of that company and includes stock;"

(m) Inserting after the term "Table B" and its definition the following term and definition: "Table B Debenture" means:

(a) a debenture stated on its face to be a secured debenture issued in accordance with this Act prior to the date of commencement of this Act provided that a debenture secured by mortgage or charge and not issued upon terms that the provisions of Table B shall apply (with or without amendments or modifications) shall not be a Table B Debenture for the purposed of this Act; and

(b) a debenture expressed on its face to be a Table B Debenture issued upon terms that the provisions of Table B shall apply with such modifications or amendments as are set out in the terms of issue of any such debenture."

3. Restriction on shareholding in international and foreign companied – Subsection (1) of section 6 of the principal Act is hereby amended by adding after the words "international company under this Act" the words "or a foreign company that has the center of its administrative management in Western Samoa unless that foreign company is registered under the Companies 1955".

4. Permitted purposes for incorporation – section 7 of the principal Act is hereby amended by: -

"(a) Omitting the words "or any such similar business";

(b) Inserting after the word "licensed" and before the word "so" the words "or otherwise permitted".

(c) Adding the following new subsection "(2) For the purposes of this section, an international company shall not be regarded as carrying on business as a trustee company or carrying on the business of acting as a trustee company by acting merely as the trustee or one of the trustees of not more than three trusts registered under the International Trusts Act 1987" inserting after the word "licensed" the words "or otherwise permitted".

5. Registered company auditors – Section 10 of the principal Act is hereby amended by repealing subsection (10).

6. Registers – Section 12 of the principal Act is hereby amended by inserting after subsection (2) the following subsection:-

"(2A) Notwithstanding the provisions of subsection (2), except in any case where the prior written consent of the international company or the trustee company acting for the international company is given the Registrar shall not allow any person to inspect any document or provide any person with a copy or extract of any document unless the Registrar has given reasonable notice to the international company of his intention to do so, such notice to include details of the relevant documents and the persons who will inspect or be provide with a copy of such documents."

7. Registration and incorporation-(1) Section 14 of the principal Act is hereby amended by:

(a) Repealing subsection (4) and substituting the following subsection: "(4) The first certificate of incorporation shall be valid for 12 months from the date of incorporation and shall be renewable thereafter for further periods of 12 months from each anniversary of the date of incorporation upon payment of the prescribed annual fee and such renewal certificate shall be issued by the Registrar within 14 days after payment of such fee;"

(b) Omitting from subsection (6) the words "shall be personally liable for the debts and liabilities of that company incurred during such period as the company carried on business without a current certificate of incorporation" and substituting the words "commits" and offence against this Act";

(c) Inserting after subsection (6) the following subsection:-"(6A) Until such time as an international company is dissolved pursuant to the provisions of this Act, the international company shall continue its corporate existence (without rendering defective any legal or other proceedings instituted by or against the company or affecting any rights powers, authorities, duties, functions, liabilities or obligations of the company or any person) notwithstanding that the certificate of incorporation of the international company may have expired and not been renewed with in the time specified in this section"..

(2) Subsection (6A) of section 14 (as inserted by paragraph (c) of subsection (1) of this section) shall be deemed to have come into effect from the date of coming force of the principal Act.

8. Requirements as to memorandum -Section 18 of the principal Act is hereby amended by adding the following subsection:-

"(4) An international company is a legal entity considered in law a fictitious person, distinct from its members and with separate rights and liabilities. Save as may be specified by this Act or by contract, the members of an international company do not owe any duty, liability or obligation to the international company, any other member of the international company, any creditor of the international company or any other company related to the international company"

9. Alteration of memorandum -Section 19 of the principal Act is hereby repealed and the following section substituted:

"19(1) Subject to any limitation in its memorandum an international company may alter any of the objects or powers set out in the memorandum by a special resolution of the members or where permitted by its memorandum by a resolution of the directors.

(2) An international company that alters its memorandum shall within 21 days of the resolution having been passed submit a copy of the alteration and the resolution authorizing such alteration to the Registrar and the Registrar shall retain and register the copy of the alteration and the resolution.

(3) Notwithstanding any failure to submit such a resolution to the Registrar the resolution shall be effective from the date of its passing.

(4) Every officer of the international company who knowingly permits a contravention of the provisions of this section commits an offence against this Act"

10. Powers of companies - Section 20 of the principal Act is hereby repealed and the following section substituted:

"20(a) An international company shall unless expressly excluded or modified by the memorandum or the articles, have all the powers of a natural person including the powers set forth in Schedule 1 and such other powers as are set out in its memorandum on articles and this Act.

(2) The power of an international company shall subject to the terms of the memorandum and articles be exercisable in Western Samoa and elsewhere.

(3) Where the exercise by the directors of any power of the company.

(a) does not advance the business of the company;

(b) is not in the best or commercial interest of the company; or

such exercise shall be a valid act on behalf of the company if the directors honestly believe that the exercise of such power will not result in the company thereby being incapable of meeting its obligations to its creditors as they fall due within the meaning of section 54B of this Act.

(4) Nothing in this section shall require an international company to list any of its powers in its memorandum or articles."

11. Pre-incorporation contracts – The principal Act is hereby amended by inserting after section 20 the following sections:

"20A. Pre-incorporation contracts-(1) This section applies to –

(a) Any contract purporting to be made by an international company before its incorporation; and

(b) Any contract made by a person on behalf of an international company before an in contemplation of its incorporation.

(2) Notwithstanding any rule of law or equity, any contract to which this section applies may be ratified within such period as may be specified in the contract, or if no period is specified, then within a reasonable time after the incorporation of the company in the name of which, or on behalf of which, it has been made. A contract so ratified shall upon ratification, be valid and enforceable as if the company had been a party to the contract when it was made.

(3) for the purposes of this section, a contract to which this section applies may be ratified by a company in the same manner as a contract may be made by a company under section 29 of this Act, and the provisions of section 29 of this Act shall have effect as if references in that section to making a contract were references to ratifying a contract.

(4) Notwithstanding any rule of law or equity in any contract to which this section applies, unless a contrary intention is expressed in the contract, there is an implied warranty by the person who purports to make the contract in the name of, or on behalf of the company:

(a) that the company will be incorporated within such period as may be specified in the contract, or if no period is specified, then within a reasonable time after the making of the contract; and

(b) that the company will ratify the contract within such period as may be specified in the contract, or if no period is specified, then within a reasonable time after the incorporation of the company.

(5) The amount of any damages recoverable in an action for breach of warranty implied in any such contract shall be the same as the amount of damages that would be recoverable in an action against the company for damages for breach by the company of the unperformed obligations under the contract as if the contract had been ratified and cancelled.

(6) Where a company, after its incorporation does not ratify a contract to which this section applies, any party to that contract may apply to the Court for an order directing the company to return any property, whether real or personal, acquired pursuant to the contract to that party, or for any other relief in favour of that party respecting any such property, and the Court may, if it considers it just and equitable to do so, make any order or grant such relief as it thinks fit and whether or not an order has been made under subsection (5) of this section.

(7) In any proceedings against a company for breach of a contract to which this section applies and which has been ratified by the company, the Court may, on the application of the company, any other party to the proceedings, or of its own motion, make such order for the payment of damages or other relief. In addition to or in substitution for any order which may be made against the company, against any person by whom that contract was made in the name of, or on behalf of the company, as the Court considers just and equitable.

(8) Where a company, after its incorporation and with the consent of all other parties to the contract, ratifies a contract, to which this section applies the liability of the person who purports to make the contract in the name of, or on behalf of, the company in respect of the contract (including any liability under an order made by the Court thereunder for the payment of damages) shall be discharged.

(9) Subsections (2) and (3) of this section shall apply to a contract to which this section applies entered into before the commencement of this section.

(10) In this section "contract" means any legally binding transaction."

12. Names of companies – Section 22 of the principal Act is hereby amended by repealing subsection (2) and substituting the following subsections –

"(2) Subject to subsection (2A), an international company shall have as part of and at the end of its name either:

(a) the word "Corporation" or the abbreviation "Corp"; or

(b) the word "Incorporated" or the abbreviation "Inc"; or

(d) the word "Berhad" or the abbreviation "Bhd"; or

(e) the words "Public Limited Company" or the abbreviation "P.L.C."; or

(f) the words "Societe Anonyme" or "Sociedad Anonima"; or the abbreviation "S.A."; or

(g) the words "Naamloze Vennootschap" or the abbreciation "N.V."; or

(h) the words "Besloten Vennootschap" or the abbreviation "B.V."; or

(i) the word "Aktiengesellschaft" or the abbreviation "A.G."

(2A) Notwithstanding the provisions of subsection (2), an international company may, in lieu of any of the words or abbreviations in subsection (2), have as part of its name any other words or popular abbreviations of those words in any language being any words or abbreviations which a trustee company can satisfy the Registrar connotes the existence of a body corporate as distinct from any other person or entity and such words or abbreviations may appear at the beginning, the end or elsewhere in the name of the international company in accordance with common practice.

(2B) Any person or entity which carries on business under any name or title being any word or abbreviation referred to in subsections (2) or (2A) unless it is an international company incorporated or foreign company registered under this Act (or a domestic company or an overseas company registered under the Companies Act 1955) commits an offence against this Act.

(2C) Any international company may apply in writing to the Minister for an exemption from the provisions of this section pursuant to section 224 stating the reasons why the applicant believes this section ought not to apply."

13. Alteration of articles – Section 26 of the principal Act is hereby repealed and the following section substituted –

"26. (1) Subject to any limitation in its articles an international company may alter its articles by a special resolution of the members or, where permitted by its articles, by a resolution of the directors.

(2) An international company that alter its articles shall within 21 days of the resolution having been passed submit a copy of the alteration and the resolution authorizing such alteration to the Registrar and the Registrar shall retain and register the copy of the alteration and the resolution.

(3) Notwithstanding any failure to lodge such resolution with the Registrar the resolution shall be effective from its date of passing.

(4) Every officer of the international company knowingly permits a contravention of the provisions of this section commits an offence against this Act.

14. Copies of the memorandum and articles – section 28 of the principal Act is hereby amended by repealing subsection (3) and substituting the following subsection:-

"(3) Where a resolution affects the articles of an international company, a copy of the articles shall not be issued by the company after the resolution was made unless a copy of the resolution is annexed to the copy of the articles."

15. Transactions and branches – Section 29 of the principal Act is hereby amended by omitting paragraph (a) of subsection (1) and substituting the following paragraph –

"(a) a contract which if made by private persons would by law be required to be in writing under seal may be made on behalf of the company either –

(i) in writing under the common seal of the company and signed by a director or by some other person appointed by the directors for the purpose: Provided that such signature need not be made contemporaneously with the affixing of the common seal of the company or

(ii) in the case of an international company having only one director signed by that director; or

(iii) in the case of an international company having two or more directors signed by any two directors;"

16. Persons having dealings with international companies – The principal Act is hereby amended by inserting after section 29 the following section –

"29A. Persons having dealings with international companies-(1) A person having dealings with an international company is subject to subsection (3) entitled to make in relation to those dealings, the assumptions referred to in subsection (2) and in any proceedings in relation to those dealings, any assertion by the international company that the matters that the person is so entitled to assume were not correct shall be disregarded.

(2) The assumptions that a person is, by virtue of subsection (1) entitles to make in relation to dealings, transaction or acts with an international company are –

(a) that, at all relevant times, the memorandum and articles of the international company have been complied with:

(b) that a person who appears, from the register of directors of the international company, to be a director of that company has been duly appointed and has authority to bind the company and authorize others to do so, free for any limitation under the articles of the company;

(c) that a person who is held out by international company to be an officer or an agent of the international company has been duly appointed and has authority to exercise the powers and perform the duties customarily exercisable or performed by an officer or agent of the kind concerned;

(d) that a document has been duly authorized and executed by an international company in accordance with section 29 whether or not the common seal of the company has been affixed and without the need to enquire as to whether or not a valid meeting of the relevant officers was, in fact, properly held; and

(e) that the officers of the international company properly perform their duties to the international company.

(3) Notwithstanding subsection (1), a person is not entitled to make an assumption referred to in subsection (2) in relation to dealings with the company if he had actual knowledge, or suspected, that the matter that, but for this subsection, he would be entitled to assume is not correct; but a person shall be presumed to act in good faith unless the contrary is proven."

17. Return as to allotments – Section 32 of the principal Act is hereby repealed.

18. Calls and forfeiture-(1) Subsection (1) of section 33 of the principal Act is hereby amended by:

(a) omitting the word "and" at the end of paragraph (c) and inserting that word at the end of paragraph (b); and

(b) omitting paragraph (d).

(2) Section 33 of the principal Act is hereby further amended by repealing subsection (2).

19. Bearer shares and bearer share warrants-(1) Sections 35 to 39, inclusive, of the principal Act are hereby repealed and the following sections substituted:

"35. Issue and effect of bearer shares-(1) An international company may, unless its articles otherwise provide, issue bearer shares (upon incorporation or otherwise) but such shares must be fully paid up. Where an international company issues any bearer share in accordance with this subsection, the company shall also issue a share certificate in respect of the bearer share so issued and such share certificate shall be endorsed with the word "Bearer".

(2) An international company may, unless its articles otherwise provide upon the request of a holder of any fully paid up registered share redenominate that registered share as a bearer share. Upon the surrender of the certificate of the registered share, the international company shall issue a new certificate to be issued bearing the same number (if any) as the certificate so surrendered and endorsed with the word "Bearer".

(3) An international company may unless its articles otherwise provide upon the request of a holder of any bearer share redenominate that bearer share as a registered share. Upon the surrender of the certificate of the bearer share, the international company shall issue a new registered share certificate bearing the same number (if any) as the certificate so surrendered.

(4) An international company may issue bearer shares in accordance with subsection (1) or redenominate registered shares as bearer shares or vice versa in accordance with subsections (2) or (3), notwithstanding that the company may have no registered shares or bearer shares on issue.

(5) An international company may issue bearer shares in accordance with subsection (1) or redenominate registered shares or vice versa in accordance with subsections (2) and (3) in respect of any or all of a particular class of shares issued or to be issued by the international company.

(6) Any bearer share issued by an international company may carry coupons or other certificates –

(a) for the payment of dividends; and

(b) in respect of any other rights determined in accordance with the articles, and, where the articles so permit, such coupons or certificates may be divisible from any other rights attaching to that share.

(7) The redenomination of any registered share as a bearer share or vice versa in accordance with subsections (2) or (3) shall not constitute a cancellation of the existing share and the issue of a fresh share.

(8) A bearer share issued by an international company may be transferred by delivery of the certificate issued in respect of that bearer share.

36. Issue and effect of share warrants to bearer-(1) An international company may unless its articles otherwise provide, upon the request of a holder of any fully paid up registered or bearer share exchange a share certificate in respect of that registered or bearer share for a share warrant to bearer. Upon the surrender of the certificate of the registered or bearer share, the international company shall issue a share warrant bearing the same number (if any) as the certificate so surrendered, a share warrant shall constitute conclusive evidence of the title to the share specified in that share warrant.

(2) An international company may, unless its articles otherwise provide upon the request of a holder of any share warrant exchange that share warrant for a share certificate in respect of any share. Upon the surrender of the share warrant the international company shall issue a share certificate in respect of the registered share bearing the same number (if any) as the share warrant so surrendered.

(3) The holder of share warrant issued by an international company shall be deemed not to be a member of that international company and, subject to subsection (4), shall not be entitled to exercise any of the rights or receive any of the benefits of membership of the international company unless and until such time as the share warrant is surrendered and exchanged for a share certificate pursuant to subsection (2).

(4) Any share warrant issued by an international company may carry coupons or other certificates for the payment of dividends and where the articles so permit, such coupons or certificates may be divisible from any other rights attaching to that share.

(5) The exchange of any share certificate for a share warrant or vice versa in accordance with subsections (1) or (2) shall not constitute a cancellation of the existing share and the issue of a new share.

(6) An international company may exchange any share certificate for a share warrant or vice versa in accordance with subsections (1) and (2) in respect of all or any of a particular class of shares issued by the international company.

(7) A share warrant issued to bearer by an international company may be transferred by delivery of the share warrant.

37. Particulars in register in relation to bearer shares-(1) Upon the issue of a bearer share or the redenomination of a registered share as a bearer share, the international company shall –

(a) if the person to whom the bearer share is issued was already a member of the company, strike out its register of members and any branch register where-in the share is registered the name of the member than entered therein as holding the share in respect of which the bearer share is issued; and

(b) enter in the register of members the following particulars:

(i) the fact of the issue of the bearer share or the redenomination of a registered share as a bearer share; and

(ii) the date of the issue of bearer share or the redenomination of the registered share as a bearer share.

(2) Upon the surrender of a certificate in respect of a bearer share, the date of such surrender shall be entered as if it were the date on which the person ceased to be a member.

38. Particulars in register in relation to share warrants-(1) Upon the exchange of a share warrant in respect of any share, the international company shall –

(a) if the person to whom the share warrant is issued was already a member of the company, strike out of its register of members and any branch register where-in the share is registered the name of the member then entered therein as holding the shares in respect of which the share warrant is issued; and

(b) enter in the register of members the following particulars:

(i) the fact of the issue of the share warrant:

(ii) the date of the issue of the share warrant; and

(iii) a statement to the effect that all of the rights attaching to the share specified in the share warrant shall be exercisable by the holder, from time to time, of the share warrant in lieu of the person standing in the register of members as the owner of that share.

(2) Upon the surrender of a share warrant, the date of such surrender shall be entered as if it were the date on which the person ceased to be a member.

39. Effect on meetings – Whilst any bearer share or share warrant remains unsurrendered –

(a) the articles of the international company shall specify the date, time and location of each annual general meeting to be held by the company; and

(b) subject to any provision as may be made in the articles to the contrary, the international company shall cause to be published a public notice in Western Samoa of any extraordinary general meeting to be held by the company, such notice to be published not less than 30 days prior to the date of meeting and to include details of the date, time and location of the meeting."

(2) Every share warrant issued in accordance with the provisions of section 35 of the principal Act prior to the commencement of this Act shall be deemed to be a share certificate issued to bearer.

(3) Pending the specification of the date, time and location of any annual general meeting in the articles in accordance with paragraph (a) of section 39 (as enacted by subsection (1) of this section) the annual general meeting of every international company which has any bearer share or share warrant on issue shall be held on the 31st day of May each year at 9.00 am at the registered office of the company.

20. Share premiums – Section 40 of the principal Act is hereby repealed and the following section substituted:

"40. Share Premiums – Where an international company which is not licensed pursuant to the provisions of the Off-Shore Banking Act 1987 issues shares (having a par value) at a premium whether for cash or otherwise, such premium shall not be treated as if it were part of the paid up share capital of the company but shall constitute a freely distributable reserve.".

21. Proceeds of issue of shares of no par value – Section 41 of the principal Act is hereby repealed and the following section substituted:

"41. Proceeds of issue of shares of no par value – The proceeds of an issue of shares having no par value by an international company shall not be treated as if it were part of the paid up share capital of that company but shall constitute a freely distributable reserve of the company.".

22. Effect of conversion of par value share capital into no par value share capital and vice versa – Section 42 of the principal Act is hereby repealed and the following section substituted –

"42. Effect of conversion of par value share capital into no par value share capital and vice versa – Where an international company converts all its ordinary or preference shares having a par value or both such ordinary and such preference share, into shares without par value, the whole of the ordinary or preference share capital as the case may be, shall not be treated as if it were part of the paid-up share capital of the company but shall constitute a freely distributable reserve of the company."

23. Currency of shares, interest bearing share, redeemable shares, shares with special rights and gifts shares-(1) Subsection (1) of section 43 of the principal Act is hereby amended by omitting the words "prescribed by regulations" and substituting the words "other than Western Samoa".

(2) Subsection (3) of section 43 of the principal Act is hereby amended by:

(a) Omitting from paragraph (j) the words "being shares having a par value of up to $10 in total nominal value" and substituting the words "where the articles so permit and subject to the terms provided therein."

(b) Omitting from paragraph (j) the word "shall" where it first appears and substituting the word "may":

(d) Adding after paragraph (j) the following paragraph:

"(j) Fractional shares carrying the corresponding fractional liabilities, limitations, preferences, privileges, qualifications, restrictions, rights and other attributes of a whole share of a class or series of shares"

(3) Section 43 of the principal Act is hereby further amended by repealing subsection (5) and (6).

24. Redeemable shares and the repurchase of shares – Section 44 of the principal Act is hereby repealed and the following section substituted:

"44.(1) An international company which has issued redeemable shares may, if its articles so provide, redeem those shares on condition that such redemption complies with the provisions of section 54A of this Act.

(2) Unless the articles otherwise provide, where shares of an international company are repurchased by an international company, the purchase shall constitute a cancellation of the shares and thereupon such shares may be restored to the status of authorised, but unissued shares."

25. Statements of cancellation – Section 45 of the principal Act is hereby repealed.

26. Dealing by a company in its own shares-(1) Section 46 of the principal Act is hereby repealed and the following section substituted:

"46. Dealing by a company in its own shares-(1) Subject to any provision to the contrary in the articles, an international company may provide financial assistance, whether directly or indirectly, and whether by way of loan, guarantee, or otherwise, for the purpose of, or in connection with the purchase or subscription of its own shares, the shares of any subsidiary or of any holding company.

(2) Purchases by an international company of its own shares shall be made only if the articles provide for such purchases to be made and if the directors honestly believe that any purchase by the international company of its own shares will not result in the international company thereby being incapable of meeting its obligations to its creditors as they fall due, within the meaning of section 54B.

(3) If this section is not complied with every officer of the international company in default commits an offence against this Act.

(4) Where –

(a) any person is convicted of an offence under this section; and

(b) the Court is satisfied that the international company has suffered loss or damage as a result of the act or omission that constitutes the offence,

the Court may, in addition to imposing a penalty, order the convicted person to pay compensation to the international company of such amount as the Court specifies.".

(2) Nothing in this section shall apply to any conduct engaged in prior to the commencement of this Act or to any conduct subsequently engaged in respect of or in relation to any binding contract entered into prior to this Act.

27. Cancellation of re-acquired shares by an international company – Section 47 of the principal Act is hereby amended by omitting the words "and in such event a statement of cancellation shall be filed in accordance with the regulations, with the Registrar".

28. Distribution from capital surplus of international company – Section 48 of the principal Act is hereby repealed.

29. Power to pay certain commissions – Section 49 of the principal Act is hereby repealed.

30. Issue of shares of par value at a discount – Section 50 of the principal Act is hereby amended by repealing subsection (2) and substituting the following subsection:-

"(2) Subject to any provisions to the contrary in the articles of an international company, no shares shall be issued at a discount while any share warrants or bearer shares for the international company remain unsurrendered.".

31. Issue price of shares of no par value requiring special resolution – Section 51 of the principal Act is hereby amended by repealing subsection (3).

32. Alteration of share capital – Section 52 of the principal Act is hereby amended by:-

(a) Adding to subsection (1) the following paragraph as paragraph (i);

"(i) redenominating the currency of any shares by the conversion of shares denominated in one currency to the same number of shares of another currency.";

(b) Omitting the word "and" from the end of paragraph (g) of subsection (1) and inserting the word "and" at the end of paragraph (h) of subsection (1);

"(2A) A redenomination of the currency of any shares under subsection (1)(i) shall be deemed not to effect a cancellation of the existing shares and the issue of fresh shares"; and

(d) Repealing subsection (3) and (4).

33. Capital maintenance dividends and other distributions – The principal Act is hereby further amended by inserting after section 54 the following section:

"54A. Capital maintenance, dividends and other distributions-(1) An international company may, if so authorized by its articles, make any distribution to members or reduce or extinguish the liability of its members in any way an in particular, but without limiting the generality of the foregoing may:

(a) extinguish or reduce the liability of any of the shares in respect of share capital not paid up;

(b) either with or without extinguishing or reducing liabilities of any of its shares, cancel paid up capital which is lost or unrepresented by available assets;

(c) either with or without extinguishing or reducing liabilities on any of its shares, repay to the members any paid up share capital which is in excess of the needs of the company or which is otherwise in the interests of the company to repay; or

(d) convert any amount of the capital of the company to debt obligations owed by the company to the holder of those shares (whether by repayment, or by direct conversion to an instrument; and may, so far as is necessary, alter it memorandum by reducing the amount of its share capital and its shares accordingly. Each such transaction is henceforth referred to in this section as a "capital reduction transaction."

(2) Except insofar as this section otherwise provides any capital reduction transaction shall be a valid act of the international company if, at the time of effecting that capital reduction transaction the directors have an honest belief that the transaction will not result in the company being incapable of meeting its obligations to creditors as they fall due.

(3) Any capital reduction transaction if it has the effect of returning assets to or reducing liabilities in respect of some but not all of the shareholders of the company, (or to some but not all of the holders of any class of shares in the company) shall, except insofar as is effected in accordance with the rights of members as specified in the articles of the company, be deemed to be a variation of those rights to which the shareholders may object and the provisions of section 55 shall apply mutatis mutandis to such deemed variation.

(4) Any capital reduction transaction effected otherwise than in accordance with the provisions of subsection (2) shall be void at the absolute discretion of a liquidator and any creditor of the company.

(5) Where an international company effects a capital reduction transaction, other than the payment of a dividend in accordance with subsection (6), there shall be lodged with the Registrar for filing within 42 days of its having effected that transaction a capital reduction notice.

(6) Notwithstanding anything to the contrary in this Act, an international company may pay dividends out of current or prior year profits (including any capital profits), any unrealized gains, or from, any other reserve without the need to make good prior year losses (if any) and such dividends may be distributed in cash or any other form.

(7) If the provisions of this section are not complied with every officer of the international company who is in default commits an offence against this Act.

(8) Nothing in this section shall affect:

(a) any transaction effected in accordance with sections 46 or 54 of this Act;

(b) if the articles so provide, the redemption of any shares out of the proceeds of a fresh issue of shares:

(d) the forfeiture of any shares in accordance with section 43(j);

Provided such forfeiture does not involve distribution of any asset of the international company; or

(e) the cancellation of shares or reduction of capital in any other manner permitted by this Act.

(9) Nothing in this section shall preclude an international company from further limiting, whether by contract or otherwise, its ability to make distributions.

(10) Subsections (1), (2), (3), (4), (6), (7),(8) and (9) of this section shall not apply to –

(a) banks licensed under the Off-Shore Banking Act 1987; or

(b) any international company licensed under the Off-Shore Insurance Act 1988.".

34. Debts to be taken into account in determining solvency – The principal Act is hereby further amended by inserting after Section 54A the following section:-

"54B. Debts to be taken into account in determining solvency – Where this Act requires the directors of an international company to determine whether any act or omission shall result in the international company being incapable of meeting its obligations to its creditors as they fall due, the directors shall take into account;

(a) all actual debts of the international company and

(b) such contingent debts of the international company which the directors honestly believe, on the balance of probabilities, will require a disposition of any economic benefit of the international company at any future time to satisfy those debts,".

35. Variation of class rights – Section 55 of the principal Act is hereby amended by adding the following subsection –

"(6) The issue of a Table B Debenture by an international company shall be deemed to be a variation of the rights of shareholders to which the shareholders may object and the provisions of this section shall apply mutatis mutandis to such deemed variation."

36. Divisions 2 – Debentures – Division 2 of Part IV of the principal Act is hereby amended by omitting all references to the term "secured debenture" and substituting references to the term "Table B Debenture".

37. Power to issue debentures – Section 57 of the principal Act is hereby amended by:-

(a) Omitting from subsection (1) the words "to non-residents of Western Samoa";

(b) Omitting from subsection (3) the words "shall, subject to the terms of the debenture have effect "and substituting the words" shall be deemed to be issued subject to the terms contained in Table B and such Table B Debenture shall (subject always to the terms thereof) have the following effect";

(c) Adding to paragraph (a) of subsection (3) after the words "suspended or modified" the words "in accordance with the terms of the Table B Debenture";

(d) Adding to subsection (3) the following new paragraph;

"(j) the holder of a Table B Debenture shall not be deemed to be or to have been a member or a shareholder or an international company by reason only of the holding of such Table B Debenture or the exercise by him or on his behalf of any rights or powers or discretion pursuant to the terms of the Table B Debenture or the dealing in any way with the Table B Debenture";

(e) Inserting the following new subsection:

"(3A). Notwithstanding any other provision of this Act or any implication which apart from this subsection might arise or would arise at law or in equity, the holding or dealing with any Table B Debenture shall not impose or imply and shall be deemed (subject to any express provision contained in the terms of issue of any such debenture or arising as a necessary implication therefrom) never to have imposed or implied any duty on the part of the holder of the Table B Debenture to exercise any right or power or discretion contained in or arising out of or connected with the Table B Debenture for any particular purpose or to exercise any such right or power or discretion subject to any fiduciary or other like obligations whatsoever";

(f) Repealing subsection (7).

38. Company to maintain register of debentures – Section 58 of the principal Act is hereby amended by –

(a) Repealing subsections (2), (3), (4), (5), (6), (8), (12) and (16);

(b) Omitting from subsection (17) the words "(but only of the bearer is a non-resident of Western Samoa)".

39. Numbering of shares – Section 62 of the principal Act is herby repealed.

40. Instrument of transfer – Section 66 of the principal Act is hereby amended by –

(a) Inserting in subsection (1) after the words "Except in the case of" the words "share warrants"; and

(b) Repealing subsection (3) and substituting the following subsection;

"(3) Bearer shares and share warrants shall be transferable in the manner described in section 35 and 36, respectively".

41. Official register of share warrants – Section 67 of the principal Act is hereby repealed.

42. Filing of charges – Section 72 of the principal Act is here by amended by -

(a) Repealing subsection (1) and substituting the following subsection;

"(1) Subject to this Division, where a charge to which this section applies is created by any international company, the company or any other person interested in the charge may cause to be lodged with the Registrar for filing within 42 days after the creation of the charge –

(a) The instrument, if any, by which the charge is created or evidenced; or

(b) A statement giving a short description of the property charged, the amount there by secured, nature of the instrument, and the names of the chargees or persons entitled to the benefit thereof.";

(b) Inserting after subsection (1) the following subsection: "(1A) Where the instrument or a statement is not lodged with the Registrar in accordance with subsection (1), the charge shall, so far as any security on the company’s property or undertaking is conferred thereby, and without prejudice to any contract or obligations for repayment of the money thereby secured, be void against a liquidator and any creditor of the company.";

"(3) The charges to which this section applies are all charges (including any charge securing a contingent debt or obligation) whether fixed or floating on any asset of an international company.";

(d) Omitting from subsection (4) the word "shall" and substituting the word "may";

(e) Omitting from subsection (6) the word "shall" and substituting the word "may".

43. Duty to file charges and filing of pre-existing charges – Section 73 and 74 of the principal Act are hereby repealed and the following sections substituted:-

"73. Filing of pre-existing charges-(1) Where an international company acquires any property which is subject to a charge of any such kind as may, if it had been created by the company after acquisition of the property, have been filed under this Division, the company or any other person interested in the charge may cause:

(a) a statement giving a short description of the nature of the instrument by which the charge was created, the property charged, the amount thereby secured, and the names of charges or persons entitled to the benefit thereof; or

(b) a copy of the charge, to be lodged with the Registrar for filing within 42 days after the date on which the acquisition is effected.

(2) Where any charge to which this section applies is not filed with the Registrar pursuant to subsection (1), the charge shall, so far as any security on the company’s property or undertaking is conferred thereby, but without prejudice to any contract or obligation for repayment of the money thereby secured, be void against a liquidator and any creditor of the company.

74. "Filing of charges by foreign companies which become registered under this Act-(1) This section applies to charges by foreign companies in respect of property situated in Western Samoa if:

(a) the foreign company creates whilst registered under Part X;

(b) the foreign company has previously created the charge prior to registration, but subsequently registers under Part X.

(2) In respect of such a charge:

(a) the company or any other person interested in the charge may cause:

(i) a statement giving a short description of the nature of the instrument by which the charge was created, the property charged, the amount thereby secured, and the named of chargees or persons entitled to the benefit thereof; or

(ii) a copy of the charge, to be lodged with the Registrar for filing within 42 days after the date on which the change was created where the charge was created whilst the foreign company was registered under Part X and within 42 days after the registration of the foreign company under Part X where the charge was created prior to registration under Part X; and

(b) the company shall give notice in writing to all other persons interested in the charge of the fact of the registration of the company under Part X of this Act, together with a copy of this section and such notice’s shall be given to such persons with 15 days of the registration of the company under Part X.

(3) Where, in relation to any charge to which this section applies:-

(a) notice has been give to all persons interested in the charge pursuant to paragraph (b) of subsection (1); and

(b) the charge is not filed with the registrar pursuant to paragraph (a) of subsection (1), the charges shall, so far as any security on the company’s property is conferred thereby, and without prejudice to any contract or obligation for repayment of the money thereby secured be void against a liquidator and any creditor of the company.

(4) Where, in relation to any charge to which this section applies, notice is not given to all persons interested in the charge pursuant to paragraph (b) of subsection (1), the company and every officer in default commits an offence against this Act and shall be liable upon conviction to a fine not exceeding $50.000.

(5) Nothing in this section shall render void any charge to which this section applies where notice has not been given by the company to all other persons interested in the charge pursuant to paragraph (b) of subsection (1)."

44. Negation of the rule in Re Charge Card Services Limited-(1) The principal Act is hereby amended by inserting after section 74 the following section:

"74A. Negation of the rule in Re Charge Card Services Limited-(1) Notwithstanding any rule of law to the contrary, any charge or security given, or purported to be given, by any person ("the chargor") in favour of another person ("the chargee") where:

(a) the charged property is or includes a debt due or to become due to the chargor from the chargee; and

(b) which debt is situated in Western Samoa shall be deemed to be a charge over an asset and shall be as valid and enforceable to the same extent as if the charge or security has been given over that debt in favour of any other person.

(2) For the purpose of subsection (1) of this section, a debt shall be deemed to be issued in Western Samoa if either;

(a) the charger is an international company; or

(b) the chargee is an international company; and

(i) the contract or deed evidencing the debt has been entered into (by one or all of the parties) in Western Samoa; or

(ii) the contract or deed evidencing the debt is, or is to be, given effect to (whether in whole or in part) in Western Samoa

(3) Nothing in this section shall be construed in any way to limit the validity or effect of:

(a) any contractual, legal or equitable right of set off arising between the parties (including any right of a bank and the rules relating to matters of account between parties); or

(b) any provision creating other rights powers obligations (or the imposition of restrictions on obligations) between a debtor and creditor and for the avoidance of doubt nothing in this section shall be construed to require the giving of any charge or security by the parties to any contract or deed.

(4) For the purposes of this section any reference to a debt becoming due includes a reference to:

(a) a credit balance of an account (whether or not ascertained at any particular time);

(b) a contingent claim;

(2) Where a charge or security of the type referred to in subsection (1) of section 74A of the principal Act (as inserted by subsection (1) of this section) has been given, or purported to have been given by an international company which has not been registered in accordance with Division 4 of Part IV of the principal Act, the charge may be registered pursuant to Division 4 within 42 days of the commencement of this Act and on such registration the charge or security shall be deemed to have been registered in accordance with Division 4 within 42 days of the giving of the charge or security.

45. Application of Division – Section 80 of the principal is hereby repealed and the following section substituted:

"80. Application of Division-(1) A reference in this Division to an international company shall be read as including a reference to a foreign company registered under this Act, but nothing in this Division applies to a charge of a foreign company on property outside Western Samoa.

(2) Nothing in this Division shall require a foreign company to file any charge until the foreign company is registered under Part X of this Act."

46. Publication of name – Section 82 of the principal Act is hereby amended repealing subsection (2).

47. Disclosure of interest in contracts, property, offices etc – Section 88 of the principal Act is amended by repealing subsections (9) and (10) and substituting the following subsection

"(9) Where:

(a) any contract is entered into in contravention of the provision of this section; and

(b) any party to that contract cannot establish on the balance of probabilities that he did not have actual knowledge or suspect at the time of entering the contract that the contract was entered into by any other party in contravention of the provisions of this section, then the contract shall be voidable at the absolute discretion of the company as against that party and all of the profits earned or derived by that party from the contract shall be payable to the company together with such other compensation as a Court may think just in the circumstances."

48. Code for the establishment of liabilities of officers – Section 89 of the principal Act is hereby repealed and the following section substituted –

"89. Code for the establishment of liabilities of officers-(1) An officer of an international company shall at all times act for a proper purpose and honestly in what he believes are the best interests of the international company.

(2) An officer of an international company shall not make improper use of his position as an officer to gain, directly or indirectly an advantage for himself or for any other person or to cause detriment to the international company.

(3) An officer of an international company is obliged to use such diligence as might reasonably be expected of a person of his knowledge and experience in the performance of his duties as such an officer, having regard to the requirements and business activities of the international company.

(4) Nothing in this section shall preclude –

(a) the right of an international company to impose, in its articles or by contract, obligations and duties on its officers in addition to the obligations and duties imposed in this section:

(b) the right of the members of an international company to ratify by special resolution the conduct of the officers notwithstanding that any such conduct may contravene this section or the memorandum and articles; and

(c) an international company entering into a contract of insurance or indemnity or any other similar contractual obligation with or for the benefit of any officer.

(5) Notwithstanding that the obligations and duties of the officers of an international company are owed to the company, the company and any other person affected by any breach of those duties and liabilities may commence any civil proceedings against the officers: Provided that, in the case of any proceedings commenced by any person other than

(a) the Court is satisfied that a strong prima facie case exists against the officers; and

(b) the person commencing the proceedings pays into Court such amount determined by the Court as security for the costs and expenses of any other party to the proceedings; and

49. Limitation of liability of officers - The principal Act is hereby further amended by inserting after section 89 the following section-

"89A. Limitation of liability of officers-(1) Notwithstanding any other provision of this Act, no relevant person shall in the performance of any obligations, duties, services or other activities for or on behalf of an international company:

(a) Be liable for any penalty under this Act other than where such penalty arises by reason of the wilful misconduct, wilful default or wilful neglect of the relevant person;

(b) Incur any tortuous ability arising otherwise than by reason of the wilful misconduct, wilful default or wilful neglect of the relevant person, unless the articles of the company provide for such liability;

(c) Be liable for any breach of trust or other equitable obligation other than where the relevant person had actual knowledge of and knowingly assisted in such breach, unless the articles of the company provide for such liability;

(d) In the absence of wilful misconduct wilful default or wilful neglect, incur any liability (whether tortuous, contractual, equitable or otherwise) by reason only that the company incurs any debts or obligations or continues or carry on business at a time when the company is unable to meet its obligations to its creditors as they fall due.

(2) For the purposes of paragraph (c) of subsection (1) no inference shall be made as to the knowledge of a relevant person by reason of any failure to make inquiries in relation to the activities of the company or the source of any of the funds or assets received by the company or by reason of upholding any obligation as to confidentiality provided by this Act.

(3) For the purposes of this section "relevant person" means:

(a) A resident director;

(b) A resident secretary;

(d) A trustee company, subsidiary of a trustee company and any officer thereof;

(e) A nominee or representative of any of the persons referred to in (a),(b),(c) or (d) hereof;

(f) Any person acting on the instructions or under the authority (whether general or specific) of any of the persons referred to in (a),(b),(c) or (d) hereof.

50. Secretary and agents -Section 90 of the principal Act is hereby repealed and the following section substituted:-

"90. (1) Every international company shall appoint a secretary. The secretary may be a resident secretary. More than one secretary may be appointed and if a resident secretary is appointed there may be additional secretaries that are not resident secretaries. Any international company that does not appoint a resident secretary shall appoint a resident agent.

(2) Secretaries, including resident secretaries, and resident agent may be a company or corporation.

(3) When requested in writing by an international company to make available a resident secretary or a resident agent, a trustee shall either accept appointment as resident secretary agent, as the case may be, of that company or make available for appointment an officer of the trustee company or a wholly owned subsidiary thereof.

(4) No person shall act or be appointed as a resident secretary or a resident agent other than a trustee company, an officer of a trustee company, or a wholly owned subsidiary thereof made available for appointment by the trustee company or a wholly owned subsidiary thereof pursuant to subsection (3).

(5) Subject to subsection (6), the resident secretary of an international company or, in the case where no resident secretary is appointed, the secretary shall be responsible for compliance by the international company with the requirements of this Act in relation to the lodging of all documents with the Registrar, the maintenance of the company’s records and dealing with the communications addressed to the company at its registered officer or elsewhere. A resident agent shall also be responsible for dealing with communications addressed to the company at its registered office.

(6) An officer of a trustee company appointed pursuant to subsection (3) shall be entitled of his own motion to obtain the assistance of the trustee company of which is an officer or a barrister or a solicitor in the interpretation of documents and shall be entitled by himself or his agent to have access to such information as is required to make and complete the same and to furnish such information relating to the affairs of the company to the trustee company or a barrister or a solicitor for that purpose.

(7) An international company shall forthwith pay any costs, charges and expenses incurred on its behalf by the resident secretary or the resident agent, as the case may be, in relation to any matters to be done under this Act.

(8) The renumeration of the resident secretary or the resident agent, as the case may be, of an international company shall be fixed by agreement between the company and the trustee company which is, or has provided the officer who is, the resident secretary or the resident agent, as the case may be. That renumeration shall be paid in such a manner and at such a time as shall be agree between the trustee company and the international company and such renumeration shall be a charge upon the assets of the international company ranking in priority next after the fees owing by the international company to the Registrar.

(9) Every secretary and every resident agent of an international company shall be appointed by the directors of the company."

51. Register of directors and secretaries-(1) Section 91 of the principal Act is hereby amended by:-

(a) Inserting in subsection (5) after the words "international company" the words "to which this subsection applies.

(b) Inserting after subsection (5) the following subsection:

("5A) Subsection (5) shall apply only to international companies that have so elected by notice in writing to the Registrar and have not rescinded that election by subsequent notice in writing to the Registrar."; and

52. Annual general meeting – Section 92 of the principal Act is hereby amended by repealing subsection (6) and substituting the following subsection:

"(6) Notwithstanding any other provision of this Act an international company need not-

(a) hold any particular annual general meeting if all members entitled to attend that meeting agree thereto in writing, and in such event a resolution in writing dealing with –

(i) the matters required by this Act to be dealt with and disposed of at an annual general meeting of an international company; and

(ii) such other matters, if any, as may in terms of subsection (2) to be dealt with at such a meeting and which is signed by all members entitled to vote at that meeting, before the expiration of the period within which that meeting is to be held, shall be deemed to be a resolution passed at an annual general meeting of the company held in terms of this section on the date on which the last signature to such resolution is affixed; or

(b) hold any annual general meetings if all the members of the company at any time agree thereto in writing and in such a case none of the matters required by this Act to be dealt with and disposed of at annual general meeting of an international company shall apply: Provided that if any member of the company by notice in writing to the company requires future annual general meetings to be held, such meetings shall be held and the first of such meetings shall be held within 3 months of the receipt of the notice of the company.".

53. Calling of meetings – Section 94 of the principal Act is hereby amended by adding the following subsection:

"(6) Anything that may be done by an international company by resolution or special resolution passed at a meeting of that company may, subject to any special provisions in that behalf in the articles of the company, be done without a meeting and without any previous notice of the resolution being required by means of a resolution in writing signed by not less than three fourths of such members as are entitled to vote thereon and such resolution shall be deemed as valid as if passed at a meeting duly held in accordance with the Act and with the articles of that company. Any such resolution may be contained in the one instrument or in several instruments in like form,."

54. Meetings –Section 96 of the principal Act is hereby amended by adding the following subsection -

"(4) Unless the articles of an international company otherwise provide –

(a) any meeting may be held by radio, telephone, closed circuit television or other electronic means of audio or audio visual communication; and

(b) the presence of one person may constitute a meeting; and

55. Proxies – Subsection (1) of section 97 of the principal Act is hereby amended by repealing paragraph (b).

56. Power of Registrar to direct meeting to be called – Subsection (1) of section 98 of the principal Act is hereby amended by omitting the words "either of his own motion or".

57. Filing of copies of certain resolution and agreements – Section 101 of the principal Act is hereby repealed.

58. Minutes of proceedings – Section 103 of the principal Act is hereby amended by repealing subsection (3) and substituting the following subsection:

"(3) The minute books of an international company shall be kept at the registered office of the company or such other place as the directors determine. Where the minute books are not kept at the registered office any person entitled to inspect such minute books may apply to the Registrar for an order that a copy of such minute books be made available at the registered office and in the event of the Registrar so ordering the company shall comply with the order within 28 days of receiving notice of the order.".

59. Where register to be kept – Section 106 of the principal Act is hereby repealed and the following section substituted:

"106. Where register to be kept – The register of members of an international company shall be kept at the registered office of the company or such other place as directors determine. Where the register of members is not kept at the registered office any person entitled to inspect such register may apply to the Registrar for an order that a copy of the register be made available at the registered officer and in the event of the Registrar so ordering the company shall comply with the order within 28 days of receiving notice of the order."

60. Inspection and closing of register – Section 107 of the principal Act is hereby amended by

(a) Repealing subsection (2) and substituting the following subsection –

"(2) The register shall be open to the inspection of any member for the purposes of inspection of the particulars of that member’s shareholding contained therein but no member shall be entitled to inspect the particulars of any other member without the consent in writing of that other members first had and obtained (or in the case of any company making a public offering of any debt or equity security as may be provided for in the articles of that international company). Any inspection by a member shall be without charge."; and

(b) Omitting from subsection (3) the words "Any member" and substituting the words "Subject to the provisions of subsection (2), any member."

61. Consequences of default by agent – Section 108 of the principal Act is hereby repealed.

62. Branch registers – Section 111 of the principal Act is hereby repealed and the following section substituted:-

"111. Branch registers-(1) An international company may cause to be kept in any place outside of Western Samoa a branch register of members.

(2) A branch register shall be kept in the same manner in which the principal register is, by this Act, required to be kept.

(3) The shares registered in a branch registered may be distinguished from shares registered in the principal register, and any dealing with a share on a branch register shall be noted in that register.

(4) An international company which keeps a branch register outside of Western Samoa may discontinue the branch register and thereupon all entries in that register shall be transferred to some other branch register by the company or to the principal register.

(5) If by virtue of the law in force in any other country, a company incorporated under that law keeps in Western Samoa a branch register of its members, the provisions of this Act relating to inspection, place of keeping and rectification of the register of members shall apply to and in relation to any such register kept in Western Samoa as they apply to and relation to the registers of international companies under this Act and thereupon those provisions shall apply accordingly."

63. Annual return – Section 112 of the principal Act is hereby repealed.

64. Accounts to be kept – Section 113 of the principal Act is hereby amended by repealing subsections (1) and (2) and substituting the following subsections:

"(1) An international company shall keep such accounts and records as the directors consider necessary or desirable in order to reflect the financial position of the company.

(2) The accounts of an international company shall be kept at the registered office of the company or at such other place as the directors think fit and at all times be open to inspection by any director."

65. Statement of accounts – Section 115 of the principal Act is hereby repealed and the following section substituted:

"115. Statement of accounts – The accounts of an international company may be prepared in accordance with such generally accepted accounting principles as may be directed by the members in general meeting or as may be provided for in the articles, or, in the absence of such direction or provision, as may be determined by the directors."

66. Auditor need not be appointed in certain circumstances – Section 117 of the principal Act is hereby repealed and the following section substituted:

‘117. Auditor need not be appointed in certain circumstances – An international company need not appoint an auditor of the company if:

(a) the articles of the company so provide: or

(b) all members of the company agree in writing that such an appointment should not be made; or

(c) at each annual general meeting of the company all members present in person or by proxy resolve that such an appointment should not be made."

67. Appointment and removal of auditors – Section 118 of the principal Act is hereby repealed and the following section substituted:

"118. Appointment and removal of auditors-(1) Subject to the provision of section 116 and 117 of the company for such period as the company may determine upon the previous auditor ceasing to hold office.

(2) An international company may, at a general meeting of which notice has been given to the auditor not less than 28 days before the date of meeting, remove an auditor from office. Subject to section 117, and auditor is removed, the international company shall at the meeting at which the auditor is removed or at a general meeting held within one month thereafter, appoint a registered company auditor to take the place of the auditor so removed."

(3) The Registrar may cause any additional records or registers to be destroyed after the expiration of 6 years from the commencement of the winding up."

68. Payment of certain debts out of assets subject to floating charges in priority to claims under charge – Section 138 of the principal Act is hereby repealed.

69. Effect on winding-up – Section 142 of the principal Act is hereby amended by repealing subsection (1) and substituting the following subsection -

"(1) An international company shall from the commencement of the winding up cease to carry on business, except so far as, in the opinion of the liquidator –

(a) is required for the beneficial winding-up of the international company; or

(b) subject to section 143, is required for the performances of any contract but the corporate state and corporate powers of the company shall, notwithstanding anything to the contrary in the articles, continue until it is dissolved."

70. Circumstances in which company may be wound-up voluntarily – Section 169 of the principal Act is repealed and the following section substituted:

"Circumstances in which company may be wound-up voluntarily – Section (1) An international company which is able to pay or provide for the payment of its debts in full or if not in full to the satisfaction of its creditors, may be wound up voluntarily if the company has by special resolution resolved that it be wound up voluntarily and had lodge notice thereof with the Registrar.

(2) Upon the Registrar being satisfied that the notice of the resolution for the winding-up of the company has been lodged with him, he shall appoint an official liquidator to be liquidator or the company and thereupon the winding-up shall commence.

(3) The liquidator or the registrar may give such notices and make such enquiries as they see fit to ascertain the identity of the holders of the shares in an international company and of the creditors thereof, and the costs and expenses of so doing in an international company and of the creditors thereof, and the costs and expenses of so doing shall be paid out of the assets of the company."

71. Books of liquidator and company – Section 185 of the principal Act is hereby amended by repealing subsections (2) and (3) and substituting the following subsections:

"(2) When an international company has been wound up the liquidator shall return the books and papers to the resident company secretary of that company who shall ensure that those books and papers are retained by a trustee company for a period of 6 years from the commencement of the winding-up. After the expiration of the 6 years the books and papers may be destroyed.

(3) The Registrar may cause any additional records or registers to be destroyed after the expiration of 6 years from the commencement of the winding-up."

72. Sales other than at proper value - Section 191 of the principal Act is hereby amended by omitting the number "2" where it appears in each of subsections (1), (2) and (3) and substituting in each place the number "1".

73. Disclaimer of onerous property – Section 192 of the principal is hereby amended by omitting from subsection (1) the following words -

"Where any part of the property of an international company consists of –

(a) any estate or interest in land which is burdened with onerous covenants;

(b) shares or stocks in companies;

(d) any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act or to the payment of any sum of money," and substituting the following words:

"Where –

(a) any part of the property of an international company consists of –

(i) any estate or interest in land burdened with onerous covenants;

(ii) shares or stocks in companies;

(iii) unprofitable contracts; or

(iv) any other property that, for whatever reason, is unprofitable nor not readily saleable; and

(b) the mere interest in that, contract or property binds the international company, or is likely to bind the international company, to the payment of any sum of money or the disposition of any assets of the international company,"

74. Offences by officers of companies in liquidation – Paragraph (c) of subsection (1) of section 193 of the principal Act is hereby amended by omitting the word "years" and substituting the word "months".

75. Liability where proper accounts not kept or debts incurred without reasonable expectation of payment – Section 195 of the principal Act is hereby repealed.

76. Personal liability for debts – Section 196 of the principal Act is hereby repealed.

77. Defunct companies – Section 197 of the principal Act is hereby amended by –

(a) Omitting from subsection (1) the words "is not in operation or";

(b) Inserting the following subsection after subsection (2):

"(2A) Upon the request of an international company, such request having been approved by a special resolution of the members and being accompanied by a statutory declaration signed by all of the directors to the effect that the international company no long carries on business and has no outstanding liabilities to creditors and no assets (other than assets represented by cash) the Registrar shall, unless he has cause to believe that the contents of the directors statutory declaration are incorrect, strike the name of the international company off the register and the international company shall thereupon be dissolved and the provisions of subsection (2) shall apply mutatis mutandis apply."; and

(c) Inserting in paragraph (a) of subsection (2) after the word "continue" the words "for a period of two years following the date upon which the company is dissolved".

78. Foreign companies- Section 200 of the principal Act is hereby amended by:-

(a) Omitting from subsection (1) the words "place of business" and substituting the words "permanent establishment";

(b) Adding a paragraph to subsection (3) as follows: "(c) Enters into transactions or dealings with one or more international companies or foreign companies of a nature which do not entail the creation of a permanent establishment in Western Samoa.";

(d) Adding the following subsection:

"(7) Registration of any company under this Part X shall be conclusive of the fact that, for the purposes of the definition "foreign company" in section 2 of this Act, the company is validly incorporated outside of Western Samoa."

79. Transfer from Western Samoa of companies incorporated under this Act – Subsection (3) of section 209 of the principal Act is hereby amended by:-

(a) Omitting word "not";

(b) Omitting the word "unless" and substituting the word "if"; and

(c) Omitting the word "and" where it appears before the words "may make his approval conditional" and substituting the words "provided that the Registrar".

80. Translation of instruments – Section 216 of the principal Act is hereby amended by repealing subsection (3) and substituting the following subsection:-

"(3) For the purpose of this section, a "certified translation" means a translation into the English language certified in the English language as a correct translation by the translator before –

(a) a diplomatic or consular officer of any country;

(b) a notary public, justice of the peace or similar person of any country;

(d) or any other person before whom by any law of Western Samoa affidavits may lawfully be sworn for use in proceedings in any Court in Western Samoa.".

81. Procedure where none laid down - Section 220 of the principal Act is hereby amended by omitting the words "application may be made to the Registrar for" and substituting the words "the Registrar may, in response to an application to him, or on his own motion, give".

82. Power of exemption – Section 224 is hereby repealed and the following section substituted:

"224. Power of exemption-(1) The Minister, on application in writing lodged with the Registrar by an international company or a foreign company, may exempt any person company or class of persons or companies from all or any part of the provisions of this Act; may, specify such terms and conditions as he thinks fit in respect of any such exemption; and any such exemption may be revoked at any time in like manner.

(2) For the purposes of this section a class of companies may be determined by reference to:

(a) the business activities of the company;

(b) the company’s involvement with any trustee company; or

83. Enforcement of indemnity – The principal Act is hereby further amended by inserting after section 226 the following section:

"226A. Enforcement of indemnity – Where an international company provides in its memorandum or articles that any director secretary or other officer or servant shall have a right of indemnity and respect of those charges losses damages or expenses incurred that indemnity (if otherwise enforceable) may sued upon by any person to whom that indemnity is expressed as extending notwithstanding that such person may not be a signatory to the memorandum or articles (as the case may be) and shall be as binding and enforceable as if contained in a deed executed by the company for the benefit of that person".

84. Secrecy – Section 227 of the principal is hereby amended by repealing subsections (3) and (4) and inserting the following subsections:

"(3) Any person or entity who, with respect to an international company or a foreign company registered under this Act and whether in Western Samoa or elsewhere-

(a) divulges;

(b) attempts, offers or threatens to divulges;

(d) incites, abets, counsels or procures any person to divulge;

(e) is knowingly concerned in the divulging of any information or communication in respect of, in relation to or concerning –

(i) the shareholding in, or beneficial ownership of any share or shares in such a company;

(ii) the identity of any member of such a company or the interest (legal or beneficial) of any such member in such a company;

(iii) the management or officers of such a company;

(iv) any of the business, financial or other affairs or transactions of such company;

(v) the assets or liabilities of such a company; or

(vi) the consents of any register maintained by such a company, commits an offence against this Act.

(4) Notwithstanding subsection (1) of this section, it shall not be an offence under this section where such information or communication is divulged to the extent reasonably required in the circumstances:

(a) by an officer of an international company or a foreign company or a trustee company to the Registrar or the Minister for the purpose of a complying with the provisions of this Act;

(b) by an officer of a trustee company to a director of that trustee company, or a by a director of a trustee company to the Minister in what he believes are the best interest of Western Samoa to uphold the integrity of the jurisdiction as an offshore financial center or to otherwise ensure compliance with this Act;

(c) by an officer of an international company or a foreign company to any person for the purpose of carrying on the business of the company: provided that the phrase "carrying on the business of the company" shall not include the compliance with any demand or request for information by any foreign government or any court or tribunal of any country other Western Samoa where the divulging of the information will, or is likely to, result in the payment of any tax, other penalty or any fine by the company; or

(d) by an officer of an international company or a foreign company to any foreign government or any court or tribunal or any country other than Western Samoa but only if and to the extent that the court in Western Samoa so directs, having been satisfied that the information is required and will be used solely for the purposes of an investigation or prosecution of any person in relation to the sale, or the laundering of the proceeds of sale, of any prohibited narcotic substances, whether that sale or laundering occurred in Western Samoa or elsewhere;

(e) by any person to a liquidator, or to an officer of an international company, foreign company or trustee company in the performance of his duties as an officer;

(f) by an officer of an international company or a foreign company to a member of the company where all of the directors of that company consent to such disclosure (or otherwise in accordance with section 107 of this Act); and

(g) by an officer of an international company or a foreign company to any other person where all of directors of that company consent to such disclosure, Provided that the Minister may in his absolute discretion prohibit any disclosure of any information permitted by this Act.

(5) Nothing in this section shall prevent the Court from requiring any person to produce documents or to give evidence in any criminal proceedings or in any civil proceedings alleging fraud or other dishonesty of any facts relevant in such proceedings under the law of Western Samoa.

(6) In recognition of the desirability of maintaining secrecy in respect of the activities of all international companies and foreign companies registered under this Act may do all things which, in his opinion, are necessary to give effect to the provisions of this section.

(7) This section shall apply to every international company and to every foreign company to the extent to which that information relates to any branch of the foreign company in Western Samoa or any business which it conducts in Western Samoa or in relation to any person who is resident of Western Samoa."

85. Form of company registers and records – The principal Act is hereby further amended by inserting after section 228 the following section:

"228. Form of company registers and records – Subject to section 103 of this Act, any register, records, accounts or documents required to be kept by an international company pursuant to this Act may be kept in written, magnetic, electronic or any other data storage form, provided that the international company can readily produce legible printed evidence of its content.".

86. Asset protection – The principal Act is hereby further amended by inserting after section 228A the following section:

"228B. Asset protection-(1) This section shall only apply to an international company where the articles of that international company state that the section shall so apply.

(2) In this section –

"Expiration" means any act of confiscation, compulsory acquisition, nationalization or any similar act;

"Membership interest" means any interest in a share of an international company;

"Specified person" means the person or person nominated in the articles of an international company for the purposes of this section; and

"Specified event" means any event stated in the articles of an international company to be a specified event in respect of one or more of the members of that international company..

(3) The articles of an international company may provide that on the happening of any specified event (including without limitation where any foreign government expropriates any membership interest of a member of an international company) then the provisions of this section shall apply.

(4) Upon the concurrence of any specified event:

(a) the membership interest of any member of an international company affected by that event shall automatically vest in the specified person and if more than one specified persons, to those specified persons in the proportions and in the manner stated in the articles of the international company; and

(b) no other person (including the original owner) shall have any rights in or to the membership interest.

(5) Every holder of a membership interest in an international company shall be entitled to nominate one or more specified persons and if more than one specified person is nominate by a holder of a membership interest, the proportions and manner in which the membership interest shall vest in each of those specified persons shall be stated.

(6) A holder of a membership interest in an international company shall be entitled at any time, and from time to time, to nominate or removed a specified person by notice in writing to the international company."

87. Removal of prospectus requirements – Sections 229 to 248, inclusive, of the principal Act are hereby repealed.

88. Exemptions and privileges of international companies – Subsection (2) of section 249 of the principal Act is hereby amended by omitting paragraph (a) and (b) and substituting the following paragraphs:

"(a) Every international company and every foreign company registered under Part X shall be exempt from the payment of income tax and from the payment of any other direct or indirect tax or impost or stamp duty upon its transactions, contracts, securities and other dealings and upon its profits and gains; and

(b) Every international company and every foreign company registered under Part X shall be exempt from the payment of income tax and from the payment of any other direct or indirect tax or impost in respect of any dividends or earnings of, or upon any interest earned by such company attributable to or paid upon the shares or securities of any international attributable to or paid upon the shares or securities of any international company or foreign company registered under Part X that are beneficially owned by another international company or by a person who is not a resident of Western Samoa, except where the income is derived by way of dividend, interest, royalty or any other mean of dividend, interest, royalty or any other mean of distribution paid by a trustee company from income of that trustee company which is taxable in Western Samoa."

89. Consequential amendments and repeals -(1) Subsection (19) of section 14 of the principal Act is hereby amended by omitting the words "share warrant" and substituting the words "share certificate issued to bearer" the words "or bearer share".

(2) Section 31 of the principal Act is hereby repealed.

(3) Subsection (1) of section 68 of the principal Act is hereby amended by inserting after the words "other than a" the words "bearer share"

(4) Subsection (11) of section 83 of the principal Act is hereby repealed.

(5) Section 84 of the principal Act is hereby amended by omitting the words "or in a prospectus under Part XII" and the words "or the issue of the prospectus".

(6) Subsection (1) of section 167 of the principal Act is hereby amended by inserting after words "share warrants" the words " or bearer shares".

(7) Section 217 of the principal Act is hereby repealed.

(8) Section 218 of the principal Act is hereby repealed.

(9) Subsection (3) of section 219 is hereby amended by inserting after the number "195" the number "227".

(10) Subsection (1) of section 223 of the principal Act is hereby amended by omitting paragraphs (n), (o) and (p).

90. Schedule 1 – Schedule 1 to the principal Act is hereby amended by:

(a) Renumbering paragraphs 21 and 22 as paragraphs 26 and 27 respectively;

(b) Inserting after paragraph 20 the following paragraphs:

"21. To distribute any of the property of the company among the members, in kind or otherwise;

22. To give security by charging uncalled capital;

23. To grant a floating charge on the undertaking or property of the company;

24. To procure the company to be registered or recognized as a body corporate in any place out of Western Samoa;

25. To make provision in connection with the cessation of the whole or part of the business of the company, or of any subsidiary of the company, for the benefit of any subsidiary of the company, for the benefit of employees or former employees of the company or for the dependents of such employees or former employees."

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