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International Companies Amendment Act 1996

SAMOA

INTERNATIONAL COMPANIES AMENDMENT ACT 1996

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Arrangement of Provisions

Title
1. Short title and commencement
2. Interpretation
3. Part III Division 330A Registration
30B Issue of Certificate
30C Memorandum
30D Powers
30E Articles of Organisation
30F Name
30G Members
30H Management
30I Interest in company
30J Resident Agent
30K Renewal Fees
30L Dissolution
30M Saving

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1996 No.4

AN ACT to amend the International Companies Act 1987.

[8 March 1996]

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 Amendment Act 1996 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) Inserting in the definition of "Articles" after the word "association", the words "or in the case of a limited life International company, articles of organization":

(b) Inserting after the term "international company" and its definition the following term and definition: "Limited life international company" means an international company incorporated or registered as a limited life international company pursuant to section 30A of this Act:"

(c) Inserting after the term "lodged" and its definition, the following term and definition:

"Manager" or "Managers" means a person or the persons named or designated as the manager or managers of a limited life international company pursuant to the provisions of the articles of organisation or an operating agreement:

(d) Inserting after the term "Memorandum" and its definition, the following term and definition: "Member" in relation to a limited life international company means a person whose name is entered as a member in the register of members of a limited life international company:

(e) Deleting from the definition of "Officer" the word "and" where it appears after the word "instrument", and inserting after the words "compulsory winding up", the words "and (d) a manager of a limited life international company":

(f) Inserting after the term "Official liquidator" and its definition, the following term and definition: "Operating agreement" means a written agreement of the members as to the affairs of a limited life international company and the conduct of its business:

(g) Inserting in the definition of "Renewal fee" after the words "section 14" the words "or in the case of a limited life international company, section 30K":

(h) Inserting after the term "Regulations" and its definition, the following term and definition: "Resident agent" means a trustee company, an officer of a trustee company or a wholly owned subsidiary of a trustee company appointed to be such under section 30J.

3. Limited life international companies The principal Act is amended by inserting after Division 2 of Part III the following Division -

DIVISION 3

LIMITED LIFE INTERNATIONAL COMPANIES

30A. Registration-(1) A trustee company may apply to incorporate or register an international company as a limited life international company by delivering to the Registrar an original and true copy of the memorandum and articles of organisation which have been subscribed to by the trustee company, which need not be a member of the limited life international company, or by the persons who will be the first members of the company.

(2) An application for registration as a limited life international company may also be made under subsection (1) at the same time that an application is made to register a company by way of continuance under section 16 of the principal Act.

(3) A limited life international company shall have at least two members. A trustee company that subscribes to the memorandum of a limited life international company shall not be a member of that company unless it subscribes for shares in the limited life international company in accordance with section 30G(1).

(4) An application under subsection (1) must be accompanied by the prescribed application fee.

(5) Sections 14 and 15 of the principal Act shall not apply to the incorporation of a limited life international company.

30B. Issue of Certificate-(1) The Registrar, if satisfied that the company complies with the provisions of Division 3 of this Part shall register the company as a limited life international company.

(2) On registering a company as a limited life international company the Registrar shall:

(a) In the case of a company referred to in section 30A(1), issue a certificate of incorporation certifying that the company is incorporated and registered as a limited life international company; and

(b) In the case of a company referred to in section 30A(2), certify in the certificate of continuation issued pursuant to section 16 of the principal Act that the company is registered as a limited life international company.

(3) The certificate confirming registration as a limited life international company shall be conclusive evidence that all the requirements of the principal Act in respect of incorporation or registration and of all matters precedent and incidental thereto have been complied with and that the limited life international company referred to therein has been legally incorporated and registered under the principal Act.

30C. Memorandum-(1) The memorandum of a limited life international company shall state the following:-

(a) The name of the company:

(b) The address within Western Samoa of the registered office of the company:

(c) The purpose for which the company is being incorporated:

(d) The name and address of the resident agent in Western Samoa:

(e) The total amount of share capital which may be contributed to the company and the division thereof into shares of a fixed amount:

(f) The period of its duration, which shall be fifty years from the date of issue of the certificate under section 30B (2) if no period is specifically stated in the memorandum:

(g) The full name and address of the subscriber thereto or the full names and addresses of the subscribers thereto, as the case may be; and

(h) That the subscriber or subscribers to the memorandum desire the formation of a limited life international company:

(2) Where the memorandum is subscribed by a trustee company it shall when registered bind the company and its members to the same extent as if each member had subscribed his name thereto and as if there were contained in the memorandum on the part of the member, his heirs, executors and administrators, a covenant to observe the provisions of the memorandum, subject to the provisions of this Act.

(3) Section 18(1) of the principal Act shall not apply to a limited life international company.

30D. Powers -A limited life international company registered and existing under this Act shall have, in addition to the powers granted under section 20 of the principal Act the powers set out in Schedule 3.

30E. Articles of Organisation-(1) The articles of organisation of a limited life international company shall –

(a) State if the management of the limited life international company is reserved exclusively to its members:

(b) If the management of the limited life inter-national company is not reserved exclusively to its members, state the extent to which, the management of the limited life international company is to be vested in a manager or managers, and if so shall set out the manner in which such manager or managers are to be appointed by the members:

(c) State that, unless otherwise provided in the operating agreement, the members who are managers of the limited life international company must own at all times during the existence of the company:

(i) an aggregate interest of not less than 1% in the income, gain, loss, deduction, or credit of the limited life international company; and

(ii) an aggregate interest of not less than 1% in the aggregate of the paid up capital and reserves of the limited life international company:

(d) State the right, if given, and terms upon which the remaining members of the limited life international company may continue the business upon the death, retirement, resignation, expulsion, bankruptcy or dissolution of a member or occurrence of any other event which terminates the continued membership of a member in the limited life international company:

(e) State the right, if given, of the members to admit additional members, and the terms and conditions of the admission:

(f) State that, unless otherwise provided in the operating agreement, a member of a limited life international company is prohibited from transferring or assigning any share or other interest in the limited life international company without the approval in writing of all other members of the limited life international company, and that a transferee or an assignee of any share or other interest of a member in the limited life international company may not become a member of the limited life inter-national company unless such transfer or assignment is approved in writing by all the members of the limited life international company other than the member transferring or assigning his share, shares or other interest in the limited life international company:

(g) State that the limited life international company is prohibited from issuing shares to bearer or shares warrants to bearer:

(h) Specify any other provision, not inconsistent with law, which the members elect to set out in the articles of organisation for the regulation of the internal affairs of the limited life international company.

(2) Where the articles are subscribed by a trustee company they shall when registered bind the company and its members to the same extent as if each member had subscribed his name thereto and as if there were contained in the articles on the part of the member, his heirs, executors and administrators, a covenant to observe the provisions of the articles, subject to the provisions of this Act.

(3) Sections 24 and 25 of the principal Act shall not apply to a limited life international company.

30F. Name -The words "Limited Life International Company" or its abbreviations "LLC" or "L.L.C.", "Ltd. Life Co.", or "Limited Life International Co." shall be included in the name of every Limited Life International Company registered under the provisions of this Act.

30G. Members-(1) No share in a limited life international company incorporated under this Act shall be issued until the person subscribing for such share has paid the consideration due in respect of that share.

(2) Subject to any limitations or provisions to the contrary in the memorandum or articles of organisation, each share in a limited life international company incorporated under this Act shall be issued for money, services rendered, personal property (including other shares, debt obligations or other securities in the company), an estate in real property, a promissory note or other binding obligation to contribute money or property, or any combination thereof.

(3) No person shall become a member of a limited life international company until that persons name and address is entered as a member in the register of members in accordance with the provisions of this Act or the articles of organisation.

(4) Sections 68 and 69 of the principal Act shall not apply to a limited life international company.

(5) Neither the members of a limited life international company nor the managers of a limited life international company managed by a manager or managers are liable under a judgement, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited life international company.

30H. Management-(1) Management of the limited life international company shall be vested in its members, which unless otherwise provided in the articles of organisation or operating agreement, if any, shall be in proportion to their contribution to the capital of the limited life international company, as adjusted from time to time to properly reflect any additional contributions or withdrawals by the members; however if provision is made for it in the articles of organisation, management of the limited life international company may be vested in a manager or managers who shall be elected by the members in the manner prescribed by the articles of organisation or operating agreement, if any, of the limited life international company. If the articles of organisation provide for the management of the limited life international company by a manager or managers, unless the articles of organisation or operating agreement, if any, expressly dispenses with or substitutes for the requirement of annual elections, the manager or managers shall be elected annually by the members in the manner provided in the articles of organisation or the operating agreement, if any.

The manager or managers, or the person , appointed by the manager or managers, shall also hold the offices and have the responsibilities accorded them by the members and set out in the articles of organisation or operating agreement, if any, of limited life international company.

(2) Where the articles of organisation of a limited life international company provide for management of the company to be reserved to the members or for a manager or managers to be appointed the company shall be exempt from the requirements of sections 83 and 91.

30I. Interest in Company -The interest of all members in a limited life international company constitutes the personal estate of the member, and may be transferred or assigned as provided in the articles of organisation or operating agreement, if any. However if all of the other members of the limited life international company other than the member proposing to dispose of his or its interest do not approve of the proposed transfer or assignment by unanimous written consent, the transferee of the member's interest shall have no right to participate in the management of the business and affairs of the limited life international company or to become a member. The transferee shall only be entitled to receive the share of profits or other compensation by way of income and the return of contributions, to which that member would otherwise be entitled.

30J. Resident Agent-(1) Every limited life international company shall appoint a resident agent who shall be a trustee company, an officer of a trustee company, or a wholly owned subsidiary of a trustee company. A resident agent shall be an agent for the limited life international company upon whom any process, notice or demand required or permitted by law to be served upon the company may be served.

(2) The first resident agent of a limited life international company shall be nominated in the memorandum and thereafter the members may by unanimous agreement remove and appoint a resident agent.

(3) The resident agent of a limited life international company shall be responsible for compliance by the limited life 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

(4) Section 90 of the principal Act shall not apply to a limited life international company. in Western Samoa and for dealing with communications addressed to the company at its registered office.

30K. Renewal Fees -Every limited life international company shall be liable to pay to the Registrar on the 30th day of November of each year following the year in which it is incorporated or registered the prescribed annual renewal fee.

30L. Dissolution-(1) A limited life international company incorporated or registered under this Division shall be dissolved upon the occurrence of any of the following events –

(a) When the period fixed for the duration of the limited life international company shall expire:

(b) By the unanimous written agreement of all members of the limited life international company:

(c) Subject to any contrary provisions in the articles of organisation, upon the redemption, repurchase or cancellation of all the shares of any member of the limited life international company:

(d) Upon the transfer of any share or other interest in the limited life international company in contravention of the articles of organisation; or

(e) Upon the death, retirement, resignation, expulsion, bankruptcy, dissolution of any member or occurrence of any other event which terminates the continued membership of any member in the limited life inter-national company, unless the business of the limited life international company is continued by the consent of all the remaining members within 90 days following the occurrence of any such event or pursuant to a right to do so stated in the articles of organisation or operating agreement of the limited life international company.

(2) Within fourteen days following the occurrence of any of the events specified in subsection (1) above, the limited life international company shall file a notice of dissolution in such form as shall be prescribed by the Registrar.

(3) Upon the occurrence of any of the events specified in subsection (1) above, the person named in the articles of organisation shall without further action become the liquidator or if the articles of organisation do not provide for such an appointment then the manager or managers shall without further action become the liquidator, failing which the Registrar shall appoint an official liquidator to be the liquidator of the company.

(4) The provisions of section 11(3) of the principal Act shall not apply to a limited life international company.

(5) The winding up of a limited life international company shall commence from the date of appointment of the liquidator. Section 142(3) of the principal Act shall apply to a limited life international company except for the words "not being a transfer made to or with the sanction of the liquidator, other than the transfer of a share warrant".

(6) Within 120 days after the commencement of the winding up of a limited life international company, the liquidator shall determine the claims validly made against the company, and immediately thereafter the liquidator, subject to the retention of funds to meet the costs of the liquidation, shall pay such claims as are admissible against the company, repay capital contributions to members, and distribute the surplus, if any, to the members.

(7) Upon making the payments referred to in subsection (5), the liquidator shall file with the Registrar a certificate of completion of dissolution in such form as shall be prescribed by the Registrar. The Registrar shall endorse the certificate of completion of dissolution and thereupon the existence of the limited life international company shall cease.

(8) Section 185(2) of the principal Act shall apply to a limited life international company but the words "resident secretary" are deleted and substituted with the words "resident agent".

(9) Section 188(1) of the principal Act shall apply to a limited life international company but the words "section 172" are deleted and substituted with the words "section 30L"

(10) Sections 143, 169, 170, 171, 172, 186, and 188, subsections (3), (4) and (5) of the principal Act shall not apply to a limited life international company -

30M. Saving - The provisions of Division 3 of Part III are without prejudice to section 13(3) of the principal Act which provides that all international companies incorporated under this Act are companies limited by shares.

SCHEDULE 3

ADDITIONAL POWERS OF A LIMITED LIFE INTERNATIONAL COMPANY

1. To sue and be sued, complain and defend, in its name;

2. To purchase, take, receive, lease or otherwise acquire, own, hold, improve, use and otherwise deal in and with real or personal property, or an interest in it, wherever situated;

3. To sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part of its property and assets;

4. To lend money to and otherwise assist its members, managers and employees;

5. To purchase, take, receive, subscribe for or otherwise acquire, own, hold, vote, use,
employ, sell, mortgage, lend, pledge or otherwise dispose of, and otherwise use and deal in an with shares or other interests in or obligations of other limited liability companies, international or foreign corporations, associations, general or limited partnerships or individuals, or direct or indirect obligations of any government, state, territory, governmental district or municipality;

6. To make contracts and guarantees and incur liabilities, borrow money at such rates of interests as the limited life international company may determine, issue its notes, bonds and other obligations and secure any of its obligations by mortgage or pledge of all or any part of its property, franchisees and income;

7. To lend money for its proper purpose, invest and reinvest its funds and take and hold real property for the payment of funds so loaned or invested;

8. To conduct its business, carry on its operations and have and exercise the powers granted by this Act in any country outside Western Samoa;

9. To elect or appoint managers, officers, employees and agents of the limited life international company, and define their duties and authority and affix their compensation;

10. To make and alter operating agreements, not inconsistent with its articles of organisation or this Act, for the administration and regulation of the affairs of the limited life international company;

11. To indemnify a member or manager or former member or manager of the limited life international company against expenses actually and reasonably incurred by him or it in connection with the defence of any action, suit or proceeding, civil or criminal, in which he or it is made a party by reason of being or having been such member or manager, except in relation to matters as to which he or it shall be adjudged in the action, suit or proceeding to be liable to the company for negligence or misconduct in the performance of duty or to have received improper personal benefit on account thereof; and to make any other indemnification that is authorised by the articles of organisation or by an article of the operating agreement or resolution adopted by the members after notice;

12. To cease it activities and surrender its certificate of incorporation or registration;

13. To have and exercise all powers necessary or convenient to effect any or all of the purposes for which the limited life international company is incorporated;

14. To become a member of a general partnership, limited partnership, joint venture or similar association, or any other limited liability company;

15. To pay pensions and establish pension plans, pension trusts, profit-sharing plans, ownership interest bonus plans and option plans, and benefit or incentive plans for any or all of its current or former managers, officers, employees and agents;

16. To make donations for public welfare or for charitable, scientific or education purposes.

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