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International Companies Amendment Act


Published: 1998

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1998, No. 33

AN ACT to amend the International Companies Act 1987.
(16 July 1998)

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

1. Short title and commencement-(1) This Act may be
cited as the International Companies Amendment Act 1998 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 day after the date
of assent (in this Act referred to as the commencement date).
(3) Any reference in this Act to an enactment is, unless the
context otherwise requires, a reference to that enactment as
amended, extended, re-enacted, or applied by or under any other
enactment, including this Act.

2. Interpretation - Subsection (1) of section 2 of the
principal Act is hereby amended by -
(i) Inserting after the term “company” and its
definition, the following terms and definitions:

“Company Limited by Shares” means a company having
the liability of its members limited by the
memorandum to the amount, if any, unpaid on the
shares respectively held by them and such members
shall be called shareholders:
“Company Limited by Guarantee” means a company
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having the liability of its members limited by the
memo-randum to such amount as the members may
respectively thereby undertake to contribute to the
assets of the company in the event of its being
wound up and such members shall be called
guarantee members:
“Company Limited by Both Shares and Guarantee,” means
a company having the liability of its members
limited by the memorandum -
(a) In the case of members who have given a guarantee,
to such amount as they have respectively
undertaken to contribute to the assets of the
company in the event of it being would up and
such members shall be called guarantee
members; and
(b) In the case of members who are shareholders, to the
amount, if any, unpaid on the shares respectively
held by them and such members shall be called
shareholders;

(ii) Deleting the definition of “Member”
and substituting the following:

“(a) In relation to a company, other than a limited life
international company, means a person whose
name is entered in the company’s Register of
Members, whether as a shareholder or a
guarantee member, or who is entitled to have his
name so entered;
(b) 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.”

(iii) Inserting after the term “Public Notice”
and its definition, the following term and
definition:
“Register of Members” -
International Companies Amendment 1998, No. 33 4
(a) In relation to a company, other than a limited life
international company, means the Register kept
pursuant to section 105;
(b) In relation to a limited life international company,
means the register kept by a limited life
international company pursuant to section 30G
in which the names of its members are entered.

3. Restriction on shareholding in International
Company - Section 6 of the principal Act is hereby amended by
deleting the Heading and by repealing subsection (1) and
substituting the following Heading and subsection:

“6. Restriction on membershipinterest in International
Company-(1) No natural person who is a citizen or resident of
or domiciled in Samoa and no company incorporated or
registered under the Companies Act 1955 except a trustee
company may either individually or with another person or
persons and whether directly or indirectly and whether in
consequence of any trust or similar arrangement or otherwise,
be or become a shareholder in or guarantee member of an
international company under this Act or a foreign company that
has the centre of its administrative management in Samoa
unless that foreign company is registered under the Companies
Act 1955.”

4. Official liquidator - Section 11 of the principal Act is
amended by inserting after subsection (5) the following
subsection:

“(6) The Registrar may from time to time prescribe and
publicly notify annual fees for registration as an official
liquidator.”

5. Formation of companies - Subsection (3) of section 13
of the principal Act is hereby amended by repealing the said
subsection and substituting the following subsections:
“(3) Every international company, other than a limited life
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international company, incorporated under this Act, shall be -
(a) A company limited by shares; or
(b) A company limited by guarantee; or
(c) A company limited by both shares and guarantee.
(4) Every limited life international company incorporated
under this Act shall be a company limited by shares.”

6. Transfer to Samoa of company incorporated outside
of Samoa - Section 16 of the principal Act is hereby amended
by repealing subsections (1), (2) and (5) and substituting the
following subsections:

“(1) A company incorporated as a company or corporation
under the laws of any country other than Samoa, or of any
jurisdiction within such a country, may, if not prohibited under
the laws of that other jurisdiction, apply to the Registrar to be
registered as being continued in Samoa as if it had been
incorporated under this Act.
(2) Upon application under subsection (1), supported by
such material as he considers adequate and satisfactory, the
Registrar, subject to section 225 and the payment of any
prescribed fee, may register such company as being so
continued and, if so registered, the company shall be deemed
thereafter to be an international company under this Act and
domiciled in Samoa; Provided that no company may be
registered under this section if -
(a) Its winding-up has commenced; or
(b) A receiver of its property has been appointed; or
(c) There is any scheme or order in force in relation
thereto whereby the rights of creditors are
suspended or restricted.”

7. Requirements as to memorandum-(1) Subsection (1)
of section 18 of the principal Act is hereby amended by
repealing the said subsection and substituting the following
subsection:


International Companies Amendment 1998, No. 33 6
“(1) The memorandum of every international company,
other than a limited life international company (to which
section 30 C shall apply in this regard) shall be printed and
divided into numbered paragraphs and dated and shall state the
following -
(a) The name of the company;
(b) Whether the company is a company limited by
shares, a company limited by guarantee or a
company limited by both shares and guarantee;
(c) The full name and address of the subscriber thereto
or the full names and addresses of the
subscribers thereto, as the case may be;
(d) In relation to the share capital of the company, if
any-
(i) where the company proposes to issue
only par value shares, the amount of the share
capital with which it is proposed to be registered
and the division thereof into shares of a fixed
amount;
(ii) where the company proposes to issue
only no par value shares, the number of shares;
or
(iii) where the company proposes to issue
both par value shares and no par value shares,
the fixed value of the par value shares and the
number of no par value shares;
(e) In relation to a company limited by guarantee or a
company limited by both shares and guarantee,
that each guarantee member of the company
undertakes to contribute to the assets of the
company in the event of its being wound up
while he is a member such amount as may be
required, not exceeding the amount specified in
the memorandum, for the payment of the
company’s debts and liabilities contracted before
he ceased to be a member and of the costs,
charges and expenses of winding up and for any
adjustment of the rights of contributories as
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between themselves;
(f) That the subscriber or subscribers to the memo-
randum desire the formation of an international
company and that on incorporation of a company
limited by shares or limited by both shares and
guarantee, shares of the number and class in the
capital of the company set out are to be issued to
the subscriber or the respective subscribers.”

(2) Section 18 is further amended by repealing subsections
(3) and (4)

8. Liability of Members - The principal Act is further
amended by inserting after subsection 18, as amended by
section 7 of this Act, the following section:

“18A. Liability of Members-(1) 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.
(2) In the case of a company limited by shares or by
guarantee or both by shares and by guarantee, a member is
liable to the international company -
(a) In the case of members who have given a guarantee,
only to the extent to which that member has
undertaken to contribute from time to time and
in the event of its being wound up; and
(b) In the case of members who are shareholders, only
to the extent of any amount unpaid on the shares
respectively held by them.”

9. Companies limited by guarantee and companies
limited both by shares and by guarantee - The principal Act
International Companies Amendment 1998, No. 33 8
is further amended by inserting after subsection 18, as amended
by section 7 of this Act, the following section:


“18B Companies limited by guarantee and companies
limited both by shares and by guarantee-(1) Notwith-
standing any rule of common law or equity dealing with the
nature of guarantees, where an international company is a
company limited by guarantee, or is a company limited both by
shares and by guarantee, a guarantee given by a member is
deemed to be a proprietary interest which is capable of
constituting a membership interest in the international company
and also of being freely transferred, assigned, charged or
otherwise disposed of or dealt with to or in favour of any person
in the manner prescribed in the articles of the international
company; and such transfer, assignment, charge or other
disposition or dealing shall not affect the validity of the
guarantee, but shall transfer both the membership interest and
the guarantee obligation to that other person.
(2) In the case of a transfer or other absolute disposition of
such a guarantee as referred to in subsection (1), the transferor
shall no longer be a member of the international company.
(3) The transfer of a guarantee shall be effected by notice
in writing to the international company.
(4) In the case of a company limited both by shares and by
guarantee, nothing in this Act shall require a shareholder to also
be a guarantee member of that international company or vice
versa.
(5) Subject to the articles and any contract to the contrary,
a guarantee member may surrender his guarantee to an
international company and following any such surrender made
in writing, his liability shall cease absolutely after the date of
such surrender.”

10. Change of status - The principal Act is further
amended by inserting after subsection 18, as amended by
section 7 of this Act, the following section:

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“18C Change of status-(1) Every international company,
other than a limited life international company, incorporated or
continued under this Act may, unless its memorandum
otherwise provides, change its status from any of the types of
companies specified in paragraphs (a) to (c) of subsection (3) of
section 13 to any other type of company specified therein in
accordance with this section; and such change may be effected
notwithstanding that at some earlier time the company has been
any other or the same type of company as contemplated by the
provisions of that subsection.
(2) Any international company may change its status only
if all of the following requirements are complied with -
(a) The proposed change is specifically authorised by a
special resolution of the members of the
international company and is given effect to, as
contemplated by subsection (3), within six
months from the date of such resolution; and
(b) The directors make a statutory declaration which is
lodged with the Registrar that -
(i) the change of status will, in their honest
belief, not result in the international company
thereby being incapable of meeting its
obligations to its creditors as they fall due; and
(ii) the international company has complied
with all the provisions of this Act (including the
payment of any fees due to the Registrar); and
(iii) the memorandum and articles will be
duly amended within at least three days to reflect
the change of status.
(c) Payment of the prescribed fee.
(3) The change of status of an international company shall
take effect upon the day upon which it files a copy of the
amended memorandum and articles with the Registrar.
(4) Where -
(a) Any member of an international company did not
vote in favour of the members’ special resolution
to change the status of the international
company; and
International Companies Amendment 1998, No. 33 10
(b) The change of status may have the effect of
increasing the liability of that member,
then, except in so far as that change was made in accordance
with the rights of that member as were specified in the articles
of the international company at the time that person became a
member, that member may either -
(i) at any time within 60 days of the passing
of the resolution, forfeit his membership interest
to the international company, whereupon his
liability shall be immediately and absolutely
terminated; or
(ii) lodge an application with the Registrar to
have the change of status cancelled, and if any
such application is made the change of status
shall not have effect until confirmed by the
Registrar and the provisions of subsections (2),
(3), (4) and (5) of section 55 of this Act shall
apply mutatis mutandis where any such
application is made.
(5) A member who has forfeited his membership interest
pursuant to subsection (4)(i) shall receive from the international
company such amount as may be specified in the articles or as
may be agreed or, failing that such amount as may be
determined by the Registrar (or a chartered accountant
approved by the Registrar, whose costs are to be paid by the
international company) as representing that member’s
proportional interest in the realizable net tangible assets of the
international company; Save however that any such amount
shall be paid only to the extent to which the international
company would not otherwise be rendered insolvent.
(6) A certificate of change of status issued by the
Registrar, shall be conclusive evidence that all the requirements
of this Act with respect to the change of status have been
complied with and that the international company is henceforth
of the type stated in that certificate, being a company validly
incorporated pursuant to this Act.
(7) Any change in status of an international company
pursuant to this section shall not operate to -
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(a) Create a new legal entity;
(b) Prejudice or affect the identity of the body corporate,
or its continuity;
(c) Affect the property or rights or obligations of the
international company; or
(d) Render defective any legal proceedings
whatsoever.”

11. Consequential changes - The principal Act is further
amended by inserting after subsection 18, as amended by
section 7 of this Act, the following section:

“18D Consequential changes - Any provisions of this Act
referring or otherwise relating to shares, share certificates or
share capital (whether in respect of their value, terms of
payment, issue or allotment, amount or otherwise) shall, subject
to the provisions of this Act, apply in respect of a company
limited by guarantee or a company limited by both shares and
guarantee, subject to such modifications as may be necessary by
reason of the fact that such a company may or may not have a
share capital.”

12. Names of companies - Subsection (2) of section 22 of
the principal Act is amended by repealing paragraph (e).

13. Change of name-(1) Subsection (1) of section 23 of
the principal Act is amended by inserting after the words
“special resolution” the words “or, where permitted by its
memorandum, by a resolution of the directors,”.
(2) Subsection (2) of section 23 of the principal Act is
further amended by deleting the words “within 3 months” and
substituting the words “within 30 days”.

14. Registration - Subsection (5) of section 30A of the
principal Act is amended by deleting the words “of the principal
Act”.

15. Issue of Certificate-(1) Paragraph (b) of subsection
International Companies Amendment 1998, No. 33 12
(2) of section 30B of the principal Act is amended by deleting
the words “of the principal Act”.
(2) Subsection (3) of section 30B of the principal Act is
further amended by deleting the words “the principal Act”
wherever they appear and substituting the word “this Act.”
16. Memorandum - Subsection (3) of section 30C of the
principal Act is amended by deleting the words “of the principal
Act”.

17. Powers - Section 30D of the principal Act is amended
by deleting the words`“of the principal Act”.

18. Articles of organisation - Subsection (3) of section
30E of the principal Act is amended by deleting the words “of
the principal Act”.

19. Members - Subsection (4) of section 30G of the
principal Act is amended by deleting the words “of the principal
Act”.

20. Resident agent - Subsection (4) of section 30J of the
principal Act is amended by deleting the words “of the principal
Act”.

21. Dissolution - Subsections (4),(5), (8), (9) and (10) of
section 30L of the principal Act are amended by deleting the
words “of the principal Act” wherever they appear.

22. Saving - Section 30M of the principal Act is repealed.

23. Registered office of company - Subsection (2) of
section 81 of the principal Act is amended by deleting the
words “within 14 days after the date of the company’s
incorporation” and substituting the words “at the time of
incorporation of the company”.

24. Register of Directors and Secretaries - Subsections
(2) and (3) of section 91 of the principal Act are amended by
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inserting after the words “authorised nominees and
representatives in Western Samoa”, the words “if any”.


25. Register and index of Members - Subsection (1) of
section 105 of the principal Act is amended by repealing the
said subsection and substituting the following subsection:

“(1) Every international company shall keep a register of
its members and enter therein -
(a) The names and addresses of the members;
(b) The date on which the name of each person was
entered in the register as a member;
(c) The date on which any person who ceased to be a
member during the previous 7 years so ceased to
be a member;
(d) In relation to a company limited by shares or a
company limited by both shares and guarantee:
(i) a statement of the shares held by each
member, distinguishing each share by its
number, if any, of the certificate evidencing the
member’s holding and of the amount paid or
agreed to be considered as paid on the shares of
each member and
(ii) the date of every allotment of shares to
members and the number of shares comprised in
each allotment;
(e) In relation to a company limited by guarantee or a
company limited by both shares and gurarantee,
a statement of the amount specified in the
memorandum which each member has
undertaken to contribute to the assets of the
company in the event of its being wound up;
(f) In the case of shares issued to bearer, the total
number of each class and series of shares issued
to bearer; and with respect to each certificate for
shares issued to bearer,
(i) the identifying number of the certificate
International Companies Amendment 1998, No. 33 14
(ii) the class or series of shares issued to
bearer specified therein; and
(iii) the date of issue of the certificate.”

26. Liability as contributories of present and past
members-(1) Paragraph (e) of subsection (1) of section 151 of
the principal Act is amended by inserting after the words
“which he is liable”, the words, “or, in relation to companies
limited by guarantee or companies limited by both shares and
guarantee, to the amount specified in the memorandum;”
(2) Subsection (4) of section 151 of the principal Act is
further amended by inserting after the words “balance of any
call”, the words “or guarantee amount”.

27. Application for winding-up-(1) Section 158 of the
principal Act is amended by inserting after subsection (3) the
following subsection:

“(3A) The petitioner shall serve a copy of the petition on
the international company named therein."

(2) Subsection (6) of section 158 of the principal Act is
further amended by inserting after the words “the Head of State
prescribing”, the words “practice and procedure in Court
applications or”.

28. Powers of the Registrar to strike companies off the
register-(1) Section 197 of the principal Act is amended by
deleting the Heading and substituting the following Heading:

“Powers of the Registrar to Strike Companies Off the
Register”

(2)Subsection (1) of section 197 of the principal Act is
amended by repealing the said subsection and substituting the
following subsections:

“(1) The Registrar may strike off from the Register the
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name of an international company -
(a) Which ceases to comply with any of the
requirements of section 6 or section 7;
(b) For failure to pay its prescribed annual renewal fee
or penalties, as specified in the regulations;
(c) For failure to comply with a direction from the
Registrar under subsection (2) of section 23;
(d) Which is not carrying on business or in operation;
(e) Which has been directed by the Minister under
section 225 to cease to carry on its business;
(f) Which is being wound up, and has no liquidator
acting or whose affairs have been fully wound
up.
(1A) Where the Registrar intends to strike off the name of
an international company under this section, he shall give notice
of his intention to the company at its registered office in Samoa.
The notice shall state that if an answer showing cause to the
contrary is not received within two months from the date
thereof, the Registrar will strike the name of the company off
the register.”

(3) Subsection (3) of section 197 of the principal Act is
amended by repealing the said subsection and substituting the
following subsection:

“(3) Where an international company has been struck off
the Register, the Registrar may -
(a) Upon the application of the international company
or a trustee company on its behalf, or a creditor,
member or liquidator of the company; and
(b) If he is satisfied that due cause has been shown and
that it would be just for the name of the company
to be restored to the Register; and
(c) Upon payment of the prescribed fee and any
outstanding fees and penalties, and
(d) Upon the filing of such documents and statutory
returns as the Registrar may direct,
restore the company to the Register. Upon restoration of the
International Companies Amendment 1998, No. 33 16
company to the Register, the company shall be deemed to have
continued in existence as if it had never been struck off the
Register.”


29. Transfer from Samoa of companies incorporated
under this Act - Subsection (2) of section 209 of the principal
Act is amended by repealing subparagraphs (ii) and (iii) of
paragraph (a) and substituting the following subparagraphs:

“(ii) the holders of not less than three-quarters
of the company’s debentures, if any, of each
class;
(iii) where the company is limited by
guarantee, not less than three- quarters of
the guarantee members; and
(iv) all the directors of the company.”

30. Transfer to domestic company register - Paragraph
(a) of subsection (2) of section 210 of the principal Act is
amended by repealing subparagraph (i) and substituting the
following subparagraph:

“(i) the holders of not less than three-quarters
of each class of shares in the company, if any;
and where the company is limited by guarantee
to any extent, not less than three-quarters of the
guarantee members; and”

31. Translation of instruments-(1) Subsection (1) of
section 216 of the principal Act is amended by inserting after
the words “for all purposes under this Act”, the words “The
certified translation may be contained in the body of the original
document or instrument or may be contained in a separate
document”.
(2) Paragraph (c) of subsection 3 of section 216 of the
principal Act is further amended by deleting the words
“specified by section 229A of this Act”.
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32. Documents by electronic transfer - The principal Act
is further amended by inserting after section 216 the following
section:

“216A Documents by electronic transfer-(1) Where a
notice or document is required by this Act to be lodged or filed
with the Registrar, he may accept a photocopy of the notice or
document or a copy by telefax or other electronic means.”

33. Filed memorandum and articles - The principal Act
is further amended by inserting after section 216 the following
section:

“216B Filed memorandum and articles-(1) Where this
Act requires that the Memorandum and Articles of a company
be sent to the Registrar, unless otherwise specifically provided,
such documents may be delivered in such manner as the
Registrar approves.
(2) A signature required on any document referred to in
subsection (1) may be printed or otherwise mechanically or
electronically reproduced on the document.
(3) A document with a signature referred to in subsection
(2) may be accepted in evidence, notwithstanding any provision
to the contrary in the Evidence Ordinance 1961.”

34. Alteration of documents by the Registrar - The
principal Act is further amended by inserting after section 216
the following section:

“216C. Alteration of documents by the Registrar - The
Registrar may alter a notice or document, other than an affidavit
or statutory declaration, if so authorised by the person who sent
him the notice or document, or by the representative of that
person.”

35. Retention of records of companies struck off the
register - The principal Act is further amended by inserting
International Companies Amendment 1998, No. 33 18
after section 216 the following section:

“216D Retention of records of companies struck off the
register-(1) The Registrar need not produce any document or
other records of an international company that has been struck
off the Register, after seven years from the date the company
was so struck off the Register.
(2) A trustee company need not retain the records of an
international company that has been struck off the Register after
seven years from the date the company was so struck off the
Register.”

36. General penalty provisions-(1) Subsection (2) of
section 219 of the principal Act is amended by deleting the
words “193 and 241” and substituting the words “and 193”.
(2) Subsection (3) of section 219 of the principal Act is
amended by deleting the words “87, 194, 195, 227, 232 and
239” and substituting the words “87, 194 and 227”.

37. Prohibitions by Minister-(1) Subsection (1) of section
225 of the principal Act is amended by deleting the words
“acting on the advice of Cabinet” and substituting the words
“acting on the advice of the Registrar”.
(2) Subsection (1) of section 225 is further amended by
repealing paragraphs (b) and (c) and substituting the following
paragraphs:

“(b) Prohibiting the initial registration of a foreign
company or class of foreign companies;
(c) Prohibiting the continuation in Samoa of any
company or class of companies incorporated
outside Samoa; or
(d) Directing any international company or foreign
company to cease to carry on its business or part
of its business either immediately or within such
time as may be specified in the direction.”

(3) Subsection 2 of section 225 of the principal Act is
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further amended by deleting the words “acting on the advice of
Cabinet” and substituting the words “acting on the advice of the
Registrar”.


38. Secrecy - Subsection (4) of section 227 of the principal
Act is amended by -
(a) Deleting the words “subsection (1)” and substituting
the words “subsection (3)”.
(b) Inserting the following subparagraphs after subpara-
graph (h):

“(i) By the Registrar or any public officer or any
statutory body or authority of Samoa in vetting,
verifying and investigating applicants for all
offshore licences and registrations issued by the
Government of Samoa pursuant to any offshore
finance legislation, including without limiting
the generality of the foregoing, the Offshore
Banking Act 1987, the International Insurance
Act 1988 and the Trustee Companies Act 1987;
(j) By the Registrar or any public officer in making
available for inspection an index of company
names and their registered offices.”

39. Form of company registers - Section 228A of the
principal Act is amended by renumbering the said section as
subsection (1) of section 228A and inserting after the said
subsection (1) the following subsection:

“(2) Any register, records, accounts or documents required
to be kept by the Registrar pursuant to this Act may be kept in
written, magnetic, electronic or any other data storage form,
provided that a legible printed copy of its content can be
produced.”

40. Asset protection - Subsection (2) of section 228B of
the principal Act is amended by deleting the definition of
International Companies Amendment 1998, No. 33 20
“membership interest” and substituting the following definition:
“membership interest” means -
(a) Any interest in a share of an international company;
or
(b) Any other interest of a person where that interest
arises from or in connection with the fact that the
person is a member of an international
company;”

41. Exemptions and Privileges of International
Companies - Subsection (4) of section 249 of the principal Act
is amended by inserting after paragraph (d) the following
paragraphs:

“(e) Carry on banking or trust business, unless it is
licensed under an enactment authorising it to
carry on that business;
(f) Carry on business as an insurance or reinsurance
company or insurance manager unless it is
licensed under an enactment authorising it to
carry on that business;”




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Printed under the authority of the Legislative Assembly,
by the Clerk of the Legislative Assembly.