Chapter 01 - General Corporation Law
Chapter 01 - General Corporation Law
As used in this chapter and Chapters 30.02 and 30.03:
(a) “Articles of Incorporation” includes both the original articles of incorporation and any and all amendments thereto, except in those instances where the context expressly refers to the original articles of incorporation only.
(b) “Corporation” unless otherwise expressly provided refers only to a domestic corporation.
(c) “Directors” includes persons designated in the articles as such and persons designated, elected or appointed by any other name or title to act as directors.
(d) “Foreign corporation” means a corporation for profit organized under laws other than the laws of American Samoa.
(e) “Governor”, “Attorney General”, “Treasurer”, and “Territorial Registrar” mean, respectively, the Governor of American Samoa, the Attorney General of American Samoa, the Treasurer of American Samoa, and the Territorial Registrar of American Samoa, or their authorized representatives.
(f) “Incorporator” includes each person signing the articles of incorporation.
The certificate of incorporation of any corporation hereafter organized under the authority of the government is at all times subject to forfeiture or revocation by the Governor for misuse or nonuse, and may be at any time altered, abridged or set aside by law or executive order of the Governor; and every certificate of incorporation obtained, used or enjoyed by any corporation may be regulated, cancelled, withheld, or subjected to conditions upon the enjoyment thereof, whenever the Governor deems it necessary for the public good. The foregoing shall apply to corporations both for profit and not for profit in American Samoa.
(a) A party aggrieved by an adverse decision of the Governor rendered pursuant to this chapter may, within 30 days from the date of the decision, appeal to the Secretary of the Interior. The appeal shall be written and shall set forth under oath all the facts of the decision.
(b) The Governor shall have 30 days from the filing of the appeal within which to file a reply under oath.
(c) The Secretary shall render a decision 30 days after he has received both the appeal and the reply. If the Secretary fails to make a decision within 30 days after he has received both the appeal and the reply, the decision of the Governor shall be final.
(d) All decisions as to matters of fact by the Governor shall be conclusive unless clearly erroneous.
(e) In any case where a corporate charter is revoked by an adverse decision of the Governor, an aggrieved party may carry on its business despite such adverse decision if the aggrieved party files an appeal to the Secretary of the Interior within 10 days of the adverse decision of the Governor.
(a) The name of each corporation must be such as to distinguish it upon the records of the Territorial Registrar from the name of any other corporation.
(b) The name of each corporation must contain the word “corporation, “incorporated”, or “limited”, or an abbreviation of one of these words.
(a) Any corporation organized under the laws of American Samoa must fix upon, and must designate in its articles of incorporation, its principal place of business, which must be in American Samoa. The principal place of business must not be changed except through an amendment to its articles of incorporation.
(b) The principal place of business must be in charge of an agent of the corporation and must be the place where it keeps its corporate books of account, a record of its proceedings, and its stock and transfer books, and hold its stockholders meetings.
(c) If a corporation organized under the laws of American Samoa does not have its principal place of business in charge of an agent, or if the agent is not found in American Samoa, service of process may be made upon the corporation through the Treasurer by sending the original and 2 copies to him. He shall immediately upon its receipt acknowledge service thereon in behalf of the defendant corporation by writing thereon, giving the date thereof, and shall immediately return such notice or process to the clerk of the court in which the suit is pending as well as send a copy thereof by registered mail to the corporation at the address of its principal place of business.
(a) Corporations organized for a period of years shall pay the Treasurer, before a certificate of incorporation is issued, a fee of $25 together with a recording fee of 25 cents per page, and, for all authorized stock in excess of $10,000, an additional fee of $1 per 1000.
(b) Corporations organized to exist perpetually shall pay to the Treasurer, before a certificate of incorporation is issued, a fee of $100 together with a recording fee of 25 cents per page, and, for all authorized stock in excess of $10,000, an additional fee of $1 per 1000.
(c) Should any corporation increase its capital stock, it shall pay to the Treasurer a recording fee of 25 cents per page and, in addition, a fee of $1 per 1000 of such increase.
Three or more persons of full age, at least 2/3 of whom must be nationals of the United States and at least one a resident of American Samoa, may form a corporation for any lawful business, but such incorporation confers no power not possessed by natural persons, except as otherwise provided in this chapter.
Before commencing any business except their own organization, the incorporators must first adopt articles of incorporation, which must be signed and acknowledged by the incorporators.
The articles of incorporation shall then be forwarded to the Treasurer of American Samoa via the Attorney General. The Treasurer shall then forward the articles to the Governor for approval. If approved by the Governor, they shall be forwarded to the Territorial Registrar for him to record in a book kept therefor, and the Territorial Registrar shall endorse thereon the book and the page where the record will be found. Upon such recordation, the Treasurer shall issue a certificate of incorporation. No corporation shall be formed or do business without prior approval by the Governor.
When articles of incorporation and amendments to articles of incorporation of domestic or foreign corporations are presented to the Treasurer for the purpose of being filed, and the Treasurer is satisfied, after consultation with the Attorney General, that they are in proper form to meet the requirements of law and that their plan for doing business is honest and lawful, he shall file them; but if he is of the opinion that they are not in proper form to meet the requirements of the law, or that their object is unlawful against public policy, or that their plan for doing business is dishonest or unlawful, he shall forward them to the Governor, who shall have the power to refuse to file them. The fact of filing shall not confer corporate status without the approval of the Governor.
Articles of incorporation shall contain:
(1) the name of the corporation and its principal place of business in American Samoa;
(2) the objects for which it is formed, such objects to be stated with specificity;
(3) the amount of authorized capital stock, the classes of stock authorized, and the par value and conditions of each class and the time when and conditions under which it is to be paid;
(4) the time of commencement of existence of the corporation;
(5) the names and addresses of the incorporators and the officers or persons its affairs are to be conducted by, and the time when and manner in which such officers will be elected;
(6) a statement that private property of the stockholders is to be exempt from corporate debts;
(7) the manner in which the articles may be amended.
The articles of incorporation may also contain any provisions which the incorporators may choose to insert for the management of the business and for the conduct of the affairs of the corporation, and any provisions creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders or any class of the stockholders: provided, that such provisions are not contrary to the laws of American Samoa.
(a) Upon executing the articles of incorporation and causing the same to be filed, and the same having been recorded and the statutory fees provided for having been paid, the persons so associating, and their successors and assigns, shall from the date of the issuance of the certificate of incorporation be and constitute a body corporate, by the name set forth in the certificate subject to dissolution as provided in this chapter.
(b) The duration of a corporation, if not limited in the articles of incorporation, is perpetual.
A bad-faith failure to substantially comply with the requirements for the organization of a corporation renders the individual property of the stockholder liable for corporate debts.
(a) After acceptance for record of the articles of incorporation, an organizational meeting of the incorporators or subscribers, or both named in the articles of incorporation shall be held, at the call of a majority thereof, for the purpose of adopting bylaws and electing directors and for the transaction of such other business as may properly come before the meeting.
(b) The persons calling the meeting shall give not less than 3 days notice thereof in writing to each incorporator or subscribers, or both. Such notice shall state the time and place of the meeting.
(c) Notice may be waived in writing by a majority of the incorporators or subscribers, or both.
The original bylaws of a corporation organized under this chapter may be adopted by the incorporators. Thereafter, the power to make, alter, or repeal bylaws is in the stockholders, except that any corporation may, in the articles of incorporation, confer that power upon the directors. A copy of the bylaws of the corporation, with the names of all of its officers, must be posted in its principal place of business in American Samoa and be subject there to public inspection.
(a) Any corporation operating under this chapter may, when and as desired, amend its articles of incorporation by:
(1) additions to its corporate powers and purposes, or diminution thereof, or both, or by sub-stitution of other powers and purposes, in whole or in part, for those prescribed by its articles of incorporation;
(2) increasing or decreasing its authorized capital stock or reclassifying the same, by changing the number, par value, designations, preference, or relative, participating, optional or other special rights of the shares or the qualifications, limitations or restrictions of such rights;
(3) changing its corporate title;
(4) making any other change or alteration in its articles of incorporation that may be desired.
(b) All such changes or alterations may be effected by one certificate of amendment; provided, that any articles of incorporation as so amended, changed, or altered may contain only such provisions as it would be lawful and proper to insert in original articles of incorporation made at the time of making such amendments, and the procedures set forth in 30.0111 through 30.0115 must be followed with respect to the filing, approval by the Governor and recordation of any such amendment.
(c) A shareholder of the corporation does not have a vested property right resulting from any provision in the articles of incorporation, including provisions relating to management, control, capital structure, dividend entitlement, or purpose or duration of the corporation.
(a) A corporation may be dissolved in accordance with the provisions of its articles or when 2/3 in interest of all the stock outstanding votes in favor of a dissolution at a stockholders meeting called for that purpose.
(b) Corporations whose certificate of incorporation expires by limitation or the voluntary act of the stockholders may nevertheless continue to act for the purpose of winding up their affairs.
Every corporation organized under this chapter has power to:
(1) have perpetual succession unless a limited period of duration is stated in the articles of in-corporation;
(2) sue and be sued by its corporate name;
(3) have a common seal, which it may alter at its pleasure;
(4) render the interests of the stockholders transferable;
(5) exempt the private property of its members from liability for corporate debts, except as otherwise declared;
(6) make contracts and to acquire and transfer property as provided in 30.0131, possessing the same powers in such respects as natural persons:
(7) establish bylaws and make all rules and regulations necessary for the management of its affairs.
No corporation or foreign corporation may buy or acquire any interest in land unless the transaction is approved in writing by the Governor and recorded by the Territorial Registrar, and no such acquisition or transfer may be of any effect until so approved and recorded. Notwithstanding the foregoing, any acquisition of land or any interest therein is subject to the restrictions and limitations prescribed by the provisions of 1.0101 et seq. and 1.0201 et seq. and other applicable laws, respecting land or interests therein. For the purposes of this section, a corporation is without race.
No act of a corporation and no conveyance or transfer of real or personal property to or by a corporation may be invalid by reason of the fact that the corporation was without capacity or power to do such act or to make or receive such conveyance or transfer, but such lack of capacity may be asserted:
(1) in a proceeding by a shareholder against the corporation to enjoin the doing of any act or acts or the transfer of real or personal property by or to the corporation. If the authorized acts or transfer sought to be enjoined are being, or are to be, performed or made pursuant to any contract to which the corporation is a party, the court may, if all of the parties to the contract are parties to the proceeding and if it deems the same to be equitable, set aside and enjoin the performance of such contract, and in so doing may allow to the corporation or to the other parties to the contract, as the case may be, compensation for such loss or damage sustained by them as may result from the action of the court in setting aside and enjoining the performance of the contract;
(2) in a proceeding by the corporation, whether acting directly or through a receiver, trustee, or other legal representative, or through shareholders in a representative suit, against the incumbent or former officers or directors of the corporation.
(a) A corporation may acquire its own shares and shares so acquired constitute authorized but unissued shares.
(b) If the articles of incorporation prohibit the reissue of acquired shares, the number of authorized shares is reduced by the number of shares acquired, effective upon amendment of the articles of incorporation.
(a) The business of every corporation organized under the provisions of this chapter shall be managed by a Board of Directors, except as otherwise provided in this chapter or the cor-poration’s articles of incorporation.
(b) The number of directors which constitutes the whole board must be such as is fixed by, or in the manner provided in, the bylaws, but in no case may the number be less than 3. Directors need not be stockholders unless so required by the articles.
(a) The Directors of every corporation shall be elected at the annual meeting of the stock-holders, which shall be held at the time and place provided for by the bylaws, by a plurality of the votes cast at such election.
(b) The certificate of incorporation may provide that the directors be divided into 2 or more classes whose terms of office shall respectively expire at different times, but no term may continue longer than 3 years and at least 1/4 of the directors shall be elected annually.
(c) Vacancies in the Board of Directors shall be filled by the Directors remaining in office as may be provided in the bylaws unless it is otherwise provided in the certificate of incorporation or an amendment thereof.
(d) An increase in the number of directors creates vacancies for the purpose of this section.
In all elections for Directors of any company operating or organized under this chapter, every stockholder has the right to vote, in person or by proxy, the number of shares of stock owned by him, for as many persons as there are directors to be elected, or to cumulate the votes and give one candidate as many votes as the number of Directors multiplied by the number of his shares of stock equals, or to distribute them upon the same principles among as many candidates as he think fits, and such directors may not be elected in any other manner.
(a) Every corporation operating or organized under this chapter shall have a president, vice-president and treasurer, who is chosen by the Directors or stockholders as the bylaws may direct. They hold their offices until their successors are chosen and qualified.
(b) The corporation may have such other officers, agents, and factors as may be deemed necessary, who shall be chosen in such manner and hold their offices for such terms as may be prescribed by the bylaws or determined by the Board of Directors, and the corporation may secure the fidelity of any or all of such officers by bond or otherwise.
If the Directors or officers of any corporation operating or organized under the provisions of this chapter knowingly cause to be published or give out any written statement or report of the condition or business of the corporation that is false in any material respect, the officers and di-rectors causing such report or statement to be published or given out, or assenting thereto, are jointly and severally individually liable to the corporation and creditors for any loan or damage arising therefrom.
(a) The amount of authorized capital stock of any corporation organized under this chapter may not be less than $2,000.
(b) The amount of paid-in capital with which any such corporation shall commence business may not be less than $1,000.
(c) No corporation may be permitted to issue stock except for an equivalent in money or labor done, or property actually received and applied to the purpose for which the corporation was created; and neither labor nor property may be received in payment of stock at a greater value than the actual value at the time the labor was done or property delivered, and all fictitious in-creases of stock or indebtedness are void.
The Directors of a corporation shall have the power in the bylaws to provide for the issuance of new certificates of stock whenever any previously held certificates have been lost or de-stroyed.
(a) The Directors of a corporation have the power to provide for the transfer of stock certificates.
(b) The transfer of shares is not valid, except as between the parties thereto, until regularly entered upon the books of the corporation, showing the name of the persons by and to whom transferred, the numbers or other designation of the shares, and the date of the transfer; but such may not exempt the person making it from any liability of the corporation created prior thereto adequate deductions for deprecations and obsolescence, and exclusive of any amounts resulting from unrealized appreciation or an upward revaluation of assets.
(b) No dividends may be paid or declared at a time when:
(1) the corporation is unable to pay its debts as they mature or when the payment declaration of the dividend would render the corporation unable to pay its debts as they mature;
(2) its net assets are less than its stated capital or when the payment or declaration thereof would reduce its net assets below its stated capital.
(a) A corporation may, by resolution of its Board of Directors, declare and pay dividends in cash or property only out of earned surplus; earned surplus being defined as the remaining amount of accumulated net income, after
The following persons are liable for 6 years from the date of any dividend declared or paid (whichever is the later date) in violation of subsection (b) of 30.0153:
(1) any Directors who willfully or negligently approve such payment. The liability shall be joint and several, but shall be limited to the amount of loss sustained by the corporation, its creditors or shareholders, up to the limit of the illegal dividend or dividends. Good faith reliance on the books of the corporation shall be a defense;
(2) any shareholder, to the extent of the dividend received by him. If the corporation was already insolvent at the time of such payment, the good faith of the shareholder shall be irrelevant. When the corporation is solvent at the time of the payment of the dividend, good faith shall be a defense.
The following may enforce the liability imposed by 30.0154:
(1) the corporation, through its Directors;
(2) any person who by operation of law succeeds to the right or property of the corporation;
(3) any shareholder who first makes a demand on the Directors that suit be instituted by the corporation or who alleges that the demand would be useless;
(4) persons who were creditors at the time of the illegal dividend or dividends.
Nothing in this chapter or in the articles of incorporation exempts the stockholders from individual liability to the amount of the unpaid installments on the stock owned by them, or transferred by them for the purpose of defrauding creditors; and execution against the company may, to that extent, be levied upon the private property of any such individual.
(a) Every corporation organized under the laws of American Samoa shall keep at its office m American Samoa correct books of account of all of its business and transactions, and a stock book containing the names of all persons who are stockholders of the corporation, their interests, the amount paid on their shares and all transfers thereof.
(b) Any corporation organized under the laws of American Samoa shall be subject to the right of the government, through its agents designated by the Governor, or any person who is a stockholder of record of any such corporation, to call for the production of and to examine, in person or by duly authorized agent or attorney, at any reasonable time or times and for proper purpose, the stock records, minutes and records of stockholders meetings, and the books and records of accounts, and to make extracts therefrom.
The intentional keeping of false books or accounts by any officer, agent, or employee of a corporation, or by anyone having the duty to see that the books and accounts are correctly kept, is a misdemeanor.
(a) Any corporation organized under the laws of American Samoa, or under the laws of any other territory, or any state or foreign country, which has complied with the laws of American Samoa relating to the organization of corporations and has secured a certificate of incorporation or permit to transact business in American Samoa, and any corporation that may hereafter be organized and become incorporated under the laws of American Samoa and secures a certificate of incorporation or permit to transact business in American Samoa, and any foreign corporation that may hereafter comply with the laws of American Samoa relating to foreign corporations and secure a permit to transact business within American Samoa must between 1 July and 1 August of each year, make an annual report to the Treasurer in such form as the Treasurer may prescribe, upon a blank to be prepared by the Treasurer for that purpose, and containing the following information:
(1) the name and post office address of the corporation:
(2) the amount of capital stock authorized;
(3) the amount of capital stock actually issued and outstanding;
(4) the par value of such stock, designating whether preferred or common stock, and the amount of each kind;
(5) the names and post office addresses of its officers and directors and whether any change of place and business has been made during the year previous to making said report;
(6) the indebtedness of the corporation as of the end of the year or within 75 days prior to the filing of the report, as well as such other in-formation as will show with reasonable certainty the financial conditions of the corporation.
(b) A corporation may file an affidavit by its president or vice-president and its secretary or assistant secretary stating that during the preceding year it has transacted no business in American Samoa and intends to transact no business in the future, whereupon, after payment of any fees due, it must have its certificate of authority canceled and be relieved of any obligation to file annual reports.
Any corporation or foreign corporation failing to file the report required by 30.0162 is guilty of an infraction and shall be sentenced accordingly. This penalty may be recovered by the government in an action brought by the Attorney General.
(a) One or more corporations may merge into another corporation if the Board of Directors of each corporation adopts and its shareholders approve a plan of merger.
(b) The plan of merger must set forth:
(1) the name of each corporation planning to merge and the name of the surviving corporation into which each other corporation plans to merge;
(2) the terms and conditions of the merger; and
(3) the manner and basis of converting the shares of each corporation into shares, obligations, or other securities of the surviving or any other corporation or into cash or other property in whole or part.
(c) The plan of merger may set forth:
(1) amendments to the articles of incorporation of the surviving corporation; and
(2) other provisions relating to the merger.
(a) A corporation may acquire all of the outstanding shares of one or more classes or series of another corporation if the Board of Directors of each corporation adopts and its shareholders approve the exchange.
(b) The plan of exchange must set forth:
(1) the name of the corporation whose shares will be acquired and the name of the acquiring corporation;
(2) the terms and conditions of the exchange;
(3) the manner and basis of exchanging the shares to be acquired for shares, obligations, or other securities of the acquiring or any other corporation or for cash or other property in whole or part.
(c) The plan of exchange may set forth other provisions relating to the exchange.
(d) This section does not limit the power of a corporation to acquire all or part of the shares of one or more classes or series of another corporation through a voluntary exchange or otherwise.
(a) After adopting a plan of merger or share exchange, the Board of Directors of each corporation party to the merger, and the Board of Directors of the corporation whose shares will be acquired in the share exchange, shall submit the plan of merger or share exchange for approval by its shareholders.
(b) For a plan of merger or share exchange to be approved:
(1) the Board of Directors must recommend the plan of merger or share exchange to the shareholders, unless the Board of Directors determines that because of conflict of interest or other special circumstances it should make no recommendation and communicates the basis for its determination to the shareholders with the plan; and
(2) the shareholders entitled to vote must approve the plan.
(c) The Board of Directors may condition its submission of the proposed merger or share exchange on any basis.
(d) The corporation shall notify each shareholder, whether or not entitled to vote, of the proposed shareholders’ meeting no fewer than 5 nor more than 20 days before the meeting date. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the plan of merger or share exchange and contain or be accompanied by a copy or summary of the plan.
(e) Unless this chapter, the articles of incorporation, or the Board of Directors (acting pursuant to subsection (c) require a greater vote or a vote by voting groups, the plan of merger or share exchange to be authorized must be approved by each voting group entitled to vote separately on the plan by a majority of all the votes entitled to be cast on the plan by that voting group.
(a) A parent corporation owning at least 90 percent of the outstanding shares of each class of a subsidiary corporation may merge the subsidiary into itself without approval of the shareholders of the parent or subsidiary.
(b) The Board of Directors of the parent shall adopt a plan of merger that sets forth:
(1) the names of the parent and subsidiary; and
(2) the manner and basis of converting the shares of the subsidiary into shares, obligations, or other securities of the parent or any other corporation or into cash or other property in whole or part.
(c) The parent shall mail a copy or summary of the plan of merger to each shareholder of the subsidiary who does not waive the mailing requirement in writing.
(d) The parent may not deliver articles of merger to the treasurer for filing until at least 30 days after the date it mailed a copy of the plan of merger to each shareholder of the subsidiary who did not waive the mailing requirement.
(e) Articles of merger under this section may not contain amendments to the articles of incorporation of the parent.
(a) After a plan of merger or share exchange is approved by the shareholders, or adopted by the Board of Directors if shareholder approval is not required, the surviving or acquiring corporation shall deliver to the treasurer for filing articles of merger or share exchange setting forth:
(1) the plan of merger or share exchange;
(2) if shareholder approval was not required, a statement to that effect;
(3) if approval of the shareholders of one or more corporations party to the merger or share exchange was required:
(i) the designation, number of outstanding shares, and number of votes entitled to be cast by each voting group entitled to vote separately on the plan as to each corporation; and
(ii) either the total number of votes cast for and against the plan by each voting group entitled to vote separately on the plan or the total number of undisputed votes cast for the plan separately by each voting group and a statement that the number cast for the plan by each voting group was sufficient for approval by that voting group.
(b) A merger or share exchange takes effect upon the effective date of the articles of merger or share exchange.
(a) When a merger takes place:
(1) every other corporation party to the merger merges into the surviving corporation and the separate existence of every corporation except the surviving corporation ceases;
(2) the title to all real estate and other property owned by each corporation party to the merger is vested in the surviving corporation without reversion or impairment;
(3) the surviving corporation has all liabilities of each corporation party to the merger;
(4) a proceeding pending against any corporation party to the merger may be continued as if the merger did not occur or the surviving corporation may be substituted in the proceeding for the corporation whose existence ceased;
(5) the articles of incorporation of the surviving corporation are amended to the extent provided in the plan of merger; and
(6) the shares of each corporation party to the merger that are to be converted into shares, obligations, or other securities of the surviving or any other corporation or into cash or other property are converted, and the former holders of the shares are entitled only to the rights provided in the articles of merger or to their rights under this chapter.
(b) When a share exchange takes effect, the shares of each acquired corporation are exchanged as provided in the plan, and the former holders of the shares are entitled only to the exchange rights provided in the articles of share exchange or to their rights under this chapter.
(a) One or more foreign corporations may merge or enter into a share exchange with one or more domestic corporation if:
(1) in a merger, the merger is permitted by the law of the state or country under whose law each foreign corporation is incorporated and each foreign corporation complies with that law in effecting the merger;
(2) in a share exchange, the corporation whose shares will be acquired is a domestic corporation, whether or not a share exchange is permitted by the law of the state or country under whose law the acquiring corporation is incorporated;
(3) the foreign corporation complies with section 30.0174 if it is the surviving corporation of the merger or acquiring corporation of the share exchange; and
(4) each domestic corporation complies with the applicable provisions of sections 30.0170 through 30.0173 and, if it is the surviving corporation of the merger or acquiring corporation of the share exchange, section 30.0174.
(b) Upon the merger or share exchange taking effect, the surviving foreign corporation of a merger and the foreign acquiring corporation of a share exchange is deemed:
(1) to appoint the treasurer as its agent for service of process in a proceeding to enforce any obligation or the rights of dissenting shareholders of each domestic corporation party to the merger or share exchange; and
(2) to agree that it will promptly pay to the dissenting shareholders of each domestic corporation party to the merger or share exchange the amount, if any, to which they are entitled under Chapter 30.0180 et seq.
(c) This section does not limit the power of a foreign corporation to acquire all or part of the shares of one or more classes or series of a domestic corporation through a voluntary exchange or otherwise.
As used in this chapter, unless the context clearly requires otherwise:
(a) “Corporation”, domestic or foreign, means the issuer of the shares held by a dissenter before the corporate action, or the surviving or acquiring corporation by merger or share exchange of that issuer.
(b) “Dissenter” means a shareholder who is entitled to dissent from corporate action under section 30.0181 and who exercises that right when and in the manner required by sections 30.0180 through 30.0198.
(c) “Fair value”, with respect to a dissenter’s shares, means the value of the shares immediately before the effectuation of the corporate action to which the dissenter objects, excluding any appreciation or depreciation in anticipation of the corporate action unless exclusion would be inequitable.
(d) “Interest” means interest from the effective date of the corporate action until the date of payment, at the average rate currently paid by the corporation on its principal bank loans or, if none, at a rate that is fair and equitable under all the circumstances.
(e) “Record shareholder” means the person in whose name shares are registered in the records of a corporation or the beneficial owner of shares to the extent of the rights granted by a nominee certificate on file with a corporation.
(f) “Beneficial shareholder” means the person who is a beneficial owner of shares held in a voting trust or by a nominee as the record shareholder.
(g) “Shareholder” means the record shareholder or the beneficial shareholder.
(a) A shareholder is entitled to dissent from, and obtain payment of the fair value of his shares in the event of any of the following corporate actions:
(1) consummation of a plan of merger to which the corporation is a party (i) if shareholder approval is required for the merger by section 30.0172 or the articles of incorporation and the shareholder is entitled to vote on the merger or (ii) if the corporation is a subsidiary that is merged with its parent under section 30.0173;
(2) consummation of a plan of share exchange to which the corporation is a party as the corporation whose shares will be acquired, if the shareholder is entitled to vote on the plan;
(3) consummation of a sale or exchange of all, or substantially all, of the property of the corporation other than in the usual and regular course of business, if the shareholder is entitled to vote on the sale or exchange, including a sale in dissolution, but not including a sale pursuant to court order or a sale for cash pursuant to a plan by which all or substantially all of the net proceeds of the sale will be distributed to the shareholders within one year after the date of sale;
(4) an amendment of the articles of incorporation that materially and adversely affects rights in respect of a dissenter’s shares because it;
(i) alters or abolishes a preferential right of the shares;
(ii) creates, alters, or abolishes a right in respect of redemption, including a provision respecting a sinking fund for the redemption or repurchase, of the shares;
(iii) alters or abolishes a preemptive right of the holder of the shares to acquire shares or other securities;
(iv) excludes or limits the right of the shares to vote on any matter, or to cumulate votes, other than a limitation by dilution through issuance of shares or other securities with similar voting rights; or
(v) reduces the number of shares owned by the shareholder to a fraction of a share if the fractional share so created is to be acquired for cash; or
(5) any corporate action taken pursuant to a shareholder vote to the extent the articles of incorporation, bylaws, or a resolution of the board of directors provides that voting or nonvoting shareholders are entitled to dissent and obtain payment for the shares.
(b) A shareholder entitled to dissent and obtain payment for his shares under this chapter may not challenge the corporate action creating his entitlement unless the action is unlawful or fraudulent with respect to the shareholder or the corporation.
(a) A record shareholder may assert dissenters’ rights as to fewer than all the shares registered in his name only if he dissents with respect to all shares beneficially owned by any one person and notifies the corporation in writing of the name and address of each person on whose behalf he asserts dissenters’ rights. The rights of a partial dissenter under this subsection are determined as if the shares as to which he dissents and his other shares were registered in the names of different shareholders.
(b) A beneficial shareholder may assert dissenters’ rights as to shares held on his behalf only if:
(1) he submits to the corporation the record shareholder’s written consent to the dissent not later than the time the beneficial shareholder asserts dissenters’ rights; and
(2) he does so with respect to all shares of which he is the beneficial shareholder or over which he has power to direct the vote.
(a) If proposed corporate action creating dissenters’ rights under section 30.0181 is submitted to a vote at a shareholders’ meeting, the meeting notice must state that shareholders are or may be entitled to assert dissenters’ rights under this chapter and be accompanied by a copy of this chapter.
(b) If corporate action creating dissenters’ rights under section 30.0181 is taken without a vote of shareholders, the corporation shall notify in writing al shareholders entitled to assert dissenters’ rights that the action was taken and send them the dissenters’ notice described in section 30.0192.
(a) If proposed corporate action creating dissenters’ rights under section 30.0181 is submitted to a vote at a shareholders’ meeting, a shareholder who wishes to assert dissenters’ rights (1) must deliver to the corporation before the vote is taken written notice of his intent to demand payment for his shares if the proposed action is effectuated and (2) must not vote his shares in favor of the proposed action.
(b) A shareholder who does not satisfy the requirements of subsection (a) is not entitled to payment for his shares under this chapter.
(a) If proposed corporate action creating dissenters’ rights under section 30.0181 is authorized at a shareholders meeting, the corporation shall deliver a written dissenters’ notice to all shareholders who satisfied the requirements of section 30.0191.
(b) The dissenters’ notice must be sent no later than 10 days after the corporate action was taken, and must:
(1) state where the payment demand must be sent and where and when certificates for certificated shares must be deposited;
(2) inform holders of uncertificated shares to what extent transfer of the shares will be restricted after the payment demand is received;
(3) supply a form for demanding payment that includes the date of the first announcement to new media or to shareholders of the terms of the proposed corporate action and requires that the person asserting dissenters’ rights certify whether or not he acquired beneficial ownership of the shares before that date;
(4) set a date by which the corporation must receive the payment demand, which date may not be fewer than 30 nor more than 60 days after the date the subsection (a) notice is delivered; and
(5) be accompanied by a copy of this chapter.
(a) A shareholder sent a dissenters’ notice described in section 30.0192 must demand payment, certify whether he acquired beneficial ownership of the shares before the date required to be set forth in the dissenters’ notice pursuant to section 30.0192(b)(3), and deposit his certificates in accordance with the terms of the notice.
(b) The shareholder who demands payment and deposits his share certificates under section (a) retains all other rights of a shareholder until these rights are canceled or modified by the taking of the proposed corporate action.
(c) A shareholder who does not demand payment or deposit his share certificates where required, each by the date set in the dissenters’ notice, is entitled to payment for his shares under this chapter.
(a) The corporation may restrict the transfer of uncertificated shares from the date the demand for their payment is received until the proposed corporate action is taken or the restrictions released under section 30.0196.
(b) The person for whom dissenters’ rights are asserted as to uncertificated shares retains all other rights of a shareholder until these rights are canceled or modified by the taking of the proposed corporate action.
(a) Except as provided in section 30.0197, as soon as the proposed corporate action is taken, or upon receipt of a payment demand, the corporation shall pay each dissenter who complied with section 30.0193 the amount the corporation estimates to be the fair value of his shares, plus accrued interest.
(b) The payment must be accompanied by:
(1) the corporation’s balance sheet as of the end of a fiscal year ending not more than 16 months before the date of payment, an income statement for that year, a statement of changes in shareholders’ equity for that year, and the latest available interim financial statement, if any;
(2) a statement of the corporation’s estimate of the fair value of the shares;
(3) an explanation of how the interest was calculated;
(4) a statement of the dissenter’s right to demand payment under section 30.0198; and
(5) a copy of this chapter.
(a) If the corporation does not take the proposed action within 60 days after the date set for demanding payment and depositing share certificates, the corporation shall return the deposited certificates and release the transfer restrictions imposed on uncertificated shares.
(b) If after returning deposited certificates and releasing transfer restrictions, the corporation takes the proposed action, it must send a new dissenters’ notice under section 30.0192 and repeat the payment demand procedure.
(a) A corporation may elect to withhold payment required by section 30.0195 from a dissenter unless he was the beneficial owner of the shares before the date set forth in the dissenters’ notice as the date of the first announcement to news media or to shareholders of the terms of the proposed corporate action.
(b) To the extent the corporation elects to withhold payment under subsection (a), after taking the proposed corporate action, it shall estimate the fair value of the shares, plus accrued interest, and shall pay this demand. The corporation shall send with its offer a statement of its estimate of the fair value of the shares, an explanation of how the interest was calculated, and a statement of the dissenter’s right to demand payment under section 30.0198.
(a) A dissenter may notify the corporation in writing of his own estimate of the fair value of his shares and amount of interest due, and demand payment of his estimate (less any payment under section 30.0195), or reject the corporation’s offer under section 30.0197 and demand payment of the fair value of his shares and interest due, if:
(1) the dissenter believes that the amount paid under section 30.0195 or offered under section 30.0197 is less than the fair value of his shares or that the interest due is incorrectly calculated;
(2) the corporation fails to make payment under section 30.0195 within 60 days after the date set for demanding payment; or
(3) the corporation, having failed to take the proposed action, does not return the deposited certificates or release the transfer restrictions imposed on uncertificated shares within 60 days after the date set for demanding payment.
(b) A dissenter waives his right to demand payment under this section unless he notifies the corporation of his demand in writing under subsection (a) within 30 days after the corporation made or offered payment for his shares.
(a) If a demand for payment under section 30.0198 remains unsettled, the corporation shall commence a proceeding within 60 days after receiving the payment demand and petition the court to determine the fair value of the shares and accrued interest. If the corporation does not commence the proceeding with the 60 day period, it shall pay each dissenter whose demand remains unsettled the amount demanded.
(b) The corporation shall commence the proceeding in the Trial Division of the High Court of American Samoa.
(c) The corporation shall make all dissenters, whether or not residents of this Territory, whose demands remain unsettled parties to the proceeding as in an action against their shares and all parties must be served with a copy of the petition. Nonresidents may be served by registered or certified mail to his or her last known address.
(d) The jurisdiction of the Trial Division of the High Court under subsection (b) is plenary and exclusive. The court may appoint one or more persons as appraisers to receive evidence and recommend decision on the question of fair value. The appraisers have the powers described in the order appointing them, or in any amendment to it. The dissenters are entitled to the same discovery rights as parties in other civil proceedings.
(e) Each dissenter made a party to the proceeding is entitled to judgment (1) for the amount, if any, by which the court finds the fair value of his shares, plus interest, exceeds the amount paid by the corporation or (2) for the fair value, plus accrued interest, of his after-acquired shares for which the corporation elected to withhold payment under section 30.0197.
(f) The court in an appraisal proceeding commenced under section 30.0199 shall determine all costs of the proceeding, including the reasonable compensation and expenses of appraisers appointed by the court. The court shall assess the costs against the corporation, except that the court may assess costs against all or some of the dissenters, in amount the court finds equitable, to the extent the court finds the dissenters acted arbitrarily, vexatiously, or not in good faith in demanding payment under section 30.0198.
(g) The court may also assess the fees and expenses of counsel and experts for the respective parties, in amounts the court finds equitable:
(1) against the corporation and in favor of any or all dissenters if the court finds the corporation did not substantially comply with the requirements of sections 30.0190 through 30.0198; or
(2) against either the corporation or a dissenter, in favor of any other party, if the court finds that the party against whom the fees and expenses are assessed acted arbitrarily, vexatiously, or not in good faith with respect to the rights provided by this chapter.