Guam § 46410 - Civil Liabilities.

§ 46410. Civil Liabilities.

(a) Any person who

(1) offers or sells a security of violation of '§ 46201(a), 46301, or

46405(b), or of any rule or order under § 46403 which requires the

affirmative approval of sales literature before it is used, or of any

condition imposed under '§ 46304(d), 46305(g), or 46305(h), or

(2) offers or sells a security by means of any untrue statement of a

material fact or any omission to state a material fact necessary in order

to make the statements made, in the light of the circumstances under

which they are made, not misleading (the buyer not knowing of the

untruth or omission), and who does not sustain the burden of proof that

he did not know, and in the exercise of reasonable care could not have

known, of the untruth or omission, is liable to the person buying the

security from him, who may sue either at law or in equity to recover

the consideration paid for the security, together with interests at six

percent (6%) per year from the date of payment, costs, and reasonable

attorneys' fees, less the amount of any income received on the security,

upon the tender of the security, or for damages if he no longer owns

the security. Damages are the amount that would be recoverable upon

a tender less the value of the security when the buyer disposed of it and

interest at six percent (6%) per year from the date of disposition.

(b) Every person who directly or indirectly controls a seller liable

under subsection (a), every partner, officer, or director of such a seller,

every person occupying a similar status or performing similar functions,

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every employee of such a seller who materially aids in the sale, and every

broker-dealer or agent who materially aids in the sale are also liable jointly

and severally with and to the same extent as the seller, unless the non-seller

who is so liable sustains the burden of proof that he did not know, and in

exercise of reasonable care could not have known, of the existence of the

facts by reason of which the liability is alleged to exist. There is

contribution as in cases of contract among the several persons so liable.

(c) Any tender specified in this section may be made at any time before

entry of judgment.

(d) Every cause of action under this statutes survives the death of any

person who might have been a plaintiff or defendant.

(e) No person may sue under this section more than two (2) years after

the contract of sale. No person may sue under this section (1) if the buyer

received a written offer, before suit and at a time when he owned the

security, to refund the consideration paid together with interest at six

percent (6%) per year from the date of payment, less the amount of any

income received on the security, and he failed to accept the offer within

thirty (30) days of its receipt, or (2) if the buyer received such an offer

before suit and at a time when he did not own the security, unless he

rejected the offer in writing within thirty (30) days of its receipt.

(f) No person who has made or engaged in the performance of any

contract in violation of any provision of this Act or any rule or order

hereunder, or who has acquired any purported right under any such contract

with knowledge of the facts by reason of which its making or performance

was in violation, may base any suit on the contract.

(g) Any condition, stipulation, or provision binding any person

acquiring any security to waive compliance with any provision of this Act

or any rule or order hereunder is void.

(h) The rights and remedies provided by this Act are in addition to any

other rights or remedies that may exist at law or in equity, but this Act does

not create any cause of action not specified in this section or § 46202(e).