Issue or transfer of securities or securities‑based derivatives contracts for no consideration
272.—(1) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities being shares or debentures of an entity, or units in a business trust, if no consideration is or will be given for the issue or transfer of the shares or debentures, or units in a business trust (as the case may be).
[4/2017]
(2) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities‑based derivatives contracts being units of shares or debentures of an entity, or derivatives of units in a business trust, if —
(a)
no consideration is or will be given for the issue or transfer of the units of shares or debentures of the entity, or derivatives of units in the business trust; and
(b)
no consideration is or will be given for the underlying shares or debentures of the entity, or units in the business trust (as the case may be) on the exercise or conversion of the units of shares or debentures of the entity, or derivatives of units in the business trust (as the case may be).
[4/2017]
Small offers
272A.—(1) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to personal offers of securities or securities‑based derivatives contracts of an entity or a business trust by a person if —
(a)
the total amount raised by the person from such offers within any period of 12 months does not exceed —
(i)
$5 million (or its equivalent in a foreign currency); or
(ii)
such other amount as the Authority may prescribe in substitution for the amount specified in sub‑paragraph (i);
(b)
in respect of each offer, the person making the offer gives the person to whom the offer is made —
(i)
a statement in writing that states —
(A)
where units or derivatives of units in a business trust are being offered and the business trust is not registered under the Business Trusts Act 2004 —
“This offer is made in reliance on the exemption under section 272A(1) of the Securities and Futures Act 2001. It is not made in or accompanied by a prospectus that is registered by the Monetary Authority of Singapore and the business trust is not registered under the Business Trusts Act 2004.”; and
(B)
in any other case —
“This offer is made in reliance on the exemption under section 272A(1) of the Securities and Futures Act 2001. It is not made in or accompanied by a prospectus that is registered by the Monetary Authority of Singapore.”; and
(ii)
a notification in writing that the securities or securities‑based derivatives contracts to which the offer (called in this sub‑paragraph the initial offer) relates must not be subsequently sold to any person, unless the offer resulting in such subsequent sale is made —
(A)
in compliance with Subdivisions (2) and (3) of this Division;
(B)
in reliance on subsection (8)(c) or any other exemption under any provision of this Subdivision (other than this subsection); or
(C)
where at least 6 months have elapsed from the date the securities or securities‑based derivatives contracts were acquired under the initial offer, in reliance on the exemption under this subsection;
(c)
none of the offers is accompanied by an advertisement making an offer or calling attention to the offer or intended offer;
(d)
no selling or promotional expenses are paid or incurred in connection with each offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by —
(i)
the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts;
(ii)
an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or
(iii)
a person —
(A)
who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or
(B)
who is exempted from the laws, codes or requirements mentioned in sub‑paragraph (A) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; and
(e)
no prospectus in respect of any of the offers has been registered by the Authority or, where a prospectus has been registered —
(i)
the prospectus has expired pursuant to section 250; or
(ii)
the person making the offer has before making the offer informed the Authority by written notice of its intent to make the offer in reliance on the exemption under this subsection.
[2/2009; 4/2017]
(2) For the purposes of subsection (1)(b), where any notice, circular, material, publication or other document is issued in connection with the offer, the person making the offer is deemed to have given the statement and notification to the person to whom the offer is made in accordance with that provision if such statement or notification is contained in the first page of that notice, circular, material, publication or document.
(3) For the purposes of subsection (1), a personal offer of securities or securities‑based derivatives contracts is one that —
(a)
may be accepted only by the person to whom it is made; and
(b)
is made to a person who is likely to be interested in that offer, having regard to —
(i)
any previous contact before the date of the offer between the person making the offer and that person;
(ii)
any previous professional or other connection established before that date between the person making the offer and that person; or
(iii)
any previous indication (whether through statements made or actions carried out) before that date by that person that indicate to any of the following persons that that person is interested in offers of that kind:
(A)
the person making the offer;
(B)
the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts;
(C)
an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts;
(D)
a person licensed under the Financial Advisers Act 2001 in respect of the provision of financial advisory services concerning investment products;
(E)
an exempt financial adviser as defined in section 2(1) of the Financial Advisers Act 2001;
(F)
a person —
(FA)
who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts;
(FB)
who is exempted from the laws, codes or requirements mentioned in sub‑paragraph (FA) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts;
(FC)
who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of the provision of financial advisory services concerning investment products; or
(FD)
who is exempted from the laws, codes or requirements mentioned in sub‑paragraph (FC) in respect of the provision of financial advisory services concerning investment products.
[4/2017]
(4) In determining the amount raised by an offer, the following must be included:
(a)
the amount payable for the securities or securities‑based derivatives contracts at the time they are allotted, issued or sold;
(b)
if the securities or securities‑based derivatives contracts are issued partly‑paid, any amount payable at a future time if a call is made;
(c)
if the securities or securities‑based derivatives contracts carry a right (by whatever name called) to be converted into other securities or securities‑based derivatives contracts or to acquire other securities or securities‑based derivatives contracts, any amount payable on the exercise of the right to convert them into, or to acquire, other securities or securities‑based derivatives contracts.
[4/2017]
(5) In determining whether the amount raised by a person from offers within a period of 12 months exceeds the applicable amount mentioned in subsection (1)(a), each amount raised —
(a)
by that person from any offer of securities or securities‑based derivatives contracts issued by the same entity; or
(b)
by that person or another person from any offer of securities or securities‑based derivatives contracts of an entity or a business trust, or units in a collective investment scheme, which is a closely related offer,
if any, within that period in reliance on the exemption under subsection (1) or section 302B(1) must be included.
[4/2017]
(6) Whether an offer is a closely related offer under subsection (5) is determined by considering such factors as the Authority may prescribe.
(7) For the purpose of this section, an offer of securities or securities‑based derivatives contracts made by a person acting as an agent of another person is treated as an offer made by that other person.
[4/2017]
(8) Where securities or securities‑based derivatives contracts acquired through an offer made in reliance on the exemption under subsection (1) (called in this subsection an initial offer) are subsequently sold by the person who acquired the securities or securities‑based derivatives contracts to another person, Subdivisions (2) and (3) of this Division apply to the offer from the firstmentioned person to the second‑mentioned person which resulted in that sale, unless —
(a)
such offer is made in reliance on an exemption under any provision of this Subdivision (other than this section);
(b)
such offer is made in reliance on an exemption under subsection (1) and at least 6 months have elapsed from the date the securities or securities‑based derivatives contracts were acquired under the initial offer; or
(c)
such offer is one —
(i)
that may be accepted only by the person to whom it is made;
(ii)
that is made to a person who is likely to be interested in the offer having regard to —
(A)
any previous contact before the date of the offer between the person making the initial offer and that person;
(B)
any previous professional or other connection established before that date between the person making the initial offer and that person; or
(C)
any previous indication (whether through statements made or actions carried out) before that date by that person that indicate to any of the following persons that that person is interested in offers of that kind:
(CA)
the person making the initial offer;
(CB)
the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts;
(CC)
an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts;
(CD)
a person licensed under the Financial Advisers Act 2001 in respect of the provision of financial advisory services concerning investment products;
(CE)
an exempt financial adviser as defined in section 2(1) of the Financial Advisers Act 2001;
(CF)
a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts;
(CG)
a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (CF) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts;
(CH)
a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of the provision of financial advisory services concerning investment products;
(CI)
a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (CH) in respect of the provision of financial advisory services concerning investment products;
(iii)
in respect of which the firstmentioned person has given the second‑mentioned person —
(A)
a statement in writing that states —
(AA)
where units or derivatives of units in a business trust are being offered and the business trust is not registered under the Business Trusts Act 2004 —
“This offer is made in reliance on the exemption under section 272A(8)(c) of the Securities and Futures Act 2001. It is not made in or accompanied by a prospectus that is registered by the Monetary Authority of Singapore and the business trust is not registered under the Business Trusts Act 2004.”; and
(AB)
in any other case —
“This offer is made in reliance on the exemption under section 272A(8)(c) of the Securities and Futures Act 2001. It is not made in or accompanied by a prospectus that is registered by the Monetary Authority of Singapore.”;
(B)
a notification in writing that the securities or securities‑based derivatives contracts being offered must not be subsequently sold to any person unless the offer resulting in such subsequent sale is made —
(BA)
in compliance with Subdivisions (2) and (3) of this Division;
(BB)
in reliance on this subsection or any other exemption under any provision of this Subdivision (other than subsection (1)); or
(BC)
where at least 6 months have elapsed from the date the securities or securities‑based derivatives contracts were acquired under the initial offer, in reliance on the exemption under subsection (1);
(iv)
that is not accompanied by an advertisement making an offer or calling attention to the offer or intended offer; and
(v)
in respect of which no selling or promotional expenses are paid or incurred in connection with the offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by —
(A)
the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts;
(B)
an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts;
(C)
a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or
(D)
a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (C) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts.
[4/2017]
(9) Subsection (2) applies, with the necessary modifications, in relation to the statement and notification referred to in subsection (8)(c)(iii).
(10) In subsections (1)(c) and (8)(c)(iv), “advertisement” means —
(a)
a written or printed communication;
(b)
a communication by radio, television or other medium of communication; or
(c)
a communication by means of a recorded telephone message,
that is published in connection with an offer of securities or securities‑based derivatives contracts, but does not include —
(d)
a document —
(i)
purporting to describe the securities or securities‑based derivatives contracts being offered, or the business and affairs of the person making the offer, the issuer or (where applicable) the underlying entity, or (where the securities or securities‑based derivatives contracts being offered are units or derivatives of units in a business trust) the business trust; and
(ii)
purporting to have been prepared for delivery to and review by persons to whom the offer is made so as to assist them in making an investment decision in respect of the securities or securities‑based derivatives contracts being offered;
(e)
a publication which consists solely of a disclosure, notice or report required under this Act, or any listing rules or other requirements of an approved exchange or overseas exchange, which is made by any person; or
(f)
a publication which consists solely of a notice or report of a general meeting or proposed general meeting of the person making the offer, the issuer, the unitholders of the business trust, the underlying entity or any entity, or a presentation of oral or written material on matters so contained in the notice or report at the general meeting.
[2/2009; 4/2017]
(11) In subsection (10)(d)(i), the reference to the affairs of the person making the offer, the issuer, the underlying entity or the business trust includes —
(a)
in the case where the person making the offer, the issuer or the underlying entity is a corporation, a reference to the matters mentioned in section 2(2);
(b)
in any other case, a reference to such matters as may be prescribed by regulations made under section 341.
[4/2017]
Private placement
272B.—(1) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to offers of securities or securities‑based derivatives contracts of an entity or of a business trust that are made by a person if —
(a)
the offers are made to no more than 50 persons within any period of 12 months;
(b)
none of the offers is accompanied by an advertisement making an offer or calling attention to the offer or intended offer;
(c)
no selling or promotional expenses are paid or incurred in connection with each offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by —
(i)
the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts;
(ii)
an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts;
(iii)
a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or
(iv)
a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (iii) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; and
(d)
no prospectus in respect of any of the offers has been registered by the Authority or, where a prospectus has been registered —
(i)
the prospectus has expired pursuant to section 250; or
(ii)
the person making the offer has before making the offer —
(A)
informed the Authority by written notice of its intent to make the offer in reliance on the exemption under this subsection; and
(B)
taken reasonable steps to inform in writing the person to whom the offer is made that the offer is made in reliance on the exemption under this subsection.
[2/2009; 4/2017]
(2) The Authority may prescribe such other number of persons in substitution for the number specified in subsection (1)(a).
(3) In determining whether offers of securities or securities‑based derivatives contracts by a person are made to no more than the applicable number of persons specified in subsection (1)(a) within a period of 12 months, the following persons must be included:
(a)
each person to whom an offer of securities or securities‑based derivatives contracts issued by the same entity is made by the firstmentioned person within that period in reliance on the exemption under this section;
(b)
each person to whom an offer of securities or securities‑based derivatives contracts of an entity or a business trust, or units in a collective investment scheme, is made by the firstmentioned person or another person where such offer is a closely related offer, within that period in reliance on the exemption under this section or section 302C.
[4/2017]
(4) Whether an offer is a closely related offer under subsection (3) is determined by considering such factors as the Authority may prescribe.
(5) For the purposes of subsection (1) —
(a)
an offer of securities or securities‑based derivatives contracts to an entity or to a trustee is treated as an offer to a single person, provided that the entity or trust is not formed primarily for the purpose of acquiring the securities or securities‑based derivatives contracts which are the subject of the offer;
(b)
an offer of securities or securities‑based derivatives contracts to an entity or to a trustee is treated as an offer to the equity owners, partners or members of that entity, or to the beneficiaries of the trust (as the case may be) if the entity or trust is formed primarily for the purpose of acquiring the securities or securities‑based derivatives contracts which are the subject of the offer;
(c)
an offer of securities or securities‑based derivatives contracts to 2 or more persons who will own the securities or securities‑based derivatives contracts acquired as joint owners is treated as an offer to a single person;
(d)
an offer of securities or securities‑based derivatives contracts to a person acting on behalf of another person (whether as an agent or otherwise) is treated as an offer made to that other person;
(e)
offers of securities or securities‑based derivatives contracts made by a person as an agent of another person is treated as offers made by that other person;
(f)
where an offer is made to a person with a view to another person acquiring an interest in those securities or securities‑based derivatives contracts by virtue of section 4, only the second‑mentioned person is counted for the purposes of determining whether offers of the securities or securities‑based derivatives contracts are made to no more than the applicable number of persons specified in subsection (1)(a); and
(g)
where —
(i)
an offer of securities or securities‑based derivatives contracts is made to a person in reliance on the exemption under subsection (1) with a view to those securities or securities‑based derivatives contracts being subsequently offered for sale to another person; and
(ii)
that subsequent offer —
(A)
is not made in reliance on an exemption under any provision of this Subdivision; or
(B)
is made in reliance on an exemption under subsection (1) or section 280,
both persons are counted for the purposes of determining whether offers of the securities or securities‑based derivatives contracts are made to no more than the applicable number of persons specified in subsection (1)(a).
[4/2017]
(6) In subsection (1)(b), “advertisement” has the meaning given by section 272A(10).
Offer made under certain circumstances
273.—(1) Subject to subsection (5), Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities or securities‑based derivatives contracts if —
(a)
it is made in connection with a take‑over offer which is in compliance with the Take‑over Code;
(b)
it is made in connection with an offer for the acquisition by or on behalf of a person of some or all of the shares in an unlisted corporation or some or all of the shares of a particular class in an unlisted corporation —
(i)
to all members of the corporation or all members of the corporation holding shares of that class; or
(ii)
where the person already holds shares in the corporation, to all other members of the corporation or all other members of the corporation holding shares of that class,
where such offer is in compliance with the laws, codes and other requirements (whether or not having the force of law) relating to take‑overs of the country in which the corporation was incorporated;
(c)
it is made in connection with a proposed compromise or arrangement between —
(i)
an unlisted corporation and its creditors or a class of them; or
(ii)
an unlisted corporation and its members or a class of them,
and such proposed compromise or arrangement and the execution thereof is in compliance with the laws, codes and other requirements (whether or not having the force of law) relating to take‑overs, compromises and arrangements of the country in which the corporation was incorporated;
(ca)
it is made in connection with an offer for the acquisition by or on behalf of a person of some or all of the shares in a corporation or some or all of the shares of a particular class in a corporation —
(i)
to all members of the corporation or all members of the corporation holding shares of that class; or
(ii)
where the person already holds shares in the corporation, to all other members of the corporation or all other members of the corporation holding shares of that class,
and such offer complies with the Take‑over Code as though the Take‑over Code is applicable to it;
(cb)
it is made in connection with a proposed compromise or arrangement between —
(i)
a corporation and its creditors or a class of them; or
(ii)
a corporation and its members or a class of them,
and such proposed compromise or arrangement and the execution thereof complies with the Take‑over Code as though the Take‑over Code is applicable to it;
(cc)
it is an offer to enter into an underwriting agreement relating to securities or securities‑based derivatives contracts;
(cd)
it is an offer of securities or securities‑based derivatives contracts of an entity —
(i)
being an entity which is formed or constituted in Singapore or otherwise, whose securities or securities‑based derivatives contracts are not listed for quotation on an approved exchange; or
(ii)
being an entity which is not formed or constituted in Singapore, whose securities or securities‑based derivatives contracts are listed for quotation on an approved exchange and such listing is not a primary listing,
that is made to existing members or debenture holders of that entity (whether or not it is renounceable in favour of persons other than existing members or debenture holders);
(ce)
it is an offer of shares or debentures of an entity made to any existing member or debenture holder of the entity whose shares are listed for quotation on an approved exchange;
(cf)
it is an offer of debentures of an entity made to any existing debenture holder of the entity whose debentures are listed for quotation on an approved exchange;
(cg)
it is an offer of units of shares or debentures of an entity made to any existing member or debenture holder of the entity whose shares are listed for quotation on an approved exchange, where such units may only be exercised or converted by any existing member or debenture holder into shares or debentures (as the case may be) of the entity;
(ch)
it is an offer of units of debentures of an entity made to any existing debenture holder of the entity whose debentures are listed on an approved exchange, where such units may only be exercised or converted by any existing debenture holder into debentures of the entity;
(ci)
it is an offer of securities or securities‑based derivatives contracts of a corporation made in the circumstances specified under section 178 of the Insolvency, Restructuring and Dissolution Act 2018;
(cj)
it is an offer of units in a business trust, whose units are listed for quotation on an approved exchange, made to —
(i)
any existing unitholder of the business trust; or
(ii)
any holder of any debenture of the trustee‑manager of the business trust that is issued by the trustee‑manager of the business trust in its capacity as trustee‑manager of the business trust;
(ck)
it is an offer of derivatives of units in a business trust, whose units are listed for quotation on an approved exchange, made to —
(i)
any existing unitholder of the business trust, where such derivatives of units may only be exercised or converted by the existing unitholder into units of the business trust; or
(ii)
any holder of any debenture of the trustee‑manager of the business trust that is issued by the trustee‑manager of the business trust in its capacity as trustee‑manager of the business trust, where such derivatives of units may only be exercised or converted by the holder of debentures into units of the business trust;
(d)
it is an offer of shares or debentures (not being such excluded shares or excluded debentures as the Authority may prescribe) that have been previously issued, are listed for quotation or quoted on an approved exchange, and are traded on the exchange;
(da)
it is an offer of units in a business trust (not being such excluded units in a business trust as may be prescribed by regulations made under section 341) that —
(i)
have been previously issued;
(ii)
are listed for quotation or quoted on an approved exchange; and
(iii)
are traded on the approved exchange;
(e)
it is an offer of securities‑based derivatives contracts (not being such excluded securities‑based derivatives contracts as may be prescribed by regulations made under section 341) that —
(i)
have been previously issued;
(ii)
are listed for quotation or quoted on an approved exchange; and
(iii)
are traded on the approved exchange;
(f)
it is an offer of securities‑based derivatives contracts (not being such excluded securities‑based derivatives contracts as may be prescribed by regulations made under section 341) where —
(i)
the discharge of the obligations under, or the value of, the securities‑based derivatives contracts is determined wholly (whether directly or indirectly) by reference to, is derived from, or varies by reference to the value or amount of one or more securities indices; and
(ii)
an application has been or will be made for permission for the securities‑based derivatives contracts to be listed for quotation or quoted on an approved exchange;
(g)
it is an offer of securities‑based derivatives contracts (not being such excluded securities‑based derivatives contracts as may be prescribed by regulations made under section 341) where —
(i)
the obligations under the securities‑based derivatives contracts are to be discharged by one party to the other at some future time by cash settlement only;
(ii)
all underlying securities of the securities‑based derivatives contracts have been previously issued and are listed for quotation on an organised market (not being such excluded organised market as may be prescribed by regulations made under section 341); and
(iii)
either of the following is satisfied:
(A)
an application has been or will be made for permission for the securities‑based derivatives contracts to be listed for quotation or quoted on an approved exchange;
(B)
the offer complies with such disclosure requirements prescribed by regulations made under section 341;
(h)
it is an offer of securities‑based derivatives contracts (not being such excluded securities‑based derivatives contracts as may be prescribed by regulations made under section 341) where —
(i)
the obligations under the securities‑based derivatives contracts are to be discharged by one party to the other at some future time other than by cash settlement only;
(ii)
all underlying securities of the securities‑based derivatives contracts have been previously issued and are listed for quotation on an approved exchange or a recognised securities exchange; and
(iii)
an application has been or will be made for permission for the securities‑based derivatives contracts to be listed for quotation or quoted on an approved exchange;
(i)
it is made (whether or not in relation to securities or securities‑based derivatives contracts that have been previously issued) by an entity to a qualifying person, where the securities or securities‑based derivatives contracts are to be held by or for the benefit of the qualifying person and are the securities or securities‑based derivatives contracts of the entity or any of its related parties; or
(j)
it is made (whether or not in relation to securities or securities‑based derivatives contracts that have been previously issued) by a trustee‑manager of a business trust to a qualifying person, where the securities or securities‑based derivatives contracts are to be held by or for the benefit of the qualifying person and are the securities or securities‑based derivatives contracts of the business trust or any of its related parties.
[2/2009; 4/2017; 40/2018]
(1A) An offer of securities or securities‑based derivatives contracts does not come within subsection (1)(d), (da) or (e) if —
(a)
the securities or securities‑based derivatives contracts being offered are borrowed by the issuer from any of the following persons solely for the purpose of facilitating the offer of securities or securities‑based derivatives contracts by the issuer:
(i)
an existing shareholder of the issuer;
(ii)
a holder of a debenture of the issuer;
(iii)
(where the securities or securities‑based derivatives contracts offered are units or derivatives of units in a business trust) an existing holder of units or holder of derivatives of units in the business trust;
(iv)
a holder of units of shares or debentures of the issuer; and
(b)
such borrowing is made under an agreement or arrangement between the issuer and the person mentioned in paragraph (a) which promises the issue or allotment of securities or securities‑based derivatives contracts by the issuer to the person at the same time or shortly after the offer.
[4/2017]
(2) An offer of securities or securities‑based derivatives contracts comes within subsection (1)(i) or (j) only if no selling or promotional expenses are paid or incurred in connection with the offer other than those incurred —
(a)
for administrative or professional services; or
(b)
by way of commission or fee for services rendered by —
(i)
the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts;
(ii)
an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts;
(iii)
a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or
(iv)
a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (iii) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts.
[4/2017]
(3) [Deleted by Act 1 of 2005]
(4) For the purposes of subsection (1)(i) and (j) —
(a)
a person is a qualifying person in relation to an entity if the person is —
(i)
a bona fide director or equivalent person, former director or equivalent person, consultant, adviser, employee or former employee of the entity or a related corporation of that entity (being a corporation); or
(ii)
the spouse, widow, widower or a child, adopted child or stepchild below the age of 18, of such director or equivalent person, former director or equivalent person, employee or former employee; and
(b)
a person is a qualifying person in relation to a business trust if the person is —
(i)
a bona fide director or equivalent person, former director or equivalent person, consultant, adviser, employee or former employee of the trustee‑manager of the business trust or a related corporation of that trustee‑manager (being a corporation); or
(ii)
the spouse, widow, widower or a child, adopted child or stepchild below the age of 18, of such director or equivalent person, former director or equivalent person, employee or former employee.
[4/2017]
(5) Where, on the application of any person interested, the Authority declares that circumstances exist whereby —
(a)
the cost of providing a prospectus for an offer of securities or securities‑based derivatives contracts outweighs the resulting protection to investors; or
(b)
it would not be prejudicial to the public interest if a prospectus were dispensed with for an offer of securities or securities‑based derivatives contracts,
then Subdivisions (2) and (3) of this Division (other than section 257) do not apply to such an offer for a period of 6 months from the date of the declaration.
[4/2017]
(6) The Authority may, on making a declaration under subsection (5), impose such conditions or restrictions on the offer as it may determine.
(7) A declaration made under subsection (5) is final.
(8) Any person who contravenes any of the conditions or restrictions specified in the declaration made under subsection (5) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction.
(8A) A person must not —
(a)
advertise an offer or intended offer of any securities or securities‑based derivatives contracts mentioned in subsection (1)(d), (da) or (e); or
(b)
publish a statement that —
(i)
directly or indirectly, refers to an offer or intended offer of any securities or securities‑based derivatives contracts mentioned in subsection (1)(d), (da) or (e); or
(ii)
is reasonably likely to induce persons to subscribe for or purchase the securities or securities‑based derivatives contracts to which the offer relates,
unless the advertisement or publication complies with such requirements as may be prescribed by regulations made under section 341.
[4/2017]
(8B) Any person who contravenes subsection (8A), or who knowingly authorises or permits the publication or dissemination of any advertisement or statement referred to in that subsection, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction.
[34/2012]
(9) In subsection (1)(b) and (c), “unlisted corporation” means a corporation —
(a)
that is not a company; and
(b)
the shares or debentures, or units of shares or debentures, of which are not listed for quotation on any approved exchange.
[4/2017]
(10) In subsection (1)(ca) and (cb), “corporation” means a corporation that is not a company.
Offer made to institutional investors
274. Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities or securities‑based derivatives contracts (whether or not they have been previously issued) made to an institutional investor.
[4/2017]
Offer made to accredited investors and certain other persons
275.—(1) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities or securities‑based derivatives contracts, whether or not they have been previously issued, where the offer is made to a relevant person, if —
(a)
the offer is not accompanied by an advertisement making an offer or calling attention to the offer or intended offer;
(b)
no selling or promotional expenses are paid or incurred in connection with the offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by —
(i)
the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts;
(ii)
an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts;
(iii)
a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or
(iv)
a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (iii) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; and
(c)
no prospectus in respect of the offer has been registered by the Authority or, where a prospectus has been registered —
(i)
the prospectus has expired pursuant to section 250; or
(ii)
the person making the offer has before making the offer —
(A)
informed the Authority by written notice of its intent to make the offer in reliance on the exemption under this subsection; and
(B)
taken reasonable steps to inform in writing the person to whom the offer is made that the offer is made in reliance on the exemption under this subsection.
[2/2009; 4/2017]
(1A) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities or securities‑based derivatives contracts to a person who acquires the securities or securities‑based derivatives contracts as principal, whether or not the securities or securities‑based derivatives contracts have been previously issued, if —
(a)
the offer is on terms that the securities or securities‑based derivatives contracts may only be acquired at a consideration of not less than $200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount is to be paid for in cash or by exchange of securities, securities‑based derivatives contracts or other assets;
(b)
the offer is not accompanied by an advertisement making an offer or calling attention to the offer or intended offer;
(c)
no selling or promotional expenses are paid or incurred in connection with the offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by —
(i)
the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts;
(ii)
an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts;
(iii)
a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or
(iv)
a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (iii) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; and
(d)
no prospectus in respect of the offer has been registered by the Authority or, where a prospectus has been registered —
(i)
the prospectus has expired pursuant to section 250; or
(ii)
the person making the offer has before making the offer —
(A)
informed the Authority by written notice of its intent to make the offer in reliance on the exemption under this subsection; and
(B)
taken reasonable steps to inform in writing the person to whom the offer is made that the offer is made in reliance on the exemption under this subsection.
[2/2009; 4/2017]
(2) In this section —
“advertisement” means —
(a)
a written or printed communication;
(b)
a communication by radio, television or other medium of communication; or
(c)
a communication by means of a recorded telephone message,
that is published in connection with an offer in respect of securities or securities‑based derivatives contracts, but does not include —
(d)
an information memorandum;
(e)
a publication which consists solely of a disclosure, notice or report required under this Act, or any listing rules or other requirements of an approved exchange or overseas exchange, which is made by any person; or
(f)
a publication which consists solely of a notice or report of a general meeting or proposed general meeting of the unitholders of the business trust, the person making the offer, the issuer, the underlying entity or any entity, or a presentation of oral or written material on matters so contained in the notice or report at the general meeting;
“information memorandum” means a document —
(a)
purporting to describe —
(i)
the securities or securities‑based derivatives contracts being offered; or
(ii)
the business and affairs of the person making the offer, the issuer or (where applicable) the underlying entity, or (where the securities or securities‑based derivatives contracts being offered are units or derivatives of units in a business trust) the trustee‑manager of the business trust or the business trust; and
(b)
purporting to have been prepared for delivery to, and review by, relevant persons and persons to whom an offer mentioned in subsection (1A) is to be made, so as to assist them in making an investment decision in respect of the securities or securities‑based derivatives contracts being offered;
“relevant person” means —
(a)
an accredited investor;
(b)
a corporation the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor;
(c)
a trustee of a trust the sole purpose of which is to hold investments and each beneficiary of which is an individual who is an accredited investor;
(d)
an officer or equivalent person of the person making the offer (such person being an entity) or a spouse, parent, brother, sister, son or daughter of that officer or equivalent person; or
(e)
a spouse, parent, brother, sister, son or daughter of the person making the offer (such person being an individual).
[4/2017]
(2A) In the definition of “information memorandum” in subsection (2), the reference to the affairs of the person making the offer, the issuer, the underlying entity, the trustee‑manager of the business trust or the business trust includes —
(a)
where the person making the offer, the issuer, the underlying entity or the trustee‑manager is a corporation, a reference to the matters mentioned in section 2(2); and
(b)
in any other case, a reference to such matters as may be prescribed by regulations made under section 341.
[4/2017]
(3) Despite any condition in section 99 or any regulation made for the purposes of that section that a person has to deal in capital markets products that are securities or securities‑based derivatives contracts for the person’s own account with or through a person prescribed by the Authority so that the firstmentioned person can qualify as an exempt person, a person who acquires securities or securities‑based derivatives contracts under an offer made in reliance on an exemption under section 274 or subsection (1) or (1A) for the person’s own account is treated as an exempt person even though the person does not comply with that condition.
[4/2017]
(4) The Authority may, by order in the Gazette, specify an amount in substitution of any amount specified in subsection (1A)(a).
Offer of securities acquired pursuant to section 274 or 275
276.—(1) Despite sections 272A, 272B, 273(1)(d), (e) and (f), 277, 278 and 279 but subject to subsection (7), where securities or securities‑based derivatives contracts initially acquired pursuant to an offer made in reliance on an exemption under section 274 or 275 are sold within the period of 6 months from the date of the initial acquisition to any person other than —
(a)
an institutional investor;
(b)
a relevant person as defined in section 275(2); or
(c)
any person pursuant to an offer referred to in section 275(1A),
then Subdivisions (2) and (3) of this Division apply to the offer resulting in that sale.
[2/2009; 4/2017]
(1A) The reference to the sale of securities or securities‑based derivatives contracts under subsection (1) includes —
(a)
where the securities or securities‑based derivatives contracts initially acquired are debentures, or units of shares or debentures, with an attached right of conversion into shares or debentures, a reference to the sale of the converted shares or debentures; and
(b)
where the securities or securities‑based derivatives contracts initially acquired are derivatives of units in a business trust, with an attached right of conversion into units in the business trust, a reference to the sale of the units in the business trust.
[4/2017]
(2) Where securities or securities‑based derivatives contracts initially acquired pursuant to an offer made in reliance on an exemption under section 274 or 275 are sold to —
(a)
an institutional investor;
(b)
a relevant person as defined in section 275(2); or
(c)
any person pursuant to an offer referred to in section 275(1A),
Subdivisions (2) and (3) of this Division do not apply to the offer resulting in that sale.
[4/2017]
(3) Subject to subsection (7), securities or securities‑based derivatives contracts of a corporation (other than a corporation that is an accredited investor) —
(a)
the sole business of which is to hold investments; and
(b)
the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor,
must not be transferred within 6 months after the corporation has acquired any securities or securities‑based derivatives contracts pursuant to an offer made in reliance on an exemption under section 275 unless —
(c)
that transfer —
(i)
is made only to institutional investors or relevant persons as defined in section 275(2); or
(ii)
arises from an offer referred to in section 275(1A);
(d)
no consideration is or will be given for the transfer; or
(e)
the transfer is by operation of law.
[2/2009; 4/2017]
(4) Subject to subsection (7), where —
(a)
the sole purpose of a trust (other than a trust the trustee of which is an accredited investor) is to hold investments; and
(b)
each beneficiary of the trust is an individual who is an accredited investor,
the beneficiaries’ rights and interest (howsoever described) in the trust must not be transferred within 6 months after securities or securities‑based derivatives contracts are acquired for the trust pursuant to an offer made in reliance on an exemption under section 275 unless —
(c)
that transfer —
(i)
is made only to institutional investors or relevant persons as defined in section 275(2); or
(ii)
arises from an offer that is made on terms that such rights or interest are acquired at a consideration of not less than $200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount is to be paid for in cash or by exchange of securities or securities‑based derivatives contracts or other assets;
(d)
no consideration is or will be given for the transfer; or
(e)
the transfer is by operation of law.
[2/2009; 4/2017]
(5) To avoid doubt, the reference to beneficiaries in subsection (4) includes a reference to unitholders of a business trust and participants of a collective investment scheme.
(6) To avoid doubt, where any securities or securities‑based derivatives contracts are acquired pursuant to an offer made in reliance on an exemption under section 274 or 275, an offer to sell those securities or securities‑based derivatives contracts may be made in reliance on an exemption under section 273(1)(d) or (e) after 6 months have elapsed from the date of the firstmentioned offer.
[4/2017]
(7) Subsections (1), (3) and (4) do not apply where the securities or securities‑based derivatives contracts of the corporation that are acquired are of the same class as other securities or securities‑based derivatives contracts of the corporation —
(a)
that are listed for quotation on an approved exchange; and
(b)
in respect of which any offer information statement, introductory document, shareholders’ circular for a reverse take‑over, document issued for the purposes of a scheme of arrangement, or any other similar document approved by an approved exchange, was issued in connection with —
(i)
an offer of those securities or securities‑based derivatives contracts; or
(ii)
the listing for quotation of those securities or securities‑based derivatives contracts.
Offer made using offer information statement
277.—(1) Subject to subsection (1A), Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities or securities‑based derivatives contracts (not being such securities or securities‑based derivatives contracts as may be prescribed by regulations made under section 341) if the following conditions are satisfied:
(a)
where the securities or securities‑based derivatives contracts offered —
(i)
are units of shares or debentures, those units of shares or debentures are issued by an entity whose shares are listed for quotation on an approved exchange, whether by means of a rights issue or otherwise; and
(ii)
are units or derivatives of units in a business trust, the units or derivatives of units in the business trust are issued by a trustee‑manager acting in its capacity as the trustee‑manager of the business trust, where units of the business trust which have been previously issued are listed for quotation on an approved exchange, whether by means of a rights issue or otherwise;
(b)
an offer information statement relating to the offer which complies with such requirements as to form and content as may be prescribed by regulations made under section 341 is lodged with the Authority;
(c)
either —
(i)
the offer is made in, or accompanied by, the offer information statement mentioned in paragraph (b); or
(ii)
all the conditions in subsection (1B) are satisfied.
[4/2017]
(1A) Subsection (1) only applies to an offer of securities or securities‑based derivatives contracts referred to in that subsection made within a period of 6 months from the date the offer information statement relating to that offer is lodged with the Authority.
[2/2009; 4/2017]
(1AB) In relation to an offer of securities —
(a)
where the securities are issued, whether by means of a rights issue or otherwise, by a subsidiary (called in this section the subsidiary) of an entity whose shares are listed for quotation on an approved exchange (called in this section the listed entity); and
(b)
where the listed entity has guaranteed, or has agreed to guarantee, unconditionally and irrevocably, all payment obligations (whether in cash, in kind or otherwise) of the subsidiary arising from the securities,
the Authority may, on the application of the subsidiary or the listed entity, declare by written notice to the applicant that the provision of an offer information statement in lieu of a prospectus relating to an offer of securities would not be prejudicial to investors of such securities.
[4/2017]
(1AC) Where the Authority makes a declaration mentioned in subsection (1AB) in relation to an offer of securities, Subdivisions (2) and (3) of this Division (other than section 257) do not apply to the offer of securities for a period of 6 months starting on the date of the declaration if all of the following conditions are satisfied:
(a)
the offer information statement relating to the offer of securities —
(i)
complies with such requirements as to form and content as may be prescribed by regulations made under section 341;
(ii)
is signed by every director, or equivalent person, of the subsidiary and the listed entity; and
(iii)
is lodged by the subsidiary or the listed entity, with the Authority;
(b)
either —
(i)
the offer of securities is made in, or accompanied by, the offer information statement mentioned in paragraph (a); or
(ii)
all the conditions in subsection (1B) are satisfied.
[4/2017]
(1AD) The Authority may, on making a declaration under subsection (1AB), provide that the offer of securities may only be made subject to such conditions or restrictions as the Authority may impose.
[4/2017]
(1B) The conditions mentioned in subsections (1)(c)(ii) and (1AC)(b)(ii) are —
(a)
the offer is made using any automated teller machine or such other electronic means as the Authority may prescribe;
(b)
the automated teller machine or prescribed electronic means indicates to a prospective subscriber or buyer —
(i)
how the prospective subscriber or buyer can obtain, or arrange to receive, a copy of the offer information statement in respect of the offer; and
(ii)
that the prospective subscriber or buyer should read the offer information statement before submitting an application,
before enabling the prospective subscriber or buyer to submit any application to subscribe for or purchase securities or securities‑based derivatives contracts; and
(c)
the person making the offer complies with such other requirements as the Authority may prescribe.
[4/2017]
(2) The Authority may, on the application of any person interested, modify the prescribed form and content of the offer information statement in such manner as is appropriate, subject to such conditions or restrictions as the Authority may determine.
(3) Sections 249, 249A, 253, 254 and 255 apply in relation to an offer information statement referred to in subsection (1) or (1AC) as they apply in relation to a prospectus.
[4/2017]
(4) For the purposes of subsection (3) —
(a)
a reference in section 249 or 249A to the registration of the prospectus is to be read as a reference to the lodgment of the offer information statement;
(b)
a reference in section 253 or 254 to any information or new circumstance required to be included in a prospectus under section 243 is to be read as a reference to any information prescribed under subsection (1)(b); and
(c)
in relation to an offer information statement mentioned in subsection (1AC), a reference in section 253(4)(a), (b) or (c) or 254(3)(a), (b) or (c) to the person making the offer is to be read as a reference to the subsidiary and the listed entity.
[4/2017]
(5) Where the written consent of an expert is required to be given under section 249 (as applied in relation to an offer information statement under subsection (3)), that written consent must be lodged with the Authority at the same time as the lodgment of the statement.
(6) Where the written consent of an issue manager or underwriter is required to be given under section 249A (as applied in relation to an offer information statement under subsection (3)), that written consent must be lodged with the Authority at the same time as the lodgment of the statement.
(7) A person must not advertise an offer or intended offer of any securities or securities‑based derivatives contracts referred to in subsection (1), or publish a statement that directly or indirectly refers to the offer or intended offer, or that is reasonably likely to induce persons to subscribe for or purchase the securities or securities‑based derivatives contracts, unless the advertisement or publication complies with such requirements as the Authority may prescribe by regulations made under section 341.
[34/2012; 4/2017]
(8) Any person who contravenes subsection (7), or who knowingly authorises or permits the publication or dissemination of any advertisement or statement referred to in that subsection, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction.
[34/2012]
Offer in respect of international debentures
278.—(1) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of debentures, or units of debentures, by a body incorporated in a country outside Singapore where the offer —
(a)
is made by the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts or an exempt person under section 99(1)(a) or (b), to such institutional, professional or business investors as the Authority may, by order in the Gazette, specify, being persons or bodies that appear to the Authority to have sufficient expertise to understand any risk involved in buying or selling those debentures, or units of debentures (whether as principal or agent); and
(b)
complies with the conditions specified in subsection (2).
[4/2017]
(2) The conditions referred to in subsection (1)(b) are that —
(a)
the debentures, or units of debentures, are denominated in a currency, other than the Singapore dollar, and each debenture, or each unit of debenture, has a face value of at least US$5,000 or its equivalent in another currency; and
(b)
the shares of the issuing corporation are listed on a recognised securities exchange or the offer is guaranteed by a corporation whose shares are listed on a recognised securities exchange.
(3) The Authority may by order in the Gazette add to, vary or amend the conditions specified in subsection (2).
Offer of debentures made by Government or international financial institutions
279. Subdivisions (2) and (3) of this Division do not apply to an offer of debentures, or units of debentures, made by or guaranteed by —
(a)
the Government; or
(b)
an international financial institution in which Singapore holds membership of any class or description, whether or not it holds any share in the share capital of that institution.
Making offer using automated teller machine or electronic means
280.—(1) Subject to subsection (3) and such requirements as the Authority may prescribe, a person making an offer of securities or securities‑based derivatives contracts using —
(a)
any automated teller machine; or
(b)
such other electronic means as the Authority may prescribe,
is exempted from the requirement under section 240(1)(a) that the offer be made in or accompanied by a prospectus in respect of the offer or, where applicable, the requirement under section 240(4) that the offer be made in or accompanied by a profile statement in respect of the offer.
[4/2017]
(2) To avoid doubt, a prospectus which complies with all other requirements of section 240(1)(a) or, where applicable, a profile statement which complies with all other requirements of section 240(4) must still be prepared and issued in respect of any offer referred to in subsection (1).
(3) Subsection (1) does not apply unless the automated teller machine or prescribed electronic means indicates to a prospective subscriber or buyer —
(a)
how the prospective subscriber or buyer can obtain, or arrange to receive, a copy of the prospectus or, where applicable, profile statement in respect of the offer; and
(b)
that the prospective subscriber or buyer should read the prospectus or, where applicable, profile statement before submitting an application,
before enabling the prospective subscriber or buyer to submit any application to subscribe for or purchase securities or securities‑based derivatives contracts.
[4/2017]
Information relating to certain offers
280A. The Authority may, by regulations made under section 341, require any person or class of persons to provide the Authority with such information relating to an offer of securities or securities‑based derivatives contracts made or proposed to be made in reliance on an exemption under any provision of this Subdivision.
[4/2017]
Revocation of exemption
281.—(1) Where the Authority considers that a person is contravening, or is likely to contravene, or has contravened any condition or restriction imposed under section 273(6), or that it is necessary in the public interest or for the protection of investors, it may revoke any exemption under this Subdivision, subject to such conditions as it thinks fit.
(2) The Authority may revoke an exemption under subsection (1) without giving the person affected by the revocation an opportunity to be heard, but the person may, within 14 days of the revocation, apply to the Authority for the revocation to be reviewed by the Authority, and the revocation remains in effect unless it is withdrawn by the Authority.
(3) A revocation made under this section is final and there is no appeal from the revocation.
Transactions under exempted offers subject to Division 2 of Part 12 of Companies Act 1967 and Part 12 of this Act
282. To avoid doubt, it is declared that in relation to any transaction carried out under an exempted offer under this Part, nothing in this Part limits or diminishes any liability which any person may incur in respect of any relevant offence under Division 2 of Part 12 of the Companies Act 1967 or Part 12 of this Act or any penalty, award of compensation or punishment in respect of any such offence.
