17. Part VA of the Telecommunications Act is repealed and the following Parts substituted therefor:“PART VA CONTROL OF DESIGNATED TELECOMMUNICATION
LICENSEES, DESIGNATED BUSINESS TRUSTS
AND DESIGNATED TRUSTS |
| Interpretation of this Part |
32A.—(1) In this Part, unless the context otherwise requires —“12% controller” means —| (a) | in relation to a designated telecommunication licensee, a person who, alone or together with his associates —| (i) | holds 12% or more but less than 30% of the total number of voting shares in the designated telecommunication licensee; or | | (ii) | is in a position to control 12% or more but less than 30% of the voting power in the designated telecommunication licensee; |
| | (b) | in relation to a designated business trust, a person who, alone or together with his associates —| (i) | holds 12% or more but less than 30% of the total number of units in the designated business trust; or | | (ii) | is in a position to control 12% or more but less than 30% of the voting power in the designated business trust; or |
| | (c) | in relation to a designated trust, a person who, alone or together with his associates —| (i) | holds 12% or more but less than 30% of the equity interests in the designated trust; or | | (ii) | is in a position to control 12% or more but less than 30% of the voting power in the designated trust; |
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“30% controller” means —| (a) | in relation to a designated telecommunication licensee, a person who, alone or together with his associates —| (i) | holds 30% or more of the total number of voting shares in the designated telecommunication licensee; or | | (ii) | is in a position to control 30% or more of the voting power in the designated telecommunication licensee; |
| | (b) | in relation to a designated business trust, a person who, alone or together with his associates —| (i) | holds 30% or more of the total number of units in the designated business trust; or | | (ii) | is in a position to control 30% or more of the voting power in the designated business trust; or |
| | (c) | in relation to a designated trust, a person who, alone or together with his associates —| (i) | holds 30% or more of the equity interests in the designated trust; or | | (ii) | is in a position to control 30% or more of the voting power in the designated trust; |
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“business” means —| (a) | in relation to a designated business trust, the business relating to the trust property of the designated business trust and managed and operated by the trustee-manager of the designated business trust in its capacity as trustee-manager of the designated business trust; or | | (b) | in relation to a designated trust, such business relating to the trust property of the designated trust as is prescribed by any regulations made under section 74; |
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| “business trust” has the same meaning as in section 2 of the Business Trusts Act (Cap. 31A); |
| “corporation” has the same meaning as in section 4(1) of the Companies Act (Cap. 50); |
“designated business trust” means a business trust that —| (a) | is established wholly or partly in respect of a telecommunication system (or any part thereof) operated by a telecommunication system licensee; and | | (b) | has been declared by the Authority under subsection (2) to be a designated business trust for the purposes of this Part; |
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“designated telecommunication licensee” means a telecommunication licensee that is a corporation and that —| (a) | has been declared by the Authority under subsection (2) to be a designated telecommunication licensee for the purposes of this Part; or | | (b) | belongs to a class of telecommunication licensees which has been declared by the Authority under subsection (2) to be a class of designated telecommunication licensees for the purposes of this Part; |
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“designated trust” means a trust that —| (a) | is prescribed, or belongs to a class of trusts prescribed, by any regulations made under section 74; | | (b) | is established wholly or partly in respect of a telecommunication system (or any part thereof) operated by a telecommunication system licensee; and | | (c) | has been declared by the Authority under subsection (2) to be a designated trust for the purposes of this Part; |
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“effective control” means —| (a) | in relation to a designated telecommunication licensee, the ability to cause the designated telecommunication licensee to take, or to refrain from taking, a major decision regarding the management or operations of the designated telecommunication licensee; | | (b) | in relation to a designated business trust, the ability to cause the trustee-manager of the designated business trust to take, or to refrain from taking, a major decision regarding the management or operations of the designated business trust; or | | (c) | in relation to a designated trust, the ability to cause the trustee of the designated trust to take, or to refrain from taking, a major decision regarding the management or operations of the designated trust; |
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“equity interest” means —| (a) | in relation to a corporation, a voting share in that corporation; | | (b) | in relation to a designated business trust, a unit in that designated business trust; or | | (c) | in relation to a designated trust, any right or interest, whether legal or equitable, in that designated trust which gives the holder of that right or interest voting power in that designated trust; |
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| “related corporation” has the same meaning as in section 4(1) of the Companies Act; |
“relative”, in relation to a person, means —| (a) | the person’s spouse; | | (b) | a parent or remoter lineal ancestor, or a step parent, of the person; | | (c) | a child or remoter issue, or a step-child, of the person; or | | (d) | a sibling or step-sibling of the person; |
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| “share” has the same meaning as in section 4(1) of the Companies Act; |
| “treasury share” has the same meaning as in section 4(1) of the Companies Act; |
| “trustee-manager” has the same meaning as in section 2 of the Business Trusts Act; |
| “unit” has the same meaning as in section 2 of the Business Trusts Act; |
| “unitholder” has the same meaning as in section 2 of the Business Trusts Act; |
| “voting share” has the same meaning as in section 4(1) of the Companies Act. |
(2) The Authority may, by notification in the Gazette, do one or more of the following:| (a) | declare any telecommunication licensee to be a designated telecommunication licensee for the purposes of this Part; | | (b) | declare any class of telecommunication licensees to be a class of designated telecommunication licensees for the purposes of this Part; | | (c) | declare any business trust to be a designated business trust for the purposes of this Part, if the business trust is established wholly or partly in respect of a telecommunication system (or any part thereof) operated by a telecommunication system licensee; | | (d) | declare any trust to be a designated trust for the purposes of this Part, if the trust —| (i) | is prescribed, or belongs to a class of trusts prescribed, by any regulations made under section 74; and | | (ii) | is established wholly or partly in respect of a telecommunication system (or any part thereof) operated by a telecommunication system licensee; |
| | (e) | vary or revoke any declaration of a designated telecommunication licensee, a designated business trust or a designated trust; | | (f) | vary or revoke any declaration of a class of designated telecommunication licensees. |
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| (3) For the purposes of this Part, in relation to a designated telecommunication licensee the whole or any portion of the share capital of which consists of stock, an interest of a person in any such stock shall be deemed to be an interest in an issued share in the designated telecommunication licensee having the same nominal amount as the amount of that stock and having attached to it the same rights as are attached to that stock. |
(4) For the purposes of this Part, a person, A, is an associate of another person, B, if —| (a) | A is a relative of B; | | (b) | A is a related corporation of B; | | (c) | A is a corporation whose directors are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of B or, where B is a corporation, of the directors of B; | | (d) | B is a corporation whose directors are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of A or, where A is a corporation, of the directors of A; | | (e) | A is a person who is accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of B or, where B is a corporation, of the directors of B; | | (f) | B is a person who is accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of A or, where A is a corporation, of the directors of A; | | (g) | A is a corporation in which B, alone or together with other associates of B as described in paragraphs (b) to (f), is in a position to control not less than 12% of the voting power in A; | | (h) | B is a corporation in which A, alone or together with other associates of A as described in paragraphs (b) to (f), is in a position to control not less than 12% of the voting power in B; | | (i) | A is a person with whom B has an agreement or arrangement, whether oral or in writing and whether express or implied, to act together with respect to the acquisition, holding or disposal of shares, units or other equity interests in, or with respect to the exercise of their voting power in relation to, a designated telecommunication licensee, a designated business trust or a designated trust; or | | (j) | A is related to B in such other manner as may be prescribed by any regulations made under section 74. |
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(5) For the purposes of this Part —| (a) | a person holds a voting share in a corporation if he has any legal or equitable interest in that share, other than an interest that is to be disregarded under subsection (7); | | (b) | a person holds a unit in a business trust if he has any legal or equitable interest in that unit, other than an interest that is to be disregarded under subsection (10); and | | (c) | a person holds an equity interest in a trust if he has any legal or equitable interest in that equity interest, other than an interest that is to be disregarded under subsection (12). |
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(6) Except as otherwise provided in subsection (7), for the purposes of this Part, a person shall be deemed to have an interest in a share, if —| (a) | the person has entered into a contract to purchase that share; or | | (b) | the person, not being the registered holder of that share, is entitled (otherwise than by reason of his having been appointed a proxy or representative to vote at a meeting of members of a corporation or of a class of its members) to exercise or control the exercise of a right attached to that share. |
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(7) For the purposes of subsections (5)(a) and (6), there shall be disregarded —| (a) | an interest in a share of a person who holds the share as bare trustee; | | (b) | an interest in a share of a person whose ordinary business includes the lending of money, if he holds the interest only by way of security for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money; | | (c) | an interest in a share of a person whose ordinary business includes the underwriting of securities, if he holds the interest only as an underwriter or a sub underwriter to any offering of shares of a designated telecommunication licensee; | | (d) | an interest in a share held by a person —| (i) | in his capacity as a liquidator, the Official Receiver, the Official Assignee or the Public Trustee; or | | (ii) | by reason of his holding such other office as may be prescribed for the purposes of section 7(9)(c) of the Companies Act; |
| | (e) | an interest of a corporation in its own shares purchased or otherwise acquired in accordance with sections 76B to 76G of the Companies Act (including treasury shares); and | | (f) | such interest in a share as may be prescribed for the purposes of section 7(9)(d) of the Companies Act, being an interest of such person, or of a person belonging to such class of persons, as may be prescribed for the purposes of that provision. |
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| (8) Section 7(7), (8) and (10) of the Companies Act shall apply in determining whether a person has an interest in a share for the purposes of subsections (5)(a) and (6). |
(9) Except as otherwise provided in subsection (10), for the purposes of this Part, a person shall be deemed to have an interest in a unit, if —| (a) | the person has entered into a contract to purchase that unit; or | | (b) | the person, not being the registered holder of that unit, is entitled (otherwise than by reason of his having been appointed a proxy or representative to vote at a meeting of unitholders of a business trust or of a class of its unitholders) to exercise or control the exercise of a right attached to that unit. |
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(10) For the purposes of subsections (5)(b) and (9), there shall be disregarded —| (a) | an interest in a unit of a person who holds the unit as bare trustee; | | (b) | an interest in a unit of a person whose ordinary business includes the lending of money, if he holds the interest only by way of security for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money; | | (c) | an interest in a unit of a person whose ordinary business includes the underwriting of securities, if he holds the interest only as an underwriter or a sub underwriter to any offering of units of a designated business trust; and | | (d) | an interest in a unit held by a person in his capacity as a liquidator, the Official Receiver, the Official Assignee or the Public Trustee. |
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(11) Except as otherwise provided in subsection (12), for the purposes of this Part, a person shall be deemed to have an equity interest in a designated trust, if —| (a) | the person has entered into a contract to purchase that equity interest; or | | (b) | the person, not being the holder of that equity interest, is entitled (otherwise than by reason of his having been appointed a proxy or representative to vote at a meeting of holders of equity interests in the designated trust or of a class of its holders of equity interests) to exercise or control the exercise of a right attached to that equity interest. |
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(12) For the purposes of subsections (5)(c) and (11), there shall be disregarded —| (a) | an equity interest of a person who holds the interest as bare trustee; | | (b) | an equity interest of a person whose ordinary business includes the lending of money, if he holds the interest only by way of security for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money; | | (c) | an equity interest of a person whose ordinary business includes the underwriting of securities, if he holds the interest only as an underwriter or a sub-underwriter to any offering of equity interests in a designated trust; and | | (d) | an equity interest held by a person in his capacity as a liquidator, the Official Receiver, the Official Assignee or the Public Trustee. |
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| (13) For the purposes of this Part, a reference to control of a percentage of the voting power in a designated telecommunication licensee, designated business trust or designated trust is a reference to control that is direct or indirect, including control that is exercisable as a result of or by means of arrangements or practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights, of that percentage of the total number of votes that may be cast in a general meeting of the designated telecommunication licensee, designated business trust or designated trust, as the case may be. |
(14) For the purposes of subsection (13), there shall be disregarded any control of any voting power in a designated telecommunication licensee, designated business trust or designated trust that is exercisable —| (a) | by a person, by virtue of holding an interest in a share of the designated telecommunication licensee, a unit of the designated business trust or an equity interest in the designated trust, as the case may be, as a bare trustee; | | (b) | by a person whose ordinary business includes the lending of money, by virtue of holding an interest in a share of the designated telecommunication licensee, a unit of the designated business trust or an equity interest in the designated trust, as the case may be, only by way of security for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money; | | (c) | by a person whose ordinary business includes the underwriting of securities, by virtue of holding an interest in a share of the designated telecommunication licensee, a unit of the designated business trust or an equity interest in the designated trust, as the case may be, only as an underwriter or a sub-underwriter to any offering of shares of the designated telecommunication licensee, units of the designated business trust or equity interests in the designated trust, as the case may be; or | | (d) | by a person, by virtue of holding an interest in a share of the designated telecommunication licensee, a unit of the designated business trust or an equity interest in the designated trust, as the case may be —| (i) | in his capacity as a liquidator, the Official Receiver, the Official Assignee or the Public Trustee; or | | (ii) | by reason of his holding such other office as may be prescribed for the purposes of section 7(9)(c) of the Companies Act. |
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| (15) Where a corporation is limited both by shares and by guarantee or does not have a share capital, this section shall have effect as if the members of the corporation were shareholders in the corporation. |
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| Control of equity interests and voting power in designated telecommunication licensee, designated business trust or designated trust |
32B.—(1) Subject to subsection (9), a designated telecommunication licensee shall give notice in writing to the Authority, within 7 days after the designated telecommunication licensee first becomes aware of the event, in the event that any person, whether by a series of transactions over a period of time or otherwise —| (a) | holds 5% or more but less than 12% of the total number of voting shares in the designated telecommunication licensee; or | | (b) | is in a position to control 5% or more but less than 12% of the voting power in the designated telecommunication licensee. |
(2) Subject to subsection (9), the trustee-manager of a designated business trust shall give notice in writing to the Authority, within 7 days after the trustee-manager first becomes aware of the event, in the event that any person, whether by a series of transactions over a period of time or otherwise —| (a) | holds 5% or more but less than 12% of the total number of units in the designated business trust; or | | (b) | is in a position to control 5% or more but less than 12% of the voting power in the designated business trust. |
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(3) Subject to subsection (9), the trustee of a designated trust shall give notice in writing to the Authority, within 7 days after the trustee first becomes aware of the event, in the event that any person, whether by a series of transactions over a period of time or otherwise —| (a) | holds 5% or more but less than 12% of the equity interests in the designated trust; or | | (b) | is in a position to control 5% or more but less than 12% of the voting power in the designated trust. |
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(4) Every person required to give a notice under subsection (1), (2) or (3) shall ensure that the notice —| (a) | is given in such form and manner as the Authority may, from time to time, determine; and | | (b) | is supported by such information as the Authority may require. |
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| (5) Subject to subsection (10), no person shall, without obtaining the prior written approval of the Authority to do so, become, whether through a series of transactions over a period of time or otherwise, a 12% controller or a 30% controller of a designated telecommunication licensee, designated business trust or designated trust. |
| (6) Subject to subsection (10), no person shall, without obtaining the prior written approval of the Authority to do so, acquire any business (of a designated telecommunication licensee, designated business trust or designated trust) that is conducted pursuant to a telecommunication licence granted under section 5, or any part of any such business, as a going concern. |
| (7) Subject to subsection (10), no person shall, without obtaining the prior written approval of the Authority to do so, obtain effective control over a designated telecommunication licensee, designated business trust or designated trust. |
(8) An application for the written approval of the Authority under subsection (5), (6) or (7) —| (a) | shall be made in such form and manner as the Authority may, from time to time, determine; and | | (b) | shall be supported by such information as the Authority may require. |
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| (9) A notice in writing need not be given to the Authority under subsection (1), (2) or (3), if the event referred to in the applicable subsection occurs by virtue only of any transaction prescribed by the Minister for the purposes of this subsection by order published in the Gazette. |
| (10) Any person may, without obtaining the prior written approval of the Authority to do so, do any thing referred to in subsection (5), (6) or (7), if the doing of that thing occurs by virtue only of any transaction prescribed by the Minister for the purposes of this subsection by order published in the Gazette. |
(11) A designated telecommunication licensee shall give notice in writing to the Authority, within 7 days after the designated telecommunication licensee first becomes aware of the event, in the event that any person, by virtue only of any transaction prescribed by the Minister for the purposes of this subsection by order published in the Gazette —| (a) | becomes, whether through a series of transactions over a period of time or otherwise, a 12% controller or a 30% controller of the designated telecommunication licensee; | | (b) | acquires any business of the designated telecommunication licensee that is conducted pursuant to a telecommunication licence granted under section 5, or any part of any such business, as a going concern; or | | (c) | obtains effective control over the designated telecommunication licensee. |
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(12) The trustee-manager of a designated business trust shall give notice in writing to the Authority, within 7 days after the trustee-manager first becomes aware of the event, in the event that any person, by virtue only of any transaction prescribed by the Minister for the purposes of this subsection by order published in the Gazette —| (a) | becomes, whether through a series of transactions over a period of time or otherwise, a 12% controller or a 30% controller of the designated business trust; | | (b) | acquires any business of the designated business trust that is conducted pursuant to a telecommunication licence granted under section 5, or any part of any such business, as a going concern; or | | (c) | obtains effective control over the designated business trust. |
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(13) The trustee of a designated trust shall give notice in writing to the Authority, within 7 days after the trustee first becomes aware of the event, in the event that any person, by virtue only of any transaction prescribed by the Minister for the purposes of this subsection by order published in the Gazette —| (a) | becomes, whether through a series of transactions over a period of time or otherwise, a 12% controller or a 30% controller of the designated trust; | | (b) | acquires any business of the designated trust that is conducted pursuant to a telecommunication licence granted under section 5, or any part of any such business, as a going concern; or | | (c) | obtains effective control over the designated trust. |
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| (14) Any person who contravenes subsection (2), (3), (12) or (13) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000. |
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| Power to issue code of practice relating to control of designated telecommunication licensees, designated business trusts and designated trusts |
32C.—(1) Without prejudice to the generality of section 26, the Authority may issue a code of practice under that section which specifies such matters as are generally necessary for carrying out the purposes and provisions of this Part and for the due administration thereof.(2) Without prejudice to the generality of subsection (1), the Authority may specify in the code of practice —| (a) | the rules and procedures that each of the following must comply with:| (i) | a designated telecommunication licensee; | | (ii) | a person who holds any voting shares, or controls any voting power, in a designated telecommunication licensee; | | (iii) | a person who holds any units, or controls any voting power, in a designated business trust; | | (iv) | a person who holds any equity interest, or controls any voting power, in a designated trust; | | (v) | a person who acquires any business (of a designated telecommunication licensee, designated business trust or designated trust) that is conducted pursuant to a telecommunication licence granted under section 5, or any part of any such business, as a going concern; | | (vi) | a person who obtains effective control over a designated telecommunication licensee, designated business trust or designated trust; |
| | (b) | the terms and conditions which the Authority may impose when granting any written approval under section 32B(5), (6) or (7); and | | (c) | the fees and charges payable to the Authority in respect of any application or request made to the Authority under the code of practice. |
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| Power to issue directions relating to control of designated telecommunication licensees, designated business trusts and designated trusts |
32D.—(1) Without prejudice to the generality of section 27, the Authority may issue a direction under subsection (2) if —| (a) | a person (referred to in this section as the specified person) —| (i) | becomes a 12% controller or 30% controller of a designated telecommunication licensee, designated business trust or designated trust; | | (ii) | acquires any business (of a designated telecommunication licensee, designated business trust or designated trust) that is conducted pursuant to a telecommunication licence granted under section 5, or any part of any such business, as a going concern; or | | (iii) | obtains effective control over a designated telecommunication licensee, designated business trust or designated trust; and |
| | (b) | the Authority is satisfied that —| (i) | the specified person has thereby contravened section 32B(5), (6) or (7); | | (ii) | any condition of approval imposed by the Authority on the specified person when granting its written approval under section 32B(5), (6) or (7) has not been complied with; | | (iii) | the specified person has furnished false or misleading information or documents in connection with his application for written approval under section 32B(5), (6) or (7); | | (iv) | the Authority would not have granted its written approval under section 32B(5), (6) or (7) had it been aware, at the time the approval was granted, of any matter relevant to the specified person’s application for such approval; or | | (v) | the applicable matter referred to in paragraph (a)(i), (ii) or (iii) is likely to substantially lessen competition or is against the public interest. |
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(2) The Authority may, in the circumstances specified in subsection (1), issue such of the following directions as may be applicable:| (a) | direct the designated telecommunication licensee to do all or any of the following:| (i) | to restrict the exercise of all or any of the voting rights in respect of the shares which the specified person holds, or which the specified person and his associates together hold, in the designated telecommunication licensee (referred to in this section as the specified shares), or to restrict the exercise of the voting power which the specified person controls, or which the specified person and his associates together control, in the designated telecommunication licensee, unless the Authority expressly permits such rights or power to be exercised; | | (ii) | to restrict the issuance or offer of shares in the designated telecommunication licensee (whether by way of rights, bonus or otherwise) in respect of the specified shares, unless the Authority expressly permits such issue or offer; | | (iii) | except in a liquidation of the designated telecommunication licensee, to restrict the payment of any amount (whether by way of dividends or otherwise) in respect of the specified shares, unless the Authority expressly authorises such payment subject to such conditions as the Authority may specify; |
| | (b) | direct the trustee-manager of the designated business trust to do all or any of the following:| (i) | to restrict the exercise of all or any of the voting rights in respect of the units which the specified person holds, or which the specified person and his associates together hold, in the designated business trust (referred to in this section as the specified units), or to restrict the exercise of the voting power which the specified person controls, or which the specified person and his associates together control, in the designated business trust, unless the Authority expressly permits such rights or power to be exercised; | | (ii) | to restrict the issuance or offer of units in the designated business trust (whether by way of rights, bonus or otherwise) in respect of the specified units, unless the Authority expressly permits such issue or offer; | | (iii) | except in a winding up of the designated business trust, to restrict the payment of any amount (whether by way of profits, income or otherwise) in respect of the specified units, unless the Authority expressly authorises such payment subject to such conditions as the Authority may specify; |
| | (c) | direct the trustee of the designated trust to do all or any of the following:| (i) | to restrict the exercise of all or any of the voting rights in respect of the equity interests which the specified person holds, or which the specified person and his associates together hold, in the designated trust (referred to in this section as the specified equity interests), or to restrict the exercise of the voting power which the specified person controls, or which the specified person and his associates together control, in the designated trust, unless the Authority expressly permits such rights or power to be exercised; | | (ii) | to restrict the issuance or offer of equity interests in the designated trust (whether by way of rights, bonus or otherwise) in respect of the specified equity interests, unless the Authority expressly permits such issue or offer; | | (iii) | except in a winding up of the designated trust, to restrict the payment of any amount (whether by way of profits, income or otherwise) in respect of the specified equity interests, unless the Authority expressly authorises such payment subject to such conditions as the Authority may specify; |
| | (d) | direct the specified person, or any associate of the specified person, to transfer or dispose of all or any part of the specified shares, specified units or specified equity interests, as the case may be, within such time as the Authority may determine and subject to such conditions as the Authority considers appropriate; | | (e) | direct the specified person to transfer or dispose of all or any part of the business or part thereof that is conducted pursuant to a telecommunication licence granted under section 5, and that is acquired from the designated telecommunication licensee, designated business trust or designated trust as a going concern, within such time as the Authority may determine and subject to such conditions as the Authority considers appropriate; | | (f) | direct the specified person to relinquish effective control over the designated telecommunication licensee, designated business trust or designated trust, within such time as the Authority may determine and subject to such conditions as the Authority considers appropriate. |
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| (3) Before issuing a direction to any person under subsection (2), the Authority shall, unless the Authority decides that it is not practicable or desirable to do so, cause to be given to that person notice in writing of the Authority’s intention to issue the direction, specifying a date by which that person may make written representations with regard to the proposed direction. |
| (4) Upon receipt of any written representations referred to in subsection (3), the Authority shall consider them for the purpose of determining whether to issue the direction. |
| (5) Any person to whom a direction is given under subsection (2) shall comply with the direction. |
| (6) The Authority may at any time vary, suspend or revoke any direction issued under this section. |
(7) Any direction issued to a person under subsection (2) shall take effect, notwithstanding —| (a) | the provisions of any other written law; and | | (b) | the provisions of the memorandum or articles of association, trust deed or other constitution of the designated telecommunication licensee, designated business trust or designated trust. |
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(8) Notwithstanding the provisions of any other written law and the provisions of the memorandum or articles of association, trust deed or other constitution of the designated telecommunication licensee, the designated business trust or the designated trust —| (a) | where any direction is issued under subsection (2)(a), unless the direction is suspended or revoked —| (i) | the voting rights in respect of the specified shares, and the voting power which the specified person controls, or which the specified person and his associates together control, in the designated telecommunication licensee, shall not be exercisable unless the Authority expressly permits such rights or power to be exercised; | | (ii) | no shares in the designated telecommunication licensee shall be issued or offered (whether by way of rights, bonus or otherwise) in respect of the specified shares, unless the Authority expressly permits such issue or offer; and | | (iii) | except in a liquidation of the designated telecommunication licensee, no amount shall be paid (whether by way of dividends or otherwise) in respect of the specified shares, unless the Authority expressly authorises such payment; |
| | (b) | where any direction is issued under subsection (2)(b), unless the direction is suspended or revoked —| (i) | the voting rights in respect of the specified units, and the voting power which the specified person controls, or which the specified person and his associates together control, in the designated business trust, shall not be exercisable unless the Authority expressly permits such rights or power to be exercised; | | (ii) | no units in the designated business trust shall be issued or offered (whether by way of rights, bonus or otherwise) in respect of the specified units, unless the Authority expressly permits such issue or offer; and | | (iii) | except in a winding up of the designated business trust, no amount shall be paid (whether by way of profits, income or otherwise) in respect of the specified units, unless the Authority expressly authorises such payment; or |
| | (c) | where any direction is issued under subsection (2)(c), unless the direction is suspended or revoked —| (i) | the voting rights in respect of the specified equity interests, and the voting power which the specified person controls, or which the specified person and his associates together control, in the designated trust, shall not be exercisable unless the Authority expressly permits such rights or power to be exercised; | | (ii) | no equity interests in the designated trust shall be issued or offered (whether by way of rights, bonus or otherwise) in respect of the specified equity interests, unless the Authority expressly permits such issue or offer; and | | (iii) | except in a winding up of the designated trust, no amount shall be paid (whether by way of profits, income or otherwise) in respect of the specified equity interests, unless the Authority expressly authorises such payment. |
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(9) Any person (other than a designated telecommunication licensee) who contravenes section (5) shall be guilty of an offence and shall be liable on conviction —| (a) | in the case of an individual, to a fine not exceeding $125,000 or to imprisonment for a term not exceeding 3 years or to both and, in the case of a continuing offence, to a further fine not exceeding $12,500 for every day or part thereof during which the offence continues after conviction; or | | (b) | in any other case, to a fine not exceeding $250,000 and, in the case of a continuing offence, to a further fine not exceeding $25,000 for every day or part thereof during which the offence continues after conviction. |
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| Power of Authority to obtain information relating to control of designated telecommunication licensees, designated business trusts and designated trusts |
32E.—(1) Without prejudice to sections 27 and 59, the Authority may, by notice in writing —| (a) | direct any designated telecommunication licensee to obtain from any shareholder of the designated telecommunication licensee, and to transmit to the Authority within such time as may be specified in the notice, the following information:| (i) | whether that shareholder holds any voting share in the designated telecommunication licensee as a trustee; and | | (ii) | if so —| (A) | the name of the person for whom that shareholder holds the voting share as a trustee, or such other particulars as are sufficient to enable the identification of that person; and | | (B) | the nature of that person’s interest; |
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| | (b) | direct the trustee-manager of any designated business trust to obtain from any unitholder of the designated business trust, and to transmit to the Authority within such time as may be specified in the notice, the following information:| (i) | whether that unitholder holds any unit in the designated business trust as a trustee; and | | (ii) | if so —| (A) | the name of the person for whom that unitholder holds the unit as a trustee, or such other particulars as are sufficient to enable the identification of that person; and | | (B) | the nature of that person’s interest; and |
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| | (c) | direct the trustee of any designated trust to obtain from any holder of equity interests in the designated trust, and to transmit to the Authority within such time as may be specified in the notice, the following information:| (i) | whether that holder holds any equity interest in the designated trust as a trustee; and | | (ii) | if so —| (A) | the name of the person for whom that holder holds the equity interest as a trustee, or such other particulars as are sufficient to enable the identification of that person; and | | (B) | the nature of that person’s interest. |
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(2) The Authority may, by notice in writing —| (a) | direct any shareholder of a designated telecommunication licensee to provide to the Authority, within such time as may be specified in the notice, the following information:| (i) | whether that shareholder holds any voting share in the designated telecommunication licensee as a trustee; and | | (ii) | if so —| (A) | the name of the person for whom that shareholder holds the voting share as a trustee, or such other particulars as are sufficient to enable the identification of that person; and | | (B) | the nature of that person’s interest; |
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| | (b) | direct any unitholder of a designated business trust to provide to the Authority, within such time as may be specified in the notice, the following information:| (i) | whether that unitholder holds any unit in the designated business trust as a trustee; and | | (ii) | if so —| (A) | the name of the person for whom that unitholder holds the unit as a trustee, or such other particulars as are sufficient to enable the identification of that person; and | | (B) | the nature of that person’s interest; and |
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| | (c) | direct any holder of equity interests in a designated trust to provide to the Authority, within such time as may be specified in the notice, the following information:| (i) | whether that holder holds any equity interest in the designated trust as a trustee; and | | (ii) | if so —| (A) | the name of the person for whom that holder holds the equity interest as a trustee, or such other particulars as are sufficient to enable the identification of that person; and | | (B) | the nature of that person’s interest. |
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(3) Any person who —| (a) | fails to comply with a notice under subsection (1) or (2); or | | (b) | in purported compliance with a notice under subsection (1) or (2), knowingly or recklessly makes a statement which is false in a material particular, |
| shall be guilty of an offence and shall be liable on conviction — |
| (i) | in the case of an individual, to a fine not exceeding $125,000 or to imprisonment for a term not exceeding 3 years or to both and, in the case of a continuing offence, to a further fine not exceeding $12,500 for every day or part thereof during which the offence continues after conviction; or | | (ii) | in any other case, to a fine not exceeding $250,000 and, in the case of a continuing offence, to a further fine not exceeding $25,000 for every day or part thereof during which the offence continues after conviction. |
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| Appointment of chief executive officer, director, etc., of designated telecommunication licensee |
32F.—(1) No designated telecommunication licensee shall appoint a person as its chief executive officer, its director or the chairman of its board of directors, unless it has obtained the approval of the Authority to do so.| (2) Where a designated telecommunication licensee appoints a person as its chief executive officer, its director or the chairman of its board of directors without the approval of the Authority, in contravention of subsection (1), the Authority may issue a direction to the licensee to remove that person from his appointment as chief executive officer, director or chairman of the board of directors, as the case may be, of the licensee. |
| (3) The Authority may at any time vary, suspend or revoke any direction issued under subsection (2). |
| (4) This section shall have effect notwithstanding the provisions of any other written law and the provisions of the memorandum or articles of association, or other constitution, of the designated telecommunication licensee. |
(5) In this section —“chief executive officer”, in relation to a designated telecommunication licensee —| (a) | means any person, by whatever name described, who —| (i) | is in the direct employment of, or acting for or by arrangement with, the designated telecommunication licensee; and | | (ii) | is principally responsible for the management and conduct of any type of business of the designated telecommunication licensee in Singapore; and |
| | (b) | includes any person for the time being performing all or any of the functions or duties of a chief executive officer; |
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| “director” has the same meaning as in section 4(1) of the Companies Act (Cap. 50). |
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PART VB | SPECIAL ADMINISTRATION ORDER |
| Interpretation of this Part |
32G. In this Part —“critical support infrastructure” means any infrastructure that belongs to, or is under the control of, a telecommunication licensee, and that satisfies all of the following criteria:| (a) | the infrastructure is required by other telecommunication licensees to provide a telecommunication service; | | (b) | the infrastructure cannot be replicated within the foreseeable future, or obtained from a third party, by an efficient new entrant to the market for telecommunication services in Singapore, in either case, at a cost that would reasonably allow market entry; | | (c) | the failure or refusal by the first-mentioned telecommunication licensee to allow other telecommunication licensees to use the infrastructure would unreasonably restrict competition in any market for telecommunication services in Singapore; |
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“prescribed transferee” means —| (a) | the Authority; or | | (b) | a person nominated by the Authority; |
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| “specified telecommunication licensee” means a telecommunication licensee which the Minister has declared under section 32H to be a specified telecommunication licensee for the purposes of this Part. |
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| Declaration of specified telecommunication licensee |
32H.—(1) The Minister may, after consulting with the Authority, by notification in the Gazette, declare any telecommunication licensee to be a specified telecommunication licensee for the purposes of this Part, if —| (a) | the licensee —| (i) | is a public telecommunication licensee; or | | (ii) | owns or controls any critical support infrastructure; or |
| | (b) | the Minister is satisfied that it is in the public interest to do so. |
| (2) A declaration of a specified telecommunication licensee under subsection (1)(a)(i) shall remain in force only so long as the licensee remains a public telecommunication licensee. |
| (3) A declaration of a specified telecommunication licensee under subsection (1)(a)(ii) shall remain in force only so long as the licensee continues to own or control any critical support infrastructure. |
| (4) The Minister may, after consulting with the Authority, by notification in the Gazette, revoke any declaration under subsection (1). |
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| Meaning and effect of special administration order |
32I.—(1) A special administration order is an order of the Minister, made in accordance with section 32J in relation to a specified telecommunication licensee, directing that during the period for which the order is in force, the affairs, business and property of that licensee shall be managed by a person appointed by the Minister (which may include the Authority) —| (a) | for securing one or more of the purposes of such an order set out in subsection (2); and | | (b) | in a manner which protects the respective interests of the shareholders and the creditors of the licensee. |
(2) The purposes referred to in subsection (1)(a) are —| (a) | the security and reliability of the supply of telecommunication services in Singapore; | | (b) | the survival of the specified telecommunication licensee, or the whole or any part of its business or undertaking, as a going concern; | | (c) | the transfer to another person, or (as respects different parts of its business or undertaking) to 2 or more different persons, as a going concern, of so much of the specified telecommunication licensee’s business or undertaking as it is necessary to transfer in order to ensure that the functions and duties which have been vested in the licensee by virtue of its licence may be properly carried out; and | | (d) | the carrying out of the functions and duties vested in the specified telecommunication licensee, pending the making of the transfer and the vesting of those functions and duties in any other person or persons. |
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(3) The Minister may make regulations for giving effect to this Part, including —| (a) | regulations governing the transfer of a specified telecommunication licensee’s business or undertaking referred to in subsection (2)(c); and | | (b) | where a special administration order is made, regulations for applying, omitting or modifying the provisions of Part VIIIA of the Companies Act (Cap. 50). |
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| Power to make special administration order, etc. |
32J.—(1) If, on an application made to the Minister by the Authority in relation to any specified telecommunication licensee, the Minister is satisfied that any one or more of the grounds specified in subsection (2) are satisfied in relation to that licensee, the Minister may make any one or more of the following orders:| (a) | a special administration order in relation to that licensee; | | (b) | an order requiring the licensee immediately to take any action or to do or not to do any act or thing in relation to its business as the Minister may consider necessary; | | (c) | an order appointing a person to advise that licensee in the proper conduct of its business. |
(2) The grounds referred to in subsection (1) are that —| (a) | there has been, is or is likely to be a contravention by the specified telecommunication licensee of the conditions of its licence or of this Act which is serious enough to make it inappropriate for the licensee to continue to hold the licence; | | (b) | the specified telecommunication licensee is or is likely to be unable to pay its debts; | | (c) | the Minister considers it in the interest of the security and reliability of the supply of telecommunication services in Singapore; and | | (d) | the Minister considers it to be in the public interest. |
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(3) The Minister may make a special administration order in relation to a specified telecommunication licensee notwithstanding the commencement of —| (a) | any proceedings relating to the making of an order under section 210 of the Companies Act (Cap. 50) in relation to the specified telecommunication licensee; | | (b) | any proceedings relating to the making of a judicial management order under the Companies Act in relation to the specified telecommunication licensee; or | | (c) | any proceedings under the Companies Act relating to the winding up of the affairs of the specified telecommunication licensee. |
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| (4) Notice of any application under subsection (1) shall be given immediately by the Authority to such persons and in such manner as may be determined by the Authority. |
| (5) Any decision of the Minister under subsection (1) shall be final. |
| (6) For the purposes of this section, a specified telecommunication licensee, being a company, is unable to pay its debts if it is deemed to be unable to pay its debts under section 254(2) of the Companies Act. |
| (7) The Minister may at any time (whether or not the appointment of the person has terminated) fix the remuneration and expenses to be paid by a specified telecommunication licensee to any person appointed by the Minister under subsection (1)(c) to advise the licensee in the proper conduct of its business. |
| (8) Where the Minister issues an order to a specified telecommunication licensee under subsection (1) and the licensee fails to comply with that order, the licensee shall be guilty of an offence. |
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| Transfer of property, etc., under special administration order |
32K.—(1) Without prejudice to the generality of sections 32I and 32J, a special administration order may provide for the following matters:| (a) | the transfer of the property, rights and liabilities of a specified telecommunication licensee to one or more prescribed transferees; and | | (b) | matters that are consequential or related to any such transfer. |
| (2) If the Minister makes a special administration order providing for any matter referred to in subsection (1), he shall, within 6 months after the making of the order, by notification in the Gazette, establish a scheme for determining the amount of any compensation payable to the specified telecommunication licensee for the transfer of its property, rights and liabilities. |
(3) A scheme established under subsection (2) may provide for —| (a) | the manner in which any compensation or consideration is to be assessed, including methods of calculation, valuation dates and matters to be taken into account or disregarded when making valuations; | | (b) | the assessment to be made by an independent valuer appointed by the Minister; and | | (c) | the remuneration and expenses of the independent valuer. |
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| Restrictions on voluntary winding up, etc. |
32L.—(1) Notwithstanding any other written law —| (a) | a specified telecommunication licensee shall not be wound up voluntarily without the consent of the Authority; | | (b) | a person shall not make any application under section 210 of the Companies Act (Cap. 50) in relation to a specified telecommunication licensee, unless that person has served 14 days’ notice in writing of his intention to make that application on the Authority; | | (c) | a person shall not make any application for a judicial management order under the Companies Act in relation to a specified telecommunication licensee, unless that person has served 14 days’ notice in writing of his intention to make that application on the Authority; | | (d) | a person shall not take any step to enforce any security over a specified telecommunication licensee’s property, unless that person has served 14 days’ notice in writing of his intention to take that step on the Authority; and | | (e) | a person shall not take any step to execute or enforce any judgment or order of court obtained against a specified telecommunication licensee, unless that person has served 14 days’ notice in writing of his intention to take that step on the Authority. |
(2) The Authority shall be a party to —| (a) | any proceedings relating to the making of an order under section 210 of the Companies Act in relation to a specified telecommunication licensee; | | (b) | any proceedings relating to the making of a judicial management order under the Companies Act in relation to a specified telecommunication licensee; and | | (c) | any proceedings under the Companies Act relating to the winding up of the affairs of a specified telecommunication licensee. |
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| (3) A court shall, when deciding any proceedings referred to in subsection (2), take into consideration any representations made by the Authority in those proceedings.”. |
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