46. The Banking Act is amended by inserting, immediately after section 55, the following Part:“PART VIIA TRANSFER OF BUSINESS AND SHARES AND RESTRUCTURING OF SHARE CAPITAL |
Division 1 — Voluntary transfer of business of bank |
Interpretation of this Division |
55A. In this Division, unless the context otherwise requires —“business” includes affairs, property, right, obligation and liability; |
“Court” means the High Court or a Judge thereof; |
“debenture” has the same meaning as in section 4(1) of the Companies Act (Cap. 50); |
“property” includes property, right and power of every description; |
“transferee” means a bank in Singapore, or a company which has applied for or will be applying for a licence to carry on banking business in Singapore, to which the whole or part of a transferor’s business is, or is to be, or is proposed to be, transferred under this Division; |
“transferor” means a bank in Singapore, the whole or part of the business of which is, or is to be, or is proposed to be, transferred under this Division. |
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Voluntary transfer of business |
55B.—(1) A transferor may transfer the whole or any part of its business (including its non-banking business) to a transferee which is licensed to carry on banking business in Singapore, if —(a) | where the transferor is a bank incorporated in Singapore, the Minister has consented to the transfer or has certified that his consent is not required; | (b) | where the transferor is a bank incorporated outside Singapore, the business to be transferred is reflected in the books of the transferor in Singapore in relation to its operations in Singapore; | (c) | the transfer involves the whole or part of the banking business of the transferor; and | (d) | the Court has approved the transfer. |
(2) Subsection (1) is without prejudice to the right of a bank to transfer the whole or any part of its business under any law. |
(3) The Minister may consent to a transfer under subsection (1)(a) if —(a) | the Authority is satisfied that —(i) | the transferee is a fit and proper person; and | (ii) | the transferee will conduct the business of the transferor prudently and comply with the provisions of this Act; and |
| (b) | the Minister is satisfied that it is in the national interest to do so. |
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(4) The Minister or the Authority may at any time appoint one or more persons to perform an independent assessment of, and furnish a report on, the proposed transfer of a transferor’s business (or any part thereof) under this Division, whether the transferor is a bank incorporated in or outside Singapore. |
(5) The remuneration and expenses of any person appointed under subsection (4) shall be paid by the transferor and the transferee jointly and severally. |
(6) The Authority shall serve a copy of any report furnished under subsection (4) on the transferor and the transferee. |
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55C.—(1) A transferor shall apply to the Court for its approval of the transfer of the whole or any part of the business of the transferor to a transferee under this Division.(2) Before making the application —(a) | the transferor shall lodge with the Authority a report setting out such details of the transfer and furnish such supporting documents as the Authority may specify; | (b) | where the transferor is a bank incorporated in Singapore, the transferor shall obtain the consent of the Minister or the certification of the Minister that his consent is not required; | (c) | the transferor and the transferee shall, if they intend to serve on their respective customers a summary of the transfer, obtain the approval of the Authority of the summary; | (d) | the transferor shall, at least 15 days before the application is made, publish in the Gazette and in such newspaper or newspapers as may be determined by the Authority a notice of its intention to make the application and containing such other particulars as may be prescribed, not earlier than one month after the report is lodged with the Authority under paragraph (a); | (e) | the transferor and the transferee shall keep at their respective offices in Singapore a copy of the report referred to in paragraph (a) for a period of 15 days after the publication of the notice in the Gazette under paragraph (d), for the purpose of inspection by any person who may be affected by the transfer; and | (f) | unless the Court directs otherwise, the transferor and the transferee shall serve on their respective customers affected by the transfer at least 15 days before the application is made, a copy of the report referred to in paragraph (a) or a summary of the transfer approved by the Authority under paragraph (c). |
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(3) The Authority and any person who, in the opinion of the Court, is likely to be affected by the transfer —(a) | shall have the right to appear and be heard before the Court in any proceedings relating to the transfer; and | (b) | may make any application to the Court in relation to the transfer. |
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(4) Where the transferor is a bank incorporated in Singapore, the Court shall not approve the transfer if the Minister has not consented to the transfer and has not certified that his consent is not required. |
(5) The Court may —(a) | approve the transfer without modification or subject to any modification agreed to by the transferor and the transferee after taking into consideration the views, if any, of the Minister and the Authority on the modification; or | (b) | refuse to approve the transfer. |
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(6) If the transferee is not licensed to carry on banking business in Singapore, the Court may approve the transfer on terms that it shall take effect only in the event of the transferee becoming so licensed. |
(7) The Court may by the order approving the transfer or by any subsequent order provide for all or any of the following matters:(a) | the transfer to the transferee of the whole or any part of the business of the transferor; | (b) | the allotment or appropriation by the transferee of any share, debenture, policy or other interest in the transferee which under the transfer is to be allotted or appropriated by the transferee to or for any person; | (c) | the continuation by (or against) the transferee of any legal proceedings pending by (or against) the transferor; | (d) | the dissolution, without winding up, of the transferor; | (e) | the provisions to be made for persons who are affected by the transfer; | (f) | such incidental, consequential and supplementary matters as are, in its opinion, necessary to secure that the transfer is fully effective. |
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(8) An order under subsection (7) may —(a) | provide for the transfer of any business whether or not the transferor otherwise has the capacity to effect the transfer in question; | (b) | make provision in relation to any property which is held by the transferor as trustee; and | (c) | make provision as to any future or contingent right or liability of the transferor, including provision as to the construction of any instrument under which such right or liability may arise. |
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(9) Subject to subsection (10), if an order is made under subsection (7), then by virtue of the order the business (or any part thereof) of the transferor specified in the order shall be transferred to and vest in the transferee, free in the case of any particular property (if the order so directs) from any charge which is by virtue of the transfer to cease to have effect. |
(10) No order under subsection (7) shall have any effect or operation in transferring or otherwise vesting land in Singapore until the appropriate entries are made with respect to the transfer or vesting of that land by the appropriate authority. |
(11) If any business specified in an order under subsection (7) is governed by the law of any foreign country or territory, the Court may order the transferor to take all necessary steps for securing that the transfer of the business to the transferee is fully effective under the law of that country or territory. |
(12) Where an order is made under this section, the transferor and the transferee shall each lodge within 7 days of the order —(a) | a copy of the order with the Registrar and with the Authority; and | (b) | where the order relates to land in Singapore, an office copy of the order with the appropriate authority concerned with the registration or recording of dealings in that land. |
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(13) A transferor or a transferee which fails to comply with subsection (12) and every officer of the transferor or the transferee who fails to take all reasonable steps to secure compliance by the transferor or the transferee, as the case may be, with that subsection shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and, in the case of a continuing offence, to a further fine not exceeding $200 for every day or part thereof during which the offence continues after conviction. |
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Division 2 — Compulsory transfer of business of bank |
Interpretation of this Division |
55D. In this Division, unless the context otherwise requires —“business” includes affairs, property, right, obligation and liability; |
“certificate” means a certificate of transfer issued by the Minister under section 55F(1); |
“debenture” has the same meaning as in section 4(1) of the Companies Act (Cap. 50); |
“determination” means a determination of the Authority under section 55E(1); |
“property” includes property, right and power of every description; |
“specified business” means that part of the business of a transferor which is specified or identified in a certificate; |
“transferee” means a bank in Singapore, or a company which has applied for or will be applying for a licence to carry on banking business in Singapore, to which the whole or part of a transferor’s business is, or is to be, or is proposed to be, transferred under this Division; |
“transferor” means a bank in Singapore, the whole or part of the business of which is, or is to be, or is proposed to be, transferred under this Division. |
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Compulsory transfer of business |
55E.—(1) Subject to subsections (2) and (6), the Authority may make a determination that the whole or any part of the business of a transferor (including its non-banking business) shall be transferred to a transferee which is licensed to carry on banking business in Singapore if —(a) | any ground exists for the Authority to exercise any power under section 49(2) in relation to the transferor, whether or not the Authority has exercised the power; | (b) | the board of directors of the transferee has consented to the transfer; | (c) | the Authority is satisfied that the transfer is appropriate, having regard to —(i) | the interests of the depositors of the transferor given priority and the order of priority of each class of depositors under section 62; | (ii) | the interests of the depositors of the transferee given priority and the order of priority of each class of depositors under section 62; | (iii) | the stability of the financial system in Singapore; and | (iv) | any other matter that the Authority considers relevant; and |
| (d) | the transfer involves the whole or part of the banking business of the transferor. |
(2) Where the transferor is a bank incorporated outside Singapore, any determination shall only be in respect of the transferor’s business (or any part thereof) which is reflected in the books of the transferor in Singapore in relation to the transferor’s operations in Singapore and the reference to depositors in subsection (1)(c)(i) shall be construed accordingly. |
(3) The Authority may, before making a determination, appoint one or more persons to perform an independent assessment of the proposed transfer of the business (or any part thereof) of the transferor, including the compensation, if any, that should be paid by the transferee, and furnish a report on the transfer. |
(4) The remuneration and expenses of any person appointed under subsection (3) shall be paid by the transferor. |
(5) The Authority shall serve a copy of any report furnished under subsection (3) on the transferor and the transferee. |
(6) A determination may provide for the transfer of the business (or any part thereof) of the transferor to a transferee who is not licensed to carry on banking business in Singapore on terms that the transfer shall take effect only in the event of the transferee becoming so licensed. |
(7) Upon making a determination, the Authority shall submit the determination to the Minister for his approval. |
(8) Before approving the determination, the Minister shall, unless he decides that it is not practicable or desirable to do so —(a) | publish in the Gazette and in such newspaper or newspapers as the Minister may determine a notice of his intention to approve the determination, specifying such particulars as the Minister considers appropriate; and | (b) | cause to be given to the transferor notice in writing of his intention to approve the determination, specifying such particulars as the Minister considers appropriate and the date by which the transferor may make written representations to the Minister. |
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(9) In determining the period within which written representations have to be made under subsection (8), the Minister shall take into account the need for the transfer to be effected expeditiously in the interest of the stability of the financial system in Singapore. |
(10) Upon receipt of any written representation, the Minister shall consider the representation for the purpose of deciding whether to approve the determination. |
(11) Where the transferor is a bank incorporated in Singapore, the Minister shall not approve the determination unless he is satisfied that it is in the national interest to do so. |
(12) The Minister may —(a) | approve the determination without modification; | (b) | approve the determination subject to any modification he considers appropriate if the board of directors of the transferee has agreed to the modification; or | (c) | refuse to approve the determination. |
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(13) Any approval under subsection (12) shall be subject to such conditions as the Minister may determine. |
(14) A determination, the approval of a determination under this section or the issue of a certificate shall not preclude the exercise of any power by the Authority or the Minister under this Act. |
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55F.—(1) If the Minister approves a determination, he shall, as soon as practicable, issue a certificate of transfer which shall come into effect on the date specified by the Minister in the certificate.(2) The certificate shall specify such information as may be prescribed. |
(3) The certificate may make provision for all or any of the following matters:(a) | the transfer to the transferee of the whole or any part of the business of the transferor; | (b) | the allotment or appropriation by the transferee of any share, debenture, policy or other interest in the transferee which under the transfer is to be allotted or appropriated by the transferee to or for any person; | (c) | any property which is held by the transferor as trustee; | (d) | any future or contingent right or liability of the transferor; | (e) | the coming into effect of the transfer of any specified business on a date other than the date on which the certificate comes into effect; | (f) | the compensation, if any, to be paid by the transferee to the transferor and the period within which the compensation is to be paid; | (g) | such incidental, consequential and supplementary matters as are, in the Minister’s opinion, necessary to secure that the transfer is fully effective, including conditions relating to the transfer. |
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(4) The Minister may at any time before the certificate comes into effect add to, vary or revoke any matter specified in the certificate. |
(5) The Authority shall cause the certificate and any addition, variation or revocation referred to in subsection (4) to be served on the transferor and the transferee and published in the Gazette and in such newspaper or newspapers as the Minister may determine, on or before the date on which the certificate comes into effect. |
(6) Subject to subsection (7), unless otherwise specified in the certificate, the transfer of the business (or any part thereof) of the transferor under the certificate shall take effect on the date on which the certificate comes into effect. |
(7) Where the transferee is not licensed to carry on banking business in Singapore, the transfer of the business (or any part thereof) of the transferor shall not come into effect until the transferee becomes so licensed. |
(8) Notwithstanding any written law or rule of law, upon the date on which the transfer of the business (or any part thereof) of the transferor comes into effect under the certificate —(a) | subject to subsection (10), the business (or the part thereof) shall be transferred to and vest in the transferee without other or further assurance, act or deed and the certificate shall have effect according to its tenor and be binding on any person thereby affected; | (b) | all deeds, bonds, agreements and other arrangements subsisting immediately before that date which relate to the business (or the part thereof) and to which the transferor is a party shall continue in full force and effect, and shall be enforceable by or against the transferee, as from that date as if the transferee had been named therein or had been a party thereto instead of the transferor; and | (c) | any proceedings or cause of action, by or against the transferor, pending or existing immediately before that date and relating to the business (or the part thereof) may be continued and shall be enforced by or against the transferee as from that date. |
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(9) For the avoidance of doubt, the business (or any part thereof) of the transferor shall be transferred to and vest in the transferee in accordance with subsection (8) notwithstanding any incapacity of the transferor. |
(10) The certificate shall not have any effect or operation in transferring or otherwise vesting land in Singapore until the appropriate entries are made with respect to the transfer or vesting of that land by the appropriate authority. |
(11) Section 259 of the Companies Act (Cap. 50) shall not apply to the transfer of any property under the certificate. |
(12) If any specified business is governed by the law of any foreign country or territory, the certificate may require the transferor, if the transferee so requires, to take all necessary steps for securing that the transfer of the specified business to the transferee is fully effective under the law of that country or territory. |
(13) The transferee and the transferor shall each lodge, within 7 days of being served with the certificate —(a) | a copy of the certificate with the Registrar; and | (b) | where the certificate relates to land in Singapore, an office copy of the certificate with the appropriate authority concerned with the registration or recording of dealings in that land. |
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(14) A transferor or a transferee which fails to comply with any provision in the certificate shall be guilty of an offence and shall be liable on conviction 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. |
(15) A transferor which fails to comply with subsection (12) shall be guilty of an offence and shall be liable on conviction 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. |
(16) A transferor or a transferee which fails to comply with subsection (13) and every officer of the transferor or the transferee who fails to take all reasonable steps to secure compliance by the transferor or the transferee, as the case may be, with that subsection shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and, in the case of a continuing offence, to a further fine not exceeding $200 for every day or part thereof during which the offence continues after conviction. |
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Moratorium, avoidance of disposition of property, etc. |
55G.—(1) Notwithstanding section 54(2) and subject to section 55O, no resolution shall be passed, and no order shall be made, for the winding up of a transferor during the period beginning with the date on which the Minister publishes the notice under section 55E(8) in the Gazette on the transfer of the business (or any part thereof) of the transferor or, where the notice is not published in the Gazette, the date on which the Authority publishes the certificate under section 55F(5) in the Gazette on the transfer of the business (or any part thereof) of the transferor and ending with —(a) | the date on which the certificate comes into effect; or | (b) | where the certificate specifies a different date for the coming into effect of the transfer of any specified business, the last date on which the transfer of every specified business has come into effect. |
(2) Notwithstanding section 54(2) and subject to section 55O, during the period beginning with the date on which the Minister publishes the notice under section 55E(8) in the Gazette on the transfer of a specified business of a transferor or, where the notice is not published in the Gazette, the date on which the Authority publishes the certificate under section 55F(5) in the Gazette on the transfer of the specified business and ending with the date on which the transfer of the specified business comes into effect —(a) | no proceedings shall be commenced or continued against the transferor in respect of the specified business; | (b) | no execution, distress or other legal process shall be commenced, levied or continued against the specified business; | (c) | no steps shall be taken to enforce any security over the specified business or repossess from the transferor the specified business under any hire-purchase agreement, chattels leasing agreement or retention of title agreement; and | (d) | any sale, transfer, assignment or other disposition of the specified business shall be void. |
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Division 3 — Compulsory transfer of shares in bank |
Interpretation of this Division |
55H. In this Division, unless the context otherwise requires —“12% controller” has the same meaning as in section 15B(3); |
“20% controller” has the same meaning as in section 15B(3); |
“business” includes affairs, property, right, obligation and liability; |
“certificate” means a certificate of transfer issued by the Minister under section 55J(1); |
“determination” means a determination of the Authority under section 55I(1); |
“property” includes property, right and power of every description; |
“transferee” means a person to whom a transferor’s shares are, or are to be, or are proposed to be, transferred under this Division; |
“transferor” means a shareholder of a bank incorporated in Singapore, whose shares in the bank are, or are to be, or are proposed to be, transferred under this Division. |
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Compulsory transfer of shares |
55I.—(1) The Authority may make a determination that all or any of the shares held by a transferor in a bank incorporated in Singapore shall be transferred to a transferee if —(a) | any ground exists for the Authority to exercise any power under section 49(2) in relation to the bank, whether or not the Authority has exercised the power; | (b) | the transferee or, where the transferee is a corporation, its board of directors has consented to the transfer; and | (c) | the Authority is satisfied that the transfer is appropriate, having regard to —(i) | the interests of the depositors of the bank given priority and the order of priority of each class of its depositors under section 62; | (ii) | where the transferee is a bank in Singapore, the interests of the depositors of the transferee given priority and the order of priority of each class of its depositors under section 62; | (iii) | the stability of the financial system in Singapore; and | (iv) | any other matter that the Authority considers relevant. |
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(2) The Authority may, before making a determination, appoint one or more persons to perform an independent assessment of the proposed transfer of shares, including the compensation, if any, that should be paid by the transferee, and furnish a report on the transfer. |
(3) The remuneration and expenses of any person appointed under subsection (2) shall be paid by the bank. |
(4) The Authority shall serve a copy of any report furnished under subsection (2) on the transferor and the transferee. |
(5) Upon making a determination, the Authority shall submit the determination to the Minister for his approval. |
(6) Before approving the determination, the Minister shall, unless he decides that it is not practicable or desirable to do so, cause to be given to the transferor notice of his intention to approve the determination by publication in the Gazette and in such newspaper or newspapers as the Minister may determine, specifying such particulars as the Minister considers appropriate and the date by which the transferor may make written representations to the Minister. |
(7) In determining the period within which written representations have to be made under subsection (6), the Minister shall take into account the need for the transfer to be effected expeditiously in the interest of the stability of the financial system in Singapore. |
(8) Upon receipt of any written representation, the Minister shall consider the representation for the purpose of deciding whether to approve the determination. |
(9) Where the determination, if approved, will result in the transferee becoming a substantial shareholder, a 12% controller or a 20% controller of the bank, the Minister shall not approve the determination unless —(a) | the Authority is satisfied that —(i) | the transferee is a fit and proper person; and | (ii) | having regard to the likely influence of the transferee, the bank will or will continue to conduct its business prudently and comply with the provisions of this Act; and |
| (b) | the Minister is satisfied that it is in the national interest to do so. |
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(10) The Minister may —(a) | approve the determination without modification; | (b) | approve the determination subject to any modification he considers appropriate if the transferee or, where the transferee is a corporation, its board of directors has agreed to the modification; or | (c) | refuse to approve the determination. |
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(11) Any approval under subsection (10) shall be subject to such conditions as the Minister may determine. |
(12) A determination, the approval of a determination under this section or the issue of a certificate shall not preclude the exercise of any power by the Authority or the Minister under this Act. |
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55J.—(1) If the Minister approves a determination, he shall, as soon as practicable, issue a certificate of transfer which shall come into effect on the date specified by the Minister in the certificate.(2) The certificate shall specify such information as may be prescribed. |
(3) The certificate may make provision for all or any of the following matters:(a) | the transfer to the transferee of all or any of the shares of the transferor in the bank; | (b) | any share in the bank which is held by the transferor as trustee; | (c) | the compensation, if any, to be paid by the transferee to the transferor and the period within which the compensation is to be paid; | (d) | such incidental, consequential and supplementary matters as are, in the Minister’s opinion, necessary to secure that the transfer is fully effective, including conditions relating to the transfer. |
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(4) The Minister may at any time before the certificate comes into effect add to, vary or revoke any matter specified in the certificate. |
(5) The Authority shall cause the certificate and any addition, variation or revocation referred to in subsection (4) to be served on the bank and published in the Gazette and in such newspaper or newspapers as the Minister may determine, on or before the date on which the certificate comes into effect. |
(6) Notwithstanding any written law or rule of law, upon the certificate coming into effect, any share of the transferor that is to be transferred under the certificate shall be transferred to and vest in the transferee, free from any claim or encumbrance, without other or further assurance, act or deed; and the certificate shall have effect according to its tenor and be binding on any person thereby affected. |
(7) For the avoidance of doubt, the shares of the transferor shall be transferred to and vest in the transferee in accordance with subsection (6) notwithstanding the death or dissolution, or the bankruptcy or winding up, or the mental or other incapacity, of the transferor. |
(8) Section 259 of the Companies Act (Cap. 50) shall not apply to the transfer of any share under the certificate. |
(9) Where the transfer of shares under the certificate results in the transferee becoming a substantial shareholder, a 12% controller or a 20% controller of the bank, the transferee shall, upon the coming into effect of the certificate —(a) | be deemed to have obtained the approval of the Minister under section 15A or 15B, as the case may be, in respect of the shares; and | (b) | not be required to make a take-over offer or be required to acquire the shares of the other shareholders of the bank notwithstanding the provisions of the Companies Act (Cap. 50) or the Take-over Code. |
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(10) A transferor or a transferee who contravenes any provision in the certificate 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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(11) Where a person is charged with an offence under subsection (10), it shall be a defence for the person to prove that —(a) | he was not aware he had contravened any provision in the certificate; and | (b) | he has complied with the provision within a reasonable time after becoming aware of the contravention. |
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(12) Except as provided in subsection (11), it shall not be a defence for a person charged with an offence under subsection (10) that he did not intend to or did not knowingly contravene any provision in the certificate. |
(13) Notwithstanding section 54(2) and subject to section 55O, during the period beginning with the date on which the Minister publishes the notice under section 55I(6) in the Gazette on the transfer of any share in a bank or, where the notice is not published in the Gazette, the date on which the Authority publishes the certificate under subsection (5) in the Gazette on the transfer of the share and ending with the date on which the transfer of the share comes into effect —(a) | no execution or other legal process shall be commenced or continued against the share; | (b) | no steps shall be taken to enforce any security over the share; | (c) | any sale, transfer, assignment or other disposition of the share shall be void; | (d) | no voting rights shall be exercisable in respect of the share unless the Minister expressly permits such rights to be exercised; | (e) | no shares in the bank shall be issued or offered (whether by way of rights, bonus or otherwise) in respect of the share unless the Minister expressly permits such issue or offer; | (f) | no payment shall be made by the bank of any amount (whether by dividends or otherwise) in respect of the share unless the Minister expressly authorises such payment; | (g) | no resolution shall be passed, and no order shall be made, for the winding up of the bank; | (h) | no proceedings shall be commenced or continued against the bank in respect of any business of the bank; | (i) | no execution, distress or other legal process shall be commenced, levied or continued against any property of bank; | (j) | no steps shall be taken to enforce any security over any property of the bank; and | (k) | any sale, transfer, assignment or other disposition of any property of the bank shall be void. |
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Division 4 — Compulsory restructuring of share capital of bank |
Interpretation of this Division |
55K. In this Division, unless the context otherwise requires —“12% controller” has the same meaning as in section 15B(3); |
“20% controller” has the same meaning as in section 15B(3); |
“business” includes affairs, property, right, obligation and liability; |
“certificate” means a certificate of restructuring issued by the Minister under section 55M(1); |
“determination” means a determination of the Authority under section 55L(1) or (2); |
“property” includes property, right and power of every description; |
“subscriber” means any person to whom shares in a bank incorporated in Singapore are, or are to be, or are proposed to be, issued under this Division. |
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Compulsory restructuring of share capital |
55L.—(1) If any ground exists for the Authority to exercise any power under section 49(2) in relation to a bank incorporated in Singapore, whether or not the Authority has exercised the power, and the Authority is of the opinion that —(a) | the liability on any of the shares of the bank in respect of share capital not paid up ought to be extinguished or reduced; or | (b) | any paid-up share capital of the bank is lost or unrepresented by the available assets of the bank, |
the Authority may make a determination that the share capital of the bank shall be reduced by the cancellation of the whole or any part of its share capital not paid up, or of its paid-up share capital which is lost or unrepresented by its available assets. |
(2) The Authority may, in writing, make a determination that shares shall be issued by a bank incorporated in Singapore to a subscriber if —(a) | any ground exists for the Authority to exercise any power under section 49(2) in relation to the bank, whether or not the Authority has exercised the power; | (b) | the subscriber or, where the subscriber is a corporation, its board of directors has consented to subscribe for the shares; and | (c) | the Authority is satisfied that the issue of shares is appropriate, having regard to —(i) | the interests of the depositors of the bank given priority and the order of priority of each class of its depositors under section 62; | (ii) | where the subscriber is a bank in Singapore, the interests of the depositors of the subscriber given priority and the order of priority of each class of its depositors under section 62; | (iii) | the stability of the financial system in Singapore; and | (iv) | any other matter that the Authority considers relevant. |
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(3) The Authority may, before making a determination, appoint one or more persons to perform an independent assessment of the value of the assets of the bank and, in the case of a determination to be made under subsection (2), the consideration, if any, that should be paid by the subscriber, and furnish a report on the restructuring. |
(4) The remuneration and expenses of any person appointed under subsection (3) shall be paid by the bank. |
(5) The Authority shall serve a copy of any report furnished under subsection (3) on the bank and, where the report is in relation to a determination to be made under subsection (2), on the subscriber. |
(6) Upon making a determination, the Authority shall submit the determination to the Minister for his approval. |
(7) Before approving the determination, the Minister shall, unless he decides that it is not practicable or desirable to do so —(a) | publish in the Gazette and in such newspaper or newspapers as may be determined by the Minister a notice of his intention to approve the determination, specifying such particulars as the Minister considers appropriate and the date by which any shareholder of the bank may make written representations to the Minister; and | (b) | cause to be given to the bank notice in writing of his intention to approve the determination, specifying such particulars as the Minister considers appropriate and the date by which the bank may make written representations to the Minister. |
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(8) In determining the period within which written representations have to be made under subsection (7), the Minister shall take into account the need for the restructuring to be effected expeditiously in the interest of the stability of the financial system in Singapore. |
(9) Upon receipt of any written representation, the Minister shall consider the representation for the purpose of deciding whether to approve the determination. |
(10) Where the determination under subsection (2), if approved, will result in the subscriber becoming a substantial shareholder, a 12% controller or a 20% controller of the bank, the Minister shall not approve the determination unless —(a) | the Authority is satisfied that —(i) | the subscriber is a fit and proper person; and | (ii) | having regard to the likely influence of the subscriber, the bank will or will continue to conduct its business prudently and comply with the provisions of this Act; and |
| (b) | the Minister is satisfied that it is in the national interest to do so. |
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(11) The Minister may —(a) | approve the determination without modification; | (b) | approve the determination —(i) | in the case of a determination under subsection (1), subject to any modification he considers appropriate; or | (ii) | in the case of a determination under subsection (2), subject to any modification he considers appropriate if the subscriber or, where the subscriber is a corporation, its board of directors has agreed to the modification; or |
| (c) | refuse to approve the determination. |
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(12) Any approval under subsection (11) shall be subject to such conditions as the Minister may determine. |
(13) A determination, the approval of a determination under this section or the issue of a certificate shall not preclude the exercise of any power by the Authority or the Minister under this Act. |
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Certificate of restructuring |
55M.—(1) If the Minister approves a determination, he shall, as soon as practicable, issue a certificate of restructuring which shall come into effect on the date specified by the Minister in the certificate.(2) The certificate shall specify such information as may be prescribed. |
(3) The certificate may make provision for all or any of the following matters:(a) | the cancellation of the whole or any part of the share capital of the bank not paid up; | (b) | the cancellation of the whole or any part of the paid-up share capital of the bank lost or unrepresented by the available assets of the bank; | (c) | the shares to be issued by the bank to the subscriber, the compensation, if any, to be paid by the subscriber for the shares and the period within which the compensation is to be paid; | (d) | such incidental, consequential and supplementary matters as are, in the Minister’s opinion, necessary to secure that the restructuring is fully effective, including conditions relating to the restructuring. |
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(4) The Minister may at any time before the certificate comes into effect add to, vary or revoke any matter specified in the certificate. |
(5) The Authority shall cause the certificate and any addition, variation or revocation referred to in subsection (4) to be served on the bank and published in the Gazette and in such newspaper or newspapers as the Minister may determine, on or before the date on which the certificate comes into effect. |
(6) Notwithstanding any written law or rule of law (including anything in the memorandum or articles of association of the bank) —(a) | where the certificate provides for a reduction of the share capital of the bank, upon the certificate coming into effect, the reduction of the share capital shall take effect and the certificate shall have effect according to its tenor without other or further act by the bank and be binding on any person thereby affected; and | (b) | where the certificate provides for the issue of shares by the bank, the bank shall issue the shares in accordance with the certificate and the certificate shall have effect according to its tenor and be binding on any person thereby affected. |
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(7) Where the issue of shares results in the subscriber becoming a substantial shareholder, a 12% controller or a 20% controller of the bank, the subscriber shall, upon the coming into effect of the certificate —(a) | be deemed to have obtained the approval of the Minister under section 15A or 15B, as the case may be, in respect of the shares; and | (b) | not be required to make a take-over offer or be required to acquire the shares of the other shareholders of the bank notwithstanding the provisions of the Companies Act (Cap. 50) or the Take-over Code. |
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(8) The bank shall lodge a copy of the certificate with the Registrar within 7 days of being served with the certificate. |
(9) A bank or a subscriber that contravenes any provision in the certificate 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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(10) Where a subscriber is charged with an offence under subsection (9), it shall be a defence for the subscriber to prove that —(a) | he was not aware he had contravened any provision in the certificate; and | (b) | he has complied with the provision within a reasonable time after becoming aware of the contravention. |
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(11) Except as provided in subsection (10), it shall not be a defence for a subscriber charged with an offence under subsection (9) that he did not intend to or did not knowingly contravene any provision in the certificate. |
(12) Any bank which fails to comply with subsection (8) and every officer of the bank who fails to take all reasonable steps to secure compliance by the bank with that subsection shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and, in the case of a continuing offence, to a further fine not exceeding $200 for every day or part thereof during which the offence continues after conviction. |
(13) Notwithstanding section 54(2) and subject to section 55O, during the period beginning with the date on which the Minister publishes the notice under section 55L(7) in the Gazette on the restructuring of the share capital of a bank or, where the notice is not published in the Gazette, the date on which the Authority publishes the certificate under subsection (5) in the Gazette on the restructuring of the share capital and ending with the date on which the certificate comes into effect —(a) | no resolution shall be passed, and no order shall be made, for the winding up of the bank; | (b) | no proceedings shall be commenced or continued against the bank in respect of any business of the bank; | (c) | no execution, distress or other legal process shall be commenced, levied or continued against any property of the bank; | (d) | no steps shall be taken to enforce any security over any property of the bank; and | (e) | any sale, transfer, assignment or other disposition of any property of the bank shall be void. |
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Division 5 — Miscellaneous |
Power to obtain information under this Part |
55N.—(1) The Minister or the Authority may require a person to furnish, within the period and in the manner specified by the Minister or the Authority, any information that the Minister or the Authority may reasonably require for the discharge of his or its duties or functions, or the exercise of his or its powers, under this Part.(2) Any person who —(a) | without reasonable excuse, fails to comply with any requirement under subsection (1); or | (b) | in purported compliance with any requirement under subsection (1), knowingly or recklessly furnishes any information or document that is false or misleading in a material particular, |
shall be guilty of an offence and shall be liable on conviction 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. |
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Cessation of moratorium, etc., under this Part |
55O.—(1) The Minister may, by order published in the Gazette, direct that section 55G, 55J (13) or 55M (13), or any provision thereof, shall cease to apply to any bank, any business (or any part thereof) of any bank or any share in any bank and on the date specified by the Minister in the order, the relevant section, or the provision thereof, shall cease to apply to the bank, the business (or the part thereof) of the bank or the share in the bank, as the case may be.(2) In this section, “business” includes affairs, property, right, obligation and liability. |
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Regulations for this Part |
55P. The Minister may make such regulations as may be necessary or expedient for carrying out the purposes and provisions of this Part and for prescribing anything that may be required to be prescribed under this Part.”. |
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