PART 13 | Division 1 — Securities and Securities‑based Derivatives Contracts |
[4/2017] | Subdivision (1) — Interpretation |
239.—(1) In this Division —| “borrowing entity” means an entity that is or will be under a liability (whether or not such liability is present or future) to repay any money received by it in response to an invitation to subscribe for or purchase debentures of the entity; |
“control”, in relation to an entity, means the capacity of a person to determine the outcome of decisions on the financial and operating policies of the entity, having regard to —| (a) | the influence which the person can, in practice, exert on the entity (as opposed to the rights which the person can exercise in the entity); and | | (b) | any practice or pattern of behaviour of the person affecting the financial or operating policies of the entity (even if such practice or pattern of behaviour involves a breach of an agreement or a breach of trust), |
| but does not include any capacity of a person to influence decisions on the financial and operating policies of the entity if such influence is required by law or under any contract or order of court to be exercised for the benefit of other persons; |
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“dealing in capital markets products”, in respect of capital markets products that are securities or securities‑based derivatives contracts, means (whether as principal or agent) —| (a) | making or offering to make with any person; or | | (b) | inducing or attempting to induce any person to enter into or to offer to enter into, |
| any agreement for or with a view to acquiring, disposing of, subscribing for, entering into, effecting, arranging or underwriting any securities or securities‑based derivatives contracts; |
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| “debenture issuance programme” means any scheme or arrangement by an entity for the issue of debentures or units of debentures where only part of the maximum amount or aggregate number of debentures or units of debentures under the programme is offered initially and a further tranche or tranches may be offered subsequently; |
| “expert” has the meaning given by section 4(1) of the Companies Act 1967; |
| “guarantor entity”, in relation to a borrowing entity, means an entity that has guaranteed or has agreed to guarantee the repayment of any money received or to be received by the borrowing entity in response to an invitation to subscribe for or purchase debentures of the borrowing entity; |
| “immediate family”, in relation to an individual, means the individual’s spouse, son, adopted son, stepson, daughter, adopted daughter, stepdaughter, father, stepfather, mother, stepmother, brother, stepbrother, sister or stepsister; |
“issuer” means —| (a) | in relation to an offer of securities or securities‑based derivatives contracts (other than units or derivatives of units in a business trust), the entity that issues or will be issuing the securities or securities‑based derivatives contracts being offered; | | (b) | in relation to an offer of units in a business trust, the trustee‑manager of the business trust in its capacity as the trustee that issues or will be issuing the units; and | | (c) | in relation to an offer of derivatives of units in a business trust, the trustee‑manager of the business trust in its capacity as the trustee, or any other entity that issues or will be issuing the derivatives of units; |
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| “minimum subscription”, in relation to any securities or securities‑based derivatives contracts offered for subscription, means the amount stated in the prospectus relating to the offer as the minimum amount which must be raised by the issue of the securities or securities‑based derivatives contracts so offered, failing which no securities or securities‑based derivatives contracts will be allotted or issued; |
| “preliminary document” means a document which has been lodged with the Authority and is issued for the purpose of determining the appropriate issue or sale price of, and the number of, securities or securities‑based derivatives contracts to be issued or sold and which contains the information required to be included in a prospectus under section 243, except for such information as the Authority may prescribe; |
| “product highlights sheet” means a product highlights sheet referred to in section 240AA(1); |
| “profile statement” means a profile statement referred to in section 240(4); |
| “promoter”, in relation to a prospectus issued by or in connection with an entity or a business trust, means a promoter of the entity or business trust (as the case may be) who was a party to the preparation of the prospectus or of any relevant portion thereof, but does not include any person by reason only of the person acting in a professional capacity; |
“prospectus” means any prospectus, notice, circular, material, advertisement, publication or other document used to make an offer of securities or securities‑based derivatives contracts, and includes any document deemed to be a prospectus under section 257, but does not include —| (a) | a profile statement; | | (b) | any material, advertisement or publication which is authorised by section 251 (other than subsection (5)); or | | (c) | a product highlights sheet; |
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| “recognised securities exchange” means a corporation which has been declared by the Authority, by order in the Gazette, to be a recognised securities exchange for the purposes of this Division; |
“related party” means —| (a) | in relation to an entity —| (i) | a director or an equivalent person of the entity; | | (ii) | the chief executive officer or equivalent person of the entity; | | (iii) | a person who controls the entity; | | (iv) | a related corporation; | | (v) | any other entity controlled by it; | | (vi) | any other entity controlled by the person referred to in sub‑paragraph (iii); and | | (vii) | a related party of any individual referred to in sub‑paragraph (i), (ii) or (iii); and |
| | (b) | in relation to an individual —| (i) | his or her immediate family; | | (ii) | a trustee of any trust of which the individual or any member of the individual’s immediate family is —| (A) | a beneficiary; or | | (B) | where the trust is a discretionary trust, a discretionary object, |
| when the trustee acts in that capacity; and |
| | (iii) | any corporation in which the individual and his or her immediate family (whether directly or indirectly) have interests in voting shares of an aggregate of not less than 30% of the total votes attached to all voting shares; |
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| “replacement document” means a replacement prospectus or a replacement profile statement referred to in section 241(1), as the case may be; |
| “statutory meeting” has the meaning given by section 4(1) of the Companies Act 1967; |
| “supplementary document” means a supplementary prospectus or a supplementary profile statement referred to in section 241(1), as the case may be; |
| “trust deed” has the same meaning as “deed” in section 2 of the Business Trusts Act 2004; |
| “trust property” has the meaning given by section 2 of the Business Trusts Act 2004; |
| “underlying entity”, in relation to an offer of units of shares or debentures, means the entity the shares or debentures of which are the subject of the offer; |
| “unit”, in relation to a share or debenture, means any right or interest, whether legal or equitable, in the share or debenture, by whatever name called, and includes any option to acquire any such right or interest in the share or debenture. [2/2009; 34/2012; 4/2017] |
| (2) For the purposes of this Division, a statement is deemed to be included in a prospectus or profile statement if it is contained in any report or memorandum appearing on the face thereof or by reference incorporated therein or issued therewith. |
(3) For the purposes of this Division —| (a) | any invitation to a person to deposit money with or to lend money to an entity is deemed to be an offer of debentures of the entity; and | | (b) | any document that is issued or intended or required to be issued by an entity acknowledging or evidencing or constituting an acknowledgment of the indebtedness of the entity in respect of any money that is or may be deposited with or lent to the entity in response to such an invitation is deemed to be a debenture. |
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(3A) Despite subsection (3) —| (a) | any invitation to a person by a prescribed entity to make a deposit with the prescribed entity is not an offer of debentures; and | | (b) | the following documents issued or intended or required to be issued by a prescribed entity are not debentures:| (i) | any certificate of deposit; | | (ii) | any other document acknowledging or evidencing or constituting an acknowledgment of the indebtedness of the prescribed entity in respect of any deposit that is or may be made with the prescribed entity. |
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(4) In subsections (3A) and (5) —| “deposit” has the meaning given by section 4B(4) of the Banking Act 1970; |
“prescribed entity” means —| (a) | any bank licensed under the Banking Act 1970; or | | (b) | any entity or any entity of a class which has been declared by the Authority, by order in the Gazette, to be a prescribed entity for the purposes of this subsection. |
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| (4A) For the purposes of this Division, references to a debenture includes a debenture, or a unit of debenture, issued by a trustee of a trust on behalf of the trust. [4/2017] |
(5) The Authority may, by written notice —| (a) | impose such conditions or restrictions on a prescribed entity as it thinks fit; and | | (b) | at any time vary or revoke any condition or restriction so imposed, |
| and the prescribed entity must comply with every such condition or restriction imposed on it by the Authority that has not been revoked by the Authority. |
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| (5A) Any person who contravenes any condition or restriction imposed under subsection (5) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
(6) For the purposes of this Division, a person makes an offer of any securities or securities‑based derivatives contracts if, and only if, as principal —| (a) | the person makes (either personally or by an agent) an offer to any person in Singapore which upon acceptance would give rise to a contract for the issue or sale of those securities or securities‑based derivatives contracts by the firstmentioned person or another person with whom the firstmentioned person has made arrangements for that issue or sale; or | | (b) | the person invites (either personally or by an agent) any person in Singapore to make an offer which upon acceptance would give rise to a contract for the issue or sale of those securities or securities‑based derivatives contracts by the firstmentioned person or another person with whom the firstmentioned person has made arrangements for that issue or sale. [4/2017] |
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| (7) In subsection (6), “sale” includes any disposal for valuable consideration. |
| (8) This Division applies only in relation to offers of securities or securities‑based derivatives contracts made on or after 1 July 2002. [4/2017] |
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| Authority may disapply this Division to certain offers |
239A.—(1) Despite any provision to the contrary in this Division, where —| (a) | an offer of securities or securities‑based derivatives contracts is one to which (but for this section) both this Division and Division 2 apply; and | | (b) | the Authority has by order in the Gazette declared that this Division does not apply to that offer or a class of offers to which that offer belongs, |
| then this Division does not apply to that offer. |
[4/2017] (2) This Division does not apply to an offer of securities or securities‑based derivatives contracts being units or derivatives of units in a business trust, where —| (a) | the business trust is also a collective investment scheme that has been authorised under section 286 or recognised under section 287; or | | (b) | the business trust is also a collective investment scheme and the offer is made in reliance on an exemption under Subdivision (4) of Division 2. [4/2017] |
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| Modification of provisions to certain offers |
| 239B. The Authority may, if it thinks it necessary in the interests of the public or a section of the public or for the protection of investors, by regulations modify or adapt the provisions of this Division in their application to such offer of securities or securities‑based derivatives contracts as may be prescribed, and the provisions of this Division apply to such offer subject to such modifications or adaptations. [2/2009; 4/2017] |
Subdivision (1A) — Offers of units in and recognition of
business trusts |
| Requirement for registration or recognition |
| 239C.—(1) A person must not make an offer of units or derivatives of units in a business trust unless the business trust is a registered business trust or a recognised business trust. [4/2017] | (2) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. [4/2017] |
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| Power of Authority to recognise business trusts constituted outside Singapore |
| 239D.—(1) The Authority may, upon an application made to it in such form and manner as may be prescribed and subject to subsection (2), recognise a business trust constituted outside Singapore. [4/2017] (2) The Authority may recognise a business trust under subsection (1) if and only if the Authority is satisfied that —| (a) | the laws and practices of the jurisdiction under which the business trust is constituted and regulated affords to investors in Singapore protection at least equivalent to that provided to them under the Business Trusts Act 2004 in the case of registered business trusts; | | (b) | the business trust satisfies such criteria as may be prescribed by regulations made under section 341; and | | (c) | the person making the offer of, or the issuer of, units or derivatives of units in the business trust, or the trustee‑manager of the business trust, satisfies such criteria as may be prescribed by regulations made under section 341. [4/2017] |
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| (3) Without affecting subsection (2), in considering whether to recognise a business trust under subsection (1), the Authority may have regard to such other factors as may be prescribed. [4/2017] |
| (4) Without affecting subsection (2), the Authority may refuse to recognise any business trust where it appears to the Authority that it is not in the public interest to do so. [4/2017] |
(5) The Authority must not refuse to recognise a business trust under subsection (1) without giving the person who made the application an opportunity to be heard, except that an opportunity to be heard need not be given if the refusal is on the ground that it is not in the public interest to recognise the business trust on the basis of any of the following circumstances:| (a) | the person making the offer (being an entity), the issuer or the trustee‑manager of the business trust or the business trust itself is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere; | | (b) | the person making the offer (being an individual) is an undischarged bankrupt, whether in Singapore or elsewhere; | | (c) | a receiver, a receiver and manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of —| (i) | any property of the person making the offer (being an entity) or the issuer; | | (ii) | any property of the trustee‑manager of the business trust; or | | (iii) | the trust property of the business trust. [4/2017] |
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| (6) Any person making an application under subsection (1) may, within 30 days after the person is notified that the Authority has refused to recognise that business trust constituted outside Singapore, appeal to the Minister whose decision is final. [4/2017] |
| (7) An application made under subsection (1) must be accompanied by such information or record as the Authority may require. [4/2017] |
| (8) The Authority may publish for public information, in such manner as it considers appropriate, particulars of any business trust that is recognised under subsection (1). [4/2017] |
(9) While a business trust remains a recognised business trust, each of the following persons must ensure that the criteria prescribed by regulations made under section 341 in accordance with subsection (2)(b) and (c) which are applicable to the person continue to be satisfied:| (a) | a person making an offer of units or derivatives of units in the trust; | | (b) | an issuer of units or derivatives of units in the trust; | | (c) | the trustee‑manager of the trust. [4/2017] |
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| (10) The trustee‑manager of a recognised business trust must provide such information or record regarding the business trust as the Authority may, at any time, require for the proper administration of this Act. [4/2017] |
| (11) Any person who contravenes subsection (9) or (10) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction. [4/2017] |
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| Power of Authority to impose conditions or restrictions |
239E.—(1) The Authority may recognise a business trust under section 239D(1) subject to such conditions or restrictions as it thinks fit to impose on any of the following persons for the purpose of protecting investors of the business trust:| (a) | the trustee‑manager of the trust; | | (b) | a person making an offer of units or derivatives of units in the trust; | | (c) | an issuer of units or derivatives of units in the trust. [4/2017] |
| (2) Each of the persons mentioned in subsection (1) must comply with the conditions or restrictions applicable to the person. [4/2017] |
| (3) The Authority may, at any time, by written notice to any of the persons mentioned in subsection (1), vary any condition or restriction or impose any further condition or restriction as the Authority thinks fit. [4/2017] |
| (4) Any person who contravenes any condition or restriction applicable to the person under subsection (1) or (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction. [4/2017] |
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| Revocation, suspension or withdrawal of recognition |
239F.—(1) The Authority may revoke the recognition of a recognised business trust granted under section 239D(1) if —| (a) | the application for recognition, or any related information or record submitted to the Authority, whether at the same time as or subsequent to the application, was false or misleading in a material particular or omitted a material particular which, had it been known to the Authority at the time of submission, would have resulted in the Authority not granting the recognition; | | (b) | the Authority is of the opinion that the continued recognition of the business trust is or will be against the public interest; | | (c) | the Authority is of the opinion that the continued recognition of the business trust is or will be prejudicial to its unitholders or potential unitholders; or | | (d) | there has been a contravention of section 239D(9) or (10) or a condition or restriction mentioned in section 239E(1) or (3). [4/2017] |
(2) Where the Authority revokes the recognition of a recognised business trust under subsection (1), the Authority may issue any directions it thinks fit to any of the following persons:| (a) | a person making an offer of units or derivatives of units in the business trust; | | (b) | the issuer of units or derivatives of units in the business trust; | | (c) | the trustee‑manager of the business trust, |
| and the person must comply with such directions. |
[4/2017] |
| (3) The directions mentioned in subsection (2) may include a direction that the person provides the holders of the units or derivatives of units with an option to redeem or sell back to the person their units or derivatives of units (as the case may be) on such terms as the Authority may approve. [4/2017] |
(4) In determining whether to issue a direction under subsection (2), the Authority must consider —| (a) | whether the trustee‑manager of the business trust is able to liquidate the property of the business trust without material adverse financial effect to the unitholders and for this purpose, the factors which the Authority may take into account include —| (i) | the liquidity of the property of the business trust; | | (ii) | the penalties (if any) payable for liquidating the property; and | | (iii) | where the units of the business trust are also listed for quotation or quoted on an overseas exchange, the potential impact which the liquidation may have on unitholders in the country or territory where the units are listed; and |
| | (b) | where the units or derivatives of units in the business trust are listed for quotation on the official list of an approved exchange, whether the holders of the units or derivatives of units are afforded an opportunity to liquidate, sell or redeem their units or derivatives of units on reasonable terms in accordance with the requirements of the listing rules of the approved exchange. [4/2017] |
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| (5) A person who, without reasonable excuse, contravenes any of the directions issued by the Authority under subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. [4/2017] |
| (6) Despite subsection (1), the Authority may, if it considers it desirable to do so, instead of revoking the recognition of a recognised business trust, suspend the recognition of that recognised business trust for a specific period, and may at any time remove such suspension. [4/2017] |
| (7) Where the Authority revokes the recognition of a recognised business trust under subsection (1) or suspends the recognition of a recognised business trust under subsection (6), it must notify the trustee‑manager of the business trust and, where the Authority deems it necessary, the person who made the application to the Authority for recognition of the business trust under section 239D(1). [4/2017] |
| (8) Subject to subsection (9), the Authority may, upon a written application made to it by the trustee‑manager of the business trust or the person who made the application to the Authority for recognition of a business trust under section 239D(1), in such form and manner as may be prescribed, withdraw the recognition of that recognised business trust. [4/2017] |
(9) The Authority may refuse to withdraw the recognition of a recognised business trust under subsection (8) where the Authority is of the opinion that —| (a) | there is any matter concerning the recognised business trust which should be investigated before the recognition is withdrawn; or | | (b) | the withdrawal of the recognition would not be in the public interest. [4/2017] |
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(10) The Authority must not —| (a) | revoke the recognition of a recognised business trust under subsection (1) without giving the trustee‑manager of the business trust and, where the Authority deems it necessary, the person who made the application to the Authority for recognition of the business trust under section 239D(1), an opportunity to be heard; | | (b) | impose a direction on a person mentioned in subsection (2) without giving that person an opportunity to be heard; | | (c) | suspend the recognition of a recognised business trust under subsection (6) without giving the trustee‑manager of the business trust and, where the Authority deems it necessary, the person who made the application to the Authority for recognition of the business trust under section 239D(1), an opportunity to be heard; or | | (d) | refuse the withdrawal of the recognition of a recognised business trust under subsection (9) without giving the person mentioned in subsection (8) an opportunity to be heard. [4/2017] |
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(11) Despite subsection (10), an opportunity to be heard need not be given for a revocation or suspension on the ground that the continued recognition of the recognised business trust is against the public interest on the basis of any of the following circumstances:| (a) | the person making the offer (being an entity), the issuer, the trustee‑manager of the recognised business trust or the recognised business trust itself, is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere; | | (b) | the person making the offer (being an individual) is an undischarged bankrupt, whether in Singapore or elsewhere; | | (c) | a receiver, a receiver and manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of —| (i) | any property of the person making the offer (being an entity) or the issuer; | | (ii) | any property of the trustee‑manager of the recognised business trust; or | | (iii) | the trust property of the recognised business trust. [4/2017] |
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(12) The following persons may appeal to the Minister within 30 days after being notified of the following decisions of the Authority:| (a) | where the Authority revokes the recognition of a recognised business trust under subsection (1), or suspends the recognition of a recognised business trust under subsection (6), the person or persons mentioned in subsection (7); | | (b) | where the Authority has imposed a direction on a person under subsection (2), the person mentioned in subsection (2); | | (c) | where the Authority refuses to withdraw the recognition of a recognised business trust under subsection (9), the person mentioned in subsection (8). [4/2017] |
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| (13) A decision of the Minister in an appeal under subsection (12) is final. [4/2017] |
(14) Where the Authority revokes a recognition under subsection (1), suspends a recognition under subsection (6) or withdraws a recognition under subsection (8), it may —| (a) | impose such conditions on the revocation, suspension or withdrawal (as the case may be) as it considers appropriate; and | | (b) | publish notice of the revocation, suspension or withdrawal (as the case may be), and the reason for the revocation, suspension or withdrawal (as the case may be), in such manner as it considers appropriate. [4/2017] |
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| Subdivision (2) — Prospectus requirements |
| Requirement for prospectus and profile statement, where relevant |
240.—(1) A person must not make an offer of securities or securities‑based derivatives contracts unless the offer —| (a) | is made in or accompanied by a prospectus in respect of the offer —| (i) | that is prepared in accordance with section 243; | | (ii) | a copy of which, being one that has been signed in accordance with subsection (4A), is lodged with the Authority; and | | (iii) | that is registered by the Authority; and |
| | (b) | complies with such requirements as the Authority may prescribe. [4/2017] |
| (2) A person who lodges a preliminary document with the Authority is deemed to have lodged a prospectus with the Authority. |
| (3) A preliminary document referred to in subsection (2) must contain all information to be included in a prospectus other than such information as the Authority may prescribe. |
(4) Despite subsection (1), an offer of securities or securities‑based derivatives contracts may be made in or accompanied by an extract from, or an abridged version of, a prospectus (called in this section a profile statement), instead of a prospectus, if —| (a) | a prospectus in respect of such offer is prepared in accordance with section 243, and the profile statement is prepared in accordance with section 246; | | (b) | a copy of the prospectus and a copy of the profile statement, each of which has been signed in accordance with subsection (4A), are lodged with the Authority, and the prospectus is lodged no later than the profile statement; | | (c) | the prospectus and profile statement are registered by the Authority; | | (d) | sufficient copies of the prospectus are made available for collection at the times and places specified in the profile statement; and | | (e) | the offer complies with such requirements as the Authority may prescribe. [4/2017] |
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(4A) The copy of a prospectus or profile statement lodged with the Authority must be signed —| (a) | where the person making the offer is the issuer —| (i) | in a case where the issuer is not the government of a State — by every director or equivalent person of the issuer and every person who is named therein as a proposed director or an equivalent person of the issuer; or | | (ii) | in a case where the issuer is the government of a State — by an official of that government who is authorised to sign the prospectus on its behalf; |
| | (b) | where the person making the offer is an individual and is not the issuer —| (i) | in a case where the issuer is not the government of a State —| (A) | by that person; and | | (B) | if the issuer is controlled by that person, one or more of his or her related parties, or that person and one or more of his or her related parties — by every director or equivalent person of the issuer and every person who is named therein as a proposed director or an equivalent person of the issuer; or |
| | (ii) | in a case where the issuer is the government of a State — by that person; |
| | (c) | where the person making the offer is an entity (not being the government of a State) and is not the issuer —| (i) | in a case where the issuer is not the government of a State —| (A) | by every director or equivalent person of that entity; and | | (B) | if the issuer is controlled by that entity, one or more of its related parties, or that entity and one or more of its related parties — by every director or equivalent person of the issuer, and every person who is named therein as a proposed director or an equivalent person of the issuer; or |
| | (ii) | in a case where the issuer is the government of a State — by every director or equivalent person of that entity; and |
| | (d) | where the person making the offer is the government of a State and is not the issuer —| (i) | in a case where the issuer is not the government of another State —| (A) | by an official of the government of the State who is authorised to sign the prospectus on its behalf; and | | (B) | if the issuer is controlled by that government, one or more of its related parties, or that government and one or more of its related parties — by every director or every equivalent person of the issuer, and every person who is named therein as a proposed director or an equivalent person of the issuer; or |
| | (ii) | in a case where the issuer is the government of another State — by an official of the government of the firstmentioned State who is authorised to sign the prospectus on its behalf. |
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(4B) A requirement under subsection (4A) for the copy of a prospectus or profile statement to be signed by a director or an equivalent person is satisfied if the copy is signed —| (a) | by that director or equivalent person; or | | (b) | by a person who is authorised in writing by that director or equivalent person to sign on his or her behalf. |
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(4C) A requirement under subsection (4A) for the copy of a prospectus or profile statement to be signed by a person named therein as a proposed director or an equivalent person is satisfied if the copy is signed —| (a) | by that proposed director or equivalent person; or | | (b) | by a person who is authorised in writing by that proposed director or equivalent person to sign on his or her behalf. |
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| (5) A person must not make any offer of securities or securities‑based derivatives contracts in respect of an entity or a business trust that has not been formed or does not exist. [4/2017] |
| (6) [Deleted by Act 1 of 2005] |
| (7) Any person who contravenes subsection (1) or (5) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. |
(8) The Authority may register a prospectus or a profile statement on any day within the period prescribed by the Authority from the date of lodgment thereof with the Authority, unless —| (a) | the Authority gives to the person making the offer a notice of an opportunity to be heard under subsection (15); | | (b) | the Authority gives to the person making the offer a notice of an extension, in which case the Authority may, not later than 28 days from the date of lodgment of the prospectus or profile statement —| (i) | register the prospectus or profile statement; or | | (ii) | give the person making the offer a notice of an opportunity to be heard under subsection (15); |
| | (c) | the person making the offer applies in writing to extend the period during which the prospectus or profile statement may be registered, and the Authority grants an extension as it thinks fit, in which case the Authority may, at any time up to and including the date on which the extended period ends —| (i) | register the prospectus or profile statement; or | | (ii) | give the person making the offer a notice of an opportunity to be heard under subsection (15); or |
| | (d) | the person making the offer gives a written notice to the Authority to withdraw the lodgment of the prospectus or profile statement, in which case the Authority must not register the prospectus or profile statement. [2/2009] |
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| (8A) Where, after a notice of an opportunity to be heard has been given under subsection (8)(a), (b)(ii) or (c)(ii), the Authority decides not to refuse registration of the prospectus or profile statement, the Authority may proceed with the registration on such date as it considers appropriate, except that that date must not be earlier than such day from the date of lodgment of the prospectus or profile statement with the Authority as the Authority may prescribe. [2/2009] |
| (8B) For the purposes of subsections (8) and (8A), the Authority may prescribe the same period and day for all offers or different periods and days for different offers. [2/2009] |
| (9) Where a prospectus lodged with the Authority is a preliminary document, the Authority must not register the prospectus unless a copy of the prospectus which has been signed in accordance with subsection (4A) and which contains the information required to be stipulated in the prospectus under section 243, including such information which could be omitted from the preliminary document by virtue of subsection (3), has been lodged with the Authority. |
| (9A) A person making an offer of securities or securities‑based derivatives contracts may lodge any amendment to a prospectus or profile statement in respect of that offer at any time before, but not after, the registration of the prospectus or profile statement by the Authority. [4/2017] |
(10) Subject to subsection (11) —| (a) | where any amendment to a prospectus is lodged, the prospectus and any profile statement which is lodged is deemed for the purposes of subsection (8) to have been lodged when such amendment was lodged; and | | (b) | where any amendment to a profile statement is lodged, the profile statement is deemed for the purposes of subsection (8) to have been lodged when such amendment was lodged. |
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| (11) Where an amendment to a prospectus or profile statement is lodged with the consent of the Authority, the prospectus or profile statement as amended is deemed, for the purposes of subsection (8), to have been lodged when the original prospectus or profile statement was lodged with the Authority. |
| (11A) An amendment to a prospectus or profile statement that is lodged is treated as part of the original prospectus or profile statement. |
(12) The Authority may, for public information, publish —| (a) | a prospectus or profile statement lodged with the Authority under this section; and | | (b) | where applicable, the translation thereof in the English language lodged with the Authority under section 318A(1), |
| and, for the purposes of this subsection, the person making the offer must provide the Authority with a copy of the prospectus or profile statement and, where applicable, the translation in such form or medium for publication as the Authority may require. |
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(13) The Authority must refuse to register a prospectus if —| (a) | the Authority is of the opinion that the prospectus contains a false or misleading statement; | | (b) | there is an omission from the prospectus of any information that is required to be included in it under section 243; | | (c) | the copy of the prospectus that is lodged with the Authority is not signed in accordance with subsection (4A); | | (d) | the Authority is of the opinion that the prospectus does not comply with the requirements of this Act; | | (e) | any written consent of an expert to the issue of the prospectus required under section 249, or a copy thereof which is verified as prescribed, is not lodged with the Authority; | | (ea) | any written consent of an issue manager to the issue of the prospectus required under section 249A(1), or a copy thereof which is verified as prescribed, is not lodged with the Authority; | | (eb) | any written consent of an underwriter to the issue of the prospectus required under section 249A(2), or a copy thereof which is verified as prescribed, is not lodged with the Authority; or | | (f) | the Authority is of the opinion that it is not in the public interest to do so. |
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(14) The Authority must refuse to register a profile statement if —| (a) | the Authority is of the opinion that the profile statement contains a false or misleading statement; | | (b) | there is an omission from the profile statement of information required by section 246 to be included in it or an inclusion in the profile statement of information prohibited by that section from being included in it; | | (c) | the copy of the profile statement that is lodged with the Authority is not signed in accordance with subsection (4A); | | (ca) | any written consent of an expert to the issue of the profile statement required under section 249, or a copy thereof which is verified as prescribed, is not lodged with the Authority; | | (cb) | any written consent of an issue manager to the issue of the profile statement required under section 249A(1), or a copy thereof which is verified as prescribed, is not lodged with the Authority; | | (cc) | any written consent of an underwriter to the issue of the profile statement required under section 249A(2), or a copy thereof which is verified as prescribed, is not lodged with the Authority; | | (d) | the Authority is of the opinion that the profile statement does not comply with the requirements of this Act; | | (e) | the prospectus has not been registered by the Authority; or | | (f) | the Authority is of the opinion that it is not in the public interest to do so. |
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(15) The Authority must not refuse to register a prospectus under subsection (13) or a profile statement under subsection (14) without giving the person making the offer an opportunity to be heard, except that an opportunity to be heard need not be given if the refusal is on the ground that it is not in the public interest to register the prospectus or profile statement on the basis of any of the following circumstances:| (a) | the person making the offer (being an entity), the issuer or the trustee‑manager of the business trust or, where applicable, the underlying entity or the business trust is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere; | | (b) | the person making the offer (being an individual) is an undischarged bankrupt, whether in Singapore or elsewhere; | | (c) | a receiver, a receiver and manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of any property of the person making the offer (being an entity), the issuer or the trustee‑manager of the business trust or, where applicable, the underlying entity, or in relation to or in respect of the trust property of the business trust. [4/2017] |
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| (16) Any person making an offer may, within 30 days after the person is notified that the Authority has refused to register a prospectus or profile statement to which the person’s offer relates under subsection (13) or (14), appeal to the Minister, whose decision is final. |
(17) If —| (a) | a prospectus or profile statement is issued, circulated or distributed before it has been registered by the Authority; or | | (b) | an application to subscribe for or purchase securities or securities‑based derivatives contracts is accepted, or securities or securities‑based derivatives contracts are allotted, issued or sold, before a prospectus and, where applicable, profile statement in respect of the securities or securities‑based derivatives contracts has been registered by the Authority, |
| the person making the offer and every person who is knowingly a party to — |
| (c) | the issue, circulation or distribution of the prospectus or profile statement; | | (d) | the acceptance of the application to subscribe for or purchase the securities or securities‑based derivatives contracts; or | | (e) | the allotment, issue or sale of the securities or securities‑based derivatives contracts, |
| as the case may be, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. |
[4/2017] |
| (18) This section is subject to section 240A. |
| (19) For the purposes of subsections (13)(a) and (14)(a), any reference to a statement includes a reference to any information presented, regardless of whether such information is in text or otherwise. |
| (20) Regulations made under this section may provide that a contravention of specified provisions thereof shall be an offence and may provide penalties not exceeding a fine of $50,000. |
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| Requirement for product highlights sheet, where relevant |
240AA.—(1) A person must not make an offer of any relevant securities or securities‑based derivatives contracts, being an offer that is made in or accompanied by a prospectus or profile statement that complies with section 240, unless the prospectus or profile statement is accompanied by a product highlights sheet in respect of the offer —| (a) | that complies with such requirements as the Authority may prescribe by regulations made under section 341; and | | (b) | a copy of which is lodged with the Authority. [34/2012; 4/2017] |
(2) A person must not publish or disseminate, whether in Singapore or elsewhere, any document relating to any offer or intended offer of any relevant securities or securities‑based derivatives contracts, being an offer that is, or an intended offer that will be, made in or accompanied by a prospectus or profile statement that complies with section 240, if the document resembles or may otherwise be confused with a product highlights sheet, unless the person is required to do so —| (a) | under any written law or rule of law, or by any court, in Singapore; | | (b) | under the laws and practices of, or by any court in, any foreign jurisdiction; or | | (c) | by any listing rules or other requirements of any approved exchange or overseas exchange. [34/2012; 4/2017] |
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(3) The Authority may, for public information, publish —| (a) | a product highlights sheet lodged with the Authority under this section; and | | (b) | where applicable, the translation thereof in the English language lodged with the Authority under section 318A(1). [34/2012] |
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| (4) Any person who contravenes subsection (1) or (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
(5) In this section —| “asset‑backed securities” has the meaning given by section 262(3); |
“relevant securities or securities‑based derivatives contracts” means —| (a) | asset‑backed securities; | | (b) | structured notes; or | | (c) | such other securities or securities‑based derivatives contracts as the Authority may prescribe by regulations made under section 341; |
|
“single purpose vehicle” means an entity that is established solely in order to, or a trust that is established solely in order for its trustee to, do either or both of the following:| (a) | act as counterparty to arrangements which involve the use of derivatives to create exposure to assets from which payments to holders of any structured notes are or will be primarily derived; | | (b) | issue any structured notes; |
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“specified financial institution” means —| (a) | any bank licensed under the Banking Act 1970; or | | (b) | any entity that is, or that belongs to a class of entities that is, specified by the Authority, by notification in the Gazette, to be an entity, or a class of entities, for the purposes of this definition; |
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“structured notes” means any type of debentures or units of debentures —| (a) | which is issued —| (i) | in relation to —| (A) | a synthetic securitisation transaction; or | | (B) | such other arrangement or transaction as the Authority may prescribe by regulations made under section 341; or |
| | (ii) | by a specified financial institution; and |
| | (b) | for which —| (i) | the principal sum or any interest is, or both are, payable; | | (ii) | such other sum or sums as the Authority may prescribe by regulations made under section 341, is or are payable; | | (iii) | one or more underlying assets, being securities or securities‑based derivatives contracts, equity interests, commodities, currencies or such other assets as the Authority may prescribe by regulations made under section 341, are to be physically delivered; or | | (iv) | 2 or more of sub‑paragraphs (i), (ii) and (iii) apply, |
| in accordance with a formula based on one or more of the following: |
| (v) | the performance of any type of securities or securities‑based derivatives contracts, equity interest, commodity or index, or of a basket of 2 or more types of securities or securities‑based derivatives contracts, equity interests, commodities or indices; | | (vi) | the credit risk or performance of any entity or a basket of entities; | | (vii) | the movement of interest rates or currency exchange rates; | | (viii) | such other variables as the Authority may prescribe by regulations made under section 341; |
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| “synthetic securitisation transaction” means an arrangement involving the use of derivatives to create or replicate exposure to assets that are not transferred to, or are not a part of an asset pool held by, a single purpose vehicle. [34/2012; 4/2017] |
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| Exemption from requirement for product highlights sheet |
| 240AB.—(1) Despite section 337(1), the Authority may, by regulations made under section 341, exempt any person or class of persons from all or any of the requirements in section 240AA, subject to such conditions or restrictions as the Authority may specify. [4/2017] | (2) The Authority may, by written notice, exempt any person from all or any of the requirements in section 240AA, subject to such conditions or restrictions as the Authority may specify by written notice. [4/2017] |
| (3) The Authority may at any time add to, vary or revoke any condition or restriction imposed under subsection (1) or (2). [4/2017] |
| (4) It is not necessary to publish any exemption granted under subsection (2) in the Gazette. [4/2017] |
| (5) Any person who contravenes any condition or restriction imposed under subsection (1), (2) or (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [4/2017] |
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| Debenture issuance programme |
240A.—(1) A prospectus for every offer of debentures or units of debentures that is part of a debenture issuance programme must comprise —| (a) | a base prospectus applicable to every offer under the debenture issuance programme; and | | (b) | a pricing statement applicable to that particular offer. |
(2) A profile statement for every offer of debentures or units of debentures that is part of a debenture issuance programme must comprise —| (a) | an extract from, or an abridged version of, a base prospectus referred to in subsection (1)(a) (called in this section a base profile statement); and | | (b) | a pricing statement applicable to that particular offer. |
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| (3) In respect of an offer referred to in subsection (1), the requirements of section 240(1)(a)(ii) and (iii) are satisfied if a copy of the base prospectus and a copy of the pricing statement, each of which is signed in accordance with section 240(4A), have been lodged with and registered by the Authority, either separately, whether on the same date or on different dates, or as a single document. |
| (4) In respect of an offer referred to in subsection (2), the requirements of section 240(4)(b) and (c) are satisfied if a copy of the base profile statement and a copy of the pricing statement, each of which is signed in accordance with section 240(4A), have been lodged with and registered by the Authority, either separately, whether on the same date or on different dates, or as a single document. |
| (5) To avoid doubt, where the base prospectus or base profile statement in relation to a debenture issuance programme has been lodged with and registered by the Authority, it is treated as having been lodged with and registered by the Authority in respect of every offer under that programme. |
| (6) For the purposes of the application of the provisions of this Subdivision to an offer referred to in subsection (1), a reference to a prospectus is, unless the context otherwise requires or the Authority has prescribed otherwise, to be read as a reference to both the base prospectus and the pricing statement. |
| (7) For the purposes of the application of the provisions of this Subdivision to an offer referred to in subsection (2), a reference to a profile statement is, unless the context otherwise requires or the Authority has prescribed otherwise, to be read as a reference to both the base profile statement and the pricing statement. |
| (8) The Authority may, by regulations, prescribe how the provisions of this Subdivision apply to an offer referred to in subsection (1) or (2). |
| (9) To avoid doubt, a pricing statement may be registered by the Authority at any time after its lodgment with the Authority. |
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| Lodging supplementary document or replacement document |
241.—(1) If, after a prospectus or profile statement is registered but before the close of the offer of securities or securities‑based derivatives contracts, the person making that offer becomes aware of —| (a) | a false or misleading statement in the prospectus or profile statement; | | (b) | an omission from the prospectus of any information that should have been included in it under section 243, or an omission from the profile statement of any information that should have been included in it under section 246, as the case may be; or | | (c) | a new circumstance that —| (i) | has arisen since the prospectus or profile statement was lodged with the Authority; and | | (ii) | would have been required by —| (A) | section 243 to be included in the prospectus; or | | (B) | section 246 to be included in the profile statement, |
| if it had arisen before the prospectus or the profile statement (as the case may be) was lodged, |
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| and that is materially adverse from the point of view of an investor, the person may lodge a supplementary or replacement prospectus, or a supplementary or replacement profile statement (called in this section a supplementary or replacement document, as the case may be), with the Authority. |
[4/2017] | (1A) If, after a base prospectus or a base profile statement referred to in section 240A is registered but before the expiration of 24 months from the registration of the base prospectus by the Authority, the person making that offer intends to update any information or include any new information in the base prospectus or base profile statement, the person may lodge a supplementary or replacement document with the Authority, provided that no offer to which the base prospectus or base profile statement relates is subsisting at the time of the lodgment. |
| (1B) Subsections (7) to (16) do not apply to a supplementary or replacement document which is lodged under subsection (1A). |
(1C) For the purposes of subsection (1A), an offer is not treated as subsisting if —| (a) | a pricing statement in respect of the offer of debentures or units of debentures has not been registered by the Authority under section 240A; or | | (b) | a pricing statement in respect of the offer of debentures or units of debentures has been registered by the Authority under section 240A, and —| (i) | the offer has closed with no application to subscribe for or purchase the debentures or units of debentures having been received or accepted; or | | (ii) | one or more applications to subscribe for or purchase the debentures or units of debentures have been received or accepted, and —| (A) | in a case where the debentures or units of debentures are or will be listed for quotation on an approved exchange, trading in them has commenced; or | | (B) | in any other case, all of those debentures or units of debentures have been issued or sold. [4/2017] |
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(2) At the beginning of a supplementary document, there must be —| (a) | a statement that it is a supplementary prospectus or a supplementary profile statement, as the case may be; | | (b) | an identification of the prospectus or profile statement it supplements; | | (c) | an identification of any previous supplementary document lodged with the Authority in relation to the offer; and | | (d) | a statement that it is to be read together with the prospectus or profile statement it supplements and any previous supplementary document in relation to the offer. |
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(3) At the beginning of a replacement document, there must be —| (a) | a statement that it is a replacement prospectus or a replacement profile statement, as the case may be; and | | (b) | an identification of the prospectus or profile statement it replaces. |
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| (4) The supplementary document and the replacement document must be dated with the date on which they are lodged with the Authority. |
(5) The person making the offer must take reasonable steps —| (a) | to inform potential investors of the lodgment of any supplementary or replacement document under subsection (1) or (1A); and | | (b) | to make available to them the supplementary document or replacement document. |
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(6) For the purposes of the application of this Division to events that occur after the lodgment of the supplementary document —| (a) | where the supplementary document is a supplementary prospectus, the prospectus in relation to the offer is taken to be the original prospectus together with the supplementary prospectus and any previous supplementary prospectus in relation to the offer; and | | (b) | where the supplementary document is a supplementary profile statement, the profile statement in relation to the offer is taken to be the original profile statement together with the supplementary profile statement and any previous supplementary profile statement in relation to the offer. |
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| (6A) [Deleted by Act 1 of 2005] |
(6B) For the purposes of the application of this Division to events that occur after the lodgment of the replacement document —| (a) | where the replacement document is a replacement prospectus, the prospectus in relation to the offer is taken to be the replacement prospectus; and | | (b) | where the replacement document is a replacement profile statement, the profile statement in relation to the offer is taken to be the replacement profile statement. |
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| (7) If a supplementary document or replacement document is lodged with the Authority, the offer must be kept open for at least 14 days after the lodgment of the supplementary document or replacement document. |
(8) Where, prior to the lodgment of the supplementary document or replacement document, applications have been made under the original prospectus or profile statement to subscribe for securities or securities‑based derivatives contracts, then —| (a) | where the securities or securities‑based derivatives contracts have not been issued to the applicants, the person making the offer —| (i) | must —| (A) | within 2 days (excluding any Saturday, Sunday or public holiday) from the date of lodgment of the supplementary document or replacement document, give the applicants written notice of how to obtain, or arrange to receive, a copy of the supplementary document or replacement document (as the case may be) and provide the applicants with an option to withdraw their applications; and | | (B) | take all reasonable steps to make available within a reasonable period the supplementary document or replacement document (as the case may be) to the applicants who have indicated that they wish to obtain, or who have arranged to receive, a copy of the supplementary document or replacement document; |
| | (ii) | must, within 7 days from the date of lodgment of the supplementary document or replacement document, give the applicants the supplementary document or replacement document (as the case may be) and provide the applicants with an option to withdraw their applications; or | | (iii) | must —| (A) | treat the applications as withdrawn and cancelled, in which case the applications are deemed to have been withdrawn and cancelled; and | | (B) | within 7 days from the date of lodgment of the supplementary document or replacement document, pay to the applicants all moneys the applicants have paid on account of their applications for the securities or securities‑based derivatives contracts; or |
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| | (b) | where the securities or securities‑based derivatives contracts have been issued to the applicants, the person making the offer —| (i) | must —| (A) | within 2 days (excluding any Saturday, Sunday or public holiday) from the date of lodgment of the supplementary document or replacement document, give the applicants written notice of how to obtain, or arrange to receive, a copy of the supplementary document or replacement document (as the case may be) and provide the applicants with an option to return, to the person making the offer, those securities or securities‑based derivatives contracts which they do not wish to retain title in; and | | (B) | take all reasonable steps to make available within a reasonable period the supplementary document or replacement document (as the case may be) to the applicants who have indicated that they wish to obtain, or who have arranged to receive, a copy of the supplementary document or replacement document; |
| | (ii) | must, within 7 days from the date of lodgment of the supplementary document or replacement document, give the applicants the supplementary document or replacement document (as the case may be) and provide the applicants with an option to return, to the person making the offer, those securities or securities‑based derivatives contracts which they do not wish to retain title in; or | | (iii) | must —| (A) | treat the issue of the securities or securities‑based derivatives contracts as void, in which case the issue is deemed void; and | | (B) | within 7 days from the date of lodgment of the supplementary document or replacement document, pay to the applicants all moneys paid by them for the securities or securities‑based derivatives contracts. [4/2017] |
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| (9) Subsections (8)(b) and (11) have effect despite sections 76 and 76A, and Division 3A of Part 4, of the Companies Act 1967. |
| (10) An applicant who wishes to exercise the applicant’s option under subsection (8)(a)(i) or (ii) to withdraw the applicant’s application must, within 14 days from the date of lodgment of the supplementary document or replacement document, notify the person making the offer of this, upon which that person must, within 7 days from the receipt of such notification, pay to the applicant all moneys paid by the applicant on account of the applicant’s application for the securities or securities‑based derivatives contracts. [4/2017] |
| (11) An applicant who wishes to exercise the applicant’s option under subsection (8)(b)(i) or (ii) to return securities or securities‑based derivatives contracts issued to the applicant must, within 14 days from the date of lodgment of the supplementary document or replacement document, notify the person making the offer of this and return all documents (if any) purporting to be evidence of title to those securities or securities‑based derivatives contracts to that person, upon which that person must, within 7 days from the receipt of such notification and documents (if any) pay to the applicant all moneys paid by the applicant for the securities or securities‑based derivatives contracts, and the issue of those securities or securities‑based derivatives contracts is deemed to be void. [4/2017] |
(12) Where, prior to the lodgment of the supplementary document or replacement document, applications have been made under the original prospectus or profile statement to purchase securities or securities‑based derivatives contracts, then —| (a) | where the securities or securities‑based derivatives contracts have not been transferred to the applicants, the person making the offer —| (i) | must —| (A) | within 2 days (excluding any Saturday, Sunday or public holiday) from the date of lodgment of the supplementary document or replacement document, give the applicants written notice of how to obtain, or arrange to receive, a copy of the supplementary document or replacement document (as the case may be) and provide the applicants with an option to withdraw their applications; and | | (B) | take all reasonable steps to make available within a reasonable period the supplementary document or replacement document (as the case may be) to the applicants who have indicated that they wish to obtain, or who have arranged to receive, a copy of the supplementary document or replacement document; |
| | (ii) | must, within 7 days from the date of lodgment of the supplementary document or replacement document, give the applicants the supplementary document or replacement document (as the case may be) and provide the applicants with an option to withdraw their applications; or | | (iii) | must —| (A) | treat the applications as withdrawn and cancelled, in which case the applications are deemed to have been withdrawn and cancelled; and | | (B) | within 7 days from the date of lodgment of the supplementary document or replacement document, pay to the applicants all moneys the applicants have paid on account of their applications for the securities or securities‑based derivatives contracts; or |
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| | (b) | where the securities or securities‑based derivatives contracts have been transferred to the applicants, the person making the offer —| (i) | must —| (A) | within 2 days (excluding any Saturday, Sunday or public holiday) from the date of lodgment of the supplementary document or replacement document, give the applicants written notice of how to obtain, or arrange to receive, a copy of the supplementary document or replacement document (as the case may be) and provide the applicants with an option to return, to the person making the offer, those securities or securities‑based derivatives contracts which they do not wish to retain title in; and | | (B) | take all reasonable steps to make available within a reasonable period the supplementary document or replacement document (as the case may be) to the applicants who have indicated that they wish to obtain, or who have arranged to receive, a copy of the supplementary document or replacement document; |
| | (ii) | must, within 7 days from the date of lodgment of the supplementary document or replacement document, give the applicants the supplementary document or replacement document (as the case may be) and provide the applicants with an option to return, to the person making the offer, those securities or securities‑based derivatives contracts which they do not wish to retain title in; or | | (iii) | must treat the sale of the securities or securities‑based derivatives contracts as void, in which case the sale is deemed void, and must —| (A) | if documents purporting to evidence title to the securities or securities‑based derivatives contracts (called in this paragraph the title documents) have been issued to the applicants —| (AA) | within 7 days from the date of lodgment of the supplementary document or replacement document, inform the applicants to return the title documents to the person making the offer within 14 days from the date of lodgment of the supplementary document or replacement document; and | | (AB) | within 7 days from the date of receipt of the title documents or the date of lodgment of the supplementary document or replacement document, whichever is the later, pay to the applicants all moneys paid by them for the securities or securities‑based derivatives contracts; or |
| | (B) | if no title documents have been issued to the applicants, within 7 days from the date of the lodgment of the supplementary document or replacement document, pay to the applicants all moneys paid by them for the securities or securities‑based derivatives contracts. [4/2017] |
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| (13) An applicant who wishes to exercise the applicant’s option under subsection (12)(a)(i) or (ii) to withdraw the applicant’s application must, within 14 days from the date of lodgment of the supplementary document or replacement document, notify the person making the offer of this, upon which that person must, within 7 days of the receipt of such notification, pay to the applicant all moneys paid by the applicant on account of the applicant’s application for the securities or securities‑based derivatives contracts. [4/2017] |
| (14) An applicant who wishes to exercise the applicant’s option under subsection (12)(b)(i) or (ii) to return securities or securities‑based derivatives contracts sold to the applicant must, within 14 days from the date of lodgment of the supplementary document or replacement document, notify the person making the offer of this and return all documents (if any) purporting to evidence title to those securities or securities‑based derivatives contracts to the person making the offer, upon which that person must, within 7 days from the receipt of such notification and documents (if any) pay to the applicant all moneys paid by the applicant for the securities or securities‑based derivatives contracts and the sale of the securities or securities‑based derivatives contracts is deemed to be void. [4/2017] |
| (15) Any person who contravenes subsection (8) or (12) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction. |
| (16) Any person who contravenes any other provision of this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
| (17) For the purposes of subsection (1)(a), the reference to a statement includes a reference to any information presented, regardless of whether such information is in text or otherwise. |
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| Stop order for prospectus and profile statement |
242.—(1) If a prospectus has been registered and —| (a) | the Authority is of the opinion that the prospectus contains a false or misleading statement; | | (b) | there is an omission from the prospectus of any information that is required to be included in it under section 243; | | (c) | the Authority is of the opinion that the prospectus does not comply with the requirements of this Act; or | | (d) | the Authority is of the opinion that it is in the public interest to do so, |
| the Authority may by a written order (called in this section a stop order) served on the person making the offer of securities or securities‑based derivatives contracts to which the prospectus relates direct that no or no further securities or securities‑based derivatives contracts be allotted, issued or sold. |
[4/2017] (2) If a profile statement has been registered and —| (a) | the Authority is of the opinion that the profile statement contains a false or misleading statement; | | (b) | there is an omission from the profile statement of any information that is required to be included in it under section 246; | | (c) | the Authority is of the opinion that the profile statement does not comply with the requirements of this Act; or | | (d) | the Authority is of the opinion that it is in the public interest to do so, |
| the Authority may by a written order (called in this section a stop order) served on the person making the offer of securities or securities‑based derivatives contracts to which the profile statement relates direct that no or no further securities or securities‑based derivatives contracts be allotted, issued or sold. |
[4/2017] |
| (3) Despite subsections (1) and (2), the Authority must not serve a stop order if any of the securities or securities‑based derivatives contracts to which the prospectus or profile statement relates has been issued or sold, and listed for quotation on an approved exchange and trading in them has commenced. [4/2017] |
(4) The Authority must not serve a stop order under subsection (1) or (2) without giving the person making the offer an opportunity to be heard, except that an opportunity to be heard need not be given if the stop order is served on the ground that it is in the public interest to do so on the basis of any of the following circumstances:| (a) | the person making the offer (being an entity), the issuer or the trustee‑manager of the business trust or, where applicable, the underlying entity or the business trust is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere; | | (aa) | the person making the offer (being an individual) is an undischarged bankrupt, whether in Singapore or elsewhere; | | (b) | a receiver, a receiver and manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of —| (i) | any property of the person making the offer (being an entity), the issuer or, where applicable, the underlying entity; | | (ii) | any property of the trustee‑manager of the business trust; or | | (iii) | the trust property of the business trust. [4/2017] |
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(5) Where applications to subscribe for securities or securities‑based derivatives contracts to which the prospectus or profile statement relates have been made prior to the stop order, then —| (a) | where the securities or securities‑based derivatives contracts have not been issued to the applicants —| (i) | the applications are deemed to have been withdrawn and cancelled; and | | (ii) | the person making the offer must, within 14 days from the date of the stop order, pay to the applicants all moneys the applicants have paid on account of their applications for the securities or securities‑based derivatives contracts; or |
| | (b) | where the securities or securities‑based derivatives contracts have been issued to the applicants —| (i) | the issue of the securities or securities‑based derivatives contracts is deemed to be void; and | | (ii) | the person making the offer must, within 14 days from the date of the stop order, pay to the applicants all moneys paid by them for the securities or securities‑based derivatives contracts. [4/2017] |
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| (6) Subsection (5)(b) has effect despite sections 76 and 76A, and Division 3A of Part 4, of the Companies Act 1967. |
(7) Where applications to purchase securities or securities‑based derivatives contracts to which the prospectus or profile statement relates have been made prior to the stop order, then —| (a) | where the securities or securities‑based derivatives contracts have not been transferred to the applicants —| (i) | the applications are deemed to have been withdrawn and cancelled; and | | (ii) | the person making the offer must, within 14 days from the date of the stop order, pay to the applicants all moneys the applicants have paid on account of their applications for the securities or securities‑based derivatives contracts; or |
| | (b) | where the securities or securities‑based derivatives contracts have been transferred to the applicants, the sale is deemed to be void, and the person making the offer must —| (i) | if documents purporting to evidence title to the securities or securities‑based derivatives contracts have been issued to the applicants —| (A) | within 7 days from the date of the stop order, inform the applicants to return such documents to the person making the offer within 14 days from that date; and | | (B) | within 7 days from the date of the receipt of those documents or the date of the stop order, whichever is the later, pay to the applicants all moneys paid by them for the securities or securities‑based derivatives contracts; or |
| | (ii) | if no such documents have been issued to the applicants, within 7 days from the date of the stop order, pay to the applicants all moneys paid by them for the securities or securities‑based derivatives contracts. [4/2017] |
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| (8) If the Authority is of the opinion that any delay in serving a stop order pending the holding of a hearing required under subsection (4) is not in the interests of the public, the Authority may, without giving an opportunity to be heard, serve an interim stop order on the person making the offer directing that no or no further securities or securities‑based derivatives contracts to which the prospectus or profile statement relates be allotted, issued or sold. [4/2017] |
(9) An interim stop order, unless revoked by the Authority, is in force —| (a) | in a case where —| (i) | it is served during a hearing under subsection (4); or | | (ii) | a hearing under subsection (4) is commenced while it is in force, |
| until the Authority makes an order under subsection (1) or (2); and |
| | (b) | in any other case, for a period of 14 days from the day on which the interim stop order is served. |
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| (10) Subsections (5) and (7) do not apply where only an interim stop order has been served. |
| (11) Any person who fails to comply with a stop order served under subsection (1) or (2) or an interim stop order served under subsection (8) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. |
| (12) Any person who contravenes subsection (5) or (7) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction. |
| (13) For the purposes of subsections (1)(a) and (2)(a), any reference to a statement includes a reference to any information presented, regardless of whether such information is in text or otherwise. |
|
243.—(1) A prospectus for an offer of securities or securities‑based derivatives contracts must contain —| (a) | all the information that investors and their professional advisers would reasonably require to make an informed assessment of the matters specified in subsection (3); and | | (b) | the matters prescribed by the Authority. [4/2017] |
(2) The prospectus must, with respect to subsection (1)(a), contain such information —| (a) | only to the extent to which it is reasonable for investors and their professional advisers to expect to find in the prospectus; and | | (b) | only to the extent that a person whose knowledge is relevant —| (i) | actually knows the information; or | | (ii) | in the circumstances ought reasonably to have obtained the information by making enquiries. |
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(3) The matters referred to in subsection (1)(a) relate to —| (a) | the rights and liabilities attaching to the securities or securities‑based derivatives contracts; | | (b) | in the case of an offer of securities or securities‑based derivatives contracts other than units or derivatives of units in a business trust, the assets and liabilities, profits and losses, financial position and performance, and prospects of the issuer; | | (c) | if the underlying entity is controlled by —| (i) | the person making the offer; | | (ii) | one or more of the related parties of the person making the offer; or | | (iii) | the person making the offer and one or more of that person’s related parties, |
| the assets and liabilities, profits and losses, financial position and performance, and prospects of that entity; |
| | (d) | in the case of an offer of units of shares or debentures, where —| (i) | the person making the offer is or will be required to issue or deliver the relevant units, or meet financial or contractual obligations to the holders of those units; or | | (ii) | an entity which is controlled by one of the following is or will be required to issue or deliver the relevant units, or meet financial or contractual obligations to the holders of those units:| (A) | the person making the offer; | | (B) | one or more of the related parties of the person making the offer; | | (C) | the person making the offer and one or more of that person’s related parties, |
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| the capacity of that person or entity to issue or deliver the relevant securities, or the ability of that person or entity to meet those financial or contractual obligations; |
| | (e) | in the case of an offer of securities or securities‑based derivatives contracts being units or derivatives of units in a business trust, where —| (i) | the person making the offer is the trustee‑manager of the business trust; or | | (ii) | the trustee‑manager of the business trust is controlled by —| (A) | the person making the offer; | | (B) | one or more of the related parties of the person making the offer; or | | (C) | the person making the offer and one or more of that person’s related parties, |
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| the assets and liabilities, profits and losses, financial position and performance of the business trust and of the trustee‑manager, and the prospects of the business trust; |
| | (f) | in the case of an offer of securities or securities‑based derivatives contracts being derivatives of units in a business trust issued by an entity (A) other than the trustee‑manager of the business trust, where —| (i) | the person making the offer is A; or | | (ii) | A is controlled by —| (A) | the person making the offer; | | (B) | one or more of the related parties of the person making the offer; or | | (C) | the person making the offer and one or more of that person’s related parties, |
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| the assets and liabilities, profits and losses, financial position and performance, and prospects of A; and |
| | (g) | in the case of an offer of securities or securities‑based derivatives contracts being derivatives of units in the business trust, where —| (i) | the person making the offer is or will be required to issue or deliver the relevant units or derivatives of units, or meet financial or contractual obligations to the holders of those derivatives of units; or | | (ii) | an entity which is controlled by one of the following is or will be required to issue or deliver the relevant units or derivatives of units, or meet financial or contractual obligations to the holders of those derivatives of units:| (A) | the person making the offer; | | (B) | one or more of the related parties of the person making the offer; | | (C) | the person making the offer and one or more of that person’s related parties, |
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| the capacity of that person or entity to issue or deliver the relevant units or derivatives of units in that business trust, or the ability of that person or entity to meet those financial or contractual obligations. |
[4/2017] |
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(4) In deciding what information must be included under subsection (1)(a), regard must be had to —| (a) | the nature of the securities or securities‑based derivatives contracts and the nature of the entity concerned; | | (b) | the matters that likely investors may reasonably be expected to know; and | | (c) | the fact that certain matters may reasonably be expected to be known to the professional advisers of such investors. [4/2017] |
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| (4A) Subject to any condition or restriction as may be prescribed by regulations made under section 341, the information mentioned in subsection (1) may be incorporated in the prospectus by reference to a document (called in this subsection and subsection (4B) the reference document) lodged with the Authority together with the prospectus. [4/2017] |
| (4B) For the purposes of this Division, the information contained in the reference document is to be regarded as part of the prospectus. [4/2017] |
(5) For the purposes of subsection (2)(b), a person’s knowledge is relevant only if the person is one of the following:| (a) | the person making the offer; | | (b) | if the person making the offer is an entity, a director or an equivalent person of the entity; | | (c) | the issuer; | | (d) | a director or an equivalent person, or a proposed director or an equivalent person, of the issuer; | | (da) | a person named in the prospectus with the person’s consent as an underwriter to the issue or sale; | | (e) | a person named in the prospectus as a stockbroker to the issue or sale if the person participates in any way in the preparation of the prospectus; | | (f) | a person named in the prospectus with the person’s consent as having made a statement —| (i) | that is included in the prospectus; or | | (ii) | on which a statement made in the prospectus is based; |
| | (g) | a person named in the prospectus with the person’s consent as having performed a particular professional or advisory function. |
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| (6) A condition requiring or binding an applicant for securities or securities‑based derivatives contracts to waive compliance with any requirement of this section, or purporting to affect the applicant with notice of any contract, document or matter not specifically referred to in the prospectus, is void. [4/2017] |
| (7) This section does not affect any liability that a person has under any other law. |
(8) In subsection (3)(e) —| “assets and liabilities, profits and losses, financial position and performance”, in relation to a business trust, means the assets and liabilities, profits and losses, financial position and performance of that business trust derived from the accounting records and other records kept by the trustee‑manager of that business trust; |
| “prospects”, in relation to a business trust, means the business and financial prospects anticipated with respect to the operations of the trustee‑manager of the business trust, in its capacity as trustee‑manager of the business trust. [4/2017] |
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| 244. [Repealed by Act 16 of 2003] |
| Retention of over‑subscriptions and statement of asset‑backing in debenture issues |
245.—(1) An entity must not accept or retain subscriptions to a debenture issue in excess of the amount of the issue as disclosed in the prospectus unless the entity has specified in the prospectus —| (a) | that it expressly reserves the right to accept or retain over‑subscriptions; and | | (b) | a limit expressed as a specific sum of money on the amount of over‑subscriptions that may be accepted or retained, being an amount not more than 25% in excess of the amount of the issue as disclosed in the prospectus. |
(2) Subject to regulations made by the Authority for the purposes of this subsection, where an entity specifies in a prospectus relating to a debenture issue that it reserves the right to accept or retain over‑subscriptions —| (a) | the entity must not make, authorise or permit any statement of or reference as to the asset‑backing for the issue to be made or contained in any prospectus relating to the issue, other than a statement or reference to the total tangible assets and the total liabilities of the entity and of its guarantor entities; and | | (b) | the prospectus must contain a statement or reference as to what the total assets and total liabilities of the entity would be if over‑subscriptions to the limit specified in the prospectus were accepted or retained. |
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| (3) Every entity or other person that contravenes subsection (1) or (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
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| Contents of profile statement |
246.—(1) A profile statement for an offer of securities or securities‑based derivatives contracts must contain —| (a) | the following particulars:| (i) | identification of the person making the offer; | | (ia) | where the person making the offer is not the issuer, identification of the issuer and, where applicable, the underlying entity; | | (ib) | in the case of an offer of securities or securities‑based derivatives contracts being units or derivatives of units in a business trust, identification of the business trust, the trustee‑manager of the business trust and the issuer; | | (ii) | identification of the persons signing the profile statement; | | (iii) | the nature of the securities or securities‑based derivatives contracts; | | (iv) | the nature of the risks involved in investing in the securities or securities‑based derivatives contracts; | | (v) | details of all amounts payable in respect of the securities or securities‑based derivatives contracts (including any amount by way of fee, commission or charge); |
| | (b) | a statement that copies of the prospectus are available for collection at the times and places specified in the profile statement; and | | (c) | a statement that the persons referred to in section 240(4A) who have signed the profile statement are satisfied that the profile statement contains a fair summary of the key information in the prospectus. [4/2017] |
(2) A profile statement must not contain —| (a) | any statement that is false or misleading in the form and context in which it is included; | | (b) | any material information that is not contained in the prospectus; and | | (c) | any material information that differs in any material particular from that set out in the prospectus. |
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| (3) For the purposes of subsection (2)(a), the reference to a statement includes a reference to any information presented, regardless of whether such information is in text or otherwise. |
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| Exemption from requirements as to form or content of prospectus or profile statement |
247.—(1) The Authority may exempt any person or any prospectus or profile statement from any requirement of this Act relating to the form or content of a prospectus or profile statement, subject to such conditions or restrictions as the Authority may determine.(2) The Authority must not grant an exemption under subsection (1) unless it is of the opinion that —| (a) | the cost of complying with the requirement in respect of which exemption has been applied for outweighs the resulting protection to investors; or | | (b) | it would not be prejudicial to the public interest if the requirement in respect of which exemption has been applied for were dispensed with. |
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| (3) The Authority may exempt any class of persons, or any class or description of prospectuses or profile statements, from any requirement of this Act relating to the form or content of a prospectus or profile statement, subject to such conditions or restrictions as the Authority may determine. |
| (4) [Deleted by Act 16 of 2003] |
| (5) Any person who contravenes any of the conditions or restrictions imposed under subsection (1) or (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
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| Exemption for certain governmental and international entities as regards signing of copy of prospectus or profile statement by all directors or equivalent persons |
248.—(1) This section applies only to entities that are both of a governmental and international character.| (2) An entity to which this section applies may apply in writing to the Authority for an exemption from the requirements of section 240(1)(a)(ii), (4)(b), (4A), (13)(c) and (14)(c) and the Authority may, if it considers those requirements unduly burdensome on the entity, exempt such entity from complying therewith. |
| (3) The Authority may subject such exemption to a requirement that such minimum number of directors or equivalent persons who are resident in Singapore as the Authority may, in that case, decide must sign the copy of the prospectus or profile statement. |
| (4) In the event that no director or equivalent person is resident in Singapore, the Authority may permit a duly authorised agent to sign the prospectus or profile statement so long as such authorisation is supported by a resolution of the board of the entity. |
| (5) The Authority may, if satisfied that a particular entity cannot comply with any of the requirements in subsection (3) or (4), grant the exemption applied for. |
| (6) Any prospectus or profile statement that complies with the terms of exemption granted by the Authority is deemed to be a prospectus or profile statement for the purposes of this Division and a copy of such prospectus or profile statement must be registered by the Authority. |
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| Expert’s consent to issue of prospectus or profile statement containing statement by him or her |
249.—(1) Where an offer of securities or securities‑based derivatives contracts is made in or accompanied by a prospectus or profile statement which includes a statement purporting to be made by, or based on a statement made by, an expert, the prospectus or profile statement must not be issued unless —| (a) | the expert has given, and has not before the registration of the prospectus or profile statement (as the case may be) withdrawn his or her written consent to the issue thereof with the statement included in the form and context in which it is included; and | | (b) | there appears in the prospectus or profile statement (as the case may be) a statement that the expert has given and has not withdrawn his or her consent. [4/2017] |
| (1A) Every person making the offer must cause a true copy of every written consent referred to in subsection (1) to be deposited, within 7 days after the registration of the prospectus or profile statement, at the registered office of the issuer in Singapore or, if the issuer has no registered office in Singapore, at the address in Singapore specified in the prospectus for that purpose. |
| (1B) Every issuer must keep, and make available for inspection by its members and creditors and persons who have subscribed for or purchased the securities or securities‑based derivatives contracts to which the prospectus or profile statement relates, without payment of any fee, a true copy of every written consent deposited in accordance with subsection (1A) for a period of at least 6 months after the registration of the prospectus or profile statement. [4/2017] |
| (2) If any prospectus or profile statement is issued in contravention of subsection (1), the person making the offer and every person who is knowingly a party to the issue thereof shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
| (3) The Authority may exempt any person or class of persons, or any prospectus or profile statement or class or description of prospectuses or profile statements, from this section, subject to such conditions or restrictions as the Authority may determine. |
| (4) Any person who contravenes any of the conditions or restrictions imposed under subsection (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
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| Consent of issue manager and underwriter to being named in prospectus or profile statement |
249A.—(1) Where an offer of securities or securities‑based derivatives contracts is made in or accompanied by a prospectus or profile statement in which a person is named as the issue manager to the offer, the prospectus or profile statement must not be issued unless —| (a) | the person has given, and has not before the registration of the prospectus or profile statement (as the case may be) withdrawn the person’s written consent to being named in the prospectus or profile statement as issue manager to that offer; and | | (b) | there appears in the prospectus or profile statement (as the case may be) a statement that the person has given and has not withdrawn the person’s consent. [4/2017] |
(2) Where an offer of securities or securities‑based derivatives contracts is made in or accompanied by a prospectus or profile statement in which a person is named as the underwriter (but not a sub‑underwriter) to the offer, the prospectus or profile statement must not be issued unless —| (a) | the person has given, and has not before the registration of the prospectus or profile statement (as the case may be) withdrawn the person’s written consent to being named in the prospectus or profile statement as underwriter to that offer; and | | (b) | there appears in the prospectus or profile statement (as the case may be) a statement that the person has given and has not withdrawn such consent. [4/2017] |
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| (3) If any prospectus or profile statement is issued in contravention of subsection (1) or (2), the person making the offer and every person who is knowingly a party to the issue thereof shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
| (4) Every person making the offer must cause a true copy of every written consent referred to in subsections (1) and (2) to be deposited, within 7 days after the registration of the prospectus or profile statement, at the registered office of the issuer in Singapore or, if it has no registered office in Singapore, at the address in Singapore specified in the prospectus for that purpose. |
| (5) Every issuer must keep, and make available for inspection by its members and creditors and persons who have subscribed for or purchased the securities or securities‑based derivatives contracts to which the prospectus or profile statement relates, without payment of any fee, a true copy of every written consent deposited in accordance with subsection (4) for a period of at least 6 months after the registration of the prospectus or profile statement. [4/2017] |
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| Duration of validity of prospectus and profile statement |
| 250.—(1) A person must not make an offer of securities or securities‑based derivatives contracts, or allot, issue or sell any securities or securities‑based derivatives contracts, on the basis of a prospectus or profile statement after the expiration of the period referred to in subsection (3). [4/2017] (2) In a case where an entity makes an offer of securities or securities‑based derivatives contracts or where the securities or securities‑based derivatives contracts being offered are those issued by an entity or a proposed entity, an officer or equivalent person or a promoter of the entity or proposed entity must not authorise or permit —| (a) | the offer of those securities or securities‑based derivatives contracts; or | | (b) | the allotment, issue or sale of those securities or securities‑based derivatives contracts, |
| on the basis of a prospectus or profile statement after the expiration of the period referred to in subsection (3). |
[4/2017] |
(3) The period under subsection (1) or (2) is —| (a) | in a case where the securities or securities‑based derivatives contracts are debentures or units of debentures issued under a debenture issuance programme under section 240A, 24 months from the date of registration by the Authority of the base prospectus in relation to such offer, allotment, issue or sale; or | | (b) | in any other case, 6 months from the date of registration by the Authority of the prospectus in relation to such offer, allotment, issue or sale. [4/2017] |
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| (4) If default is made in complying with subsection (1) or (2), the person and, in the case of an entity or a proposed entity, every officer or equivalent person or promoter of the entity or proposed entity shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
| (5) An allotment, an issue or a sale of securities or securities‑based derivatives contracts that is made in contravention of subsection (1) or (2) is not, by reason only of that fact, voidable or void. [4/2017] |
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| Restrictions on advertisements, etc. |
251.—(1) If a prospectus is required for an offer or intended offer of securities or securities‑based derivatives contracts, a person must not —| (a) | advertise the offer or intended offer; or | | (b) | publish a statement that —| (i) | directly or indirectly refers to the offer or intended offer; or | | (ii) | is reasonably likely to induce persons to subscribe for or purchase the securities or securities‑based derivatives contracts, |
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| unless the advertisement or publication is authorised by this section. |
[4/2017] (2) In determining whether a statement —| (a) | indirectly refers to an offer or intended offer of securities or securities‑based derivatives contracts; or | | (b) | is reasonably likely to induce persons to subscribe for or purchase securities or securities‑based derivatives contracts, |
| regard must be had to whether the statement — |
| (c) | forms part of the normal advertising —| (i) | of an entity’s products or services and is genuinely directed at maintaining its existing customers, or attracting new customers, for those products or services; or | | (ii) | by a trustee‑manager of a business trust on behalf of the business trust in respect of the products or services offered by the trustee‑manager on behalf of the business trust, and is genuinely directed at maintaining existing customers, or attracting new customers, for those products or services; |
| | (d) | communicates information that materially deals with the affairs of the entity or the business trust; and | | (e) | is likely to encourage investment decisions being made on the basis of the statement rather than on the basis of information contained in a prospectus or profile statement. [4/2017] |
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(3) Despite subsection (6), a person may, before a prospectus or profile statement is registered by the Authority, disseminate a preliminary document which has been lodged with the Authority to institutional investors, relevant persons as defined in section 275(2) or persons to whom an offer referred to in section 275(1A) is to be made without contravening subsection (1), if —| (a) | the front page of the preliminary document contains —| (i) | the following statement:| “This is a preliminary document and is subject to further amendments and completion in the prospectus to be registered by the Monetary Authority of Singapore.”; |
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| | (ii) | a statement that a person to whom a copy of the preliminary document has been issued must not circulate it to any other person; and | | (iii) | a statement in bold lettering that no offer or agreement may be made on the basis of the preliminary document to purchase or subscribe for any securities or securities‑based derivatives contracts to which the preliminary document relates; |
| | (b) | the preliminary document does not contain or have attached to it any form of application that will facilitate the making by any person of an offer of the securities or securities‑based derivatives contracts to which the preliminary document relates, or the acceptance of such an offer by any person; and | | (c) | when the prospectus is registered by the Authority, the person takes reasonable steps to notify the persons to whom the preliminary document was issued that the registered prospectus is available for collection. [4/2017] |
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(4) Despite subsection (6), a person does not contravene subsection (1) —| (a) | by presenting, before a prospectus or profile statement is registered by the Authority, oral or written material on matters contained in a preliminary document which has been lodged with the Authority, to institutional investors, relevant persons as defined in section 275(2) or persons to whom an offer referred to in section 275(1A) is to be made; or | | (b) | by presenting oral or written material on matters contained in a prospectus, profile statement or product highlights sheet which has been lodged with the Authority in respect of an offer of securities or securities‑based derivatives contracts, before the prospectus or profile statement is registered by the Authority, for the sole purpose of equipping any of the following persons with knowledge of the securities or securities‑based derivatives contracts in order to enable the person to carry on the regulated activity of dealing in capital markets products that are securities or securities‑based derivatives contracts, or to provide any financial advisory service in relation to the securities or securities‑based derivatives contracts:| (i) | a person licensed under this Act in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; | | (ii) | an exempt person; | | (iii) | a person who is a representative in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts under this Act; | | (iv) | a representative of an exempt person; | | (v) | a person licensed under the Financial Advisers Act 2001 in respect of advising on any investment product; | | (vi) | an exempt financial adviser; | | (vii) | a person who is a representative in respect of advising on any investment product under the Financial Advisers Act 2001; | | (viii) | a representative of an exempt financial adviser. [34/2012; 4/2017] |
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(5) To avoid doubt, a person may disseminate any of the following without contravening subsection (1):| (a) | a prospectus or profile statement that has been registered by the Authority under section 240; | | (b) | a product highlights sheet in respect of which section 240AA(1)(a) and (b) has been complied with and which is disseminated with a prospectus or profile statement that has been registered by the Authority under section 240. [4/2017] |
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(6) Before a prospectus or profile statement is registered, an advertisement or publication does not contravene subsection (1) if it contains only the following:| (a) | a statement that identifies —| (i) | in the case of an offer of securities or securities‑based derivatives contracts being units or derivatives of units in a business trust, the units or derivatives of units, the person making the offer, the issuer, the business trust and the trustee‑manager of the business trust; and | | (ii) | in any other case, the securities, securities‑based derivatives contracts, the person making the offer, the issuer and, where applicable, the underlying entity; |
| | (b) | a statement that a prospectus or profile statement for the offer will be made available when the offer is made; | | (c) | a statement that anyone wishing to acquire the securities or securities‑based derivatives contracts will need to make an application in the manner set out in the prospectus or profile statement; | | (d) | a statement of how to obtain, or arrange to receive, a copy of the prospectus or profile statement. [4/2017] |
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| (7) To satisfy subsection (6), the advertisement or publication must include all of the statements referred to in paragraphs (a), (b) and (c) of that subsection, and may include the statement referred to in paragraph (d) of that subsection. |
(8) After a prospectus or profile statement is registered with the Authority, an advertisement or a publication does not contravene subsection (1) if —| (a) | it includes a statement that the prospectus or profile statement in respect of the offer of securities or securities‑based derivatives contracts is available for collection at the times and places specified in the statement; | | (b) | it includes a statement that anyone wishing to acquire the securities or securities‑based derivatives contracts will need to make an application in the manner set out in the prospectus or profile statement; | | (c) | it does not contain any information that is not included in the prospectus or profile statement; and | | (d) | it complies with such requirements as the Authority may prescribe by regulations made under section 341. [34/2012] |
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(9) An advertisement or a publication does not contravene subsection (1) if it —| (a) | consists solely of a disclosure, notice or report required under this Act, or any listing rules or other requirements of an approved exchange or overseas exchange made by any person; | | (b) | consists solely of a notice or report of a general meeting or proposed general meeting of the person making the offer, the issuer, the trustee‑manager of the business trust, the underlying entity, the unitholders of the business trust or any entity, or a presentation of oral or written material on matters so contained in the notice or report at the general meeting; | | (c) | consists solely of a report about the issuer, the business trust or the underlying entity that is published by the person making the offer, the issuer, the trustee‑manager of the business trust or the underlying entity (as the case may be), which —| (i) | does not contain information that materially affects the affairs of the issuer, the business trust or the underlying entity other than information previously made available in a prospectus that has been registered by the Authority, an annual report or a disclosure, notice or report mentioned in paragraph (a) or (b); and | | (ii) | does not refer (directly or indirectly) to the offer or intended offer; |
| | (d) | consists solely of a statement made by the person making the offer, the issuer, the trustee‑manager of the business trust or the underlying entity that a prospectus or profile statement in respect of the offer or intended offer has been lodged with the Authority; | | (e) | is a news report, or a genuine comment, by a person other than any person referred to in paragraph (f)(i), (ii), (iii) or (iv), in a newspaper, periodical or magazine or on radio, television or any other means of broadcasting or communication, relating to —| (i) | a prospectus or profile statement that has been lodged with the Authority or information contained in such a prospectus or profile statement; | | (ii) | a disclosure, notice or report referred to in paragraph (a); | | (iii) | a notice, report, presentation, general meeting or proposed general meeting referred to in paragraph (b); | | (iv) | a report referred to in paragraph (c); or | | (v) | a product highlights sheet; |
| | (f) | is a report about the securities or securities‑based derivatives contracts which are the subject of the offer or intended offer, published by someone who is not —| (i) | the person making the offer, the issuer, the underlying entity or (where the securities or securities‑based derivatives contracts are units or derivatives of units in a business trust) the trustee‑manager of the business trust; | | (ii) | a director or an equivalent person of the person making the offer, the issuer, the underlying entity or (where the securities or securities‑based derivatives contracts are units or derivatives of units in a business trust) the trustee‑manager of the business trust; | | (iii) | a person who has an interest in the success of the issue or sale of the securities or securities‑based derivatives contracts; or | | (iv) | a person acting at the instigation of, or by arrangement with, any person mentioned in sub‑paragraph (i), (ii) or (iii); |
| | (g) | is a disclosure, notice, report or publication of a description prescribed by the Authority, and such other conditions as the Authority may prescribe are satisfied; or | | (h) | is a publication made by the person making the offer, the issuer, the underlying entity or (where the offer is of units or derivatives of units in a business trust) the trustee‑manager of the business trust solely to correct or provide clarification on any erroneous or inaccurate information or comment contained in —| (i) | an earlier news report or a genuine comment referred to in paragraph (e); or | | (ii) | an earlier publication published in the ordinary course of business of publishing a newspaper, periodical or magazine, or of broadcasting by radio, television or any other means of broadcasting or communication, referred to in subsection (10), |
| provided that the firstmentioned publication does not contain any material information that is not included in the prospectus. |
[2/2009; 34/2012; 4/2017] |
|
(10) A person does not contravene subsection (1) if —| (a) | the person publishes any advertisement or publication in the ordinary course of a business of —| (i) | publishing a newspaper, periodical or magazine; or | | (ii) | broadcasting by radio, television, or any other means of broadcasting or communication; and |
| | (b) | the person did not know and had no reason to suspect that its publication would constitute a contravention of subsection (1). |
|
| (11) Subsection (9)(e) and (f) does not apply to an advertisement or statement if any person gives consideration or any other benefit for the publication of the advertisement or statement. |
(12) Any person who —| (a) | contravenes subsection (1); or | | (b) | knowingly authorises or permits the publication or dissemination of any advertisement or statement mentioned in subsection (1), |
| shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
[4/2017] |
| (13) This section does not affect any liability that a person has under any other law. |
| (14) The Authority may exempt any person or class of persons from this section, subject to such conditions or restrictions as the Authority may determine. |
| (15) Any person who contravenes any of the conditions or restrictions imposed under subsection (14) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
| (16) For the purposes of this section, any reference to publishing a statement includes a reference to making a statement, whether oral or written, which is reasonably likely to be published. |
| (17) For the purposes of subsections (1) and (2), any reference to a statement includes a reference to any information presented, regardless of whether such information is in text or otherwise. |
(18) For the purposes of subsection (2)(d), the reference to affairs of the entity or the business trust —| (a) | in the case where the entity is a corporation, includes a reference to the matters referred to in section 2(2); and | | (b) | in any other case, is a reference to such matters as the Authority may prescribe. [4/2017] |
|
(18A) In subsection (4) —| “exempt financial adviser” and “financial advisory service” have the meanings given by section 2(1) of the Financial Advisers Act 2001; |
“representative” —| (a) | in relation to dealing in capital markets products that are securities or securities‑based derivatives contracts under this Act or an exempt person, has the meaning given by section 2(1); or | | (b) | in relation to advising on any investment product under the Financial Advisers Act 2001 or an exempt financial adviser, has the meaning given by section 2(1) of that Act. [34/2012; 4/2017] |
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|
(19) For the purposes of subsection (9)(c)(i), the reference to affairs of the issuer, underlying entity or business trust —| (a) | in the case where the issuer or underlying entity is a corporation, includes a reference to the matters referred to in section 2(2); and | | (b) | in any other case, is a reference to such matters as the Authority may prescribe. [4/2017] |
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| Persons liable on prospectus or profile statement to inform person making offer about certain deficiencies |
252.—(1) A person referred to in section 254(3) (other than paragraph (a)) must notify in writing the person making the offer of securities or securities‑based derivatives contracts, as soon as practicable, if the firstmentioned person becomes aware at any time after the prospectus or profile statement is registered by the Authority but before the close of the offer that —| (a) | a statement in the prospectus or the profile statement is false or misleading; | | (b) | there is an omission to state any information required to be included in the prospectus under section 243 or there is an omission to state any information required to be included in the profile statement under section 246, as the case may be; or | | (c) | a new circumstance —| (i) | has arisen since the prospectus or the profile statement was lodged with the Authority; and | | (ii) | would have been required to be included in the prospectus under section 243, or required to be included in the profile statement under section 246 (as the case may be) if it had arisen before the prospectus or the profile statement was lodged with the Authority, |
|
| and the failure to so notify would have been materially adverse from the point of view of an investor. |
[4/2017] | (2) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000. |
| (3) For the purposes of subsection (1)(a), any reference to a statement includes a reference to any information presented, regardless of whether such information is in text or otherwise. |
|
| Criminal liability for false or misleading statements |
253.—(1) Where an offer of securities or securities‑based derivatives contracts is made in or accompanied by a prospectus or profile statement, or, in the case of an offer referred to in section 280, where a prospectus or profile statement is prepared and issued in relation to the offer, and —| (a) | a false or misleading statement is contained in —| (i) | the prospectus or the profile statement; or | | (ii) | any application form for the securities or securities‑based derivatives contracts; |
| | (b) | there is an omission to state any information required to be included in the prospectus under section 243 or there is an omission to state any information required to be included in the profile statement under section 246, as the case may be; or | | (c) | there is an omission to state a new circumstance that —| (i) | has arisen since the prospectus or the profile statement was lodged with the Authority; and | | (ii) | would have been required to be included in the prospectus under section 243, or required to be included in the profile statement under section 246 (as the case may be) if it had arisen before the prospectus or the profile statement was lodged with the Authority, |
|
| the persons referred to in subsection (4) shall be guilty of an offence even if such persons, unless otherwise specified, were not involved in the making of the false or misleading statement or the omission, and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. |
[4/2017] | (2) For the purposes of subsection (1), a false or misleading statement about a future matter (including the doing of, or the refusal to do, an act) is taken to have been made if a person made the statement without having reasonable grounds for making the statement. |
| (3) A person does not contravene subsection (1) if the false or misleading statement, or the omission to state any information or new circumstance, is not materially adverse from the point of view of the investor. |
(4) The persons guilty of the offence are —| (a) | the person making the offer; | | (b) | where the person making the offer is an entity —| (i) | each director or equivalent person of the entity; and | | (ii) | if the entity is also the issuer, each person who is, and who has consented to be, named in the prospectus or profile statement as a proposed director or an equivalent person of the entity; |
| | (c) | where the issuer is controlled by the person making the offer, one or more of the related parties of the person making the offer, or the person making the offer and one or more of that person’s related parties —| (i) | the issuer; | | (ii) | each director or equivalent person of the issuer; and | | (iii) | each person who is, and who has consented to be, named in the prospectus or profile statement as a proposed director or an equivalent person of the issuer; |
| | (d) | an issue manager to the offer of the securities or securities‑based derivatives contracts who is, and who has consented to be, named in the prospectus or profile statement, if —| (i) | the issue manager intentionally or recklessly makes the false or misleading statement or omits to state the information or circumstance; | | (ii) | knowing that the statement in the prospectus or profile statement is false or misleading or that the information or circumstance has been omitted, the issue manager fails to take such remedial action as is appropriate in the circumstances without delay; or | | (iii) | the issue manager is reckless as to whether the statement is false or misleading or whether the information or circumstance has been included; |
| | (e) | an underwriter (but not a sub‑underwriter) to the issue or sale of the securities or securities‑based derivatives contracts who is, and who has consented to be, named in the prospectus or profile statement, if —| (i) | the underwriter intentionally or recklessly makes the false or misleading statement or omits to state the information or circumstance; | | (ii) | knowing that the statement is false or misleading or that the information or circumstance has been omitted, the underwriter fails to take such remedial action as is appropriate in the circumstances without delay; or | | (iii) | the underwriter is reckless as to whether the statement is false or misleading or whether the information or circumstance has been included; |
| | (f) | a person named in the prospectus or the profile statement with the person’s consent as having made —| (i) | the statement that is false or misleading, if the person intentionally or recklessly makes that statement; or | | (ii) | a statement on which the false or misleading statement is based, if the person knows that the second‑mentioned statement is false or misleading and fails to take immediate steps to withdraw the person’s consent, |
| but only in respect of the inclusion of the false or misleading statement; and |
| | (g) | any other person who intentionally or recklessly makes the false or misleading statement, or omits to state the information or circumstance (as the case may be) but only in respect of the inclusion of the statement or the omission to state the information or circumstance, as the case may be. [4/2017] |
|
(5) For the purposes of subsection (4) and this subsection —| (a) | remedial action includes any of the following:| (i) | preventing the statement from being included, or having the information or circumstance included, in the prospectus or profile statement, as the case may be; | | (ii) | procuring the lodgment of a supplementary or replacement prospectus under section 241; and |
| | (b) | a person is reckless as to the matter referred to in subsection (4)(d)(iii) or (e)(iii) if, having been put upon inquiry that the statement to be, or which has been, included in the prospectus or profile statement is likely to be false or misleading, that the information or circumstance is likely to be required to be included in that document, or that there is likely to be an omission to state the information or circumstance in that document, the person fails to —| (i) | make all inquiries as are reasonable in the circumstances to verify this; and | | (ii) | take such remedial action as is appropriate in the circumstances without delay, if such action is warranted by the outcome of the inquiries. |
|
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| (6) For the purposes of this section, any reference to a statement includes a reference to any information presented, regardless of whether such information is in text or otherwise. |
|
| Civil liability for false or misleading statements |
254.—(1) Where an offer of securities or securities‑based derivatives contracts is made in or accompanied by a prospectus or profile statement, or, in the case of an offer referred to in section 280, where a prospectus or profile statement is prepared and issued in relation to the offer, and —| (a) | a false or misleading statement is contained in —| (i) | the prospectus or the profile statement; or | | (ii) | any application form for the securities or securities‑based derivatives contracts; |
| | (b) | there is an omission to state any information required to be included in the prospectus under section 243 or there is an omission to state any information required to be included in the profile statement under section 246, as the case may be; or | | (c) | there is an omission to state a new circumstance that —| (i) | has arisen since the prospectus or the profile statement was lodged with the Authority; and | | (ii) | would have been required by section 243 to be included in the prospectus, or required to be included in the profile statement under section 246 (as the case may be) if it had arisen before the prospectus or the profile statement was lodged with the Authority, |
|
| the persons referred to in subsection (3) are liable to compensate any person who suffers loss or damage as a result of the false or misleading statement in or omission from the prospectus or the profile statement, even if such persons, unless otherwise specified, were not involved in the making of the false or misleading statement or the omission. |
[4/2017] | (2) For the purposes of subsection (1), a false or misleading statement about a future matter (including the doing of, or the refusal to do, an act) is taken to have been made if a person makes the statement without having reasonable grounds for making the statement. |
(3) The persons liable are —| (a) | the person making the offer; | | (b) | where the person making the offer is an entity —| (i) | each director or equivalent person of the entity; and | | (ii) | if the entity is also the issuer, each person who is, and who has consented to be, named in the prospectus or profile statement as a proposed director or an equivalent person of the entity; |
| | (c) | where the issuer is controlled by the person making the offer, one or more of the related parties of the person making the offer, or the person making the offer and one or more of that person’s related parties —| (i) | the issuer; | | (ii) | each director or equivalent person of the issuer; and | | (iii) | each person who is, and who has consented to be, named in the prospectus or the profile statement as a proposed director or an equivalent person of the issuer; |
| | (d) | an issue manager to the offer of the securities or securities‑based derivatives contracts who is, and who has consented to be, named in the prospectus or the profile statement; | | (da) | an underwriter (but not a sub‑underwriter) to the issue or sale of the securities or securities‑based derivatives contracts who is, and who has consented to be, named in the prospectus or the profile statement; | | (e) | a person named in the prospectus or the profile statement with the person’s consent as having made a statement —| (i) | that is included in the prospectus or the profile statement; or | | (ii) | on which a statement made in the prospectus or the profile statement is based, |
| but only in respect of the inclusion of that statement; and |
| | (f) | any other person who made the false or misleading statement or omitted to state the information or circumstance (as the case may be) but only in respect of the inclusion of the statement or the omission to state the information or circumstance. [4/2017] |
|
| (4) A person who acquires securities or securities‑based derivatives contracts as a result of an offer that was made in or accompanied by a profile statement is taken to have acquired the securities or securities‑based derivatives contracts in reliance on both the profile statement and the prospectus for the offer. [4/2017] |
| (4A) For the purposes of this section, any reference to a statement includes a reference to any information presented, regardless of whether such information is in text or otherwise. |
| (5) No action under subsection (1) may be commenced after the expiration of 6 years from the date on which the cause of action arose. |
| (6) This section does not affect any liability that a person has under any other law. |
|
255.—(1) A person referred to in section 253(4)(a), (b) or (c) is not liable under section 253(1), and a person referred to in section 254(3) is not liable under section 254(1), only because of a false or misleading statement in a prospectus or a profile statement if the person proves that the person —| (a) | made all inquiries (if any) that were reasonable in the circumstances; and | | (b) | after doing so, believed on reasonable grounds that the statement was not false or misleading. |
(2) A person referred to in section 253(4)(a), (b) or (c) is not liable under section 253(1), and a person referred to in section 254(3) is not liable under section 254(1), only because of an omission from a prospectus or a profile statement in relation to a particular matter if the person proves that the person —| (a) | made all inquiries (if any) that were reasonable in the circumstances; and | | (b) | after doing so, believed on reasonable grounds that there was no omission from the prospectus or profile statement in relation to that matter. |
|
(3) A person is not liable under section 253(1) or 254(1) only because of a false or misleading statement in, or an omission from, a prospectus or a profile statement if the person proves that the person placed reasonable reliance on information given to the person by —| (a) | if the person is an entity, someone other than —| (i) | a director or an equivalent person; or | | (ii) | an employee or agent, |
| | (b) | if the person is an individual, someone other than an employee or agent of the individual. |
|
| (4) For the purposes of subsection (3), a person is not the agent of an entity or individual merely because that person performs a particular professional or advisory function for the entity or individual. |
(5) A person who is named in a prospectus or a profile statement as —| (a) | a proposed director or an equivalent person of the issuer, or an issue manager or underwriter; | | (b) | having made a statement included in the prospectus or the profile statement; or | | (c) | having made a statement on the basis of which a statement is included in the prospectus or the profile statement, |
| is not liable under section 253(1) or 254(1) only because of a false or misleading statement in, or an omission from, the prospectus or the profile statement if the person proves that the person publicly withdrew the person’s consent to being named in the prospectus or the profile statement in that way. |
|
| (6) A person is not liable under section 253(1) or 254(1) only because of a new circumstance that has arisen since the prospectus or the profile statement was lodged with the Authority if the person proves that the person was not aware of the matter. |
| (7) For the purposes of this section, any reference to a statement includes a reference to any information presented, regardless of whether such information is in text or otherwise. |
|
| 256. [Repealed by Act 1 of 2005] |
| Document containing offer of securities or securities‑based derivatives contracts for sale deemed prospectus |
257.—(1) Subsection (2) applies where —| (a) | an entity allots or agrees to allot to any person any securities or securities‑based derivatives contracts of the entity or a business trust (as the case may be) with a view to all or any of them being subsequently offered for sale to another person; and | | (b) | such offer (called in this section a subsequent offer) does not qualify for an exemption under Subdivision (4) of this Division (other than section 280). [4/2017] |
(2) Any document by which the subsequent offer is made is for all purposes deemed to be a prospectus issued by the entity, and the entity is for all purposes deemed to be the person making the offer, and all written laws and rules of law as to the contents of prospectuses and to liability in respect of statements and non‑disclosure in prospectuses, or otherwise relating to prospectuses, apply and have effect accordingly as if —| (a) | an offer of securities or securities‑based derivatives contracts has been made; and | | (b) | persons accepting the subsequent offer in respect of any securities or securities‑based derivatives contracts were subscribers therefor, |
| but without affecting the liability (if any) of the persons making the subsequent offer, in respect of statements or non‑disclosures in the document or otherwise. |
[4/2017] |
(3) For the purposes of this Act, unless the contrary is proved, it is sufficient evidence that an allotment of, or an agreement to allot, securities or securities‑based derivatives contracts was made with a view to the securities or securities‑based derivatives contracts being subsequently offered for sale if it is shown —| (a) | that an offer of the securities or securities‑based derivatives contracts or of any of them for sale was made within 6 months after the allotment or agreement to allot; or | | (b) | that at the date when the offer was made the whole consideration to be received by the entity in respect of the securities or securities‑based derivatives contracts had not been so received. [4/2017] |
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| (4) The requirements of this Division as to prospectuses have effect as though the persons making the subsequent offer were persons named in the prospectus as directors or equivalent persons of the entity. |
(5) In addition to complying with the other requirements of this Division, the document making the subsequent offer must state —| (a) | the net amount of the consideration received or to be received by the entity in respect of the securities or securities‑based derivatives contracts being offered; and | | (b) | the place and time at which a copy of the contract under which the securities or securities‑based derivatives contracts have been or are to be allotted may be inspected. [4/2017] |
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| Application and moneys to be held in trust in separate bank account until allotment |
| 258.—(1) All application and other moneys paid prior to allotment by any applicant on account of securities or securities‑based derivatives contracts offered to the applicant must, until the allotment of the securities or securities‑based derivatives contracts, be held by the person making the offer of the securities or securities‑based derivatives contracts upon trust for the applicant in a separate bank account, being a bank account that is established and kept by the person solely for the purpose of depositing the application and other moneys that are paid by applicants for those securities or securities‑based derivatives contracts. [4/2017] | (2) There is no obligation or duty on any bank with which any such moneys have been deposited to enquire into or see to the proper application of those moneys, so long as the bank acts in good faith. |
| (3) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
|
| Allotment of securities or securities‑based derivatives contracts where prospectus indicates application to list on approved exchange |
259.—(1) Where a prospectus states or implies that application has been or will be made for permission for the securities or securities‑based derivatives contracts offered thereby to be listed for quotation on any approved exchange, and —| (a) | the permission is not applied for in the form required by the approved exchange within 3 days from the date of the issue of the prospectus; or | | (b) | the permission is not granted before the expiration of 6 weeks from the date of the issue of the prospectus or such longer period not exceeding 12 weeks from the date of the issue as is, within those 6 weeks, notified to the applicant by or on behalf of the approved exchange, |
| (c) | any allotment whenever made of securities or securities‑based derivatives contracts made on an application pursuant to the prospectus is, subject to subsection (3), void; and | | (d) | any person who continues to allot such securities or securities‑based derivatives contracts after the period specified in paragraph (a) or (b), shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. [4/2017] |
(2) Where the permission has not been applied for, or has not been granted as mentioned under subsection (1), the person making the offer must, subject to subsection (3), immediately repay without interest all moneys received from applicants pursuant to the prospectus, and if any such moneys is not repaid within 14 days after the person making the offer so becomes liable to repay them, then —| (a) | the person making the offer is liable to repay those moneys with interest at the rate of 10% per annum from the expiration of such 14 days; and | | (b) | where the person making the offer is an entity, in addition to the liability of the entity, the directors or equivalent persons of the entity are jointly and severally liable to repay those moneys with interest at the rate of 10% per annum from the expiration of such 14 days. |
|
(3) Where in relation to any securities or securities‑based derivatives contracts —| (a) | permission is not applied for as mentioned in subsection (1)(a); or | | (b) | permission is not granted as mentioned in subsection (1)(b), |
| the Authority may, on the application of the issuer made before any of the securities or securities‑based derivatives contracts is purported to be allotted, exempt the allotment of the securities or securities‑based derivatives contracts from the provisions of this section, and the Authority must give notice of such exemption in the Gazette. |
[4/2017] |
| (4) A director or an equivalent person is not liable under subsection (2) if he or she proves that the default in the repayment of the money was not due to any misconduct or negligence on his or her part. |
| (5) Any condition requiring or binding any applicant for securities or securities‑based derivatives contracts to waive compliance with any requirement of this section or purporting to do so is void. [4/2017] |
(6) Without limiting the application of any of its provisions, this section has effect —| (a) | in relation to any securities or securities‑based derivatives contracts agreed to be taken by a person underwriting an offer thereof contained in a prospectus as if the person had applied therefor pursuant to the prospectus; and | | (b) | in relation to a prospectus offering securities or securities‑based derivatives contracts for sale as if a reference to sale were substituted for a reference to allotment. [4/2017] |
|
| (7) All moneys received from applicants pursuant to the prospectus must be kept in a separate bank account so long as the person making the offer may become liable to repay it under subsection (2). |
| (8) Any person who contravenes subsection (7) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
| (9) Where the approved exchange has within the time specified in subsection (1)(b) granted permission subject to compliance with any requirements specified by the approved exchange, permission is deemed to have been granted by the approved exchange if the directors or equivalent persons have given to the approved exchange an undertaking in writing to comply with the requirements of the approved exchange. [4/2017] |
| (10) If any such undertaking referred to in subsection (9) is not complied with, each director or equivalent person who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
(11) A person must not issue a prospectus inviting persons to subscribe for securities or securities‑based derivatives contracts of an entity if it includes —| (a) | a false or misleading statement that permission has been granted for those securities or securities‑based derivatives contracts to be listed for quotation on, dealt in or quoted on any approved exchange; or | | (b) | any statement in any way referring to any such permission or to any application or intended application for any such permission, or to listing for quotation, dealing in or quoting the securities or securities‑based derivatives contracts on any approved exchange, or to any requirement of an approved exchange, unless —| (i) | that statement is or is to the effect that permission has been granted, or that application has been or will be made to the approved exchange within 3 days after the date of the issue of the prospectus; or | | (ii) | that statement has been approved by the Authority for inclusion in the prospectus. [4/2017] |
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| (12) Any person who contravenes subsection (11) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
| (13) Where a prospectus contains a statement to the effect that the memorandum and articles or other constituent document or documents of the issuer comply, or have been drawn so as to comply, with the requirements of any approved exchange, the prospectus is, unless the contrary intention appears from the prospectus, deemed for the purposes of this section to imply that application has been, or will be, made for permission for the securities or securities‑based derivatives contracts to which the prospectus relates to be listed for quotation on the approved exchange. [4/2017] |
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| Prohibition of allotment unless minimum subscription received |
260.—(1) A person must not make an allotment of any securities or securities‑based derivatives contracts of a company or business trust unless —| (a) | the minimum subscription has been subscribed; and | | (b) | the sum payable on application for the securities or securities‑based derivatives contracts so subscribed has been received by the company or the trustee‑manager, as the case may be. [4/2017] |
| (1A) Despite subsection (1), if a cheque for the sum payable mentioned in subsection (1) has been received by the company or the trustee‑manager of the business trust (as the case may be), the sum is treated as not having been received by the company or the trustee‑manager (as the case may be) until the cheque is paid by the bank on which the cheque is drawn. [4/2017] |
(2) The minimum subscription must —| (a) | be calculated based on the price at which each share or debenture, each unit of share or debenture, or each unit or derivative of a unit in a business trust, is or will be offered; and | | (b) | be reckoned exclusively of any amount payable otherwise than in cash. [4/2017] |
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| (3) The amount payable on application on each share or debenture, or each unit of share or debenture, or each unit or derivative of a unit in a business trust, offered must not be less than 5% of the price at which the share or debenture, or unit of share or debenture, or unit or derivative of a unit in a business trust, is or will be offered. [4/2017] |
| (4) If the conditions referred to in subsection (1)(a) and (b) have not been satisfied on the expiration of 4 months after the first issue of the prospectus, all moneys received from applicants for securities or securities‑based derivatives contracts must be immediately repaid to them without interest. [4/2017] |
| (5) If any money mentioned in subsection (4) is not repaid within 5 months after the issue of the prospectus, the directors of the company or the directors of the trustee‑manager of the business trust (as the case may be) are jointly and severally liable to repay that money with interest at the rate of 10% per annum from the expiration of the period of 5 months. [4/2017] |
| (6) A director is not liable under subsection (5) if the director proves that the default in the repayment of the money was not due to any misconduct or negligence on the part of the director. [4/2017] |
(7) An allotment made by a company or a trustee‑manager of a business trust to an applicant in contravention of this section is voidable at the option of the applicant, which option may be exercised by written notice served —| (a) | if the allotment is made by a company, on the company —| (i) | within one month after the holding of the statutory meeting of the company; or | | (ii) | where the company is not required to hold a statutory meeting, or where the allotment is made after the holding of the statutory meeting, within one month after the date of the allotment; or |
| | (b) | if the allotment is made by a trustee‑manager of a business trust, on the trustee‑manager of the business trust within one month after the date of the allotment. [4/2017] |
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| (7A) The allotment mentioned in subsection (7) is voidable even if the company or business trust is in the course of being wound up. [4/2017] |
(7B) A trustee‑manager of a business trust which contravenes any of the provisions of this section shall be guilty of an offence and shall be liable, in addition to the penalty or punishment for the offence —| (a) | to pay into the trust property of the business trust any loss, damages or costs which the business trust (represented by any diminishment in value to the trust property of the business trust) has sustained or incurred as a consequence of such contravention; and | | (b) | to compensate the allottee for any loss, damages or costs which the allottee has sustained or incurred as a consequence of such contravention. [4/2017] |
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(7C) Every director of a trustee‑manager of a business trust who knowingly contravenes or permits or authorises the contravention of any of the provisions of this section shall be guilty of an offence and shall be liable, in addition to the penalty or punishment for the offence —| (a) | to pay into the trust property of the business trust any loss, damages or costs which the business trust (represented by any diminishment in value to the trust property of the business trust) has sustained or incurred as a consequence of such contravention; and | | (b) | to compensate the allottee for any loss, damages or costs which the allottee has sustained or incurred as a consequence of such contravention. [4/2017] |
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(7D) Every director of a company who knowingly contravenes or permits or authorises the contravention of any of the provisions of this section shall be guilty of an offence and shall be liable, in addition to the penalty or punishment for the offence —| (a) | to compensate the company for any loss, damages or costs which the company has sustained or incurred as a consequence of such contravention; and | | (b) | to compensate the allottee for any loss, damages or costs which the allottee has sustained or incurred as a consequence of such contravention. [4/2017] |
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| (8) No proceedings for the recovery of any compensation under subsection (7) may be commenced after the expiration of 2 years from the date of the allotment. |
| (9) Any condition requiring or binding any applicant for securities or securities‑based derivatives contracts to waive compliance with any requirement of this section is void. [4/2017] |
|
| Subdivision (3) — Debentures |
261.—(1) Subject to subsection (1A), this Subdivision applies where an entity makes an offer of debentures.| (1A) Sections 268, 269 and 270 do not apply if the borrowing entity is a prescribed entity. |
(1B) In subsections (1A) and (1C), “prescribed entity” means —| (a) | any bank licensed under the Banking Act 1970; or | | (b) | any entity or entity of a class which has been declared by the Authority, by order in the Gazette, to be a prescribed entity for the purposes of this section. |
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(1C) The Authority may, by written notice —| (a) | impose such conditions or restrictions on a prescribed entity as it thinks fit; and | | (b) | at any time vary or revoke any condition or restriction so imposed, |
| and the prescribed entity must comply with every such condition or restriction imposed on it by the Authority that has not been revoked by the Authority. |
|
| (1D) Any person who contravenes any condition or restriction imposed under subsection (1C)(a) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
| (2) [Deleted by Act 1 of 2005] |
| (3) In this Subdivision, a corporation is related to another corporation if it is deemed to be related to that other corporation by virtue of section 6 of the Companies Act 1967. |
|
| Offer of asset‑backed securities |
262.—(1) An offer of asset‑backed securities is made only if they are issued by —| (a) | a special purpose vehicle other than a trust; or | | (b) | the trustee of a trust that is a special purpose vehicle. |
| (2) The Authority may exempt any person or class of persons from this section, subject to such conditions or restrictions as the Authority may determine. |
(3) In this section —| “asset‑backed securities” means debentures or units of debentures issued pursuant to a securitisation transaction; |
“securitisation transaction” means an arrangement that involves the sale, transfer or assignment of assets to a special purpose vehicle where —| (a) | such sale, transfer or assignment is funded by the issue of debentures or units of debentures (whether by that special purpose vehicle or another special purpose vehicle); and | | (b) | payments in respect of such debentures or units of debentures are or will be principally derived, directly or indirectly, from the cash flows generated by the assets; |
|
“special purpose vehicle” means an entity that is established solely in order to, or a trust that is established solely in order for its trustee to, do either or both of the following:| (a) | hold (whether as a legal or equitable owner) the assets from which payments to holders of any asset‑backed securities are or will be primarily derived; | | (b) | issue any asset‑backed securities. |
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| 263. [Repealed by Act 16 of 2003] |
| 264. [Repealed by Act 16 of 2003] |
| Power of court in relation to certain irredeemable debentures |
265.—(1) Despite anything in any debenture or trust deed, the security for any debentures which are irredeemable or redeemable only on the happening of a contingency is, if the court so orders, enforceable, immediately or at such other time as the court directs if, on the application of the trustee for the holders of the debentures or (where there is no trustee) on the application of any holder of the debentures, the court is satisfied that —| (a) | at the time of the issue of the debentures the assets of the borrowing entity which constituted or were intended to constitute the security therefor were sufficient or likely to become sufficient to discharge the principal debt and any interest thereon; | | (b) | the security, if realised under the circumstances existing at the time of the application, would be likely to bring not more than 60% of the principal sum of moneys outstanding (regard being had to all prior charges and charges ranking pari passu, if any); and | | (c) | the assets covered by the security, on a fair valuation on the basis of a going concern after allowing a reasonable amount for depreciation are worth less than the principal sum and the borrowing entity is not making sufficient profit to pay the interest due on the principal sum or (where no definite rate of interest is payable) interest thereon at such rate as the court considers would be a fair rate to expect from a similar investment. |
| (2) Subsection (1) does not affect any power to vary rights or accept any compromise or arrangement created by the terms of the debentures or the relevant trust deed or under a compromise or arrangement between the borrowing entity and creditors. |
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| 265A.—(1) Where an offer of debentures is made in or accompanied by a prospectus, the borrowing entity must appoint a trustee for the holders of debentures (called in this section the appointed trustee) for the entire tenure of the debentures. [34/2012] (2) The borrowing entity must ensure that —| (a) | where the debentures are asset‑backed securities or structured notes, the appointed trustee is any of the following persons:| (i) | a holder of a trust business licence under the Trust Companies Act 2005 that is carrying on business in Singapore in that capacity; | | (ii) | a bank licensed under the Banking Act 1970 that is carrying on business in Singapore in that capacity; | | (iii) | an approved trustee referred to in section 289 that is carrying on business in Singapore in that capacity; | | (iv) | such other person as the Authority may prescribe by regulations made under section 341; |
| | (b) | where the debentures are not asset‑backed securities or structured notes, the appointed trustee is any of the following persons:| (i) | a holder of a trust business licence under the Trust Companies Act 2005 that is carrying on business in Singapore in that capacity; | | (ii) | a bank licensed under the Banking Act 1970 that is carrying on business in Singapore in that capacity; | | (iii) | an approved trustee referred to in section 289 that is carrying on business in Singapore in that capacity; | | (iv) | any other person whom the borrowing entity is satisfied, on reasonable grounds, is, and will be, able to take timely and appropriate action on behalf of the holders of debentures, in the event of a default or as required by the trust deed; | | (v) | such other person as the Authority may prescribe by regulations made under section 341; |
| | (c) | the appointed trustee is independent of the borrowing entity, guarantor entity, arranger and counterparty of the debentures; and | | (d) | the appointed trustee meets such requirements as the Authority may prescribe by regulations made under section 341. [34/2012] |
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(3) For the purposes of subsection (2)(b)(iv), the borrowing entity must, before being satisfied that a person is, and will be, able to take timely and appropriate action on behalf of the holders of debentures, in the event of a default or as required by the trust deed, consider the following matters:| (a) | whether the person is licensed or regulated in the jurisdiction —| (i) | in which the person was incorporated or formed; or | | (ii) | of the person’s principal place of business; |
| | (b) | the contractual arrangements between the borrowing entity and the person; | | (c) | whether, if the person is the appointed trustee, the duties which will be imposed on the person by way of the trust deed, or under the laws and practices of the jurisdiction referred to in paragraph (a), are at least equivalent to those imposed under section 266(1); | | (d) | such other matters as the Authority may prescribe by regulations made under section 341. [34/2012] |
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| (4) Any person who contravenes subsection (1), (2) or (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
(5) In this section —| “asset‑backed securities” has the meaning given by section 262(3); |
| “structured notes” has the meaning given by section 240AA(5). [34/2012] |
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266.—(1) A trustee for the holders of debentures must —| (a) | at all times exercise due diligence and vigilance in carrying out its functions and duties, and in safeguarding the rights and interests of the holders of debentures; | | (b) | ensure that it has the ability and powers to perform all of its duties as set out in the trust deed; | | (c) | ensure that any trustee appointed for the holders of any collateral upon which the debentures are secured is subject to duties that are at least equivalent to those imposed under paragraphs (a) and (b); and | | (d) | comply with such other requirements as the Authority may prescribe by regulations made under section 341, or as the Authority may impose in respect of any particular offer or transaction relating to the debentures. [34/2012] |
| (2) Where, after due inquiry, the trustee for the holders of debentures at any time is of the opinion that the assets of the borrowing entity and of any of its guarantor entities which are or should be available whether by way of security or otherwise, are insufficient, or likely to become insufficient, to discharge the principal debt as and when it becomes due, the trustee may apply to the Authority for an order under this subsection. |
(3) The Authority, on such application —| (a) | after giving the borrowing entity an opportunity of making representations in relation to that application, by written order served on the entity at its registered office in Singapore, may impose such restrictions on the activities of the borrowing entity, including restrictions on advertising for deposits or loans and on borrowing by the entity as the Authority thinks necessary for the protection of the interests of the holders of the debentures; or | | (b) | may, and if the borrowing entity so requires, must direct the trustee to apply to the court for an order under subsection (5); and the trustee must apply accordingly. |
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(4) Where —| (a) | after due inquiry, the trustee at any time is of the opinion that the assets of the borrowing entity and of any of its guarantor entities which are or should be available, whether by way of security or otherwise, are insufficient or likely to become insufficient, to discharge the principal debt as and when it becomes due; or | | (b) | the borrowing entity has contravened an order made by the Authority under subsection (2), |
| the trustee may, and where the borrowing entity has requested the trustee to do so, must apply to the court for an order under subsection (5). |
|
(5) Where an application is made to the court under subsection (3) or (4), the court may, after giving the borrowing entity an opportunity to be heard, by order, do all or any of the following things:| (a) | direct the trustee to convene a meeting of the holders of the debentures for the purpose of placing before them such information relating to their interests and such proposals for the protection of their interests as the trustee considers necessary or appropriate, and of obtaining their directions in relation thereto and give such directions in relation to the conduct of the meeting as the court thinks fit; | | (b) | stay all or any actions or proceedings before any court by or against the borrowing entity; | | (c) | restrain the payment of any moneys by the borrowing entity to the holders of debentures of the borrowing entity or to any class of such holders; | | (d) | appoint a receiver of such of the property as constitutes the security (if any) for the debentures; | | (e) | give such further directions from time to time as may be necessary to protect the interests of the holders of the debentures, the members of the borrowing entity or any of its guarantor entities or the public, |
| but in making any such order the court must have regard to the rights of all creditors of the borrowing entity. |
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| (6) The court may vary or rescind any order made under subsection (5) as the court thinks fit. |
| (7) A trustee in making any application to the Authority or to the court must have regard to the nature and kind of the security given when the offer of the debentures was made, and if no security was given must have regard to the position of the holders of the debentures as unsecured creditors of the borrowing entity. |
| (8) A trustee may rely upon any certificate or report given or statement made by any advocate and solicitor, auditor or officer of the borrowing entity or guarantor entity if it has reasonable grounds for believing that such advocate and solicitor, auditor or officer was competent to give or make the certificate, report or statement. |
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| Powers of trustee to apply to court for directions, etc. |
267.—(1) A trustee for the holders of debentures may apply to the court —| (a) | for directions in relation to any matter arising in connection with the performance of the functions of the trustee; or | | (b) | to determine any question in relation to the interests of the holders of debentures. |
(2) The court may —| (a) | give such directions to the trustee as the court thinks fit; and | | (b) | if satisfied that the determination of the question will be just and beneficial, accede wholly or partially to any such application on such terms and conditions as the court thinks fit or make such other order on the application as the court thinks just. |
|
| (3) The court may, on an application under this section, order a meeting of all or any of the holders of debentures to be called to consider any matters in which they are concerned and to advise the trustee on those matters and may give such ancillary or consequential directions as the court thinks fit. |
| (4) The meeting must be held and conducted in such manner as the court directs, by a chairperson nominated by the trustee or such other person as the meeting appoints. |
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| Right of Authority, approved exchange and holders of debentures to apply to court for order |
| 267A. Without affecting any other right of action or remedy in any written law or rule of law, a holder of debentures, the Authority or an approved exchange (in a case where the debentures are quoted or listed for quotation on that approved exchange) may apply to the court for an order to compel the trustee for the holders of such debentures to perform the trustee’s duties as set out in the trust deed relating to those debentures, and the court may either make the order on such terms as it considers appropriate, or dismiss the application. [4/2017] |
| Obligations of borrowing entity |
268.—(1) [Deleted by Act 34 of 2012]| (2) [Deleted by Act 34 of 2012] |
| (3) [Deleted by Act 34 of 2012] |
(4) Where there is a trustee for the holders of any debentures issued by a borrowing entity, the borrowing entity and each of its guarantor entities which has guaranteed the repayment of the moneys raised by the issue of those debentures must, whether or not any demand therefor has been made —| (a) | in writing provide the trustee, within 21 days after the creation of the charge, with the particulars of any charge created by the entity or the guarantor entity, as the case requires; and | | (b) | when the amount to be advanced on the security of the charge is indeterminate, in writing provide the trustee, within 7 days after the advance, with particulars of the amount or amounts in fact advanced. |
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| (5) Where any such advance referred to in subsection (4)(b) is merged in a current account with bankers or trade creditors, it is sufficient for particulars of the net amount outstanding in respect of any such advance to be provided every 3 months. |
(6) The directors or equivalent persons of every borrowing entity and of every guarantor entity must cause to be made out and lodged with the trustee for the holders of the debentures, if any —| (a) | a profit and loss account for the first 6 months of every financial year of the entity and a balance sheet as at the end of that period, not later than 3 months after the expiration of the period of 6 months; and | | (b) | a profit and loss account for every financial year of the entity and a balance sheet as at the end of that period, not later than 5 months after the expiration of that financial year. [34/2012] |
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| (6A) Any person who provides any information contained in a profit and loss account or balance sheet required under subsection (6) must use due care to ensure that the information is not false or misleading in any material particular. [34/2012] |
| (7) Any person who fails to comply with subsection (6) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $15,000 and, in the case of a continuing offence, to a further fine not exceeding $1,000 for every day or part of a day during which the offence continues after conviction. |
| (7A) Any person who contravenes subsection (6A) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 2 years or to both. [34/2012] |
| (8) Sections 201(8), (9), (10), (12), (13), (14), (15) and (16) and 207(1), (2) and (7) of the Companies Act 1967 are, with such adaptations as are necessary, applicable to every profit and loss account and balance sheet made out and lodged under subsection (6) as if that profit and loss account and balance sheet were financial statements referred to in those sections. [35/2014] |
| (9) Where the directors or equivalent persons of a borrowing entity, or the directors or equivalent persons of a guarantor entity, do not lodge with the trustee the profit and loss accounts and balance sheets as required under subsection (6) within the time prescribed under that subsection, the trustee must immediately lodge notice of that fact with the Authority. [34/2012] |
(10) Despite anything in subsection (8) —| (a) | a profit and loss account and balance sheet of a borrowing entity or its guarantor entity required to be made out and lodged in accordance with subsection (6)(a) need not be audited; and | | (b) | a profit and loss account and balance sheet of a borrowing entity or its guarantor entity required to be made out and lodged in accordance with subsection (6)(b) need not be audited, or the audit thereof may be of a limited nature or extent, if the trustee for the holders of the debentures of the borrowing entity has, by written notice, consented to the audit being dispensed with or being of a limited nature or extent, as the case may be. [2/2009] |
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| (11) Where the trustee has by written notice given the trustee’s consent under subsection (10), the directors or equivalent persons of the borrowing entity, or the directors or equivalent persons of the guarantor entity, in respect of whose profit and loss account and balance sheet the notice was given, must lodge with the Authority a copy of the notice at the time when the profit and loss account and balance sheet to which the notice relates are lodged with the Authority. |
| (12) Despite anything in this section, a profit and loss account and balance sheet of a borrowing entity or its guarantor entity required to be made out and lodged in accordance with subsection (6) may, unless the trustee for the holders of the debentures of the borrowing entity otherwise requires in writing, be based upon the value of the stock in trade of the borrowing entity or the guarantor entity (as the case may be) as reasonably estimated by the directors or equivalent persons of the borrowing entity or guarantor entity. |
| (13) The estimation of the directors or equivalent persons referred to in subsection (12) must be made on the basis of the values of such stock in trade as adopted for the purpose of the profit and loss account and balance sheet of that entity laid before the entity at its last preceding annual general meeting and certified in writing by the directors or equivalent persons as such. |
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| Additional obligations of borrowing entity, where debentures are not listed on approved exchange |
| 268A.—(1) A borrowing entity that issues any debentures which are not listed on an approved exchange (called in this section unlisted debentures) must, if the unlisted debentures have a tenure of 12 months or longer, prepare and make available to the holders of the debentures, in respect of the period of 6 months beginning on the date of issuance of the debentures and each subsequent period of 6 months, a report covering the period of 6 months (called in this section a semi‑annual report), in accordance with this section and such other requirements as the Authority may prescribe by regulations made under section 341. [34/2012; 4/2017] | (2) The borrowing entity must ensure that each semi‑annual report covering a period of 6 months is lodged with the trustee for the holders of the unlisted debentures, not later than 2 months after the end of that period. [34/2012] |
| (3) Where the borrowing entity does not lodge with the trustee for the holders of unlisted debentures a semi‑annual report as required under subsection (2), the trustee must immediately lodge notice of that fact with the Authority. [34/2012] |
(4) A borrowing entity must immediately disclose, in such form and manner as the Authority may prescribe by regulations made under section 341, to holders of unlisted debentures any information which may materially affect —| (a) | the risks and returns of the unlisted debentures; or | | (b) | the price or value of the unlisted debentures. [34/2012] |
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| (5) Any person who contravenes subsection (1), (2) or (4) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000 and, in the case of a continuing offence, to a further fine not exceeding $2,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
(6) Where the terms of any unlisted debentures provide for redemption at the option of the holder of the unlisted debentures, the borrowing entity must —| (a) | make available bid or redemption prices of the unlisted debentures, at the frequency at which the borrowing entity has committed to buying back the unlisted debentures or once every fortnight, whichever is more frequent, in such form and manner as the Authority may prescribe by regulations made under section 341; | | (b) | if the published bid prices are indicative and may not be the actual bid prices, clearly state this fact, wherever the published bid prices appear, in such form and manner as the Authority may prescribe by regulations made under section 341; and | | (c) | ensure that the bid or redemption prices are determined in an independent and fair manner. [34/2012] |
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| (7) A borrowing entity must ensure that each profit and loss account or balance sheet that its directors or equivalent persons are required to lodge under section 268(6) is made available, in such form and manner as the Authority may prescribe by regulations made under section 341, to holders of unlisted debentures, on the day of lodgment of the profit and loss account or balance sheet (as the case may be) with the trustee for the holders of the unlisted debentures. [34/2012] |
| (8) Any person who contravenes subsection (6) or (7) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $15,000 and, in the case of a continuing offence, to a further fine not exceeding $1,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
| (9) Any person who provides any information contained in a semi‑annual report required under subsection (2) must use due care to ensure that the information is not false or misleading in any material particular. [34/2012] |
| (10) Any person who contravenes subsection (9) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 2 years or to both. [34/2012] |
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| Obligation of guarantor entity to provide information |
269.—(1) For the purpose of the preparation of a report that, by this Subdivision, is required to be signed by or on behalf of the directors or equivalent persons, or persons approved by the Authority, of a borrowing entity or any of them, that borrowing entity may, by written notice, require any of its guarantor entities to provide it with any information relating to that guarantor entity which is, by this Subdivision, required to be contained in that report.| (2) The guarantor entity must provide the borrowing entity with the information required under subsection (1) before such date, being a date not earlier than 14 days after the notice is given, as may be specified in that behalf in the notice. |
| (3) A guarantor entity which fails to comply with a requirement contained in a notice given under subsection (1) and every officer or equivalent person of that entity who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000 and, in the case of a continuing offence, to a further fine not exceeding $2,000 for every day or part of a day during which the offence continues after conviction. |
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| Loans and deposits to be immediately repayable on certain events |
270.—(1) Where there is, in any prospectus issued in connection with an offer of debentures, a statement as to any particular purpose or project for which the moneys received by the borrowing entity in response to the offer are to be applied, the borrowing entity must, where there is a trustee for the holders of those debentures, from time to time make reports to the trustee as to the progress that has been made towards achieving such purpose or completing such project.| (2) Each such report must be included in the report required to be provided to the trustee for the holders of the debentures under section 268(1). |
(3) When it appears to the trustee for the holders of the debentures that such purpose or project has not been achieved or completed —| (a) | within the time stated in the prospectus within which the purpose or project is to be achieved or completed; or | | (b) | where no such time was stated, within a reasonable time, |
| the trustee may and, if in the trustee’s opinion it is necessary for the protection of the interests of the holders of the debentures, must give written notice to the borrowing entity requiring it to repay the moneys so received by the borrowing entity and, within one month after such notice is given, lodge with the Authority a copy thereof. |
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(4) The trustee must not give notice under subsection (3) if the trustee is satisfied —| (a) | that the purpose or project has been substantially achieved or completed; | | (b) | that the interests of the holders of debentures have not been materially prejudiced by the failure to achieve or complete the purpose or project within the time stated in the prospectus or within a reasonable time; or | | (c) | that the failure to achieve the purpose or project was due to circumstances beyond the control of the borrowing entity that could not reasonably have been foreseen by the borrowing entity at the time that the prospectus was issued. |
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(5) Upon receipt by the borrowing entity of a notice referred to in subsection (3), the borrowing entity is liable to repay, and on demand in writing by a person entitled thereto must immediately repay to the person any moneys owing to the person as the result of a loan or deposit made in response to the offer unless —| (a) | before the moneys were accepted by the borrowing entity, the borrowing entity had given written notice to the persons from whom the moneys were received specifying the purpose or project for which the moneys would in fact be used and the moneys were accepted by the borrowing entity accordingly; or | | (b) | the borrowing entity by written notice served on the holders of the debentures —| (i) | had specified the purpose or project for which the moneys would in fact be applied by the borrowing entity; and | | (ii) | had offered to repay the moneys to the holders of the debentures, and that person had not within 14 days after the receipt of the notice, or such longer time as was specified in the notice, in writing demanded from the borrowing entity repayment of the money. |
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| (6) Where the borrowing entity has given written notice as provided in subsection (5), specifying the purpose or project for which the moneys will in fact be applied by the borrowing entity, this section applies and has effect as if the purpose or project so specified in the notice was the particular purpose or project specified in the prospectus as the purpose or project for which the moneys were to be applied. |
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| Liability of trustees for debenture holders |
271.—(1) Subject to this section, any provision contained in a trust deed relating to or securing an issue of debentures, or in any contract with the holders of debentures secured by a trust deed, is void insofar as it would have the effect of exempting a trustee thereof from or indemnifying the trustee against liability for breach of trust where the trustee fails to show the degree of care and diligence required as trustee.(2) Subsection (1) does not invalidate —| (a) | any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release; or | | (b) | any provision enabling such a release to be given —| (i) | on the agreement thereto of a majority of not less than three fourths in nominal value of the debenture holders present and voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose; and | | (ii) | either with respect to specific acts or omissions or on the dissolution of the trustee or on the trustee’s ceasing to act. |
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(3) Subsection (1) does not operate —| (a) | to invalidate any provision in force on 29 December 1967 so long as any trustee then entitled to the benefit of that provision remains a trustee of the deed in question; or | | (b) | to deprive any trustee of any exemption or right to be indemnified in respect of anything done or omitted to be done by the trustee while any such provision was in force. |
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| Subdivision (4) — Exemptions |
| Issue or transfer of securities or securities‑based derivatives contracts for no consideration |
| 272.—(1) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities being shares or debentures of an entity, or units in a business trust, if no consideration is or will be given for the issue or transfer of the shares or debentures, or units in a business trust (as the case may be). [4/2017] (2) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities‑based derivatives contracts being units of shares or debentures of an entity, or derivatives of units in a business trust, if —| (a) | no consideration is or will be given for the issue or transfer of the units of shares or debentures of the entity, or derivatives of units in the business trust; and | | (b) | no consideration is or will be given for the underlying shares or debentures of the entity, or units in the business trust (as the case may be) on the exercise or conversion of the units of shares or debentures of the entity, or derivatives of units in the business trust (as the case may be). [4/2017] |
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272A.—(1) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to personal offers of securities or securities‑based derivatives contracts of an entity or a business trust by a person if —| (a) | the total amount raised by the person from such offers within any period of 12 months does not exceed —| (i) | $5 million (or its equivalent in a foreign currency); or | | (ii) | such other amount as the Authority may prescribe in substitution for the amount specified in sub‑paragraph (i); |
| | (b) | in respect of each offer, the person making the offer gives the person to whom the offer is made —| (i) | a statement in writing that states —| (A) | where units or derivatives of units in a business trust are being offered and the business trust is not registered under the Business Trusts Act 2004 —| “This offer is made in reliance on the exemption under section 272A(1) of the Securities and Futures Act 2001. It is not made in or accompanied by a prospectus that is registered by the Monetary Authority of Singapore and the business trust is not registered under the Business Trusts Act 2004.”; and |
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| | (B) | in any other case —| “This offer is made in reliance on the exemption under section 272A(1) of the Securities and Futures Act 2001. It is not made in or accompanied by a prospectus that is registered by the Monetary Authority of Singapore.”; and |
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| | (ii) | a notification in writing that the securities or securities‑based derivatives contracts to which the offer (called in this sub‑paragraph the initial offer) relates must not be subsequently sold to any person, unless the offer resulting in such subsequent sale is made —| (A) | in compliance with Subdivisions (2) and (3) of this Division; | | (B) | in reliance on subsection (8)(c) or any other exemption under any provision of this Subdivision (other than this subsection); or | | (C) | where at least 6 months have elapsed from the date the securities or securities‑based derivatives contracts were acquired under the initial offer, in reliance on the exemption under this subsection; |
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| | (c) | none of the offers is accompanied by an advertisement making an offer or calling attention to the offer or intended offer; | | (d) | no selling or promotional expenses are paid or incurred in connection with each offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by —| (i) | the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts; | | (ii) | an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or | | (iii) | a person —| (A) | who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or | | (B) | who is exempted from the laws, codes or requirements mentioned in sub‑paragraph (A) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; and |
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| | (e) | no prospectus in respect of any of the offers has been registered by the Authority or, where a prospectus has been registered —| (i) | the prospectus has expired pursuant to section 250; or | | (ii) | the person making the offer has before making the offer informed the Authority by written notice of its intent to make the offer in reliance on the exemption under this subsection. [2/2009; 4/2017] |
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| (2) For the purposes of subsection (1)(b), where any notice, circular, material, publication or other document is issued in connection with the offer, the person making the offer is deemed to have given the statement and notification to the person to whom the offer is made in accordance with that provision if such statement or notification is contained in the first page of that notice, circular, material, publication or document. |
(3) For the purposes of subsection (1), a personal offer of securities or securities‑based derivatives contracts is one that —| (a) | may be accepted only by the person to whom it is made; and | | (b) | is made to a person who is likely to be interested in that offer, having regard to —| (i) | any previous contact before the date of the offer between the person making the offer and that person; | | (ii) | any previous professional or other connection established before that date between the person making the offer and that person; or | | (iii) | any previous indication (whether through statements made or actions carried out) before that date by that person that indicate to any of the following persons that that person is interested in offers of that kind:| (A) | the person making the offer; | | (B) | the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts; | | (C) | an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; | | (D) | a person licensed under the Financial Advisers Act 2001 in respect of the provision of financial advisory services concerning investment products; | | (E) | an exempt financial adviser as defined in section 2(1) of the Financial Advisers Act 2001; | | (F) | a person —| (FA) | who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; | | (FB) | who is exempted from the laws, codes or requirements mentioned in sub‑paragraph (FA) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; | | (FC) | who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of the provision of financial advisory services concerning investment products; or | | (FD) | who is exempted from the laws, codes or requirements mentioned in sub‑paragraph (FC) in respect of the provision of financial advisory services concerning investment products. [4/2017] |
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(4) In determining the amount raised by an offer, the following must be included:| (a) | the amount payable for the securities or securities‑based derivatives contracts at the time they are allotted, issued or sold; | | (b) | if the securities or securities‑based derivatives contracts are issued partly‑paid, any amount payable at a future time if a call is made; | | (c) | if the securities or securities‑based derivatives contracts carry a right (by whatever name called) to be converted into other securities or securities‑based derivatives contracts or to acquire other securities or securities‑based derivatives contracts, any amount payable on the exercise of the right to convert them into, or to acquire, other securities or securities‑based derivatives contracts. [4/2017] |
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(5) In determining whether the amount raised by a person from offers within a period of 12 months exceeds the applicable amount mentioned in subsection (1)(a), each amount raised —| (a) | by that person from any offer of securities or securities‑based derivatives contracts issued by the same entity; or | | (b) | by that person or another person from any offer of securities or securities‑based derivatives contracts of an entity or a business trust, or units in a collective investment scheme, which is a closely related offer, |
| if any, within that period in reliance on the exemption under subsection (1) or section 302B(1) must be included. |
[4/2017] |
| (6) Whether an offer is a closely related offer under subsection (5) is determined by considering such factors as the Authority may prescribe. |
| (7) For the purpose of this section, an offer of securities or securities‑based derivatives contracts made by a person acting as an agent of another person is treated as an offer made by that other person. [4/2017] |
(8) Where securities or securities‑based derivatives contracts acquired through an offer made in reliance on the exemption under subsection (1) (called in this subsection an initial offer) are subsequently sold by the person who acquired the securities or securities‑based derivatives contracts to another person, Subdivisions (2) and (3) of this Division apply to the offer from the firstmentioned person to the second‑mentioned person which resulted in that sale, unless —| (a) | such offer is made in reliance on an exemption under any provision of this Subdivision (other than this section); | | (b) | such offer is made in reliance on an exemption under subsection (1) and at least 6 months have elapsed from the date the securities or securities‑based derivatives contracts were acquired under the initial offer; or | | (c) | such offer is one —| (i) | that may be accepted only by the person to whom it is made; | | (ii) | that is made to a person who is likely to be interested in the offer having regard to —| (A) | any previous contact before the date of the offer between the person making the initial offer and that person; | | (B) | any previous professional or other connection established before that date between the person making the initial offer and that person; or | | (C) | any previous indication (whether through statements made or actions carried out) before that date by that person that indicate to any of the following persons that that person is interested in offers of that kind:| (CA) | the person making the initial offer; | | (CB) | the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts; | | (CC) | an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; | | (CD) | a person licensed under the Financial Advisers Act 2001 in respect of the provision of financial advisory services concerning investment products; | | (CE) | an exempt financial adviser as defined in section 2(1) of the Financial Advisers Act 2001; | | (CF) | a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; | | (CG) | a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (CF) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; | | (CH) | a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of the provision of financial advisory services concerning investment products; | | (CI) | a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (CH) in respect of the provision of financial advisory services concerning investment products; |
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| | (iii) | in respect of which the firstmentioned person has given the second‑mentioned person —| (A) | a statement in writing that states —| (AA) | where units or derivatives of units in a business trust are being offered and the business trust is not registered under the Business Trusts Act 2004 —| “This offer is made in reliance on the exemption under section 272A(8)(c) of the Securities and Futures Act 2001. It is not made in or accompanied by a prospectus that is registered by the Monetary Authority of Singapore and the business trust is not registered under the Business Trusts Act 2004.”; and |
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| | (AB) | in any other case —| “This offer is made in reliance on the exemption under section 272A(8)(c) of the Securities and Futures Act 2001. It is not made in or accompanied by a prospectus that is registered by the Monetary Authority of Singapore.”; |
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| | (B) | a notification in writing that the securities or securities‑based derivatives contracts being offered must not be subsequently sold to any person unless the offer resulting in such subsequent sale is made —| (BA) | in compliance with Subdivisions (2) and (3) of this Division; | | (BB) | in reliance on this subsection or any other exemption under any provision of this Subdivision (other than subsection (1)); or | | (BC) | where at least 6 months have elapsed from the date the securities or securities‑based derivatives contracts were acquired under the initial offer, in reliance on the exemption under subsection (1); |
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| | (iv) | that is not accompanied by an advertisement making an offer or calling attention to the offer or intended offer; and | | (v) | in respect of which no selling or promotional expenses are paid or incurred in connection with the offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by —| (A) | the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts; | | (B) | an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; | | (C) | a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or | | (D) | a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (C) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts. [4/2017] |
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| (9) Subsection (2) applies, with the necessary modifications, in relation to the statement and notification referred to in subsection (8)(c)(iii). |
(10) In subsections (1)(c) and (8)(c)(iv), “advertisement” means —| (a) | a written or printed communication; | | (b) | a communication by radio, television or other medium of communication; or | | (c) | a communication by means of a recorded telephone message, |
| that is published in connection with an offer of securities or securities‑based derivatives contracts, but does not include — |
| (d) | a document —| (i) | purporting to describe the securities or securities‑based derivatives contracts being offered, or the business and affairs of the person making the offer, the issuer or (where applicable) the underlying entity, or (where the securities or securities‑based derivatives contracts being offered are units or derivatives of units in a business trust) the business trust; and | | (ii) | purporting to have been prepared for delivery to and review by persons to whom the offer is made so as to assist them in making an investment decision in respect of the securities or securities‑based derivatives contracts being offered; |
| | (e) | a publication which consists solely of a disclosure, notice or report required under this Act, or any listing rules or other requirements of an approved exchange or overseas exchange, which is made by any person; or | | (f) | a publication which consists solely of a notice or report of a general meeting or proposed general meeting of the person making the offer, the issuer, the unitholders of the business trust, the underlying entity or any entity, or a presentation of oral or written material on matters so contained in the notice or report at the general meeting. [2/2009; 4/2017] |
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(11) In subsection (10)(d)(i), the reference to the affairs of the person making the offer, the issuer, the underlying entity or the business trust includes —| (a) | in the case where the person making the offer, the issuer or the underlying entity is a corporation, a reference to the matters mentioned in section 2(2); | | (b) | in any other case, a reference to such matters as may be prescribed by regulations made under section 341. [4/2017] |
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272B.—(1) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to offers of securities or securities‑based derivatives contracts of an entity or of a business trust that are made by a person if —| (a) | the offers are made to no more than 50 persons within any period of 12 months; | | (b) | none of the offers is accompanied by an advertisement making an offer or calling attention to the offer or intended offer; | | (c) | no selling or promotional expenses are paid or incurred in connection with each offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by —| (i) | the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts; | | (ii) | an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; | | (iii) | a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or | | (iv) | a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (iii) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; and |
| | (d) | no prospectus in respect of any of the offers has been registered by the Authority or, where a prospectus has been registered —| (i) | the prospectus has expired pursuant to section 250; or | | (ii) | the person making the offer has before making the offer —| (A) | informed the Authority by written notice of its intent to make the offer in reliance on the exemption under this subsection; and | | (B) | taken reasonable steps to inform in writing the person to whom the offer is made that the offer is made in reliance on the exemption under this subsection. [2/2009; 4/2017] |
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| (2) The Authority may prescribe such other number of persons in substitution for the number specified in subsection (1)(a). |
(3) In determining whether offers of securities or securities‑based derivatives contracts by a person are made to no more than the applicable number of persons specified in subsection (1)(a) within a period of 12 months, the following persons must be included:| (a) | each person to whom an offer of securities or securities‑based derivatives contracts issued by the same entity is made by the firstmentioned person within that period in reliance on the exemption under this section; | | (b) | each person to whom an offer of securities or securities‑based derivatives contracts of an entity or a business trust, or units in a collective investment scheme, is made by the firstmentioned person or another person where such offer is a closely related offer, within that period in reliance on the exemption under this section or section 302C. [4/2017] |
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| (4) Whether an offer is a closely related offer under subsection (3) is determined by considering such factors as the Authority may prescribe. |
(5) For the purposes of subsection (1) —| (a) | an offer of securities or securities‑based derivatives contracts to an entity or to a trustee is treated as an offer to a single person, provided that the entity or trust is not formed primarily for the purpose of acquiring the securities or securities‑based derivatives contracts which are the subject of the offer; | | (b) | an offer of securities or securities‑based derivatives contracts to an entity or to a trustee is treated as an offer to the equity owners, partners or members of that entity, or to the beneficiaries of the trust (as the case may be) if the entity or trust is formed primarily for the purpose of acquiring the securities or securities‑based derivatives contracts which are the subject of the offer; | | (c) | an offer of securities or securities‑based derivatives contracts to 2 or more persons who will own the securities or securities‑based derivatives contracts acquired as joint owners is treated as an offer to a single person; | | (d) | an offer of securities or securities‑based derivatives contracts to a person acting on behalf of another person (whether as an agent or otherwise) is treated as an offer made to that other person; | | (e) | offers of securities or securities‑based derivatives contracts made by a person as an agent of another person is treated as offers made by that other person; | | (f) | where an offer is made to a person with a view to another person acquiring an interest in those securities or securities‑based derivatives contracts by virtue of section 4, only the second‑mentioned person is counted for the purposes of determining whether offers of the securities or securities‑based derivatives contracts are made to no more than the applicable number of persons specified in subsection (1)(a); and | | (g) | where —| (i) | an offer of securities or securities‑based derivatives contracts is made to a person in reliance on the exemption under subsection (1) with a view to those securities or securities‑based derivatives contracts being subsequently offered for sale to another person; and | | (ii) | that subsequent offer —| (A) | is not made in reliance on an exemption under any provision of this Subdivision; or | | (B) | is made in reliance on an exemption under subsection (1) or section 280, |
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| both persons are counted for the purposes of determining whether offers of the securities or securities‑based derivatives contracts are made to no more than the applicable number of persons specified in subsection (1)(a). |
[4/2017] |
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| (6) In subsection (1)(b), “advertisement” has the meaning given by section 272A(10). |
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| Offer made under certain circumstances |
273.—(1) Subject to subsection (5), Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities or securities‑based derivatives contracts if —| (a) | it is made in connection with a take‑over offer which is in compliance with the Take‑over Code; | | (b) | it is made in connection with an offer for the acquisition by or on behalf of a person of some or all of the shares in an unlisted corporation or some or all of the shares of a particular class in an unlisted corporation —| (i) | to all members of the corporation or all members of the corporation holding shares of that class; or | | (ii) | where the person already holds shares in the corporation, to all other members of the corporation or all other members of the corporation holding shares of that class, |
| where such offer is in compliance with the laws, codes and other requirements (whether or not having the force of law) relating to take‑overs of the country in which the corporation was incorporated; |
| | (c) | it is made in connection with a proposed compromise or arrangement between —| (i) | an unlisted corporation and its creditors or a class of them; or | | (ii) | an unlisted corporation and its members or a class of them, |
| and such proposed compromise or arrangement and the execution thereof is in compliance with the laws, codes and other requirements (whether or not having the force of law) relating to take‑overs, compromises and arrangements of the country in which the corporation was incorporated; |
| | (ca) | it is made in connection with an offer for the acquisition by or on behalf of a person of some or all of the shares in a corporation or some or all of the shares of a particular class in a corporation —| (i) | to all members of the corporation or all members of the corporation holding shares of that class; or | | (ii) | where the person already holds shares in the corporation, to all other members of the corporation or all other members of the corporation holding shares of that class, |
| and such offer complies with the Take‑over Code as though the Take‑over Code is applicable to it; |
| | (cb) | it is made in connection with a proposed compromise or arrangement between —| (i) | a corporation and its creditors or a class of them; or | | (ii) | a corporation and its members or a class of them, |
| and such proposed compromise or arrangement and the execution thereof complies with the Take‑over Code as though the Take‑over Code is applicable to it; |
| | (cc) | it is an offer to enter into an underwriting agreement relating to securities or securities‑based derivatives contracts; | | (cd) | it is an offer of securities or securities‑based derivatives contracts of an entity —| (i) | being an entity which is formed or constituted in Singapore or otherwise, whose securities or securities‑based derivatives contracts are not listed for quotation on an approved exchange; or | | (ii) | being an entity which is not formed or constituted in Singapore, whose securities or securities‑based derivatives contracts are listed for quotation on an approved exchange and such listing is not a primary listing, |
| that is made to existing members or debenture holders of that entity (whether or not it is renounceable in favour of persons other than existing members or debenture holders); |
| | (ce) | it is an offer of shares or debentures of an entity made to any existing member or debenture holder of the entity whose shares are listed for quotation on an approved exchange; | | (cf) | it is an offer of debentures of an entity made to any existing debenture holder of the entity whose debentures are listed for quotation on an approved exchange; | | (cg) | it is an offer of units of shares or debentures of an entity made to any existing member or debenture holder of the entity whose shares are listed for quotation on an approved exchange, where such units may only be exercised or converted by any existing member or debenture holder into shares or debentures (as the case may be) of the entity; | | (ch) | it is an offer of units of debentures of an entity made to any existing debenture holder of the entity whose debentures are listed on an approved exchange, where such units may only be exercised or converted by any existing debenture holder into debentures of the entity; | | (ci) | it is an offer of securities or securities‑based derivatives contracts of a corporation made in the circumstances specified under section 178 of the Insolvency, Restructuring and Dissolution Act 2018; | | (cj) | it is an offer of units in a business trust, whose units are listed for quotation on an approved exchange, made to —| (i) | any existing unitholder of the business trust; or | | (ii) | any holder of any debenture of the trustee‑manager of the business trust that is issued by the trustee‑manager of the business trust in its capacity as trustee‑manager of the business trust; |
| | (ck) | it is an offer of derivatives of units in a business trust, whose units are listed for quotation on an approved exchange, made to —| (i) | any existing unitholder of the business trust, where such derivatives of units may only be exercised or converted by the existing unitholder into units of the business trust; or | | (ii) | any holder of any debenture of the trustee‑manager of the business trust that is issued by the trustee‑manager of the business trust in its capacity as trustee‑manager of the business trust, where such derivatives of units may only be exercised or converted by the holder of debentures into units of the business trust; |
| | (d) | it is an offer of shares or debentures (not being such excluded shares or excluded debentures as the Authority may prescribe) that have been previously issued, are listed for quotation or quoted on an approved exchange, and are traded on the exchange; | | (da) | it is an offer of units in a business trust (not being such excluded units in a business trust as may be prescribed by regulations made under section 341) that —| (i) | have been previously issued; | | (ii) | are listed for quotation or quoted on an approved exchange; and | | (iii) | are traded on the approved exchange; |
| | (e) | it is an offer of securities‑based derivatives contracts (not being such excluded securities‑based derivatives contracts as may be prescribed by regulations made under section 341) that —| (i) | have been previously issued; | | (ii) | are listed for quotation or quoted on an approved exchange; and | | (iii) | are traded on the approved exchange; |
| | (f) | it is an offer of securities‑based derivatives contracts (not being such excluded securities‑based derivatives contracts as may be prescribed by regulations made under section 341) where —| (i) | the discharge of the obligations under, or the value of, the securities‑based derivatives contracts is determined wholly (whether directly or indirectly) by reference to, is derived from, or varies by reference to the value or amount of one or more securities indices; and | | (ii) | an application has been or will be made for permission for the securities‑based derivatives contracts to be listed for quotation or quoted on an approved exchange; |
| | (g) | it is an offer of securities‑based derivatives contracts (not being such excluded securities‑based derivatives contracts as may be prescribed by regulations made under section 341) where —| (i) | the obligations under the securities‑based derivatives contracts are to be discharged by one party to the other at some future time by cash settlement only; | | (ii) | all underlying securities of the securities‑based derivatives contracts have been previously issued and are listed for quotation on an organised market (not being such excluded organised market as may be prescribed by regulations made under section 341); and | | (iii) | either of the following is satisfied:| (A) | an application has been or will be made for permission for the securities‑based derivatives contracts to be listed for quotation or quoted on an approved exchange; | | (B) | the offer complies with such disclosure requirements prescribed by regulations made under section 341; |
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| | (h) | it is an offer of securities‑based derivatives contracts (not being such excluded securities‑based derivatives contracts as may be prescribed by regulations made under section 341) where —| (i) | the obligations under the securities‑based derivatives contracts are to be discharged by one party to the other at some future time other than by cash settlement only; | | (ii) | all underlying securities of the securities‑based derivatives contracts have been previously issued and are listed for quotation on an approved exchange or a recognised securities exchange; and | | (iii) | an application has been or will be made for permission for the securities‑based derivatives contracts to be listed for quotation or quoted on an approved exchange; |
| | (i) | it is made (whether or not in relation to securities or securities‑based derivatives contracts that have been previously issued) by an entity to a qualifying person, where the securities or securities‑based derivatives contracts are to be held by or for the benefit of the qualifying person and are the securities or securities‑based derivatives contracts of the entity or any of its related parties; or | | (j) | it is made (whether or not in relation to securities or securities‑based derivatives contracts that have been previously issued) by a trustee‑manager of a business trust to a qualifying person, where the securities or securities‑based derivatives contracts are to be held by or for the benefit of the qualifying person and are the securities or securities‑based derivatives contracts of the business trust or any of its related parties. [2/2009; 4/2017; 40/2018] |
(1A) An offer of securities or securities‑based derivatives contracts does not come within subsection (1)(d), (da) or (e) if —| (a) | the securities or securities‑based derivatives contracts being offered are borrowed by the issuer from any of the following persons solely for the purpose of facilitating the offer of securities or securities‑based derivatives contracts by the issuer:| (i) | an existing shareholder of the issuer; | | (ii) | a holder of a debenture of the issuer; | | (iii) | (where the securities or securities‑based derivatives contracts offered are units or derivatives of units in a business trust) an existing holder of units or holder of derivatives of units in the business trust; | | (iv) | a holder of units of shares or debentures of the issuer; and |
| | (b) | such borrowing is made under an agreement or arrangement between the issuer and the person mentioned in paragraph (a) which promises the issue or allotment of securities or securities‑based derivatives contracts by the issuer to the person at the same time or shortly after the offer. [4/2017] |
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(2) An offer of securities or securities‑based derivatives contracts comes within subsection (1)(i) or (j) only if no selling or promotional expenses are paid or incurred in connection with the offer other than those incurred —| (a) | for administrative or professional services; or | | (b) | by way of commission or fee for services rendered by —| (i) | the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts; | | (ii) | an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; | | (iii) | a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or | | (iv) | a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (iii) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts. [4/2017] |
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| (3) [Deleted by Act 1 of 2005] |
(4) For the purposes of subsection (1)(i) and (j) —| (a) | a person is a qualifying person in relation to an entity if the person is —| (i) | a bona fide director or equivalent person, former director or equivalent person, consultant, adviser, employee or former employee of the entity or a related corporation of that entity (being a corporation); or | | (ii) | the spouse, widow, widower or a child, adopted child or stepchild below the age of 18, of such director or equivalent person, former director or equivalent person, employee or former employee; and |
| | (b) | a person is a qualifying person in relation to a business trust if the person is —| (i) | a bona fide director or equivalent person, former director or equivalent person, consultant, adviser, employee or former employee of the trustee‑manager of the business trust or a related corporation of that trustee‑manager (being a corporation); or | | (ii) | the spouse, widow, widower or a child, adopted child or stepchild below the age of 18, of such director or equivalent person, former director or equivalent person, employee or former employee. [4/2017] |
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(5) Where, on the application of any person interested, the Authority declares that circumstances exist whereby —| (a) | the cost of providing a prospectus for an offer of securities or securities‑based derivatives contracts outweighs the resulting protection to investors; or | | (b) | it would not be prejudicial to the public interest if a prospectus were dispensed with for an offer of securities or securities‑based derivatives contracts, |
| then Subdivisions (2) and (3) of this Division (other than section 257) do not apply to such an offer for a period of 6 months from the date of the declaration. |
[4/2017] |
| (6) The Authority may, on making a declaration under subsection (5), impose such conditions or restrictions on the offer as it may determine. |
| (7) A declaration made under subsection (5) is final. |
| (8) Any person who contravenes any of the conditions or restrictions specified in the declaration made under subsection (5) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
(8A) A person must not —| (a) | advertise an offer or intended offer of any securities or securities‑based derivatives contracts mentioned in subsection (1)(d), (da) or (e); or | | (b) | publish a statement that —| (i) | directly or indirectly, refers to an offer or intended offer of any securities or securities‑based derivatives contracts mentioned in subsection (1)(d), (da) or (e); or | | (ii) | is reasonably likely to induce persons to subscribe for or purchase the securities or securities‑based derivatives contracts to which the offer relates, |
|
| unless the advertisement or publication complies with such requirements as may be prescribed by regulations made under section 341. |
[4/2017] |
| (8B) Any person who contravenes subsection (8A), or who knowingly authorises or permits the publication or dissemination of any advertisement or statement referred to in that subsection, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
(9) In subsection (1)(b) and (c), “unlisted corporation” means a corporation —| (a) | that is not a company; and | | (b) | the shares or debentures, or units of shares or debentures, of which are not listed for quotation on any approved exchange. [4/2017] |
|
| (10) In subsection (1)(ca) and (cb), “corporation” means a corporation that is not a company. |
|
| Offer made to institutional investors |
| 274. Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities or securities‑based derivatives contracts (whether or not they have been previously issued) made to an institutional investor. [4/2017] |
| Offer made to accredited investors and certain other persons |
275.—(1) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities or securities‑based derivatives contracts, whether or not they have been previously issued, where the offer is made to a relevant person, if —| (a) | the offer is not accompanied by an advertisement making an offer or calling attention to the offer or intended offer; | | (b) | no selling or promotional expenses are paid or incurred in connection with the offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by —| (i) | the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts; | | (ii) | an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; | | (iii) | a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or | | (iv) | a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (iii) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; and |
| | (c) | no prospectus in respect of the offer has been registered by the Authority or, where a prospectus has been registered —| (i) | the prospectus has expired pursuant to section 250; or | | (ii) | the person making the offer has before making the offer —| (A) | informed the Authority by written notice of its intent to make the offer in reliance on the exemption under this subsection; and | | (B) | taken reasonable steps to inform in writing the person to whom the offer is made that the offer is made in reliance on the exemption under this subsection. [2/2009; 4/2017] |
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|
(1A) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities or securities‑based derivatives contracts to a person who acquires the securities or securities‑based derivatives contracts as principal, whether or not the securities or securities‑based derivatives contracts have been previously issued, if —| (a) | the offer is on terms that the securities or securities‑based derivatives contracts may only be acquired at a consideration of not less than $200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount is to be paid for in cash or by exchange of securities, securities‑based derivatives contracts or other assets; | | (b) | the offer is not accompanied by an advertisement making an offer or calling attention to the offer or intended offer; | | (c) | no selling or promotional expenses are paid or incurred in connection with the offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by —| (i) | the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts; | | (ii) | an exempt person in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; | | (iii) | a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; or | | (iv) | a person who is exempt from the laws, codes or requirements mentioned in sub‑paragraph (iii) in respect of dealing in capital markets products that are securities or securities‑based derivatives contracts; and |
| | (d) | no prospectus in respect of the offer has been registered by the Authority or, where a prospectus has been registered —| (i) | the prospectus has expired pursuant to section 250; or | | (ii) | the person making the offer has before making the offer —| (A) | informed the Authority by written notice of its intent to make the offer in reliance on the exemption under this subsection; and | | (B) | taken reasonable steps to inform in writing the person to whom the offer is made that the offer is made in reliance on the exemption under this subsection. [2/2009; 4/2017] |
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(2) In this section —“advertisement” means —| (a) | a written or printed communication; | | (b) | a communication by radio, television or other medium of communication; or | | (c) | a communication by means of a recorded telephone message, |
| that is published in connection with an offer in respect of securities or securities‑based derivatives contracts, but does not include — |
| (d) | an information memorandum; | | (e) | a publication which consists solely of a disclosure, notice or report required under this Act, or any listing rules or other requirements of an approved exchange or overseas exchange, which is made by any person; or | | (f) | a publication which consists solely of a notice or report of a general meeting or proposed general meeting of the unitholders of the business trust, the person making the offer, the issuer, the underlying entity or any entity, or a presentation of oral or written material on matters so contained in the notice or report at the general meeting; |
|
“information memorandum” means a document —| (a) | purporting to describe —| (i) | the securities or securities‑based derivatives contracts being offered; or | | (ii) | the business and affairs of the person making the offer, the issuer or (where applicable) the underlying entity, or (where the securities or securities‑based derivatives contracts being offered are units or derivatives of units in a business trust) the trustee‑manager of the business trust or the business trust; and |
| | (b) | purporting to have been prepared for delivery to, and review by, relevant persons and persons to whom an offer mentioned in subsection (1A) is to be made, so as to assist them in making an investment decision in respect of the securities or securities‑based derivatives contracts being offered; |
|
“relevant person” means —| (a) | an accredited investor; | | (b) | a corporation the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; | | (c) | a trustee of a trust the sole purpose of which is to hold investments and each beneficiary of which is an individual who is an accredited investor; | | (d) | an officer or equivalent person of the person making the offer (such person being an entity) or a spouse, parent, brother, sister, son or daughter of that officer or equivalent person; or | | (e) | a spouse, parent, brother, sister, son or daughter of the person making the offer (such person being an individual). [4/2017] |
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(2A) In the definition of “information memorandum” in subsection (2), the reference to the affairs of the person making the offer, the issuer, the underlying entity, the trustee‑manager of the business trust or the business trust includes —| (a) | where the person making the offer, the issuer, the underlying entity or the trustee‑manager is a corporation, a reference to the matters mentioned in section 2(2); and | | (b) | in any other case, a reference to such matters as may be prescribed by regulations made under section 341. [4/2017] |
|
| (3) Despite any condition in section 99 or any regulation made for the purposes of that section that a person has to deal in capital markets products that are securities or securities‑based derivatives contracts for the person’s own account with or through a person prescribed by the Authority so that the firstmentioned person can qualify as an exempt person, a person who acquires securities or securities‑based derivatives contracts under an offer made in reliance on an exemption under section 274 or subsection (1) or (1A) for the person’s own account is treated as an exempt person even though the person does not comply with that condition. [4/2017] |
| (4) The Authority may, by order in the Gazette, specify an amount in substitution of any amount specified in subsection (1A)(a). |
|
| Offer of securities acquired pursuant to section 274 or 275 |
276.—(1) Despite sections 272A, 272B, 273(1)(d), (e) and (f), 277, 278 and 279 but subject to subsection (7), where securities or securities‑based derivatives contracts initially acquired pursuant to an offer made in reliance on an exemption under section 274 or 275 are sold within the period of 6 months from the date of the initial acquisition to any person other than —| (a) | an institutional investor; | | (b) | a relevant person as defined in section 275(2); or | | (c) | any person pursuant to an offer referred to in section 275(1A), |
| then Subdivisions (2) and (3) of this Division apply to the offer resulting in that sale. |
[2/2009; 4/2017] (1A) The reference to the sale of securities or securities‑based derivatives contracts under subsection (1) includes —| (a) | where the securities or securities‑based derivatives contracts initially acquired are debentures, or units of shares or debentures, with an attached right of conversion into shares or debentures, a reference to the sale of the converted shares or debentures; and | | (b) | where the securities or securities‑based derivatives contracts initially acquired are derivatives of units in a business trust, with an attached right of conversion into units in the business trust, a reference to the sale of the units in the business trust. [4/2017] |
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(2) Where securities or securities‑based derivatives contracts initially acquired pursuant to an offer made in reliance on an exemption under section 274 or 275 are sold to —| (a) | an institutional investor; | | (b) | a relevant person as defined in section 275(2); or | | (c) | any person pursuant to an offer referred to in section 275(1A), |
| Subdivisions (2) and (3) of this Division do not apply to the offer resulting in that sale. |
[4/2017] |
(3) Subject to subsection (7), securities or securities‑based derivatives contracts of a corporation (other than a corporation that is an accredited investor) —| (a) | the sole business of which is to hold investments; and | | (b) | the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor, |
| must not be transferred within 6 months after the corporation has acquired any securities or securities‑based derivatives contracts pursuant to an offer made in reliance on an exemption under section 275 unless — |
| (c) | that transfer —| (i) | is made only to institutional investors or relevant persons as defined in section 275(2); or | | (ii) | arises from an offer referred to in section 275(1A); |
| | (d) | no consideration is or will be given for the transfer; or | | (e) | the transfer is by operation of law. [2/2009; 4/2017] |
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(4) Subject to subsection (7), where —| (a) | the sole purpose of a trust (other than a trust the trustee of which is an accredited investor) is to hold investments; and | | (b) | each beneficiary of the trust is an individual who is an accredited investor, |
| the beneficiaries’ rights and interest (howsoever described) in the trust must not be transferred within 6 months after securities or securities‑based derivatives contracts are acquired for the trust pursuant to an offer made in reliance on an exemption under section 275 unless — |
| (c) | that transfer —| (i) | is made only to institutional investors or relevant persons as defined in section 275(2); or | | (ii) | arises from an offer that is made on terms that such rights or interest are acquired at a consideration of not less than $200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount is to be paid for in cash or by exchange of securities or securities‑based derivatives contracts or other assets; |
| | (d) | no consideration is or will be given for the transfer; or | | (e) | the transfer is by operation of law. [2/2009; 4/2017] |
|
| (5) To avoid doubt, the reference to beneficiaries in subsection (4) includes a reference to unitholders of a business trust and participants of a collective investment scheme. |
| (6) To avoid doubt, where any securities or securities‑based derivatives contracts are acquired pursuant to an offer made in reliance on an exemption under section 274 or 275, an offer to sell those securities or securities‑based derivatives contracts may be made in reliance on an exemption under section 273(1)(d) or (e) after 6 months have elapsed from the date of the firstmentioned offer. [4/2017] |
(7) Subsections (1), (3) and (4) do not apply where the securities or securities‑based derivatives contracts of the corporation that are acquired are of the same class as other securities or securities‑based derivatives contracts of the corporation —| (a) | that are listed for quotation on an approved exchange; and | | (b) | in respect of which any offer information statement, introductory document, shareholders’ circular for a reverse take‑over, document issued for the purposes of a scheme of arrangement, or any other similar document approved by an approved exchange, was issued in connection with —| (i) | an offer of those securities or securities‑based derivatives contracts; or | | (ii) | the listing for quotation of those securities or securities‑based derivatives contracts. |
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| Offer made using offer information statement |
277.—(1) Subject to subsection (1A), Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of securities or securities‑based derivatives contracts (not being such securities or securities‑based derivatives contracts as may be prescribed by regulations made under section 341) if the following conditions are satisfied:| (a) | where the securities or securities‑based derivatives contracts offered —| (i) | are units of shares or debentures, those units of shares or debentures are issued by an entity whose shares are listed for quotation on an approved exchange, whether by means of a rights issue or otherwise; and | | (ii) | are units or derivatives of units in a business trust, the units or derivatives of units in the business trust are issued by a trustee‑manager acting in its capacity as the trustee‑manager of the business trust, where units of the business trust which have been previously issued are listed for quotation on an approved exchange, whether by means of a rights issue or otherwise; |
| | (b) | an offer information statement relating to the offer which complies with such requirements as to form and content as may be prescribed by regulations made under section 341 is lodged with the Authority; | | (c) | either —| (i) | the offer is made in, or accompanied by, the offer information statement mentioned in paragraph (b); or | | (ii) | all the conditions in subsection (1B) are satisfied. [4/2017] |
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| (1A) Subsection (1) only applies to an offer of securities or securities‑based derivatives contracts referred to in that subsection made within a period of 6 months from the date the offer information statement relating to that offer is lodged with the Authority. [2/2009; 4/2017] |
(1AB) In relation to an offer of securities —| (a) | where the securities are issued, whether by means of a rights issue or otherwise, by a subsidiary (called in this section the subsidiary) of an entity whose shares are listed for quotation on an approved exchange (called in this section the listed entity); and | | (b) | where the listed entity has guaranteed, or has agreed to guarantee, unconditionally and irrevocably, all payment obligations (whether in cash, in kind or otherwise) of the subsidiary arising from the securities, |
| the Authority may, on the application of the subsidiary or the listed entity, declare by written notice to the applicant that the provision of an offer information statement in lieu of a prospectus relating to an offer of securities would not be prejudicial to investors of such securities. |
[4/2017] |
(1AC) Where the Authority makes a declaration mentioned in subsection (1AB) in relation to an offer of securities, Subdivisions (2) and (3) of this Division (other than section 257) do not apply to the offer of securities for a period of 6 months starting on the date of the declaration if all of the following conditions are satisfied:| (a) | the offer information statement relating to the offer of securities —| (i) | complies with such requirements as to form and content as may be prescribed by regulations made under section 341; | | (ii) | is signed by every director, or equivalent person, of the subsidiary and the listed entity; and | | (iii) | is lodged by the subsidiary or the listed entity, with the Authority; |
| | (b) | either —| (i) | the offer of securities is made in, or accompanied by, the offer information statement mentioned in paragraph (a); or | | (ii) | all the conditions in subsection (1B) are satisfied. [4/2017] |
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| (1AD) The Authority may, on making a declaration under subsection (1AB), provide that the offer of securities may only be made subject to such conditions or restrictions as the Authority may impose. [4/2017] |
(1B) The conditions mentioned in subsections (1)(c)(ii) and (1AC)(b)(ii) are —| (a) | the offer is made using any automated teller machine or such other electronic means as the Authority may prescribe; | | (b) | the automated teller machine or prescribed electronic means indicates to a prospective subscriber or buyer —| (i) | how the prospective subscriber or buyer can obtain, or arrange to receive, a copy of the offer information statement in respect of the offer; and | | (ii) | that the prospective subscriber or buyer should read the offer information statement before submitting an application, |
| before enabling the prospective subscriber or buyer to submit any application to subscribe for or purchase securities or securities‑based derivatives contracts; and |
| | (c) | the person making the offer complies with such other requirements as the Authority may prescribe. [4/2017] |
|
| (2) The Authority may, on the application of any person interested, modify the prescribed form and content of the offer information statement in such manner as is appropriate, subject to such conditions or restrictions as the Authority may determine. |
| (3) Sections 249, 249A, 253, 254 and 255 apply in relation to an offer information statement referred to in subsection (1) or (1AC) as they apply in relation to a prospectus. [4/2017] |
(4) For the purposes of subsection (3) —| (a) | a reference in section 249 or 249A to the registration of the prospectus is to be read as a reference to the lodgment of the offer information statement; | | (b) | a reference in section 253 or 254 to any information or new circumstance required to be included in a prospectus under section 243 is to be read as a reference to any information prescribed under subsection (1)(b); and | | (c) | in relation to an offer information statement mentioned in subsection (1AC), a reference in section 253(4)(a), (b) or (c) or 254(3)(a), (b) or (c) to the person making the offer is to be read as a reference to the subsidiary and the listed entity. [4/2017] |
|
| (5) Where the written consent of an expert is required to be given under section 249 (as applied in relation to an offer information statement under subsection (3)), that written consent must be lodged with the Authority at the same time as the lodgment of the statement. |
| (6) Where the written consent of an issue manager or underwriter is required to be given under section 249A (as applied in relation to an offer information statement under subsection (3)), that written consent must be lodged with the Authority at the same time as the lodgment of the statement. |
| (7) A person must not advertise an offer or intended offer of any securities or securities‑based derivatives contracts referred to in subsection (1), or publish a statement that directly or indirectly refers to the offer or intended offer, or that is reasonably likely to induce persons to subscribe for or purchase the securities or securities‑based derivatives contracts, unless the advertisement or publication complies with such requirements as the Authority may prescribe by regulations made under section 341. [34/2012; 4/2017] |
| (8) Any person who contravenes subsection (7), or who knowingly authorises or permits the publication or dissemination of any advertisement or statement referred to in that subsection, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
|
| Offer in respect of international debentures |
278.—(1) Subdivisions (2) and (3) of this Division (other than section 257) do not apply to an offer of debentures, or units of debentures, by a body incorporated in a country outside Singapore where the offer —| (a) | is made by the holder of a capital markets services licence to deal in capital markets products that are securities or securities‑based derivatives contracts or an exempt person under section 99(1)(a) or (b), to such institutional, professional or business investors as the Authority may, by order in the Gazette, specify, being persons or bodies that appear to the Authority to have sufficient expertise to understand any risk involved in buying or selling those debentures, or units of debentures (whether as principal or agent); and | | (b) | complies with the conditions specified in subsection (2). [4/2017] |
(2) The conditions referred to in subsection (1)(b) are that —| (a) | the debentures, or units of debentures, are denominated in a currency, other than the Singapore dollar, and each debenture, or each unit of debenture, has a face value of at least US$5,000 or its equivalent in another currency; and | | (b) | the shares of the issuing corporation are listed on a recognised securities exchange or the offer is guaranteed by a corporation whose shares are listed on a recognised securities exchange. |
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| (3) The Authority may by order in the Gazette add to, vary or amend the conditions specified in subsection (2). |
|
| Offer of debentures made by Government or international financial institutions |
279. Subdivisions (2) and (3) of this Division do not apply to an offer of debentures, or units of debentures, made by or guaranteed by —| (a) | the Government; or | | (b) | an international financial institution in which Singapore holds membership of any class or description, whether or not it holds any share in the share capital of that institution. |
|
| Making offer using automated teller machine or electronic means |
280.—(1) Subject to subsection (3) and such requirements as the Authority may prescribe, a person making an offer of securities or securities‑based derivatives contracts using —| (a) | any automated teller machine; or | | (b) | such other electronic means as the Authority may prescribe, |
| is exempted from the requirement under section 240(1)(a) that the offer be made in or accompanied by a prospectus in respect of the offer or, where applicable, the requirement under section 240(4) that the offer be made in or accompanied by a profile statement in respect of the offer. |
[4/2017] | (2) To avoid doubt, a prospectus which complies with all other requirements of section 240(1)(a) or, where applicable, a profile statement which complies with all other requirements of section 240(4) must still be prepared and issued in respect of any offer referred to in subsection (1). |
(3) Subsection (1) does not apply unless the automated teller machine or prescribed electronic means indicates to a prospective subscriber or buyer —| (a) | how the prospective subscriber or buyer can obtain, or arrange to receive, a copy of the prospectus or, where applicable, profile statement in respect of the offer; and | | (b) | that the prospective subscriber or buyer should read the prospectus or, where applicable, profile statement before submitting an application, |
| before enabling the prospective subscriber or buyer to submit any application to subscribe for or purchase securities or securities‑based derivatives contracts. |
[4/2017] |
|
| Information relating to certain offers |
| 280A. The Authority may, by regulations made under section 341, require any person or class of persons to provide the Authority with such information relating to an offer of securities or securities‑based derivatives contracts made or proposed to be made in reliance on an exemption under any provision of this Subdivision. [4/2017] |
281.—(1) Where the Authority considers that a person is contravening, or is likely to contravene, or has contravened any condition or restriction imposed under section 273(6), or that it is necessary in the public interest or for the protection of investors, it may revoke any exemption under this Subdivision, subject to such conditions as it thinks fit.| (2) The Authority may revoke an exemption under subsection (1) without giving the person affected by the revocation an opportunity to be heard, but the person may, within 14 days of the revocation, apply to the Authority for the revocation to be reviewed by the Authority, and the revocation remains in effect unless it is withdrawn by the Authority. |
| (3) A revocation made under this section is final and there is no appeal from the revocation. |
|
| Transactions under exempted offers subject to Division 2 of Part 12 of Companies Act 1967 and Part 12 of this Act |
| 282. To avoid doubt, it is declared that in relation to any transaction carried out under an exempted offer under this Part, nothing in this Part limits or diminishes any liability which any person may incur in respect of any relevant offence under Division 2 of Part 12 of the Companies Act 1967 or Part 12 of this Act or any penalty, award of compensation or punishment in respect of any such offence. |
| Subdivision (5) — General |
| Power of Authority to issue directions |
282AA.—(1) The Authority may, where it thinks it necessary or expedient in the interests of the public or a section of the public or for the protection of investors, issue directions, whether of a general or specific nature, by written notice —| (a) | to a person making an offer of securities, being an offer made in or accompanied by a prospectus or profile statement or an offer referred to in section 280, on matters in connection with the offer; | | (b) | to a person referred to in paragraph (a) who is a borrowing entity, on matters in connection with the requirements and obligations under Subdivision (3) of this Division, in addition to the matters referred to in paragraph (a); or | | (c) | to a trustee appointed under section 265A(1). [34/2012] |
| (2) Any person to whom a notice is given under subsection (1) must comply with every direction contained in the notice. [34/2012] |
| (3) It is not necessary to publish any direction issued under subsection (1) in the Gazette. [34/2012] |
| (4) Any person who contravenes a direction issued to the person under subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
| (5) No criminal or civil liability shall be incurred by a trustee appointed under section 265A(1), or by any person acting on behalf of such a trustee, for any thing done (including any statement made) or omitted to be done with reasonable care and in good faith in the course of, or in connection with, the compliance or purported compliance with a direction issued to the trustee under subsection (1). [34/2012] |
|
| Division 2 — Collective Investment Schemes |
| Subdivision (1) — Interpretation |
| Interpretation of this Division |
283.—(1) In this Division, unless the context otherwise requires —| “authorised real estate investment trust” means a real estate investment trust that is a collective investment scheme authorised under section 286; |
“control”, in relation to an entity, means the capacity of a person to determine the outcome of decisions on the financial and operating policies of the entity, having regard to —| (a) | the influence which the person can, in practice, exert on the entity (as opposed to the rights which the person can exercise in the entity); and | | (b) | any practice or pattern of behaviour of the person affecting the financial or operating policies of the entity (even if such practice or pattern of behaviour involves a breach of an agreement or a breach of trust), |
| but does not include any capacity of a person to influence decisions on the financial and operating policies of the entity if such influence is required by law or under any contract or order of court to be exercised for the benefit of other persons; |
|
| “immediate family”, in relation to an individual, means the individual’s spouse, son, adopted son, stepson, daughter, adopted daughter, stepdaughter, father, stepfather, mother, stepmother, brother, stepbrother, sister or stepsister; |
| “preliminary document” means a document which has been lodged with the Authority and is issued for the purpose of determining the appropriate issue or sale price of, and the number of, units in a collective investment scheme to be issued or sold and which contains the information required to be included in a prospectus as may be prescribed under section 296(1)(a)(i), except for such information as the Authority may prescribe; |
| “product highlights sheet” means a product highlights sheet referred to in section 296A(1); |
| “profile statement” means a profile statement referred to in section 296(2); |
“prospectus” means any prospectus, notice, circular, material, advertisement, publication or other document used to make an offer of units in a collective investment scheme or proposed collective investment scheme, but does not include —| (a) | a profile statement; | | (b) | any material, advertisement or publication which is authorised by section 300 (other than subsection (3)); or | | (c) | a product highlights sheet; |
|
| “recognised real estate investment trust” means a real estate investment trust that is a collective investment scheme recognised under section 287; |
| “recognised securities exchange” means a corporation which has been declared by the Authority, by order in the Gazette, to be a recognised securities exchange for the purposes of this Division; |
“related party” means —| (a) | in relation to an entity —| (i) | a director or an equivalent person of the entity; | | (ii) | the chief executive officer or an equivalent person of the entity; | | (iii) | a person who controls the entity; | | (iv) | a related corporation; | | (v) | any other entity controlled by it; | | (vi) | any other entity controlled by the person referred to in sub‑paragraph (iii); and | | (vii) | a related party of any individual referred to in sub‑paragraph (i), (ii) or (iii); and |
| | (b) | in relation to an individual —| (i) | his or her immediate family; | | (ii) | a trustee of any trust of which the individual or any member of the individual’s immediate family is —| (A) | a beneficiary; or | | (B) | where the trust is a discretionary trust, a discretionary object, |
| when the trustee acts in that capacity; and |
| | (iii) | any corporation in which the individual and his or her immediate family (whether directly or indirectly) have interests in voting shares of an aggregate of not less than 30% of the total votes attached to all voting shares; |
|
|
| “replacement document” means a replacement prospectus or a replacement profile statement referred to in section 298(1), as the case may be; |
| “supplementary document” means a supplementary prospectus or a supplementary profile statement referred to in section 298(1), as the case may be; |
| “unit trust” means a collective investment scheme under which the property is held on trust for the participants. [2/2009; 34/2012; 4/2017] |
| (2) For the purposes of this Division, a statement is deemed to be included in a prospectus or profile statement if it is contained in any report or memorandum appearing on the face thereof or by reference incorporated therein or issued therewith. |
(3) For the purposes of this Division, a person makes an offer of units in a collective investment scheme if, and only if, as principal —| (a) | the person makes (either personally or by an agent) an offer to any person in Singapore which upon acceptance would give rise to a contract for the issue or sale of those units by the firstmentioned person or another person with whom the firstmentioned person has made arrangements for that issue or sale; or | | (b) | the person invites (either personally or by an agent) any person in Singapore to make an offer which upon acceptance would give rise to a contract for the issue or sale of those units by the firstmentioned person or another person with whom the firstmentioned person has made arrangements for that issue or sale. |
|
| (4) In subsection (3), “sale” includes any disposal for valuable consideration. |
|
| Use of term “real estate investment trust” |
283A.—(1) A person must not, when describing or referring to any arrangement the rights or interests of which are, will be or have been the subject of an offer or intended offer, use the term “real estate investment trust” or any of its derivatives in any language in the name or description or any representation of that arrangement, unless —| (a) | the arrangement is authorised under section 286 or is one for which an application for authorisation has been made and has not been refused by the Authority under that section; | | (b) | the arrangement is recognised under section 287 or is one for which an application for recognition has been made and has not been refused by the Authority under that section; or | | (c) | the Authority has given its consent in writing to that person to use that term or derivative, or that person belongs to a class of persons declared by the Authority by order in the Gazette as persons who may use such term or derivative. |
| (2) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. |
(3) To avoid doubt, in subsection (1) —| (a) | “offer” or “intended offer”, in relation to any rights or interests in an arrangement, includes an offer or intended offer in relation to any such rights or interests that have previously been issued; and | | (b) | “representation”, in relation to an arrangement, includes a representation of the arrangement in any bill head, letter paper, notice, advertisement, publication or writing, whether in electronic, print or other form. |
|
|
| Code on Collective Investment Schemes |
284.—(1) For the more effective administration, supervision and control of collective investment schemes, the Authority may, under section 321, issue a code, to be known as the Code on Collective Investment Schemes.| (2) The Authority may revise the Code on Collective Investment Schemes by deleting, amending or adding to the provisions thereof. |
| (3) The Code on Collective Investment Schemes is deemed not to be subsidiary legislation. |
|
| Authority may disapply this Division to certain offers and invitations |
284A. Despite any provision to the contrary in this Division, where —| (a) | an offer of units in a collective investment scheme is one to which (but for this section) both this Division and Division 1 apply; and | | (b) | the Authority has by order in the Gazette declared that this Division does not apply to that offer or a class of offers to which that offer belongs, |
| then this Division (other than section 283A) does not apply to that offer. |
[2/2009] |
| Division not to apply to certain collective investment schemes which are business trusts |
284B. This Division (other than section 283A) does not apply to an offer of units in a collective investment scheme, where —| (a) | the collective investment scheme is also a registered business trust; or | | (b) | the collective investment scheme is also a business trust and the offer is made in reliance on an exemption under Subdivision (3) of Division 1A. [2/2009] |
|
| Modification of provisions to certain offers |
| 284C. The Authority may, if it thinks it necessary in the interests of the public or a section of the public or for the protection of investors, by regulations modify or adapt the provisions of this Division in their application to such offer of units in a collective investment scheme as may be prescribed, and the provisions of this Division apply to such offer subject to such modifications or adaptations. [2/2009] |
| Subdivision (2) — Authorisation and recognition |
| Requirement for authorisation or recognition |
| 285.—(1) A person must not make an offer of units in a collective investment scheme if the collective investment scheme has not been authorised under section 286 or recognised under section 287. [2/2009] | (2) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. |
|
286.—(1) The Authority may, upon an application made to the Authority in such form and manner as may be prescribed by regulations made under section 341, authorise a collective investment scheme constituted in Singapore, subject to —| (a) | subsection (2) or (2A), as the case may be; | | (b) | the conditions specified in subsection (3); and | | (c) | such conditions or restrictions as the Authority thinks fit to impose by written notice. [34/2012; 44/2018] |
| (1A) The Authority may, at any time, by written notice to the responsible person for a collective investment scheme authorised under subsection (1), vary or revoke any condition or restriction imposed by the Authority under subsection (1)(c) or impose such further condition or restriction as the Authority thinks fit. [34/2012] |
(2) The Authority may authorise, under subsection (1), a collective investment scheme which is constituted as a unit trust if and only if the Authority is satisfied that —| (a) | there is a manager for the scheme which satisfies the requirements in subsection (3); | | (b) | there is a trustee for the scheme approved under section 289; | | (c) | there is a trust deed in respect of the scheme entered into by the manager and the trustee for the scheme that complies with prescribed requirements; and | | (d) | the scheme, the manager for the scheme and the trustee for the scheme comply with this Act and the Code on Collective Investment Schemes. |
|
(2A) The Authority may authorise under subsection (1) a collective investment scheme constituted as a VCC or a sub‑fund, if and only if the Authority is satisfied that —| (a) | there is a manager for the scheme that satisfies the requirements in subsection (3); | | (b) | there is a custodian for the scheme that is a trustee approved under section 289; | | (c) | the constitution of the VCC and contractual arrangements in respect of the scheme comply with prescribed requirements and the Variable Capital Companies Act 2018; | | (d) | there are at least 3 directors of the VCC, at least one of whom is independent in accordance with the criteria set out in the Code on Collective Investment Schemes; and | | (e) | the VCC, the scheme, the manager for the scheme and the custodian for the scheme comply with this Act and the Code on Collective Investment Schemes. [44/2018] |
|
(3) It is a condition for the authorisation of a collective investment scheme under subsection (1) that —| (a) | the manager of the scheme is —| (i) | in the case of a collective investment scheme —| (A) | that is a trust; | | (B) | that invests primarily in real estate and real estate‑related assets specified by the Authority in the Code on Collective Investment Schemes; and | | (C) | all or any units of which are listed for quotation on an approved exchange, |
| the holder of a capital markets services licence for real estate investment trust management; and |
| | (ii) | in all other cases, the holder of a capital markets services licence for fund management or a person exempted under section 99(1)(a), (b), (c) or (d) in respect of fund management; and |
| | (b) | the manager for the scheme is a fit and proper person, in the opinion of the Authority, and in considering if a person satisfies this requirement, the Authority may take into account any matter relating to —| (i) | any person who is or will be employed by or associated with the manager; | | (ii) | any person exercising influence over the manager; or | | (iii) | any person exercising influence over a related corporation of the manager. [2/2009; 4/2017; S 376/2008] |
|
|
| (4) The Authority may authorise, under subsection (1), a collective investment scheme which is not constituted as a unit trust, a VCC or a sub‑fund if and only if the Authority is satisfied that the scheme and the manager for the scheme comply with such requirements as may be prescribed. [44/2018] |
| (5) Without affecting subsection (2) or (2A), the Authority may refuse to authorise any collective investment scheme under subsection (1) where it appears to the Authority that it is not in the public interest to do so. [2/2009; 44/2018] |
(6) The Authority must not refuse to authorise a collective investment scheme under subsection (1) without giving the person who made the application an opportunity to be heard, except that an opportunity to be heard need not be given if the refusal is on the ground that it is not in the public interest to authorise the collective investment scheme on the basis of any of the following circumstances:| (a) | the person making the offer (being an entity), the responsible person or the collective investment scheme itself, is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere; | | (b) | the person making the offer (being an individual) is an undischarged bankrupt, whether in Singapore or elsewhere; | | (c) | a receiver, a receiver and manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of any property of the person making the offer (being an entity), the responsible person or the collective investment scheme. |
|
| (7) The responsible person for a collective investment scheme may, within 30 days after the responsible person is notified that the Authority has refused to authorise that scheme under subsection (1), appeal to the Minister whose decision is final. |
| (8) An application made under subsection (1) must be accompanied by such information or record as the Authority may require. |
| (9) The Authority may publish for public information, in such manner as it considers appropriate, particulars of any collective investment scheme authorised under subsection (1). |
(10) The responsible person for a collective investment scheme authorised under subsection (1) and either —| (a) | the approved trustee for the scheme if it is one constituted as a unit trust; or | | (b) | the custodian for the scheme if it is one constituted as a VCC or sub‑fund, |
| to the extent applicable, must ensure that — |
| (c) | every condition or requirement set out in subsection (2) or (2A) (as the case may be), and subsections (3) and (4); and | | (d) | every condition or restriction imposed by the Authority under subsection (1)(c) or (1A), |
| as applicable to that scheme, continue to be satisfied. |
[44/2018] |
(10A) The manager of an authorised real estate investment trust must —| (a) | act in the best interests of all the participants of the authorised real estate investment trust as a whole; and | | (b) | give priority to the interests of all the participants of the authorised real estate investment trust as a whole over the manager’s own interests and the interests of the shareholders of the manager in the event of a conflict between the interests of all the participants as a whole and the manager’s own interests or the interests of the shareholders of the manager. [4/2017] |
|
(10B) A director of the manager of an authorised real estate investment trust must —| (a) | take all reasonable steps to ensure that the manager discharges its duties under subsection (10A); and | | (b) | give priority to the interests of all the participants of the authorised real estate investment trust as a whole over the interests of the manager and the shareholders of the manager in the event of a conflict between the interests of all the participants as a whole and the interests of the manager or the shareholders of the manager. [4/2017] |
|
| (10C) The duty of a director of the manager mentioned in subsection (10B) overrides any conflicting duty of such director under section 157 of the Companies Act 1967. [4/2017] |
| (10D) Civil or criminal proceedings may not be brought against a director of the manager of an authorised real estate investment trust for a breach of section 157 of the Companies Act 1967, any fiduciary duty or any other duty under common law, in relation to any act or omission if such act or omission was required by subsection (10B). [4/2017] |
| (10E) To avoid doubt, no action or proceedings of any kind may be brought by or on behalf of all or any of the participants of an authorised real estate investment trust against a director of the manager of that authorised real estate investment trust for any breach or alleged breach of the duties imposed by subsection (10B) except to the extent and in the manner provided for under section 295C. [4/2017] |
| (11) Despite subsection (10), a failure by any person to comply with the Code on Collective Investment Schemes does not of itself render that person liable to criminal proceedings but such failure may, in any proceedings whether civil or criminal, be relied upon by any party to the proceedings as tending to establish or to negate any liability which is in question in the proceedings. |
| (12) If any person fails to comply with the Code on Collective Investment Schemes, the Authority may, in addition to, or as an alternative to any action under section 288, take such other action as it deems fit. |
| (13) The responsible person for a collective investment scheme which is authorised under subsection (1) must provide such information or record regarding the scheme as the Authority may, at any time, require for the proper administration of this Act. |
| (14) Where the manager for a collective investment scheme which is constituted as a unit trust and authorised under subsection (1) fails to comply with this Act or the Code on Collective Investment Schemes, the Authority may direct the trustee for the scheme to remove that person and appoint a new manager for the scheme. |
| (14A) Where the manager for a collective investment scheme that is constituted as a VCC or a sub‑fund, and authorised under subsection (1), fails to comply with this Act or the Code on Collective Investment Schemes, the Authority may direct the VCC to remove that person and appoint a new manager for the scheme. [44/2018] |
| (15) Any person who contravenes subsection (10) or (13) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction. |
(16) A manager of an authorised real estate investment trust which contravenes subsection (10A) —| (a) | shall be liable to all the participants of the authorised real estate investment trust as a whole —| (i) | for any profit or financial gain directly or indirectly made by the manager or any of its related corporations; or | | (ii) | for any damage suffered by all the participants of the authorised real estate investment trust as a whole, |
| as a result of the contravention; and |
| | (b) | shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000. [4/2017] |
|
(17) A director of the manager of an authorised real estate investment trust who contravenes subsection (10B) —| (a) | shall be liable to all the participants of the authorised real estate investment trust as a whole —| (i) | for any profit or financial gain directly or indirectly made by the director or the manager or any related corporation of the manager; or | | (ii) | for any damage suffered by all the participants of the authorised real estate investment trust as a whole, |
| as a result of the contravention; and |
| | (b) | shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 2 years or to both. [4/2017] |
|
|
287.—(1) The Authority may, upon an application made to the Authority in such form and manner as may be prescribed by regulations made under section 341, recognise a collective investment scheme constituted outside Singapore, subject to —| (a) | subsection (2); | | (b) | the conditions specified in subsection (3); and | | (c) | such conditions or restrictions as the Authority thinks fit to impose by written notice. [34/2012] |
| (1A) The Authority may, at any time, by written notice to the responsible person for a collective investment scheme recognised under subsection (1), vary or revoke any condition or restriction imposed by the Authority under subsection (1)(c) or impose such further condition or restriction as the Authority thinks fit. [34/2012] |
(2) In determining whether to recognise a collective investment scheme under subsection (1), the Authority may have regard to the following factors:| (a) | whether the laws and practices of the jurisdictions under which the scheme is constituted and regulated affords to investors in Singapore protection at least equivalent to that provided to them by or under this Division in the case of comparable authorised schemes; | | (b) | such other criteria as may be prescribed by regulations made under section 341. [4/2017] |
|
(3) Unless otherwise notified in writing by the Authority to the responsible person of the collective investment scheme, the following conditions must be satisfied for the recognition of every collective investment scheme under subsection (1):| (a) | there is a manager for the scheme that —| (i) | is licensed or regulated in the jurisdiction of its principal place of business; and | | (ii) | is a fit and proper person in the opinion of the Authority, and in considering if a person is a fit and proper person, the Authority may take into account any matter relating to —| (A) | any person who is or will be employed by or associated with the manager; | | (B) | any person exercising influence over the manager; or | | (C) | any person exercising influence over a related corporation of the manager; |
|
| | (b) | there is a representative for the scheme for the functions set out in subsection (13) who is —| (i) | an individual resident in Singapore; or | | (ii) | a company, or a foreign company registered under Division 2 of Part 11 of the Companies Act 1967; |
| | (c) | the scheme, the manager for the scheme and (where applicable) the trustee for the scheme comply with this Act and the Code on Collective Investment Schemes; and | | (d) | the responsible person for the collective investment scheme furnishes to the Authority —| (i) | the name of the representative mentioned in paragraph (b) and the representative’s address (where such representative is a corporation) or contact particulars (where such representative is an individual); and | | (ii) | any information prescribed by regulations made under section 341. [4/2017] |
|
|
| (4) Without affecting subsection (2), the Authority may refuse to recognise any collective investment scheme under subsection (1) where it appears to the Authority that it is not in the public interest to do so. [2/2009] |
(5) The Authority must not refuse to recognise a collective investment scheme under subsection (1) without giving the person who made the application an opportunity to be heard, except that an opportunity to be heard need not be given if the refusal is on the ground that it is not in the public interest to recognise the collective investment scheme on the basis of any of the following circumstances:| (a) | the person making the offer (being an entity), the responsible person or the collective investment scheme itself, is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere; | | (b) | the person making the offer (being an individual) is an undischarged bankrupt, whether in Singapore or elsewhere; | | (c) | a receiver, a receiver and manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of any property of the person making the offer (being an entity), the responsible person or the collective investment scheme. |
|
| (6) The responsible person for a collective investment scheme may, within 30 days after the responsible person is notified that the Authority has refused to recognise that scheme under subsection (1), appeal to the Minister whose decision is final. |
| (7) An application made under subsection (1) must be accompanied by such information or record as the Authority may require. |
| (8) The Authority may publish for public information, in such manner as it considers appropriate, particulars of any collective investment scheme recognised under subsection (1). |
| (9) The responsible person for a collective investment scheme recognised under subsection (1) must ensure that the conditions set out in subsection (3), and every condition or restriction imposed by the Authority under subsection (1)(c) or (1A), as applicable to that scheme continues to be satisfied. [4/2017] [Act 12 of 2024 wef 30/08/2024] |
(9A) The manager of a recognised real estate investment trust must —| (a) | act in the best interests of all the participants of the recognised real estate investment trust as a whole; and | | (b) | give priority to the interests of all the participants of the recognised real estate investment trust as a whole over the manager’s own interests and the interests of the shareholders of the manager in the event of a conflict between the interests of all the participants as a whole and the manager’s own interests or the interests of the shareholders of the manager. [4/2017] |
|
(9B) A director of the manager of a recognised real estate investment trust must —| (a) | take all reasonable steps to ensure that the manager discharges its duties under subsection (9A); and | | (b) | give priority to the interests of all the participants of the recognised real estate investment trust as a whole over the interests of the manager and the shareholders of the manager in the event of a conflict between the interests of all the participants as a whole and the interests of the manager or the shareholders of the manager. [4/2017] |
|
| (9C) A duty of a director of the manager under subsection (9B) overrides any conflicting duty of such director under section 157 of the Companies Act 1967. [4/2017] |
| (9D) Civil or criminal proceedings may not be brought against a director of the manager of a recognised real estate investment trust for a breach of section 157 of the Companies Act 1967, any fiduciary duty or any other duty under common law, in relation to any act or omission if such act or omission was required by subsection (9B). [4/2017] |
| (9E) To avoid doubt, no action or proceedings whatsoever may be brought by or on behalf of all or any of the participants of a recognised real estate investment trust against a director of the manager of that recognised real estate investment trust for any breach or alleged breach of the duties imposed by subsection (9B) except to the extent and in the manner provided for under section 295C. [4/2017] |
| (10) Despite subsection (9), a failure by any person to comply with the Code on Collective Investment Schemes does not of itself render that person liable to criminal proceedings but may, in any proceedings whether civil or criminal, be relied upon by any party to the proceedings as tending to establish or to negate any liability which is in question in the proceedings. |
| (11) If any person fails to comply with the Code on Collective Investment Schemes, the Authority may in addition to, or as an alternative to any action under section 288, take such other action as it deems fit. |
| (12) The responsible person for a collective investment scheme which is recognised under subsection (1) must provide such information or record regarding the scheme as the Authority may, at any time, require for the proper administration of this Act. |
(13) The representative for a collective investment scheme which is recognised under subsection (1) must carry out, or procure the carrying out of the following functions:| (a) | facilitate —| (i) | the issuing and redeeming of units in the scheme; | | (ii) | the publishing of sale and purchase prices of units in the scheme; | | (iii) | the sending of reports of the scheme to participants; | | (iv) | the provision of such books relating to the sale and redemption of units as the Authority may require; and | | (v) | the inspection of the instruments constituting the scheme; |
| | (b) | either maintain for inspection in Singapore a subsidiary register of participants who subscribed for or purchased their units in Singapore, or maintain in Singapore any facility that enables the inspection or extraction of the equivalent information; | | (c) | within 14 days after any change in the particulars referred to in subsection (3)(d), give written notice of such change to the Authority; | | (d) | provide such information or record regarding the scheme as the Authority may, at any time, require for the proper administration of this Act; | | (e) | such other functions as the Authority may prescribe. [4/2017] |
|
(13A) In carrying out or procuring the carrying out of the functions referred to in subsection (13), the representative must ensure that —| (a) | for the purposes of subsection (13)(a)(ii), the sale and purchase prices of units in the collective investment scheme are published in the language of the prospectus; | | (b) | for the purposes of subsection (13)(a)(iii), the reports of the scheme sent to participants are prepared in the language of the prospectus, except in relation to any participant who has consented to being sent a report in a language other than the language of the prospectus; | | (c) | for the purposes of subsection (13)(a)(v), if the instruments constituting the scheme are not in the language of the prospectus, an accurate translation of the instruments in the language of the prospectus is made available to a participant for inspection, unless the participant has consented to the making available to that participant for inspection of the instruments in a language other than the language of the prospectus; and | | (d) | for the purposes of subsection (13)(b), if the subsidiary register of participants or equivalent information is not in the language of the prospectus, an accurate translation of the register or equivalent information in the language of the prospectus is made available to a participant for inspection or extraction, unless the participant has consented to the making available to that participant for inspection or extraction of the register or equivalent information in a language other than the language of the prospectus. |
|
| (13B) In subsection (13A), “language of the prospectus” means the language of the prospectus accompanying or making the offer of units in the collective investment scheme. |
| (13C) Section 318A(2) does not apply to the instruments constituting the scheme referred to in subsection (13)(a)(v) or to the subsidiary register of participants or equivalent information referred to in subsection (13)(b). |
| (14) Any person who contravenes subsection (9), (12) or (13) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction. |
(15) A manager of a recognised real estate investment trust which contravenes subsection (9A) —| (a) | shall be liable to all the participants of the recognised real estate investment trust as a whole —| (i) | for any profit or financial gain directly or indirectly made by the manager or any of its related corporations; or | | (ii) | for any damage suffered by all the participants of the recognised real estate investment trust as a whole, |
| as a result of the contravention; and |
| | (b) | shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000. [4/2017] |
|
(16) A director of the manager of a recognised real estate investment trust who contravenes subsection (9B) —| (a) | shall be liable to all the participants of the recognised real estate investment trust as a whole —| (i) | for any profit or financial gain directly or indirectly made by the director or the manager or any related corporation of the manager; or | | (ii) | for any damage suffered by all the participants of the recognised real estate investment trust as a whole, |
| as a result of the contravention; and |
| | (b) | shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 2 years or to both. [4/2017] |
|
|
| Revocation, suspension or withdrawal of authorisation or recognition |
288.—(1) The Authority may revoke the authorisation of a collective investment scheme granted under section 286 or the recognition of a collective investment scheme granted under section 287 if —| (a) | the application for authorisation or recognition, or any related information or record submitted to the Authority whether at the same time as or subsequent to the application, was false or misleading in a material particular or omitted a material particular which, had it been known to the Authority at the time of submission, would have resulted in the Authority not granting the authorisation or recognition; | | (aa) | the Authority is of the opinion that the continued authorisation or recognition of the scheme is or will be against the public interest; | | (b) | the Authority is of the opinion that the continued authorisation or recognition of the scheme is or will be prejudicial to its participants or potential participants; | | (ba) | in the case of a scheme recognised under section 287, the Authority is of the opinion that it is necessary to revoke the recognition of the scheme to give effect to the provisions of any arrangement relating to cross‑border offers of collective investment schemes to which Singapore or the Authority is a party; or | | (c) | in the case of —| (i) | a scheme authorised under section 286 that is constituted as a unit trust, the responsible person for the scheme or the trustee for the scheme (where applicable) fails to comply with section 286(10) or (13); | | (ia) | a scheme authorised under section 286 that is constituted as a VCC or as a sub‑fund, the responsible person for the scheme, the manager for the scheme, or the custodian for the scheme (where applicable), fails to comply with section 286(10) or (13); or | | (ii) | a scheme recognised under section 287, the responsible person for the scheme or the representative for the scheme, where applicable, fails to comply with section 287(9), (12) or (13). [4/2017; 44/2018] |
|
(2) Where the Authority revokes the authorisation or recognition of a collective investment scheme under subsection (1), the Authority may issue such directions as it deems fit to the responsible person for the scheme, including a direction that the responsible person —| (a) | refund all moneys contributed by the participants of the scheme; or | | (b) | provide the participants with an option, on such terms as the Authority may approve, to obtain from the responsible person a refund of all moneys contributed by them or to redeem their units in accordance with the scheme. |
|
(3) In determining whether to issue a direction under subsection (2), the Authority must consider whether the responsible person for the collective investment scheme is able to liquidate the property of the scheme without material adverse financial effect to the participants, and for this purpose, the factors which the Authority may take into account include —| (a) | whether a significant amount of the moneys contributed by the participants has been invested; | | (b) | the liquidity of the property of the scheme; and | | (c) | the penalties (if any) payable for liquidating the property. |
|
| (4) A responsible person who contravenes any of the directions issued by the Authority to the responsible person under subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
| (5) Despite subsection (1), the Authority may, if it considers it desirable to do so, instead of revoking the authorisation or recognition of a collective investment scheme, suspend the authorisation or recognition of that scheme for a specific period, and may at any time remove such suspension. |
| (6) Where the Authority revokes the authorisation or recognition of a collective investment scheme under subsection (1) or suspends the authorisation or recognition of a collective investment scheme under subsection (5), it must notify the responsible person for the scheme. |
| (7) Subject to subsection (8), the Authority may, upon an application in writing made to it by the responsible person for a collective investment scheme, in such form and manner as may be prescribed, withdraw the authorisation or recognition of that scheme. |
(8) The Authority may refuse to withdraw the authorisation or recognition of a collective investment scheme under subsection (7) where the Authority is of the opinion that —| (a) | there is any matter concerning the scheme which should be investigated before the authorisation or recognition is withdrawn; or | | (b) | the withdrawal of the authorisation or recognition would not be in the public interest. |
|
(8A) The Authority must not —| (a) | revoke the authorisation or recognition of a collective investment scheme under subsection (1); | | (b) | suspend the authorisation or recognition of a collective investment scheme under subsection (5); or | | (c) | refuse the withdrawal of the authorisation or recognition of a collective investment scheme under subsection (8), |
| without giving the responsible person of the scheme an opportunity to be heard, except that an opportunity to be heard need not be given if the revocation or suspension is on the ground that the continued authorisation or recognition of the scheme is against the public interest on the basis of any of the following circumstances: |
| (d) | the person making the offer (being an entity), the responsible person or the collective investment scheme itself, is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere; | | (e) | the person making the offer (being an individual) is an undischarged bankrupt, whether in Singapore or elsewhere; | | (f) | a receiver, a receiver and manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of any property of the person making the offer (being an entity), the responsible person or the collective investment scheme. |
|
(8B) The responsible person for a collective investment scheme may, within 30 days after the responsible person is notified that the Authority —| (a) | has revoked the authorisation or recognition of that scheme under subsection (1); | | (b) | has suspended the authorisation or recognition of that scheme under subsection (5); or | | (c) | has refused to withdraw the authorisation or recognition of that scheme under subsection (8), |
| appeal to the Minister whose decision is final. |
|
(9) Where the Authority revokes an authorisation or recognition under subsection (1), suspends an authorisation or recognition under subsection (5) or withdraws an authorisation or recognition under subsection (7), it may —| (a) | impose such conditions on the revocation, suspension or withdrawal as it considers appropriate; and | | (b) | publish notice of the revocation, suspension or withdrawal, and the reason therefor, in such manner as it considers appropriate. |
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| 289.—(1) The Authority may, upon an application made to the Authority in such form and manner as may be prescribed by regulations made under section 341, approve a public company to act as a trustee for collective investment schemes which are authorised under section 286 and constituted as unit trusts (called in this Subdivision an approved trustee), subject to such conditions or restrictions as the Authority thinks fit to impose by written notice. [34/2012] | (1A) The Authority may, at any time, by written notice to the approved trustee, vary or revoke any condition or restriction imposed by the Authority under subsection (1) or impose such further condition or restriction as the Authority thinks fit. [34/2012] |
| (2) The Authority must not approve a public company to act as trustee under subsection (1) unless the company satisfies such financial requirements and other criteria as the Authority may prescribe. |
| (3) An approved trustee must continue to satisfy the financial requirements and other criteria prescribed under subsection (2) and every condition or restriction imposed by the Authority under subsection (1) or (1A). [34/2012] |
(4) Where the Authority is of the opinion that an approved trustee —| (a) | has failed to satisfy a financial requirement or other criterion prescribed under subsection (2), or any condition or restriction imposed by the Authority under subsection (1) or (1A); | | (b) | has not carried out its duties with due care and diligence; | | (c) | has acted in a manner which prejudices the participants of any authorised collective investment scheme; or | | (d) | has failed to comply with this Act or the Code on Collective Investment Schemes, |
| (e) | revoke an approval granted under this section and may direct the manager for the collective investment scheme or schemes which such approved trustee was acting for, to appoint a new trustee for the scheme or schemes; | | (f) | prohibit such approved trustee from acting as trustee for any new collective investment scheme; or | | (g) | issue such direction as it deems fit. [34/2012] |
|
(4A) Where, upon the Authority exercising any power under section 292D(2) or the Minister exercising any power under Division 2, 4, 5 or 6 of Part 8 of the Financial Services and Markets Act 2022 in relation to an approved trustee, the Authority considers that it is in the public interest to do so, the Authority may —| (a) | revoke the approval granted to the approved trustee under this section; and | | (b) | direct the manager for the collective investment scheme or schemes, which the approved trustee was acting for, to appoint a new trustee for the scheme or schemes. [10/2013; 31/2017] [Act 18 of 2022 wef 10/05/2024] |
|
| (5) An approved trustee must comply with any direction issued to it under subsection (4). |
| (6) It is not necessary to publish any direction issued under subsection (4) in the Gazette. [34/2012] |
| (7) Any approved trustee who contravenes subsection (3) or (5) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction. |
|
| Inspection of approved trustees |
290.—(1) The Authority may, from time to time, inspect the books of an approved trustee.| (2) For the purpose of an inspection under this section, the approved trustee under inspection must afford the Authority access to, and must produce, its books and must give such information and facilities as may be required to conduct the inspection. |
| (3) The Authority has the power to copy or take possession of the books of an approved trustee under inspection. |
| (4) An approved trustee which fails, without reasonable excuse, to produce any book or provide any information or facilities in accordance with subsection (2), or otherwise obstructs the Authority in the exercise of its powers under this section, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000. |
|
| Duty of trustees to furnish Authority with such return and information as Authority requires |
| 291. An approved trustee must furnish such returns and provide such information relating to its business as the Authority may require. |
292.—(1) Subject to subsection (2), any provision in a trust deed required under section 286(2)(c) or in any contract with the participants of a collective investment scheme to which such a trust deed relates, is void insofar as it would have the effect of exempting a trustee under the trust deed from, or indemnifying a trustee against, liability for breach of trust where the trustee fails to exercise the degree of care and diligence required of a trustee.(2) Subsection (1) does not invalidate —| (a) | any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release; or | | (b) | any provision enabling such a release to be given —| (i) | on the agreement thereto of a majority of not less than three‑fourths of the participants in a collective investment scheme voting in person or by proxy at a meeting summoned for the purpose; and | | (ii) | either with respect to specific acts or omissions or on the trustee ceasing to act. |
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| Disqualification or removal of director or executive officer |
292A.—(1) Despite the provisions of any other written law —| (a) | an approved trustee must not, without the prior written consent of the Authority, permit a person to act as its executive officer; and | | (b) | an approved trustee which is incorporated in Singapore must not, without the prior written consent of the Authority, permit a person to act as its director, |
| (c) | has been convicted, whether in Singapore or elsewhere, of an offence committed before, on or after 18 April 2013, being an offence —| (i) | involving fraud or dishonesty; | | (ii) | the conviction for which involved a finding that the person had acted fraudulently or dishonestly; or | | (iii) | that is specified in the Third Schedule to the Registration of Criminals Act 1949; |
| | (d) | is an undischarged bankrupt, whether in Singapore or elsewhere; | | (e) | has had an enforcement order against the person in respect of a judgment debt returned unsatisfied in whole or in part; [Act 25 of 2021 wef 01/04/2022] | | (f) | has, whether in Singapore or elsewhere, entered into a compromise or scheme of arrangement with the person’s creditors, being a compromise or scheme of arrangement that is still in operation; | | (g) | has had a related Acts prohibition order, a section 101A prohibition order, a section 123ZZC prohibition order or an FSMA prohibition order made against the person that remains in force; or [Act 18 of 2022 wef 31/07/2024] | | (h) | has been a director of, or directly concerned in the management of, a regulated financial institution, whether in Singapore or elsewhere —| (i) | which is being or has been wound up by a court; or | | (ii) | the approval, authorisation, designation, recognition, registration or licence of which has been withdrawn, cancelled or revoked by the Authority or, in the case of a regulated financial institution in a foreign country or territory, by the regulatory authority in that foreign country or territory. [10/2013; 4/2017] |
|
(2) Despite the provisions of any other written law, where the Authority is satisfied that a director of an approved trustee which is incorporated in Singapore, or an executive officer of an approved trustee —| (a) | has wilfully contravened or wilfully caused the approved trustee to contravene any provision of this Act; | | (b) | has, without reasonable excuse, failed to secure the compliance of the approved trustee with this Act, the Monetary Authority of Singapore Act 1970 or any of the written laws set out in the Schedule to that Act; or | | (c) | has failed to discharge any of the duties of his or her office, |
| the Authority may, if it thinks it necessary in the interests of the public or a section of the public or for the protection of investors, by written notice to the approved trustee, direct the approved trustee to remove the director or executive officer (as the case may be) from his or her office or employment within such period as the Authority may specify in the notice, and the approved trustee must comply with the notice. |
[10/2013] |
| (3) Without affecting any other matter that the Authority may consider relevant, the Authority must, when determining whether a director or an executive officer of an approved trustee has failed to discharge the duties of his or her office for the purposes of subsection (2)(c), have regard to such criteria as may be prescribed. [10/2013] |
(4) Before directing an approved trustee to remove a person from his or her office or employment under subsection (2), the Authority must —| (a) | give the approved trustee and the person written notice of its intention to do so; and | | (b) | in the notice referred to in paragraph (a), call upon the approved trustee and the person to show cause, within such time as may be specified in the notice, why the person should not be removed. [10/2013] |
|
(5) If the approved trustee and the person referred to in subsection (4) —| (a) | fail to show cause within the time specified under subsection (4)(b) or within such extended period of time as the Authority may allow; or | | (b) | fail to show sufficient cause, |
| the Authority may direct the approved trustee to remove the person under subsection (2). |
[10/2013] |
| (6) Any approved trustee which, or any director or executive officer of an approved trustee who, is aggrieved by a direction of the Authority under subsection (2) may, within 30 days after receiving the direction, appeal in writing to the Minister, whose decision is final. [10/2013] |
| (7) Any approved trustee which contravenes subsection (1) or fails to comply with a notice issued under subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction. [10/2013] |
| (8) No criminal or civil liability shall be incurred by an approved trustee, or any person acting on behalf of the approved trustee, in respect of anything done or omitted to be done with reasonable care and in good faith in the discharge or purported discharge of the obligations of the approved trustee under this section. [10/2013] |
(9) In this section, unless the context otherwise requires —| “regulated financial institution” means a person who carries on a business, the conduct of which is regulated or authorised by the Authority or, if it is carried on in Singapore, would be regulated or authorised by the Authority; |
| “regulatory authority”, in relation to a foreign country or territory, means an authority of the foreign country or territory exercising any function that corresponds to a regulatory function of the Authority under this Act, the Monetary Authority of Singapore Act 1970 or any of the written laws set out in the Schedule to that Act. [10/2013] |
|
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| Information of insolvency, etc. |
| 292B.—(1) Any approved trustee which is or is likely to become insolvent, which is or is likely to become unable to meet its obligations, or which has suspended or is about to suspend payments, must immediately inform the Authority of that fact. [10/2013] | (2) Any approved trustee which contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction. [10/2013] |
|
| Interpretation of sections 292C to 292H |
292C. In this section and sections 292D, 292E, 292F, 292G and 292H, unless the context otherwise requires —| “business” includes affairs and property; |
| “office holder”, in relation to an approved trustee, means any person acting as the liquidator, the provisional liquidator, the receiver or the receiver and manager of the approved trustee, or acting in an equivalent capacity in relation to the approved trustee; |
“relevant business” means any business of an approved trustee —| (a) | which the Authority has assumed control of under section 292D; or | | (b) | in relation to which a statutory adviser or a statutory manager has been appointed under section 292D; |
|
| “statutory adviser” means a statutory adviser appointed under section 292D; |
| “statutory manager” means a statutory manager appointed under section 292D. [10/2013] |
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| Action by Authority if approved trustee unable to meet obligations, etc. |
292D.—(1) The Authority may exercise any one or more of the powers specified in subsection (2) as appears to it to be necessary, where —| (a) | an approved trustee informs the Authority that it is or is likely to become insolvent, or that it is or is likely to become unable to meet its obligations, or that it has suspended or is about to suspend payments; | | (b) | an approved trustee becomes unable to meet its obligations, or is insolvent, or suspends payments; | | (c) | the Authority is of the opinion that an approved trustee —| (i) | is carrying on its business in a manner likely to be detrimental to the interests of the public or a section of the public or the protection of investors; | | (ii) | is or is likely to become insolvent, or is or is likely to become unable to meet its obligations, or is about to suspend payments; | | (iii) | has contravened any of the provisions of this Act; or | | (iv) | has failed to comply with any condition or restriction imposed on it under section 289(1) or (1A); or |
| | (d) | the Authority considers it in the public interest to do so. [10/2013] |
(2) Subject to subsections (1) and (3), the Authority may —| (a) | require the approved trustee immediately to take any action or to do or not to do any act or thing whatsoever in relation to its business as the Authority may consider necessary; | | (b) | appoint one or more persons as statutory adviser, on such terms and conditions as the Authority may specify, to advise the approved trustee on the proper management of such of the business of the approved trustee as the Authority may determine; or | | (c) | assume control of and manage such of the business of the approved trustee as the Authority may determine, or appoint one or more persons as statutory manager to do so on such terms and conditions as the Authority may specify. [10/2013] |
|
(3) Where the Authority appoints 2 or more persons as the statutory manager of an approved trustee, the Authority must specify, in the terms and conditions of the appointment, which of the duties, functions and powers of the statutory manager —| (a) | may be discharged or exercised by such persons jointly and severally; | | (b) | must be discharged or exercised by such persons jointly; and | | (c) | must be discharged or exercised by a specified person or such persons. [10/2013] |
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(4) Where the Authority has exercised any power under subsection (2), it may, at any time and without affecting its power under section 289(4A), do one or more of the following:| (a) | vary or revoke any requirement of, any appointment made by or any action taken by the Authority in the exercise of such power, on such terms and conditions as it may specify; | | (b) | further exercise any of the powers under subsection (2); | | (c) | add to, vary or revoke any term or condition specified by the Authority under this section. [10/2013] |
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(5) No liability shall be incurred by a statutory manager or a statutory adviser for anything done (including any statement made) or omitted to be done with reasonable care and in good faith in the course of or in connection with —| (a) | the exercise or purported exercise of any power under this Act; | | (b) | the performance or purported performance of any function or duty under this Act; or | | (c) | the compliance or purported compliance with this Act. [10/2013] |
|
| (6) Any approved trustee that fails to comply with a requirement imposed by the Authority under subsection (2)(a) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction. [10/2013] |
|
| Effect of assumption of control under section 292D |
| 292E.—(1) Upon assuming control of the relevant business of an approved trustee, the Authority or statutory manager (as the case may be) must take custody or control of the relevant business. [10/2013] (2) During the period when the Authority or statutory manager is in control of the relevant business of an approved trustee, the Authority or statutory manager —| (a) | must manage the relevant business of the approved trustee in the name of and on behalf of the approved trustee; and | | (b) | is deemed to be an agent of the approved trustee. [10/2013] |
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(3) In managing the relevant business of an approved trustee, the Authority or statutory manager —| (a) | must consider the interests of the public or the section of the public referred to in section 292D(1)(c)(i), and the need to protect investors; and | | (b) | has all the duties, powers and functions of the members of the board of directors of the approved trustee (collectively and individually) under this Act, the Companies Act 1967 and the constitution of the approved trustee, including powers of delegation, in relation to the relevant business of the approved trustee; but nothing in this paragraph requires the Authority or statutory manager to call any meeting of the approved trustee under the Companies Act 1967 or the constitution of the approved trustee. [10/2013] |
|
| (4) Despite any written law or rule of law, upon the assumption of control of the relevant business of an approved trustee by the Authority or statutory manager, any appointment of a person as the chief executive officer or a director of the approved trustee, which was in force immediately before the assumption of control, is deemed to be revoked, unless the Authority gives its approval, by written notice to the person and the approved trustee, for the person to remain in the appointment. [10/2013] |
| (5) Despite any written law or rule of law, during the period when the Authority or statutory manager is in control of the relevant business of an approved trustee, except with the approval of the Authority, no person may be appointed as the chief executive officer or a director of the approved trustee. [10/2013] |
| (6) Where the Authority has given its approval under subsection (4) or (5) to a person to remain in the appointment of, or to be appointed as, the chief executive officer or a director of an approved trustee, the Authority may at any time, by written notice to the person and the approved trustee, revoke that approval, and the appointment is deemed to be revoked on the date specified in the notice. [10/2013] |
(7) Despite any written law or rule of law, if any person, whose appointment as the chief executive officer or a director of an approved trustee is revoked under subsection (4) or (6), acts or purports to act after the revocation as the chief executive officer or a director of the approved trustee during the period when the Authority or statutory manager is in control of the relevant business of the approved trustee —| (a) | the act or purported act of the person is invalid and of no effect; and | | (b) | the person shall be guilty of an offence. [10/2013] |
|
(8) Despite any written law or rule of law, if any person who is appointed as the chief executive officer or a director of an approved trustee in contravention of subsection (5) acts or purports to act as the chief executive officer or a director of the approved trustee during the period when the Authority or statutory manager is in control of the relevant business of the approved trustee —| (a) | the act or purported act of the person is invalid and of no effect; and | | (b) | the person shall be guilty of an offence. [10/2013] |
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(9) During the period when the Authority or statutory manager is in control of the relevant business of an approved trustee —| (a) | if there is any conflict or inconsistency between —| (i) | a direction or decision given by the Authority or statutory manager (including a direction or decision to a person or body of persons referred to in sub‑paragraph (ii)); and | | (ii) | a direction or decision given by any chief executive officer, director, member, executive officer, employee, agent or office holder, or the board of directors, of the approved trustee, |
| the direction or decision referred to in sub‑paragraph (i), to the extent of the conflict or inconsistency, prevails over the direction or decision referred to in sub‑paragraph (ii); and |
| | (b) | no person may exercise any voting or other right attached to any share in the approved trustee in any manner that may defeat or interfere with any duty, function or power of the Authority or statutory manager, and any such act or purported act is invalid and of no effect. [10/2013] |
|
| (10) Any person who is guilty of an offence under subsection (7) or (8) shall be liable on conviction to a fine not exceeding $100,000 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 $10,000 for every day or part of a day during which the offence continues after conviction. [10/2013] |
| (11) In this section, “constitution”, in relation to an approved trustee, means the memorandum of association and articles of association of the approved trustee. [10/2013] |
|
292F.—(1) The Authority must cease to be in control of the relevant business of an approved trustee when the Authority is satisfied that —| (a) | the reasons for the Authority’s assumption of control of the relevant business have ceased to exist; or | | (b) | it is no longer necessary in the interests of the public or the section of the public referred to in section 292D(1)(c)(i) or for the protection of investors. [10/2013] |
| (2) A statutory manager is deemed to have assumed control of the relevant business of an approved trustee on the date of the statutory manager’s appointment as such. [10/2013] |
(3) The appointment of a statutory manager in relation to the relevant business of an approved trustee may be revoked by the Authority at any time —| (a) | if the Authority is satisfied that —| (i) | the reasons for the appointment have ceased to exist; or | | (ii) | it is no longer necessary in the interests of the public or the section of the public referred to in section 292D(1)(c)(i) or for the protection of investors; or |
| | (b) | on any other ground, |
| and upon such revocation, the statutory manager ceases to be in control of the relevant business of the approved trustee. |
[10/2013] |
(4) The Authority must, as soon as practicable, publish in the Gazette the date, and such other particulars as the Authority thinks fit, of —| (a) | the Authority’s assumption of control of the relevant business of an approved trustee; | | (b) | the cessation of the Authority’s control of the relevant business of an approved trustee; | | (c) | the appointment of a statutory manager in relation to the relevant business of an approved trustee; and | | (d) | the revocation of a statutory manager’s appointment in relation to the relevant business of an approved trustee. [10/2013] |
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| Responsibilities of officers, member, etc., of approved trustee |
292G.—(1) During the period when the Authority or statutory manager is in control of the relevant business of an approved trustee —| (a) | the General Division of the High Court may, on an application by the Authority or statutory manager, direct any person who has ceased to be or who is still any chief executive officer, director, member, executive officer, employee, agent, banker, auditor or office holder of, or trustee for, the approved trustee to pay, deliver, convey, surrender or transfer to the Authority or statutory manager, within such period as the General Division of the High Court may specify, any property or book of the approved trustee which is comprised in, forms part of or relates to the relevant business of the approved trustee, and which is in the person’s possession or control; and | | (b) | any person who has ceased to be or who is still any chief executive officer, director, member, executive officer, employee, agent, banker, auditor or office holder of, or trustee for, the approved trustee must give to the Authority or statutory manager such information as the Authority or statutory manager may require for the discharge of the Authority’s or statutory manager’s duties or functions, or the exercise of the Authority’s or statutory manager’s powers, in relation to the approved trustee, within such time and in such manner as the Authority or statutory manager may specify. [10/2013; 40/2019] |
(2) Any person who —| (a) | without reasonable excuse, fails to comply with subsection (1)(b); or | | (b) | in purported compliance with subsection (1)(b), knowingly or recklessly provides 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 $50,000 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 $5,000 for every day or part of a day during which the offence continues after conviction. |
[10/2013] |
|
| Remuneration and expenses of Authority and others in certain cases |
292H.—(1) The Authority may at any time fix the remuneration and expenses to be paid by an approved trustee —| (a) | to a statutory manager or statutory adviser appointed in relation to the approved trustee, whether or not the appointment has been revoked; and | | (b) | where the Authority has assumed control of the relevant business of the approved trustee, to the Authority and any person appointed by the Authority under section 320 in relation to the Authority’s assumption of control of the relevant business, whether or not the Authority has ceased to be in control of the relevant business. [10/2013] |
| (2) The approved trustee must reimburse the Authority any remuneration and expenses payable by the approved trustee to a statutory manager or statutory adviser. [10/2013] |
|
| Authority may issue directions |
293.—(1) The Authority may, where it thinks it necessary or expedient in the interests of the public or a section of the public or for the protection of investors, issue directions by written notice either of a general or specific nature to —| (a) | where a collective investment scheme is constituted as a corporation, VCC or sub‑fund of a VCC, the corporation or VCC, as the case may be; | | (b) | the manager, trustee, custodian or representative for a collective investment scheme; or | | (c) | any class of such persons referred to in paragraph (a) or (b). [34/2012; 44/2018] |
| (2) Any person to whom a notice is given under subsection (1) must comply with such direction as may be contained in the notice. |
| (3) It is not necessary to publish any direction issued under subsection (1) in the Gazette. [34/2012] |
| (4) Any person who contravenes any of the directions issued to the person under subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
|
294.—(1) Where a collective investment scheme —| (a) | is authorised under section 286 and constituted as a unit trust, any document relating to the scheme is sufficiently served if served on the responsible person for the scheme at the responsible person’s last known address; | | (aa) | is authorised under section 286 and constituted as a VCC or sub‑fund, any document relating to the scheme is sufficiently served if served on the VCC in accordance with section 149 of the Variable Capital Companies Act 2018; or | | (b) | is recognised under section 287, any document relating to the scheme is sufficiently served if served on the responsible person for the scheme or the representative for the scheme at the person’s last known address. [44/2018] |
| (1A) To avoid doubt, a reference in subsection (1) to service of any document relating to the scheme includes the service of any process in relation to the scheme. |
(2) Any notice or direction to be given or served by the Authority on —| (a) | in a case where a collective investment scheme is constituted as a corporation — the corporation; | | (b) | in a case where a collective investment scheme is constituted as a VCC or a sub‑fund — the VCC; | | (c) | the manager for a collective investment scheme; | | (d) | the trustee or custodian for a collective investment scheme; or | | (e) | the representative for a collective investment scheme, |
| is for all purposes regarded as duly given or served if it has been delivered or sent by post or by fax to such person at the person’s last known address. |
[44/2018] |
(3) In the case of a corporation, the last known address referred to in subsections (1) and (2) is —| (a) | if it is a company or VCC incorporated in Singapore, the address of its registered office in Singapore; or | | (b) | if it is a foreign company, the address of its registered office in Singapore or the registered address of its authorised representative, referred to in section 366(1) of the Companies Act 1967, or, if it does not maintain a place of business in Singapore, its registered office in the place of its incorporation. [35/2014; 44/2018] |
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| 295.—(1) Where a collective investment scheme (other than one constituted as a VCC or sub‑fund) is to be wound up, whether under this section or otherwise, the responsible person for the scheme must give written notice of the proposed winding up to the Authority at least 7 days before the winding up. [44/2018] | (1A) Where a collective investment scheme constituted as a VCC or sub‑fund is being wound up under the Variable Capital Companies Act 2018, the VCC must give written notice to the Authority of the winding up within 3 days after the commencement of the winding up. [44/2018] |
| (2) Where the Authority revokes or withdraws the authorisation of a collective investment scheme under section 288, the responsible person and, where applicable, the trustee must take the necessary steps to wind up the scheme. |
(3) Where —| (a) | the responsible person for a collective investment scheme authorised under section 286 which is constituted as a unit trust is in liquidation; or | | (b) | in the opinion of the trustee for a collective investment scheme authorised under section 286 which is constituted as a unit trust, the responsible person for the scheme has ceased to carry on business or has, to the prejudice of the participants of the scheme, failed to comply with any provision of the trust deed in respect of the scheme, |
| the trustee must summon a meeting of the participants for the purpose of determining an appropriate course of action. |
[44/2018] |
(4) A meeting under subsection (3) must be summoned —| (a) | by giving written notice of the proposed meeting at least 21 days before the proposed meeting to each participant at the participant’s last known address or, in the case of joint participants, to the participant whose name stands first in the records of the responsible person for the scheme; and | | (b) | by publishing, at least 21 days before the proposed meeting, an advertisement giving notice of the meeting in at least 4 local daily newspapers, one each published in the English, Malay, Chinese and Tamil languages. |
|
| (5) If at any such meeting a resolution is passed by a majority in number representing three‑fourths in value of the participants present and voting either in person or by proxy at the meeting that the scheme to which the trust deed relates be wound up, the responsible person for the scheme and, where applicable, the trustee must take the necessary steps to wind up the scheme. |
| (6) Any responsible person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000. |
| (6A) Any VCC that without reasonable excuse contravenes subsection (1A) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000. [44/2018] |
| (7) Any responsible person or, where applicable, trustee who contravenes subsection (2) or (5) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000. |
| (8) Any trustee who contravenes subsection (3) or (4) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000. |
|
| Power to acquire units of participants of real estate investment trust in certain circumstances |
295A.—(1) Where an arrangement or a contract involving the transfer of all of the units, or all of the units in any particular class, in a real estate investment trust (called in this section the subject trust), to —| (a) | the trustee of another trust (including the trustee‑manager of a business trust and the trustee of another real estate investment trust); or | | (b) | a corporation, |
| (called in this section the transferee) has, within 4 months after the making of the offer in that behalf by the transferee, been approved as to the units or as to each class of units whose transfer is involved by participants of the subject trust holding no less than 90% of the total number of those units or of the units of that class (other than units already held at the date of the offer by the transferee), the transferee may, at any time within 2 months after the offer has been so approved, give notice in the prescribed manner to any dissenting participant of the subject trust that it desires to acquire the dissenting participant’s units. |
[2/2009] (2) When a notice referred to in subsection (1) is given, the transferee, unless on an application made by a dissenting participant within one month from the date on which the notice was given or within 14 days of a statement being supplied to a dissenting participant under subsection (3) (whichever is the later) a court thinks fit to order otherwise, is entitled and bound to acquire those units —| (a) | on the terms which under the arrangement or contract the units of the approving participants are to be transferred to the transferee; or | | (b) | if the offer contained 2 or more alternative sets of terms, on the terms which were specified in the offer as being applicable to dissenting participants. [2/2009] |
|
| (3) Where a transferee has given notice to any dissenting participant of the subject trust that it desires to acquire the dissenting participant’s units, the dissenting participant is entitled to require the transferee by a demand in writing served on the transferee, within one month from the date on which the notice was given, to supply the dissenting participant with a statement in writing of the names and addresses of all other dissenting participants as shown in the register of participants of the subject trust; and the transferee is not entitled or bound to acquire the units of the dissenting participants until 14 days after the posting of the statement of such names and addresses to the dissenting participant. [2/2009] |
(4) Where, pursuant to any such arrangement or contract, units in the subject trust are transferred to the transferee or its nominee and those units together with any other units in the subject trust held by the transferee at the date of the transfer comprise or include 90% of the total number of the units in the subject trust or of any class of those units, then —| (a) | the transferee must within one month from the date of the transfer (unless on a previous transfer pursuant to the arrangement or contract it has already complied with this requirement) give notice of that fact in the prescribed manner to the participants of the subject trust holding the remaining units in, or the remaining units of that class of units in, the subject trust who have not assented to the arrangement or contract; and | | (b) | any such participant may within 3 months from receiving the notice require the transferee to acquire the participant’s units. [2/2009] |
|
(5) Where a participant has given notice under subsection (4)(b) with respect to any units, the transferee is entitled and bound to acquire those units —| (a) | on the terms on which under the arrangement or contract the units of the approving participants were transferred to it; or | | (b) | on such other terms as are agreed or as the court on the application of either the transferee or the participant thinks fit to order. [2/2009] |
|
(6) Where a notice has been given by the transferee under subsection (1) and a court has not, on an application made by the dissenting participant, ordered to the contrary, the transferee must —| (a) | after the expiration of one month after the date on which the notice has been given; | | (b) | after 14 days after a statement has been supplied to a dissenting participant under subsection (3); or | | (c) | if an application to the court by the dissenting participant is then pending, after that application has been disposed of, |
| transmit a copy of the notice to the trustee of the subject trust together with an instrument of transfer executed on behalf of the participant by any person appointed by the transferee and on its own behalf by the transferee, and pay, allot or transfer to the trustee of the subject trust the amount or other consideration representing the price payable by the transferee for the units which by virtue of this section the transferee is entitled to acquire, and the trustee of the subject trust must thereupon register the transferee as the holder of those units. |
[2/2009] |
| (7) Any sums received by the trustee of the subject trust under this section must be paid into a separate bank account, and any such sums and any other consideration so received must be held by that trustee in trust for the several persons who had held the units in respect of which they were respectively received. [2/2009] |
| (8) Where any consideration other than cash is held in trust by the trustee of the subject trust for any person under this section, the trustee may, after the expiration of 2 years from, and must, before the expiration of 10 years from, the date on which such consideration was allotted or transferred to the trustee, transfer such consideration to the Official Receiver. [2/2009] |
| (9) The Official Receiver must sell or dispose of any consideration so received in such manner as he or she thinks fit and must deal with the proceeds of such sale or disposal in accordance with section 295B. [2/2009] |
(10) In determining the units in the subject trust already held by the transferee at the date of the offer under subsection (1) or the percentage of the total number of units in the subject trust or of any class of those units held by the transferee under subsection (4), units held or acquired —| (a) | by a nominee on behalf of the transferee; | | (b) | where the transferee is a corporation, by its related corporation or by a nominee of the related corporation; | | (c) | where the transferee is the trustee‑manager of a business trust or the trustee of a real estate investment trust —| (i) | by a person who controls more than 50% of the voting power in the business trust or real estate investment trust, or by a nominee of that person; | | (ii) | by the trustee‑manager of the business trust on its own account, or by the manager for the real estate investment trust, or by a nominee of the trustee‑manager or manager; or | | (iii) | by a related corporation of the trustee‑manager for the business trust or the manager for the real estate investment trust or by a nominee of that related corporation; or |
| | (d) | where the transferee is the trustee of a trust that is not a business trust or real estate investment trust, by a related corporation of the trustee (being a corporation) or by a nominee of that related corporation, |
| are treated as held or acquired by the transferee. |
[2/2009] |
(11) To avoid doubt, in this section —| (a) | a reference to a transferee (being the trustee of a trust) holding, acquiring or contracting to acquire units in another trust is a reference to the transferee’s doing any of these as trustee of the firstmentioned trust; and | | (b) | a reference to a transfer of units of a trust to a transferee (being the trustee of another trust) is a reference to such transfer of units to the transferee as trustee of that other trust. [2/2009] |
|
(12) The reference in subsection (1) to units already held by the transferee —| (a) | includes a reference to units which the transferee has contracted to acquire; but | | (b) | excludes units which are the subject of a contract binding the holder thereof to accept the offer when it is made, being a contract entered into by the holder for no consideration and under seal or for no consideration other than a promise by the transferee to make the offer. [2/2009] |
|
(13) Where, during the period within which an offer for the transfer of units to the transferee can be approved, the transferee acquires or contracts to acquire any of the units whose transfer is involved but otherwise than by virtue of the approval of the offer, then the transferee may be treated for the purposes of this section as having acquired or contracted to acquire those units by virtue of the approval of the offer if, and only if —| (a) | the consideration for which the units are acquired or contracted to be acquired (called in this subsection the acquisition consideration) does not at that time exceed the consideration specified in the terms of the offer; or | | (b) | those terms are subsequently revised so that when the revision is announced the acquisition consideration, at the time referred to in paragraph (a), no longer exceeds the consideration specified in those terms. [2/2009] |
|
(14) In this section and sections 295B and 295C —| “dissenting participant” includes a participant who has not assented to the arrangement or contract and any participant who has failed or refused to transfer the participant’s units to the transferee in accordance with the arrangement or contract; |
| “Official Receiver” has the meaning given by section 2(1) of the Insolvency, Restructuring and Dissolution Act 2018. [2/2009; 4/2017; 40/2018] |
|
|
| Unclaimed money to be paid to Official Receiver |
| 295B.—(1) The Official Receiver who receives moneys arising from the proceeds of a sale or disposal under section 295A must place the moneys to the credit of a separate account to be entitled the Compulsory Acquisition of Scheme Account. [2/2009] | (2) The interest arising from the investment of the moneys standing to the credit of the Compulsory Acquisition of Scheme Account must be paid into the Consolidated Fund. [2/2009] |
| (3) If any person makes any demand for any money placed to the credit of the Compulsory Acquisition of Scheme Account, the Official Receiver, upon being satisfied that that person is entitled to the money, must authorise payment thereof to be made to that person out of that Account or, if it has been paid into the Consolidated Fund, may authorise payment of a like amount to be made to that person out of moneys made available by Parliament for the purpose. [2/2009] |
| (4) Any person dissatisfied with the decision of the Official Receiver in respect of a claim made pursuant to subsection (3) may appeal to a court which may confirm, disallow or vary the decision. [2/2009] |
| (5) Where any unclaimed moneys paid to a person pursuant to subsection (3) are afterwards claimed by any other person, that other person is not entitled to any payment out of the Compulsory Acquisition of Scheme Account or out of the Consolidated Fund but such other person may have recourse against the firstmentioned person to whom the unclaimed moneys have been paid. [2/2009] |
| (6) Any unclaimed moneys paid to the credit of the Compulsory Acquisition of Scheme Account to the extent to which the unclaimed moneys have not been under this section paid out of that Account must, upon the lapse of 7 years from the date of the payment of the moneys to the credit of that Account, be paid into the Consolidated Fund. [2/2009] |
|
| Remedies in cases of oppression or injustice |
295C.—(1) Any participant of a real estate investment trust may apply to a court for an order under this section on the ground —| (a) | that the affairs of the trust are being conducted by the manager or trustee for the trust, or the powers of the directors of the manager or directors of the trustee for the trust are being exercised, in a manner oppressive to one or more of the participants of the trust including the applicant or in disregard of the applicant’s or their interests as participants of the trust; or | | (b) | that some act of the manager or trustee for the trust, carried out in its capacity as manager or trustee for the trust (as the case may be) has been done or is threatened or that some resolution of the participants of the trust or any class of them has been passed or is proposed which unfairly discriminates against or is otherwise prejudicial to one or more of the participants of the trust including the applicant. [2/2009] |
(2) If on such application the court is of the opinion that either of the grounds referred to in subsection (1) is established, the court may, with a view to bringing to an end to or remedying the matters complained of, make such order as it thinks fit and, without limiting the foregoing, the order may —| (a) | direct or prohibit any act or cancel or vary any transaction or resolution; | | (b) | regulate the conduct of the affairs of the manager or trustee for the trust in relation to the trust in future; | | (c) | authorise civil proceedings against the directors of the manager or directors of the trustee for the trust to be brought in the name of or on behalf of all the participants of the trust as a whole by such person or persons and on such terms as the court may direct; | | (d) | provide for the purchase of the units in the trust by other participants of the trust; | | (e) | provide that the trust be wound up; or | | (f) | provide that the costs and expenses of and incidental to the application for the order are to be raised and paid out of the property of the trust or to be borne and paid in such manner and by such persons as the court deems fit. [2/2009] |
|
| (3) Where an order under this section makes any alteration in or addition to the trust deed of any trust, then, despite anything in any other provision of this Act but subject to the provisions of the order, the manager or trustee of the trust concerned does not have power, without the permission of the court, to make any further alteration in or addition to the trust deed that is inconsistent with the provisions of the order; but subject to the foregoing provisions of this subsection, the alterations or additions made by the order have the same effect as if duly made by special resolution of the participants of the trust. [2/2009] [Act 25 of 2021 wef 01/04/2022] |
| (4) A copy of any order made under this section must be lodged by the applicant with the Authority within 7 days after the making of the order. [2/2009] |
| (5) Any person who contravenes subsection (4) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 and, in the case of a continuing offence, to a further fine not exceeding $1,000 for every day or part of a day during which the offence continues after conviction. [2/2009] |
| (6) This section applies to a person who is not a participant of a trust but to whom units in the trust have been transmitted by operation of law as it applies to the participants of a trust; and references to a participant or participants are to be construed accordingly. [2/2009] |
|
Subdivision (2A) — Voluntary transfer of business of
approved trustee |
| Interpretation of this Subdivision |
295D. In this Subdivision, unless the context otherwise requires —| “approved trustee” means a trustee for collective investment schemes which are authorised under section 286 and constituted as unit trusts; |
| “business” includes affairs, property, right, obligation and liability; |
| “Court” means the General Division of the High Court; |
| “debenture” has the meaning given by section 4(1) of the Companies Act 1967; |
| “property” includes property, right and power of every description; |
| “Registrar of Companies” means the Registrar of Companies appointed under the Companies Act 1967 and includes any Deputy or Assistant Registrar of Companies appointed under that Act; |
| “transferee” means an approved trustee, or a public company which has applied or will be applying for the Authority’s approval under section 289(1) to act as an approved trustee, to which the whole or any part of a transferor’s business is, is to be or is proposed to be transferred under this Subdivision; |
| “transferor” means an approved trustee the whole or any part of the business of which is, is to be, or is proposed to be transferred under this Subdivision. [10/2013; 40/2019] |
|
| Voluntary transfer of business |
295E.—(1) A transferor may transfer the whole or any part of its business (including any business that is not the usual business of an approved trustee) to a transferee, if —| (a) | the Authority has consented to the transfer; | | (b) | the transfer involves the whole or any part of the business of the transferor that is the usual business of an approved trustee; and | | (c) | the Court has approved the transfer. [10/2013] |
| (2) Subsection (1) does not affect the right of an approved trustee to transfer the whole or any part of its business under any law. [10/2013] |
(3) The Authority may consent to a transfer under subsection (1)(a) if the Authority is satisfied that —| (a) | the transferee is a fit and proper person; and | | (b) | the transferee will conduct the business of the transferor prudently and comply with the provisions of this Act. [10/2013] |
|
| (4) The Authority may at any time appoint one or more persons to perform an independent assessment of, and provide a report on, the proposed transfer of a transferor’s business (or any part thereof) under this Subdivision. [10/2013] |
| (5) The remuneration and expenses of any person appointed under subsection (4) must be paid by the transferor and the transferee jointly and severally. [10/2013] |
| (6) The Authority must serve a copy of any report provided under subsection (4) on the transferor and the transferee. [10/2013] |
| (7) The Authority may require a person to provide, within the period and in the manner specified by the Authority, any information or document that the Authority may reasonably require for the discharge of its duties or functions, or the exercise of its powers, under this Subdivision. [10/2013] |
(8) Any person who —| (a) | without reasonable excuse, fails to comply with any requirement under subsection (7); or | | (b) | in purported compliance with any requirement under subsection (7), knowingly or recklessly provides 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 $100,000 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 $10,000 for every day or part of a day during which the offence continues after conviction. |
[10/2013] |
| (9) Where a person claims, before providing the Authority with any information or document that the person is required to provide under subsection (7), that the information or document might tend to incriminate the person, the information or document is not admissible in evidence against the person in criminal proceedings other than proceedings under subsection (8). [10/2013] |
|
| 295F.—(1) A transferor must apply to the Court for its approval of the transfer of the whole or any part of the business of the transferor to the transferee under this Subdivision. [10/2013] (2) Before making an application under subsection (1) —| (a) | the transferor must lodge with the Authority a report setting out such details of the transfer and provide such supporting documents as the Authority may specify; | | (b) | the transferor must obtain the consent of the Authority under section 295E(1)(a); | | (c) | the transferor and the transferee must, if they intend to serve on the participants of their respective collective investment schemes a summary of the transfer, obtain the Authority’s approval of the summary; | | (d) | the transferor must, at least 15 days before the application is made but not earlier than one month after the report referred to in paragraph (a) is lodged with the Authority, publish in the Gazette and in such newspaper or newspapers as the Authority may determine a notice of the transferor’s intention to make the application and containing such other particulars as may be prescribed; | | (e) | the transferor and the transferee must keep at their respective offices in Singapore, for inspection by any person who may be affected by the transfer, a copy of the report referred to in paragraph (a) for a period of 15 days after the publication of the notice referred to in paragraph (d) in the Gazette; and | | (f) | unless the Court directs otherwise, the transferor and the transferee must serve on the participants of their respective collective investment schemes 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). [10/2013] |
|
(3) The Authority and any person who, in the opinion of the Court, is likely to be affected by the transfer —| (a) | have the right to appear before and be heard by the Court in any proceedings relating to the transfer; and | | (b) | may make any application to the Court in relation to the transfer. [10/2013] |
|
| (4) The Court is not to approve the transfer if the Authority has not consented under section 295E(1)(a) to the transfer. [10/2013] |
(5) The Court may, after taking into consideration the views (if any) of the Authority on the transfer —| (a) | approve the transfer without modification or subject to any modification agreed to by the transferor and the transferee; or | | (b) | refuse to approve the transfer. [10/2013] |
|
| (6) If the transferee does not have the Authority’s approval under section 289(1) to act as an approved trustee, the Court may approve the transfer on terms that the transfer takes effect only in the event of the transferee obtaining the Authority’s approval under section 289(1) to act as an approved trustee. [10/2013] |
(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 the opinion of the Court, necessary to secure that the transfer is fully effective. [10/2013] |
|
(8) Any 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 any such right or liability may arise. [10/2013] |
|
| (9) Subject to subsection (10), where an order made under subsection (7) provides for the transfer to the transferee of the whole or any part of the transferor’s business, then by virtue of the order the business (or part thereof) of the transferor specified in the order is transferred to and vests in the transferee, free in the case of any particular property (if the order so directs) from any charge which by virtue of the transfer is to cease to have effect. [10/2013] |
| (10) No order under subsection (7) has 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. [10/2013] |
| (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. [10/2013] |
(12) Where an order is made under this section, the transferor and the transferee must each lodge within 7 days after the order is made —| (a) | a copy of the order with the Registrar of Companies 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. [10/2013] |
|
| (13) A transferor or transferee which contravenes subsection (12), and every officer of the transferor or transferee (as the case may be) who fails to take all reasonable steps to secure compliance by the transferor or transferee (as the case may be) with that subsection, shall each be guilty of an offence and shall each 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 of a day during which the offence continues after conviction. [10/2013] |
|
| Subdivision (3) — Prospectus requirements |
| Requirement for prospectus and profile statement, where relevant |
296.—(1) A person must not make an offer of units in a collective investment scheme unless the offer —| (a) | is made in or accompanied by a prospectus in respect of the offer —| (i) | that is prepared in accordance with such requirements as the Authority may prescribe; | | (ii) | a copy of which, being one that has been signed in accordance with subsection (2A), is lodged with the Authority; and | | (iii) | that is registered by the Authority; and |
| | (b) | complies with such requirements as the Authority may prescribe. |
| (1A) A person who lodges a preliminary document with the Authority is deemed to have lodged a prospectus with the Authority. |
| (1B) A preliminary document referred to in subsection (1A) must contain all information to be included in a prospectus other than such information as the Authority may prescribe. |
(2) Despite subsection (1), an offer of units in a collective investment scheme may be made in or accompanied by an extract from, or an abridged version of, a prospectus (called in this Subdivision a profile statement), instead of a prospectus, if —| (a) | a prospectus is prepared in accordance with such requirements as may be prescribed under subsection (1)(a)(i) and the profile statement is prepared in accordance with such requirements as may be prescribed; | | (b) | a copy of the prospectus and a copy of the profile statement, each of which has been signed in accordance with subsection (2A), are lodged with the Authority, and the prospectus is lodged no later than the profile statement; | | (c) | the prospectus and profile statement are registered by the Authority; | | (d) | sufficient copies of the prospectus are made available for collection at the times and places specified in the profile statement; and | | (e) | the offer complies with such other requirements as may be prescribed. |
|
(2A) The copy of a prospectus or profile statement lodged with the Authority must be signed —| (a) | where the person making the offer of units in a collective investment scheme is the responsible person for the scheme, by every director or equivalent person of the responsible person and every person who is named therein as a proposed director or an equivalent person of the responsible person; and | | (b) | where the person making the offer of units in a collective investment scheme is not the responsible person for the scheme —| (i) | where the responsible person is controlled by —| (A) | the person making the offer; | | (B) | one or more of the related parties of the person making the offer; or | | (C) | the person making the offer and one or more of that person’s related parties, |
| by the persons referred to in paragraph (a) and the persons referred to in sub‑paragraph (ii)(A) or (B), as the case may be; and |
| | (ii) | in any other case —| (A) | where that person is an entity, by every director or equivalent person of that entity; or | | (B) | where that person is an individual, by the individual or a person authorised by him or her in writing. |
|
|
|
(2B) A requirement under subsection (2A) for the copy of a prospectus or profile statement to be signed by a director or an equivalent person is satisfied if the copy is signed —| (a) | by that director or equivalent person; or | | (b) | by a person who is authorised in writing by that director or equivalent person to sign on his or her behalf. |
|
(2C) A requirement under subsection (2A) for the copy of a prospectus or profile statement to be signed by a person named therein as a proposed director or an equivalent person is satisfied if the copy is signed —| (a) | by that proposed director or equivalent person; or | | (b) | by a person who is authorised in writing by that proposed director or equivalent person to sign on his or her behalf. |
|
| (3) A person must not make an offer of units in a collective investment scheme if that scheme has not been formed or does not exist. |
| (4) [Deleted by Act 1 of 2005] |
| (5) Any person who contravenes subsection (1) or (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. |
(6) The Authority may register a prospectus or a profile statement on any day within the period prescribed by the Authority from the date of lodgment thereof with the Authority, unless —| (a) | the Authority gives to the person making the offer a notice of an opportunity to be heard under subsection (12); | | (b) | the Authority gives a notice to the person making the offer of an extension, in which case, the Authority may, not later than 28 days from the date of lodgment of the prospectus or profile statement —| (i) | register the prospectus or profile statement; or | | (ii) | give the person making the offer a notice of an opportunity to be heard under subsection (12); |
| | (c) | the person making the offer applies in writing to extend the period during which the prospectus or profile statement may be registered, in which case the Authority may, at any time up to and including the date on which the extended period ends —| (i) | register the prospectus or profile statement; or | | (ii) | give the person making the offer a notice of an opportunity to be heard under subsection (12); or |
| | (d) | the person making the offer gives a written notice to the Authority to withdraw the lodgment of the prospectus or profile statement, in which case the Authority must not register the prospectus or profile statement. [2/2009] |
|
| (6A) Where, after a notice of an opportunity to be heard has been given under subsection (6)(a), (b)(ii) or (c)(ii), the Authority decides not to refuse registration of the prospectus or profile statement, the Authority may proceed with the registration on such date as it considers appropriate, except that that date must not be earlier than such day from the date of lodgment of the prospectus or profile statement with the Authority as the Authority may prescribe. [2/2009] |
| (6AA) For the purposes of subsections (6) and (6A), the Authority may prescribe the same period and day for all offers or different periods and days for different offers. [2/2009] |
| (6B) Where a prospectus lodged with the Authority is a preliminary document, the Authority must not register the prospectus unless a copy of the prospectus which has been signed in accordance with subsection (2A) and which contains the information required to be included in a prospectus as prescribed under subsection (1)(a)(i), including such information which could be omitted from the preliminary document by virtue of subsection (1B), has been lodged with the Authority. |
| (6C) A person making an offer of units in a collective investment scheme may lodge any amendment to a prospectus or profile statement in respect of that offer at any time before, but not after, the registration of the prospectus or profile statement by the Authority. |
(7) Subject to subsection (8) —| (a) | where any amendment to a prospectus is lodged, the prospectus and any profile statement which is lodged is deemed for the purposes of subsection (6) to have been lodged when such amendment was lodged; and | | (b) | where any amendment to a profile statement is lodged, the profile statement is deemed for the purposes of subsection (6) to have been lodged when such amendment was lodged. |
|
| (8) Where an amendment to a prospectus or profile statement is lodged with the consent of the Authority, the prospectus or profile statement as amended is deemed, for the purposes of subsection (6), to have been lodged when the original prospectus or profile statement was lodged with the Authority. |
| (8A) An amendment to a prospectus or profile statement that is lodged is treated as part of the original prospectus or profile statement. |
(9) The Authority may, for public information, publish —| (a) | a prospectus or profile statement lodged with the Authority under this section; and | | (b) | where applicable, the translation thereof in the English language lodged with the Authority under section 318A(1), |
| and for the purposes of this subsection, the person making the offer must provide the Authority with a copy of the prospectus or profile statement and, where applicable, the translation in such form or medium for publication as the Authority may require. |
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(10) The Authority must refuse to register a prospectus if —| (a) | the Authority is of the opinion that the prospectus contains a false or misleading statement; | | (b) | there is an omission from the prospectus of any information that is required to be included, or an inclusion in the prospectus of any information that is prohibited, by virtue of requirements prescribed under subsection (1)(a); | | (c) | the Authority is of the opinion that the prospectus does not comply with the requirements of this Act; | | (d) | the copy of the prospectus that is lodged with the Authority is not signed in accordance with subsection (2A); | | (e) | any written consent of an expert to the issue of the prospectus required under section 249 (as applied to this Subdivision by virtue of section 302), or a copy thereof which is verified as prescribed, is not lodged with the Authority; | | (ea) | any written consent of an issue manager to the issue of the prospectus required under section 249A(1) (as applied to this Subdivision by virtue of section 302), or a copy thereof which is verified as prescribed, is not lodged with the Authority; | | (eb) | any written consent of an underwriter to the issue of the prospectus required under section 249A(2) (as applied to this Subdivision by virtue of section 302), or a copy thereof which is verified as prescribed, is not lodged with the Authority; or | | (f) | the Authority is of the opinion that it is not in the public interest to do so. |
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(11) The Authority must refuse to register a profile statement if —| (a) | the Authority is of the opinion that the profile statement contains a false or misleading statement; | | (b) | there is an omission from the profile statement of any information that is required to be included, or an inclusion in the profile statement of any information that is prohibited, by virtue of requirements prescribed under subsection (2)(a); | | (c) | the copy of the profile statement that is lodged with the Authority is not signed in accordance with subsection (2A); | | (ca) | any written consent of an expert to the issue of the profile statement required under section 249 (as applied to this Subdivision by virtue of section 302), or a copy thereof which is verified as prescribed, is not lodged with the Authority; | | (cb) | any written consent of an issue manager to the issue of the profile statement required under section 249A(1) (as applied to this Subdivision by virtue of section 302), or a copy thereof which is verified as prescribed, is not lodged with the Authority; | | (cc) | any written consent of an underwriter to the issue of the profile statement required under section 249A(2) (as applied to this Subdivision by virtue of section 302), or a copy thereof which is verified as prescribed, is not lodged with the Authority; | | (d) | the Authority is of the opinion that the profile statement does not comply with the requirements of this Act; | | (e) | the prospectus has not been registered by the Authority; or | | (f) | the Authority is of the opinion that it is not in the public interest to do so. |
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(12) The Authority must not refuse to register a prospectus under subsection (10) or a profile statement under subsection (11) without giving the person making the offer an opportunity to be heard, except that an opportunity to be heard need not be given if the refusal is on the ground that it is not in the public interest to register the prospectus or profile statement on the basis of any of the following circumstances:| (a) | the person making the offer (being an entity), the responsible person or the collective investment scheme itself, is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere; | | (b) | the person making the offer (being an individual) is an undischarged bankrupt, whether in Singapore or elsewhere; | | (c) | a receiver, a receiver and manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of any property of the person making the offer (being an entity), the responsible person or the collective investment scheme. |
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| (13) Any person making an offer may, within 30 days after the person is notified that the Authority has refused to register a prospectus or profile statement to which that person’s offer relates under subsection (10) or (11), appeal to the Minister whose decision is final. |
(14) If —| (a) | a prospectus or profile statement is issued, circulated or distributed before it has been registered by the Authority; or | | (b) | an application to subscribe for or purchase units in a collective investment scheme is accepted, or units in a collective investment scheme are issued or sold, before a prospectus and, where applicable, profile statement, in respect of the units has been registered by the Authority, |
| the person making the offer and every person who is knowingly a party to — |
| (c) | the issue, circulation or distribution of the prospectus or profile statement; | | (d) | the acceptance of the application to subscribe for or purchase the units; or | | (e) | the issue or sale of the units, |
| as the case may be, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. |
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| (14A) For the purposes of subsections (10)(a) and (11)(a), any reference to a statement includes a reference to any information presented, regardless of whether such information is in text or otherwise. |
| (15) Regulations made under this section may provide that a contravention of specified provisions thereof shall be an offence and may provide for penalties not exceeding a fine of $50,000. |
|
| Requirement for product highlights sheet, where relevant |
296A.—(1) A person must not make an offer of units in a collective investment scheme, being an offer that is made in or accompanied by a prospectus or profile statement that complies with section 296, unless the prospectus or profile statement is accompanied by a product highlights sheet in respect of the offer —| (a) | that complies with such requirements as the Authority may prescribe by regulations made under section 341; and | | (b) | a copy of which is lodged with the Authority. [34/2012] |
(2) A person must not publish or disseminate, whether in Singapore or elsewhere, any document relating to any offer or intended offer of units in a collective investment scheme or proposed collective investment scheme, being an offer that is, or an intended offer that will be, made in or accompanied by a prospectus or profile statement that complies with section 296, if the document resembles or may otherwise be confused with a product highlights sheet, unless the person is required to do so —| (a) | under any written law or rule of law, or by any court, in Singapore; | | (b) | under the laws and practices of, or by any court in, any foreign jurisdiction; or | | (c) | by any listing rules or other requirements of any approved exchange or overseas exchange. [34/2012; 4/2017] |
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(3) The Authority may, for public information, publish —| (a) | a product highlights sheet lodged with the Authority under this section; and | | (b) | where applicable, the translation thereof in the English language lodged with the Authority under section 318A(1). [34/2012] |
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| (4) Any person who contravenes subsection (1) or (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
| (5) Without affecting section 337(1), the Authority may, by regulations made under section 341, exempt any person or class of persons, any prospectus or profile statement, or any units in a collective investment scheme or proposed collective investment scheme, from any provision of this section, subject to such conditions or restrictions as the Authority may prescribe in those regulations. [34/2012] |
| (6) Without affecting section 337(3) and (4), the Authority may, by written notice, exempt any person, prospectus or profile statement, or any units in a collective investment scheme or proposed collective investment scheme, from any provision of this section, subject to such conditions or restrictions as the Authority may specify by written notice. [34/2012] |
| (7) It is not necessary to publish any exemption granted under subsection (6) in the Gazette. [34/2012] |
| (8) Every person who is granted an exemption under subsection (5), or who wishes to rely on an exemption granted under that subsection, must satisfy every condition or restriction imposed under that subsection for the grant of the exemption. [34/2012] |
| (9) Every person who is granted an exemption under subsection (6), or who wishes to rely on an exemption granted under that subsection, must, for the duration of the exemption, satisfy every condition or restriction imposed under that subsection for the grant of the exemption. [34/2012] |
| (10) Any person who contravenes subsection (8) or (9) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
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| Stop order for prospectus and profile statement |
297.—(1) If a prospectus has been registered and —| (a) | the Authority is of the opinion that the prospectus contains a false or misleading statement; | | (b) | there is an omission from the prospectus of any information that is required to be included, or an inclusion in the prospectus of any information that is prohibited, by virtue of requirements prescribed under section 296; | | (c) | the Authority is of the opinion that the prospectus does not comply with the requirements of this Act; or | | (d) | the Authority is of the opinion that it is in the public interest to do so, |
| the Authority may by a written order (called in this section a stop order) served on the person making the offer of units in a collective investment scheme to which the prospectus relates, direct that no or no further units in the scheme be issued or sold. |
(2) If a profile statement has been registered and —| (a) | the Authority is of the opinion that the profile statement contains a false or misleading statement; | | (b) | there is an omission from the profile statement of any information that is required to be included, or an inclusion in the profile statement of any information that is prohibited, by virtue of requirements prescribed under section 296; | | (c) | the Authority is of the opinion that the profile statement does not comply with the requirements of this Act; or | | (d) | the Authority is of the opinion that it is in the public interest to do so, |
| the Authority may by a written order (called in this section a stop order) served on the person making the offer of units in a collective investment scheme to which the profile statement relates, direct that no or no further units in the scheme be issued or sold. |
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(2A) If —| (a) | a prospectus or a profile statement has been registered; | | (b) | the prospectus or profile statement relates to units in a collective investment scheme recognised under section 287; and | | (c) | the Authority is of the opinion that it is necessary to stop the person making the offer of units in the scheme from issuing or selling units in the scheme to give effect to an arrangement relating to cross‑border offers of collective investment schemes to which Singapore or the Authority is a party, |
| the Authority may serve a written order (called in this section a stop order) on the person making the offer of units in the scheme directing that no or no further units in the scheme be issued or sold. |
[4/2017] |
(2B) The Authority must not serve a stop order under subsection (1), (2) or (2A) if —| (a) | any of the units in a collective investment scheme to which the prospectus or profile statement relates —| (i) | has been issued or sold; and | | (ii) | has been listed for quotation on an approved exchange; and |
| | (b) | trading in any of the units in the collective investment scheme mentioned in paragraph (a) has commenced. [4/2017] |
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(3) The Authority must not serve a stop order under subsection (1), (2) or (2A) without giving the person making the offer of units in the collective investment scheme an opportunity to be heard, except that an opportunity to be heard need not be given if the stop order is served on the ground that it is in the public interest to do so on the basis of any of the following circumstances:| (a) | the person making the offer (being an entity), the responsible person or the collective investment scheme itself, is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere; | | (b) | the person making the offer (being an individual) is an undischarged bankrupt, whether in Singapore or elsewhere; | | (c) | a receiver, a receiver and manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of any property of the person making the offer (being an entity), the responsible person or the collective investment scheme. [4/2017] |
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(4) Where applications for units in a collective investment scheme have been made prior to the service of a stop order, and —| (a) | the contributions of the applicants to the scheme have not yet been invested in accordance with the scheme —| (i) | where units in the scheme have not been issued to the applicants, the applications are deemed to have been withdrawn and cancelled; or | | (ii) | where units in the scheme have been issued to the applicants, the issue of the units is deemed to be void, |
| and the person making the offer of units in the scheme must, within 7 days from the date of the stop order, pay to the applicants all moneys which the applicants have paid for the units, including contributions to the scheme and charges the applicants have paid to that person, its agent, or any person through whom the applicant has applied for the units; or |
| | (b) | the contributions of the applicants to the scheme have been invested in accordance with the scheme, the Authority may by written notice issue such directions to the person making the offer of units in the scheme as it deems fit, including a direction that the person provide the applicants with an option, on such terms as the Authority may approve, to obtain from that person a refund of all moneys contributed by the applicants or to redeem their units in accordance with the scheme. |
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(5) In determining whether to issue a direction under subsection (4) to the person making the offer of units in the collective investment scheme to refund the contributions of the applicants, the Authority must consider whether the responsible person for the scheme will be able to liquidate the property of the scheme without material adverse financial effect to the applicants, and for this purpose, the factors which the Authority may take into account include —| (a) | whether a significant amount of the contributions of the participants has been invested; | | (b) | the liquidity of the property of the scheme; and | | (c) | the penalties (if any) payable for liquidating the property. |
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| (6) It is not necessary to publish any direction issued under subsection (4) in the Gazette. [34/2012] |
| (7) If the Authority is of the opinion that any delay in serving a stop order pending the hearing required under subsection (3) is not in the interests of the public, the Authority may, without giving the person making the offer of units in the collective investment scheme an opportunity to be heard, serve an interim stop order on such person directing that no or no further units in a collective investment scheme to which the prospectus or profile statement relates be issued or sold. |
(8) An interim stop order, unless revoked, is in force —| (a) | in a case where —| (i) | it is served during a hearing under subsection (3); or | | (ii) | a hearing under subsection (3) is commenced while it is in force, |
| until the Authority makes an order under subsection (1), (2) or (2A); or |
| | (b) | in any other case, for a period of 14 days from the day on which the interim stop order is served. [4/2017] |
|
| (9) Subsection (4) does not apply where only an interim stop order has been served. |
| (10) Any person who fails to comply with a stop order served under subsection (1), (2) or (2A) or an interim stop order served under subsection (7) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. [4/2017] |
| (11) Any person who contravenes subsection (4), or any direction issued to the person under that subsection, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction. |
| (12) For the purposes of subsections (1)(a) and (2)(a), any reference to a statement includes a reference to any information presented, regardless of whether such information is in text or otherwise. |
|
| Lodging supplementary document or replacement document |
298.—(1) If, after a prospectus or profile statement is registered but before the close of the offer of units in a collective investment scheme, or the expiration of 12 months from the date of registration of the prospectus by the Authority, whichever is earlier, the person making that offer becomes aware of —| (a) | a false or misleading statement in the prospectus or profile statement; | | (b) | an omission from the prospectus or profile statement of any information that should have been included in it by requirements prescribed under section 296; or | | (c) | a new circumstance that —| (i) | has arisen since the prospectus or profile statement was lodged with the Authority; and | | (ii) | would have been required under this Act to be included in the prospectus or profile statement, |
| if it had arisen before the prospectus or the profile statement (as the case may be) was lodged, |
|
| and that is materially adverse from the point of view of an investor, the person may lodge a supplementary or replacement prospectus, or a supplementary or replacement profile statement (called in this section a supplementary or replacement document, as the case may be), with the Authority. |
| (2) If, after a prospectus or profile statement is registered but before the close of the offer of units in a collective investment scheme, or the expiration of 12 months from the registration of the prospectus by the Authority, whichever is earlier, the person making that offer wishes to update any information in a prospectus or profile statement and the person declares in writing to the Authority that none of the situations set out in subsection (1) apply at that time, the person may lodge a supplementary or replacement document with the Authority. |
(3) At the beginning of a supplementary document, there must be —| (a) | a statement that it is a supplementary prospectus or a supplementary profile statement, as the case may be; | | (b) | an identification of the prospectus or profile statement it supplements; | | (c) | an identification of any previous supplementary document lodged with the Authority in relation to the offer; and | | (d) | a statement that it is to be read together with the prospectus or profile statement it supplements and any previous supplementary document in relation to the offer. |
|
(4) At the beginning of a replacement document, there must be —| (a) | a statement that it is a replacement prospectus or a replacement profile statement, as the case may be; and | | (b) | an identification of the prospectus or profile statement it replaces. |
|
| (5) The supplementary document and the replacement document must be dated with the date on which they are lodged with the Authority. |
(6) The person making the offer of units in a collective investment scheme must take reasonable steps —| (a) | to inform potential investors of the lodgment of any supplementary document or replacement document under subsection (1); and | | (b) | to make available to them the supplementary document or replacement document. |
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(7) For the purposes of the application of this Division to events that occur after the lodgment of a supplementary document —| (a) | where the supplementary document is a supplementary prospectus, the prospectus in relation to the offer is taken to be the original prospectus together with the supplementary prospectus and any previous supplementary prospectus in relation to the offer; and | | (b) | where the supplementary document is a supplementary profile statement, the profile statement in relation to the offer is taken to be the original profile statement together with the supplementary profile statement and any previous supplementary profile statement in relation to the offer. |
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| (8) [Deleted by Act 1 of 2005] |
(9) For the purposes of the application of this Division to events that occur after the lodgment of the replacement document —| (a) | where the replacement document is a replacement prospectus, the prospectus in relation to the offer is taken to be the replacement prospectus; and | | (b) | where the replacement document is a replacement profile statement, the profile statement in relation to the offer is taken to be the replacement profile statement. |
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(10) Where, prior to the lodgment of the supplementary document or replacement document under subsection (1), applications have been made under the original prospectus or profile statement for units in a collective investment scheme, the person making the offer of units in the scheme —| (a) | must —| (i) | within 2 days (excluding any Saturday, Sunday or public holiday) from the date of lodgment of the supplementary document or replacement document, give the applicants written notice on how to obtain, or arrange to receive, a copy of the supplementary document or replacement document, as the case may be; and | | (ii) | take all reasonable steps to make available within a reasonable period the supplementary document or replacement document (as the case may be) to the applicants who have indicated that they wish to obtain, or who have arranged to receive, a copy of the supplementary document or replacement document; or |
| | (b) | must, within 7 days from the date of lodgment of the supplementary document or replacement document, give the applicants the supplementary document or replacement document, as the case may be. |
|
| (11) Any person who contravenes subsection (3), (4), (5) or (6) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
| (12) Any person who contravenes subsection (10) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction. |
| (13) For the purposes of subsection (1)(a), the reference to a statement includes a reference to any information presented, regardless of whether such information is in text or otherwise. |
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| Duration of validity of prospectus and profile statement |
299.—(1) A person must not make an offer of units in a collective investment scheme, or issue or sell any units in a collective investment scheme, on the basis of a prospectus or profile statement after the expiration of 12 months from the date of registration by the Authority of the prospectus in relation to such offer, issue or sale.| (2) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
| (3) An issue or a sale of units in a collective investment scheme that is made in contravention of subsection (1) is not, by reason only of that fact, voidable or void. |
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| Restrictions on advertisements, etc. |
300.—(1) If a prospectus is required for an offer, or intended offer of units in a collective investment scheme or proposed collective investment scheme, a person must not —| (a) | advertise the offer or intended offer; or | | (b) | publish a statement that —| (i) | directly or indirectly refers to the offer or intended offer; or | | (ii) | is reasonably likely to induce people to subscribe for or purchase the units, |
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| unless the advertisement or publication is authorised by this section. |
(2) In determining whether a statement —| (a) | indirectly refers to an offer or intended offer; or | | (b) | is reasonably likely to induce people to subscribe for or purchase units in a collective investment scheme, |
| regard must be had to whether the statement — |
| (c) | forms part of the normal advertising of an entity’s products or services and is genuinely directed at maintaining its existing customers, or attracting new customers, for those products or services; and | | (d) | is likely to encourage investment decisions to be made on the basis of the statement rather than on the basis of information contained in a prospectus or profile statement. |
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(2A) Despite subsection (3A), a person may, before a prospectus or profile statement is registered by the Authority, disseminate a preliminary document which has been lodged with the Authority to institutional investors, relevant persons as defined in section 305(5) and persons to whom an offer referred to in section 305(2) is to be made without contravening subsection (1), if —| (a) | the front page of the preliminary document contains —| (i) | the following statement:| “This is a preliminary document and is subject to further amendments and completion in the prospectus to be registered by the Monetary Authority of Singapore.”; |
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| | (ii) | a statement that a person to whom a copy of the preliminary document has been issued must not circulate it to any other person; and | | (iii) | a statement in bold lettering that no offer or agreement may be made on the basis of the preliminary document to purchase or subscribe for any units in the collective investment scheme to which the preliminary document relates; |
| | (b) | the preliminary document does not contain or have attached to it any form of application that will facilitate the making by any person of an offer of units in the collective investment scheme to which the preliminary document relates, or the acceptance of such an offer by any person; and | | (c) | when the prospectus is registered by the Authority, the person takes reasonable steps to notify the persons to whom the preliminary document was issued that the registered prospectus is available for collection. |
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(2B) Despite subsection (3A), a person does not contravene subsection (1) —| (a) | by presenting, before a prospectus or profile statement is registered by the Authority, oral or written material on matters contained in a preliminary document which has been lodged with the Authority, to institutional investors, relevant persons as defined in section 305(5) or persons to whom an offer referred to in section 305(2) is to be made; or | | (b) | by presenting oral or written material on matters contained in a prospectus, profile statement or product highlights sheet which has been lodged with the Authority in respect of an offer of units in a collective investment scheme, before the prospectus or profile statement is registered by the Authority, for the sole purpose of equipping any of the following persons with knowledge of the collective investment scheme in order to enable the person to carry on the regulated activity of dealing in capital markets products that are units in a collective investment scheme, or to provide any financial advisory service, in relation to the units in the collective investment scheme:| (i) | a person licensed under this Act in respect of dealing in capital markets products that are units in a collective investment scheme; | | (ii) | an exempt person; | | (iii) | a person who is a representative in respect of dealing in capital markets products that are units in a collective investment scheme under this Act; | | (iv) | a representative of an exempt person; | | (v) | a person licensed under the Financial Advisers Act 2001 in respect of marketing of collective investment schemes; | | (vi) | an exempt financial adviser; | | (vii) | a person who is a representative in respect of marketing of collective investment schemes under the Financial Advisers Act 2001; | | (viii) | a representative of an exempt financial adviser. [34/2012; 4/2017] |
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| (2C) [Deleted by Act 34 of 2012] |
(3) To avoid doubt, a person may disseminate either or both of the following without contravening subsection (1):| (a) | a prospectus or profile statement that has been registered by the Authority under section 296; | | (b) | a product highlights sheet in respect of which section 296A(1)(a) and (b) has been complied with, and which is disseminated with a prospectus or profile statement that has been registered by the Authority under section 296. [34/2012; 4/2017] |
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(3A) Before a prospectus or profile statement is registered, an advertisement or a publication does not contravene subsection (1) if it contains only the following:| (a) | a statement that identifies the person making the offer, the responsible person for the collective investment scheme and, where the collective investment scheme is not a corporation, the collective investment scheme; | | (b) | a statement that a prospectus or profile statement for the offer will be made available when the offer is made; | | (c) | a statement that anyone wishing to acquire the units in the collective investment scheme will need to make an application in the manner set out in the prospectus or profile statement; | | (d) | a statement on how to obtain, or arrange to receive, a copy of the prospectus or profile statement; and | | (e) | the investment focus of the collective investment scheme. |
|
| (3B) To satisfy subsection (3A), the advertisement or publication must include all of the statements referred to in paragraphs (a), (b) and (c) of that subsection, and may include the information referred to in paragraphs (d) and (e). |
| (3C) After a prospectus or profile statement is registered with the Authority, an advertisement or a publication does not contravene subsection (1) if it complies with such requirements as the Authority may prescribe by regulations made under section 341. [34/2012] |
(4) An advertisement or publication does not contravene subsection (1) if it —| (a) | consists solely of a disclosure, notice or report required under this Act, or any listing rules or other requirements of an approved exchange or overseas exchange, made by any person, provided that the disclosure, notice or report complies with such requirements as the Authority may prescribe; | | (aa) | consists solely of a notice or report of a meeting or proposed meeting of the participants of the collective investment scheme, or a general meeting or proposed general meeting of the person making the offer, the responsible person or any entity, provided that the notice or report complies with such requirements as the Authority may prescribe, or a presentation of oral or written material on matters so contained in the notice or report at the meeting or general meeting; | | (b) | consists solely of a report about the collective investment scheme or proposed collective investment scheme that is issued pursuant to this Act and the Code on Collective Investment Schemes; | | (ba) | consists solely of a statement made by the person making the offer or the responsible person that a prospectus or profile statement in respect of the offer or intended offer has been lodged with the Authority; | | (c) | is a news report, or a genuine comment, by a person other than a person referred to in paragraph (d)(i), (ii), (iii) or (iv), in a newspaper, periodical or magazine or on radio or television, or any other means of broadcasting or communication, relating to —| (i) | a prospectus or profile statement that has been lodged with the Authority or information contained in such a prospectus or profile statement; | | (ii) | a disclosure, notice or report referred to in paragraph (a); | | (iii) | a notice, report, presentation, meeting, proposed meeting, general meeting or proposed general meeting referred to in paragraph (aa); | | (iv) | a report referred to in paragraph (b); or | | (v) | a product highlights sheet; |
| | (d) | is a report about the units in the collective investment scheme which are the subject of the offer or intended offer, published by someone who is not —| (i) | the person making the offer, the responsible person for the scheme, its agent or distributor; | | (ii) | a director or an equivalent person of the person making the offer or the responsible person for the scheme; | | (iii) | a person who has an interest in the success of the issue or sale of the units; or | | (iv) | a person acting at the instigation of, or by arrangement with, any person referred to in sub‑paragraph (i), (ii) or (iii); |
| | (e) | is a disclosure, notice, report or publication of a description prescribed by the Authority, and such other conditions as the Authority may prescribe are satisfied; or | | (f) | is a publication made by the person making the offer or the responsible person for the scheme solely to correct or provide clarification on any erroneous or inaccurate information or comment contained in —| (i) | an earlier news report or a genuine comment referred to in paragraph (c); or | | (ii) | an earlier publication published in the ordinary course of business of publishing a newspaper, periodical or magazine, or of broadcasting by radio, television or any other means of broadcasting or communication, referred to in subsection (5), |
| provided that the firstmentioned publication does not contain any material information that is not included in the prospectus. |
[2/2009; 34/2012; 4/2017] |
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(5) A person does not contravene subsection (1) if —| (a) | the person publishes an advertisement or publication in the ordinary course of a business of —| (i) | publishing a newspaper, periodical or magazine; or | | (ii) | broadcasting by radio, television, or any other means of broadcasting or communication; and |
| | (b) | the person did not know, and had no reason to suspect, that its publication would constitute a contravention of subsection (1). |
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| (6) Subsection (4)(c) and (d) does not apply to an advertisement or statement if any person gives consideration or any other benefit for the publication of the advertisement or statement. |
| (7) Any person who contravenes subsection (1) or who knowingly authorises or permits the publication or dissemination of any advertisement or statement mentioned in that subsection shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [4/2017] |
| (8) This section does not affect any liability that a person has under any other law. |
| (9) The Authority may exempt any person or class of persons from this section, subject to such conditions as the Authority may determine. |
| (10) Any person who contravenes any of the conditions under subsection (9) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
| (11) For the purposes of this section, any reference to publishing a statement includes a reference to making a statement, whether oral or written, which is reasonably likely to be published. |
| (12) For the purposes of subsections (1) and (2), any reference to a statement includes a reference to any information presented, regardless of whether such information is in text or otherwise. |
(13) In subsection (2B) —| “exempt financial adviser” and “financial advisory service” have the meanings given by section 2(1) of the Financial Advisers Act 2001; |
“representative” —| (a) | in relation to dealing in capital markets products that are units in a collective investment scheme under this Act or an exempt person, has the meaning given by section 2(1); or | | (b) | in relation to marketing of collective investment schemes under the Financial Advisers Act 2001 or an exempt financial adviser, has the meaning given by section 2(1) of that Act. [34/2012; 4/2017] |
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| Issue of units where prospectus indicates application to list on approved exchange |
301.—(1) Where a prospectus states or implies that application has been or will be made for permission for the units in a collective investment scheme offered thereby to be listed for quotation on any approved exchange, and —| (a) | the permission is not applied for in the form required by the approved exchange within 3 days from the date of the issue of the prospectus; or | | (b) | the permission is not granted before the expiration of 6 weeks from the date of the issue of the prospectus or such longer period not exceeding 12 weeks from the date of the issue as is, within those 6 weeks, notified to the applicant by or on behalf of the approved exchange, |
| (c) | any issue whenever made of units made on an application pursuant to the prospectus is void; and | | (d) | any person who continues to issue such units after the period specified in paragraph (a) or (b) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. [4/2017] |
(2) Where the permission has not been applied for, or has not been granted as mentioned under subsection (1), applications for units in the collective investment scheme have been made and —| (a) | the contributions of the applicants to the scheme have not yet been invested in accordance with the scheme —| (i) | in a case where units in the scheme have not been issued to the applicants, the responsible person for the scheme must treat such applications as having been withdrawn; or | | (ii) | in a case where units in the scheme have been issued to the applicants, the issue of the units is deemed to be void, |
| and the responsible person must within 7 days after the period specified in subsection (1)(a) or (b), whichever is applicable, pay to the applicants all moneys which the applicants have paid for the units, including contributions to the scheme and charges the applicants have paid to the responsible person, its agent, or any person through whom the applicant has applied for the units; or |
| | (b) | the contributions of the applicants to the scheme have been invested in accordance with the scheme, the Authority may by written notice issue such directions to the responsible person for the scheme as it deems fit, including a direction that the responsible person provide the applicants with an option, on such terms as the Authority may approve, to obtain from the responsible person a refund of all moneys contributed by the applicants or to redeem their units in accordance with the scheme. |
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(3) In determining whether to issue a direction under subsection (2)(b) to the responsible person to refund the contributions of the applicants, the Authority must consider whether the responsible person for the collective investment scheme will be able to liquidate the property of the scheme without material adverse financial effect to the applicants, and for this purpose, the factors which the Authority may take into account include —| (a) | whether a significant amount of the contributions of the participants has been invested; | | (b) | the liquidity of the property of the scheme; and | | (c) | the penalties (if any) payable for liquidating the property. |
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| (4) Any responsible person who contravenes subsection (2) or any of the directions issued under that subsection shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction. |
| (5) Any responsible person to whom a notice is given under subsection (2) must comply with such direction as may be contained in the notice. |
| (6) It is not necessary to publish any direction issued under subsection (2) in the Gazette. [34/2012] |
| (7) All moneys received from applicants as payment for the units, including contributions to the scheme and charges which the applicants have paid to the responsible person, its agent, or any person through whom the applicant has applied for the units, must be kept in a separate bank account so long as the responsible person for the collective investment scheme may become liable to repay it under subsection (2). |
| (8) Any responsible person for a scheme which is not in compliance with subsection (7) and, where the scheme is a corporation, every officer thereof, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
(9) Where the approved exchange has, within the period specified in subsection (1)(b), granted permission subject to compliance with such requirements as may be specified by the approved exchange, permission is deemed to have been granted by the approved exchange if —| (a) | in a case where the responsible person for the scheme is a corporation, the directors of the corporation; or | | (b) | in a case where the responsible person for the scheme is not a corporation, such persons as may be required by the approved exchange, |
| have given to the approved exchange an undertaking in writing to comply with the requirements of the approved exchange. |
[4/2017] |
| (10) Any person who fails to comply with any undertaking given to an approved exchange under subsection (9) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [4/2017] |
(11) A person must not issue a prospectus inviting persons to subscribe for or purchase units in a collective investment scheme if it includes —| (a) | a false or misleading statement that permission has been granted for those units to be listed for quotation on, dealt in or quoted on any approved exchange; or | | (b) | any statement in any way referring to any such permission or to any application or intended application for any such permission, or to listing for quotation on, dealing in or quoting the units on any approved exchange, or to any requirements of an approved exchange, unless that statement is or is to the effect that permission has been granted or that application has been or will be made to the approved exchange within 3 days from the date of issue of the prospectus or the statement has been approved by the Authority for inclusion in the prospectus. [4/2017] |
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| (12) Any person who contravenes subsection (11) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. |
| (13) Where a prospectus contains a statement to the effect that the constituent documents for the collective investment scheme comply, or have been drawn so as to comply, with the requirements of any approved exchange, the prospectus is, unless the contrary intention appears from the prospectus, deemed for the purposes of subsection (11)(b) to be a prospectus that includes a statement that application has been, or will be, made for permission for the units to which the prospectus relates, to be listed for quotation on the approved exchange. [4/2017] |
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| Application of provisions relating to securities and securities‑based derivatives contracts |
| 302.—(1) Sections 247, 249, 249A, 252, 253, 254 and 255 apply, with the necessary modifications, in relation to an offer of units in a collective investment scheme as they apply in relation to an offer of securities or securities‑based derivatives contracts in Division 1 of this Part. [4/2017] (2) For the purposes of subsection (1) —| (a) | references in those sections to securities or securities‑based derivatives contracts are to be read as references to units in a collective investment scheme; and | | (b) | references in those sections to a person subscribing for, purchasing or acquiring securities or securities‑based derivatives contracts are to be read as a person subscribing for, purchasing or acquiring units in a collective investment scheme. [4/2017] |
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| (3) For the purposes of subsection (1), any reference in sections 253 and 254 to an offer referred to in section 280 is to be read as a reference to an offer referred to in section 305C. |
| (4) For the purposes of subsection (1), any reference in sections 249, 249A, 253 and 254 to the issuer is to be read as a reference to the responsible person. |
|
| Subdivision (4) — Exemptions |
| Issue or transfer for no consideration |
302A.—(1) Subdivisions (2) and (3) of this Division do not apply to an offer of units in a collective investment scheme (other than an offer of an option to subscribe for or purchase such units) if no consideration is or will be given for the issue or transfer of the units.(2) Subdivisions (2) and (3) of this Division do not apply to an offer of an option to subscribe for or purchase units in a collective investment scheme if —| (a) | no consideration is or will be given for the issue or transfer of the option; and | | (b) | no consideration is or will be given for the underlying units on the exercise of the option. |
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302B.—(1) Subdivisions (2) and (3) of this Division do not apply to personal offers of units in a collective investment scheme by a person if —| (a) | the total amount raised by the person from such offers within any period of 12 months does not exceed —| (i) | $5 million (or its equivalent in a foreign currency); or | | (ii) | such other amount as the Authority may prescribe in substitution for the amount specified in sub‑paragraph (i); |
| | (b) | in respect of each offer, the person making the offer gives the person to whom the offer is made —| (i) | the following statement in writing:| “This offer is made in reliance on the exemption under section 302B(1) of the Securities and Futures Act 2001. It is not made in or accompanied by a prospectus that is registered by the Monetary Authority of Singapore and the scheme is not authorised or recognised by the Authority.”; and |
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| | (ii) | a notification in writing that the units to which the offer (called in this sub‑paragraph the initial offer) relates must not be subsequently sold to any person unless the offer resulting in such subsequent sale is made —| (A) | in compliance with Subdivisions (2) and (3) of this Division; | | (B) | in reliance on subsection (8)(c) or any other exemption under any provision of this Subdivision (other than this subsection); or | | (C) | where at least 6 months have elapsed from the date the units were acquired under the initial offer, in reliance on the exemption under this subsection; |
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| | (c) | none of the offers is accompanied by an advertisement making an offer or calling attention to the offer or intended offer; | | (d) | no selling or promotional expenses are paid or incurred in connection with each offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by any of the following persons:| (i) | the holder of a capital markets services licence to deal in capital markets products that are units in a collective investment scheme; | | (ii) | an exempt person in respect of dealing in capital markets products that are units in a collective investment scheme; | | (iii) | a person licensed under the Financial Advisers Act 2001 in respect of marketing of collective investment schemes; | | (iv) | an exempt financial adviser as defined in section 2(1) of the Financial Advisers Act 2001; | | (v) | a person who is licensed, approved, authorised or otherwise regulated under the laws, codes or other requirements of any foreign jurisdiction in respect of dealing in capital markets products that are units in a collective investment scheme or marketing of collective investment schemes; or | | (vi) | a person who is exempt from the laws, codes or other requirements mentioned in sub‑paragraph (v) in respect of units in a collective investment scheme or marketing of collective investment schemes; and |
| | (e) | no prospectus in respect of any of the offers has been registered by the Authority or, where a prospectus has been registered —| (i) | the prospectus has expired pursuant to section 299; or | | (ii) | the person making the offer has before making the offer informed the Authority by written notice of its intent to make the offer in reliance on the exemption under this subsection. [2/2009; 4/2017] |
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| (2) For the purposes of subsection (1)(b), where any notice, circular, material, publication or other document is issued in connection with the offer, the person making the offer is deemed to have given the statement and notification to the person to whom the offer is made in accordance with that provision if such statement or notification is contained in the first page of that notice, circular, material, publication or document. |
(3) For the purposes of subsection (1), a personal offer of units in a collective investment scheme is one that —| (a) | may only be accepted by the person to whom it is made; and | | (b) | is made to a person who is likely to be interested in that offer, having regard to —| (i) | any previous contact before the date of the offer between the person making the offer and that person; | | (ii) | any previous professional or other connection established before that date between the person making the offer and that person; or | | (iii) | any previous indication (whether through statements made or actions carried out) before that date by that person to the person making the offer or any of the persons specified in subsection (1)(d)(i), (ii), (iii), (iv), (v) and (vi) that that person is interested in offers of that kind. [Act 12 of 2024 wef 30/08/2024] |
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(4) In determining the amount raised by an offer of units in a collective investment scheme, the following must be included:| (a) | the amount payable for the units at the time when they are issued or sold; | | (b) | if the units are issued partly‑paid, any amount payable at a future time if a call is made; | | (c) | if the units carry a right (by whatever name called) to be converted into other units or to acquire other units in a collective investment scheme, any amount payable on the exercise of the right to convert them into, or to acquire, other units in a collective investment scheme. |
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(5) In determining whether the amount raised by a person from offers within a period of 12 months exceeds the applicable amount specified in subsection (1)(a), each amount raised —| (a) | by that person from any offer of units in the same collective investment scheme; or | | (b) | by that person or another person from any offer of units in a collective investment scheme, securities or securities‑based derivatives contracts, which is a closely related offer, |
| (if any) within that period in reliance on the exemption under subsection (1) or section 272A(1) must be included. |
[4/2017] |
| (6) Whether an offer is a closely related offer under subsection (5) is determined by considering such factors as the Authority may prescribe. |
| (7) For the purpose of this section, an offer of units in a collective investment scheme made by a person acting as an agent of another person is treated as an offer made by that other person. |
(8) Where units acquired through an offer made in reliance on the exemption under subsection (1) (called in this subsection an initial offer) are subsequently sold by the person who acquired the units to another person, Subdivisions (2) and (3) of this Division apply to the offer from the firstmentioned person to the second‑mentioned person which resulted in that sale, unless —| (a) | such offer is made in reliance on an exemption under any provision of this Subdivision (other than this section); | | (b) | such offer is made in reliance on an exemption under subsection (1) and at least 6 months have elapsed from the date the units were acquired under the initial offer; or | | (c) | such offer is one —| (i) | that may be accepted only by the person to whom it is made; | | (ii) | that is made to a person who is likely to be interested in the offer having regard to —| (A) | any previous contact before the date of the offer between the person making the initial offer and that person; | | (B) | any previous professional or other connection established before that date between the person making the initial offer and that person; or | | (C) | any previous indication (whether through statements made or actions carried out) before that date by that person to the person making the initial offer or any of the persons specified in subsection (1)(d)(i), (ii), (iii), (iv), (v) and (vi) that that person is interested in offers of that kind; [Act 12 of 2024 wef 30/08/2024] |
| | (iii) | in respect of which the firstmentioned person has given the second‑mentioned person —| (A) | the following statement in writing:| “This offer is made in reliance on the exemption under section 302B(8)(c) of the Securities and Futures Act 2001. It is not made in or accompanied by a prospectus that is registered by the Monetary Authority of Singapore and the scheme is not authorised or recognised by the Authority.”; and |
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| | (B) | a notification in writing that the units being offered must not be subsequently sold to any person unless the offer resulting in such subsequent sale is made —| (BA) | in compliance with Subdivisions (2) and (3) of this Division; | | (BB) | in reliance on this subsection or any other exemption under any provision of this Subdivision (other than subsection (1)); or | | (BC) | where at least 6 months have elapsed from the date the units were acquired under the initial offer, in reliance on the exemption under subsection (1); |
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| | (iv) | that is not accompanied by an advertisement making an offer or calling attention to the offer or intended offer; and | | (v) | in respect of which no selling or promotional expenses are paid or incurred in connection with the offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by any of the persons specified in subsection (1)(d)(i), (ii), (iii), (iv), (v) and (vi). [Act 12 of 2024 wef 30/08/2024] |
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| (9) Subsection (2) applies, with the necessary modifications, in relation to the statement and notification referred to in subsection (8)(c)(iii). |
(10) In subsections (1)(c) and (8)(c)(iv), “advertisement” means —| (a) | a written or printed communication; | | (b) | a communication by radio, television or other medium of communication; or | | (c) | a communication by means of a recorded telephone message, |
| that is published in connection with an offer of units in a collective investment scheme, but does not include — |
| (d) | a document —| (i) | purporting to describe the units in a collective investment scheme being offered; and | | (ii) | purporting to have been prepared for delivery to and review by persons to whom the offer is made so as to assist them in making an investment decision in respect of the units being offered; |
| | (e) | a publication which consists solely of a disclosure, notice or report required under this Act, or any listing rules or other requirements of an approved exchange or overseas exchange, which is made by any person; or | | (f) | a publication which consists solely of a notice or report of a meeting or proposed meeting of the participants of the collective investment scheme, or a general meeting or proposed general meeting of the person making the offer, the responsible person or any entity, or a presentation of oral or written material on matters so contained in the notice or report at the meeting or general meeting. [2/2009; 4/2017] |
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302C.—(1) Subdivisions (2) and (3) of this Division do not apply to offers of units in a collective investment scheme that are made by a person if —| (a) | the offers are made to no more than 50 persons within any period of 12 months; | | (b) | none of the offers is accompanied by an advertisement making an offer or calling attention to the offer or intended offer; | | (c) | no selling or promotional expenses are paid or incurred in connection with each offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by any of the persons specified in section 302B(1)(d)(i), (ii), (iii), (iv), (v) and (vi); and [Act 12 of 2024 wef 30/08/2024] | | (d) | no prospectus in respect of any of the offers has been registered by the Authority or, where a prospectus has been registered —| (i) | the prospectus has expired pursuant to section 299; or | | (ii) | the person making the offer has before making the offer —| (A) | informed the Authority by written notice of its intent to make the offer in reliance on the exemption under this subsection; and | | (B) | taken reasonable steps to inform in writing the person to whom the offer is made that the offer is made in reliance on the exemption under this subsection. [2/2009] |
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| (2) The Authority may prescribe such other number of persons in substitution for the number specified in subsection (1)(a). |
(3) In determining whether offers of units in a collective investment scheme by a person are made to no more than the applicable number of persons specified in subsection (1)(a) within a period of 12 months, each person to whom —| (a) | an offer of units in the same collective investment scheme is made by the firstmentioned person; or | | (b) | an offer of units in a collective investment scheme, securities or securities‑based derivatives contracts is made by the firstmentioned person or another person where such offer is a closely related offer, |
| (if any) within that period in reliance on the exemption under this section or section 272B must be included. |
[4/2017] |
| (4) Whether an offer is a closely related offer under subsection (3) is determined by considering such factors as the Authority may prescribe. |
(5) For the purposes of subsection (1) —| (a) | an offer of units in a collective investment scheme to an entity or to a trustee is treated as an offer to a single person, provided that the entity or trust is not formed primarily for the purpose of acquiring the units which are the subject of the offer; | | (b) | an offer of units in a collective investment scheme to an entity or to a trustee is treated as an offer to the equity owners, partners or members of that entity, or to the beneficiaries of the trust (as the case may be) if the entity or trust is formed primarily for the purpose of acquiring the units which are the subject of the offer; | | (c) | an offer of units in a collective investment scheme to 2 or more persons who will own the units acquired as joint owners is treated as an offer to a single person; | | (d) | an offer of units in a collective investment scheme to a person acting on behalf of another person (whether as an agent or otherwise) is treated as an offer made to that other person; | | (e) | offers of units in a collective investment scheme made by a person as an agent of another person are treated as offers made by that other person; | | (f) | where an offer of units in a collective investment scheme is made to a person with a view to another person acquiring an interest in those units by virtue of section 4, only the second‑mentioned person is counted for the purposes of determining whether offers of the units are made to no more than the applicable number of persons specified in subsection (1)(a); and | | (g) | where —| (i) | an offer of units in a collective investment scheme is made to a person in reliance on the exemption under subsection (1) with a view to those units being subsequently offered for sale to another person; and | | (ii) | that subsequent offer —| (A) | is not made in reliance on an exemption under any provision of this Subdivision; or | | (B) | is made in reliance on an exemption under subsection (1) or section 305C, |
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| both persons are counted for the purposes of determining whether offers of the units are made to no more than the applicable number of persons specified in subsection (1)(a). |
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| (6) In subsection (1)(b), “advertisement” has the meaning given by section 302B(10). |
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| Offer or invitation made under certain circumstances |
| 303.—(1) Subdivision (3) of this Division does not apply to an offer of units in a collective investment scheme if it is made in relation to units in a collective investment scheme (not being such excluded units in a scheme as the Authority may prescribe) that have been previously issued, are listed for quotation or quoted on an approved exchange, and are traded on the exchange. [2/2009; 4/2017] | (2) Subdivisions (2) and (3) of this Division do not apply to an offer of units in a collective investment scheme if it is an offer to enter into an underwriting agreement relating to units in a collective investment scheme. |
| (3) A person must not advertise an offer or intended offer of any units in a collective investment scheme referred to in subsection (1), or publish a statement that directly or indirectly refers to the offer or intended offer, or that is reasonably likely to induce persons to subscribe for or purchase the units, unless the advertisement or publication complies with such requirements as the Authority may prescribe by regulations made under section 341. [34/2012] |
| (4) Any person who contravenes subsection (3), or who knowingly authorises or permits the publication or dissemination of any advertisement or statement referred to in that subsection, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
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| Offer made to institutional investors |
| 304. Subdivisions (2) and (3) of this Division do not apply to an offer of units in a collective investment scheme (whether or not they have been previously issued) made to an institutional investor. |
| First sale of units acquired pursuant to section 304 |
| 304A.—(1) Despite sections 302B, 302C, 303(1) and 305B but subject to subsection (2), where units in a collective investment scheme acquired pursuant to an offer made in reliance on the exemption under section 304 are first sold to any person other than an institutional investor, then Subdivisions (2) and (3) of this Division apply to the offer resulting in that sale. [2/2009] (2) Subsection (1) does not apply where the units in a collective investment scheme acquired are of the same class as, or can be converted into units of the same class as, other units in the scheme —| (a) | which are listed for quotation on an approved exchange; and | | (b) | in respect of which any offer information statement, introductory document, unitholders’ circular for a reverse take‑over, document issued for the purposes of a trust scheme, or any other similar document approved by an approved exchange, was issued in connection with —| (i) | an offer of those units in the scheme; or | | (ii) | the listing for quotation of those units in the scheme. [4/2017] |
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| Offer made to accredited investors and certain other persons |
305.—(1) Except to such extent and with such modifications as the Authority may prescribe, Subdivisions (2) and (3) of this Division do not apply to an offer of units in a collective investment scheme (called in this section a restricted scheme), where the offer is made to a relevant person, if the conditions in subsection (3) are satisfied.| (2) Except to such extent and with such modifications as the Authority may prescribe, Subdivisions (2) and (3) of this Division do not apply to an offer of units in a collective investment scheme (also called in this section a restricted scheme) to a person who acquires the units as principal if the offer is on terms that the units may only be acquired at a consideration of not less than $200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount is to be paid for in cash or by exchange of units in a collective investment scheme, securities, securities‑based derivatives contracts or other assets, and if the conditions in subsection (3) are satisfied. [4/2017] |
(3) The conditions referred to in subsections (1) and (2) are —| (a) | the offer is not accompanied by an advertisement making an offer or calling attention to the offer or intended offer; | | (b) | no selling or promotional expenses are paid or incurred in connection with the offer other than those incurred for administrative or professional services, or by way of commission or fee for services rendered by any of the persons specified in section 302B(1)(d)(i), (ii), (iii), (iv), (v) and (vi); and | | (c) | no prospectus in respect of the offer has been registered by the Authority or, where a prospectus has been registered —| (i) | the prospectus has expired pursuant to section 299; or | | (ii) | the person making the offer has before making the offer —| (A) | informed the Authority by written notice of its intent to make the offer in reliance on the exemption under this subsection; and | | (B) | taken reasonable steps to inform in writing the person to whom the offer is made that the offer is made in reliance on the exemption under this subsection. [2/2009; 4/2017] |
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| (4) [Deleted by Act 2 of 2009] |
(5) In this section —“advertisement” means —| (a) | a written or printed communication; | | (b) | a communication by radio, television or other medium of communication; or | | (c) | a communication by means of a recorded telephone message, |
| that is published in connection with an offer of units in a collective investment scheme, but does not include — |
| (d) | an information memorandum; | | (e) | a publication which consists solely of a disclosure, notice or report required under this Act, or any listing rules or other requirements of an approved exchange or overseas exchange, which is made by any person; or | | (f) | a publication which consists solely of a notice or report of a meeting or proposed meeting of the participants of the collective investment scheme, or a general meeting or proposed general meeting of the person making the offer, the responsible person or any entity, or a presentation of oral or written material on matters so contained in the notice or report at the meeting or general meeting; |
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“information memorandum” means a document —| (a) | purporting to describe the units in a collective investment scheme being offered; and | | (b) | purporting to have been prepared for delivery to and review by relevant persons and persons to whom an offer referred to in subsection (2) is to be made so as to assist them in making an investment decision in respect of the units being offered; |
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“relevant person” means —| (a) | an accredited investor; | | (b) | a corporation the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; | | (c) | a trustee of a trust the sole purpose of which is to hold investments and each beneficiary of which is an individual who is an accredited investor; | | (d) | an officer or equivalent person of the person making the offer (such person being an entity) or a spouse, parent, brother, sister, son or daughter of that officer or equivalent person; or | | (e) | a spouse, parent, brother, sister, son or daughter of the person making the offer (such person being an individual). [2/2009; 4/2017] |
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| (6) Despite any requirement under section 99 or any regulations made thereunder that a person has to deal in capital markets products that are units in a collective investment scheme for the person’s own account with or through a person prescribed by the Authority so that the firstmentioned person can qualify as an exempt person, a person who acquires units in a collective investment scheme under section 304 or this section for the person’s own account without complying with such requirement is considered an exempt person even though the person does not comply with that requirement. [4/2017] |
| (7) The Authority may, by order in the Gazette, specify an amount in substitution of any amount specified in subsection (2). |
|
| First sale of units acquired pursuant to section 305 |
305A.—(1) Despite sections 302B, 302C, 303(1) and 305B but subject to subsection (5), where units in a collective investment scheme acquired pursuant to an offer made in reliance on an exemption under section 305 are first sold to any person other than —| (a) | an institutional investor; | | (b) | a relevant person as defined in section 305(5); or | | (c) | any person pursuant to an offer referred to in section 305(2), |
| then Subdivisions (2) and (3) of this Division apply to the offer resulting in that sale. |
[2/2009] (2) Subject to subsection (5), securities of a corporation (other than a corporation that is an accredited investor) —| (a) | the sole business of which is to hold investments; and | | (b) | the entire share capital of which is owned by one or more individuals each of whom is an accredited investor, |
| must not be transferred within 6 months after the corporation has acquired any units in a collective investment scheme pursuant to an offer made in reliance on an exemption under section 305, unless — |
| (c) | that transfer —| (i) | is made only to institutional investors or relevant persons as defined in section 305(5); or | | (ii) | arises from an offer referred to in section 275(1A); |
| | (d) | no consideration is or will be given for the transfer; or | | (e) | the transfer is by operation of law. [2/2009] |
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(3) Subject to subsection (5), where —| (a) | the sole purpose of a trust (other than a trust the trustee of which is an accredited investor) is to hold investments; and | | (b) | each beneficiary of the trust is an individual who is an accredited investor, |
| the beneficiaries’ rights and interest (howsoever described) in the trust must not be transferred within 6 months after units in a collective investment scheme are acquired for the trust pursuant to an offer made in reliance on an exemption under section 305, unless — |
| (c) | that transfer —| (i) | is made only to institutional investors or relevant persons as defined in section 305(5); or | | (ii) | arises from an offer that is made on terms that such rights or interest are acquired at a consideration of not less than $200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount is to be paid for in cash or by exchange of units in a collective investment scheme, securities, securities‑based derivatives contracts or other assets; |
| | (d) | no consideration is or will be given for the transfer; or | | (e) | the transfer is by operation of law. [2/2009; 4/2017] |
|
| (4) To avoid doubt, the reference to beneficiaries in subsection (3) includes a reference to unitholders of a business trust and participants of a collective investment scheme. |
(5) Subsections (1), (2) and (3) do not apply where the units in a collective investment scheme acquired are of the same class as other units in the scheme —| (a) | which are listed for quotation on an approved exchange; and | | (b) | in respect of which any offer information statement, introductory document, unitholders’ circular for a reverse take‑over, document issued for the purposes of a trust scheme, or any other similar document approved by an approved exchange, was issued in connection with —| (i) | an offer of those units in the scheme; or | | (ii) | the listing for quotation of those units in the scheme. [4/2017] |
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| Offer made using offer information statement |
305B.—(1) Subject to subsection (2), Subdivision (3) of this Division does not apply to an offer of units in a collective investment scheme whose units are listed for quotation on an approved exchange, whether by means of a rights issue or otherwise, if —| (a) | an offer information statement relating to the offer which complies with such form and content requirements as the Authority may prescribe is lodged with the Authority; and | | (b) | either —| (i) | the offer is made in or accompanied by the offer information statement referred to in paragraph (a); or | | (ii) | all the conditions in subsection (2A) are satisfied. [2/2009; 4/2017] |
|
| (2) Subsection (1) only applies to an offer of units referred to in that subsection made within a period of 6 months from the date the offer information statement relating to that offer is lodged with the Authority. [2/2009] |
(2A) The conditions referred to in subsection (1)(b)(ii) are —| (a) | the offer is made using any automated teller machine or such other electronic means as the Authority may prescribe; | | (b) | the automated teller machine or prescribed electronic means indicates to a prospective subscriber or buyer —| (i) | how the prospective subscriber or buyer can obtain, or arrange to receive, a copy of the offer information statement in respect of the offer; and | | (ii) | that the prospective subscriber or buyer should read the offer information statement before submitting an application, |
| before enabling the prospective subscriber or buyer to submit any application to subscribe for or purchase units in the collective investment scheme; and |
| | (c) | the person making the offer complies with such other requirements as the Authority may prescribe. [2/2009] |
|
| (3) The Authority may, on the application of any person interested, modify the prescribed form and content of the offer information statement in such manner as is appropriate, subject to such conditions or restrictions as the Authority may prescribe. |
| (4) Sections 249, 249A, 253, 254 and 255 (as applied to this Division by virtue of section 302) and such requirements as the Authority may prescribe apply in relation to an offer information statement referred to in subsection (1) as they apply in relation to a prospectus. |
(5) For the purposes of subsection (4) —| (a) | a reference in sections 249 and 249A to the registration of the prospectus is to be read as a reference to the lodgment of the offer information statement; and | | (b) | a reference in section 253 or 254 to any information or new circumstance required to be included in a prospectus is to be read as a reference to any information prescribed under subsection (1)(a). |
|
| (6) Where the written consent of an expert is required to be given under section 249 (as applied in relation to an offer information statement under subsection (4)), that written consent must be lodged with the Authority at the same time as the lodgment of the statement. |
| (7) Where the written consent of an issue manager or underwriter is required to be given under section 249A (as applied in relation to an offer information statement under subsection (4)), that written consent must be lodged with the Authority at the same time as the lodgment of the statement. |
| (8) A person must not advertise an offer or intended offer of any units in a collective investment scheme referred to in subsection (1), or publish a statement that directly or indirectly refers to the offer or intended offer, or that is reasonably likely to induce persons to subscribe for or purchase the units, unless the advertisement or publication complies with such requirements as the Authority may prescribe by regulations made under section 341. [34/2012] |
| (9) Any person who contravenes subsection (8), or who knowingly authorises or permits the publication or dissemination of any advertisement or statement referred to in that subsection, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
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| Making offer using automated teller machine or electronic means |
305C.—(1) Subject to subsection (3) and such requirements as the Authority may prescribe, a person making an offer of units in a collective investment scheme using —| (a) | any automated teller machine; or | | (b) | such other electronic means as the Authority may prescribe, |
| is exempted from the requirement under section 296(1)(a) that the offer be made in or accompanied by a prospectus in respect of the offer or, where applicable, the requirement under section 296(2) that the offer be made in or accompanied by a profile statement in respect of the offer. |
| (2) To avoid doubt, a prospectus which complies with all other requirements of section 296(1)(a) or, where applicable, a profile statement which complies with all other requirements of section 296(2) must still be prepared and issued in respect of any offer referred to in subsection (1). |
(3) Subsection (1) does not apply unless the automated teller machine or prescribed electronic means indicates to a prospective subscriber or buyer —| (a) | how the prospective subscriber or buyer can obtain, or arrange to receive, a copy of the prospectus or, where applicable, profile statement in respect of the offer; and | | (b) | that the prospective subscriber or buyer should read the prospectus or, where applicable, profile statement before submitting an application, |
| before enabling the prospective subscriber or buyer to submit an application to subscribe for or purchase units. |
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| Power of Authority to exempt |
306.—(1) The Authority may exempt any person or class of persons, subject to such conditions as the Authority may determine, from complying with all or any of the provisions of this Division or any regulations made thereunder in relation to an offer in respect of any unit or class of units.| (2) Any person who contravenes any of the conditions under subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction. |
| (3) This Division does not apply in the case of the sale of any unit in a collective investment scheme by a personal representative, liquidator, receiver or trustee in bankruptcy in the ordinary course of the realisation of assets for the purposes of the sale. |
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307.—(1) Where the Authority considers that it is necessary in the interests of the public or for the protection of investors, it may revoke any exemption under this Subdivision (including an exemption granted under section 306(1)), subject to such conditions as it thinks fit.| (2) The Authority may revoke an exemption under subsection (1) without giving the person affected by the revocation an opportunity to be heard, but the person may, within 14 days of the revocation, apply to the Authority for the revocation to be reviewed by the Authority, and the revocation remains in effect unless it is withdrawn by the Authority. |
| (3) A revocation under this section is final and there is no appeal from the revocation. |
|
| Transactions under exempted offers subject to Division 2 of Part 12 of Companies Act 1967, Division 2 of Part 13 of the Variable Capital Companies Act 2018, and Part 12 of this Act |
| 308. To avoid doubt, it is declared that in relation to any transaction carried out under an exempted offer under this Part, nothing in this Part limits or diminishes any liability which any person may incur in respect of any relevant offence under Division 2 of Part 12 of the Companies Act 1967, Division 2 of Part 13 of the Variable Capital Companies Act 2018, or Part 12 of this Act or any penalty, award of compensation or punishment in respect of any such offence. [44/2018] |
Division 3 — Hawking of Securities,
Securities‑based Derivatives Contracts and
Units in Collective Investment Scheme |
[4/2017] | Securities hawking prohibited |
309.—(1) A person must not —| (a) | make an offer to any person of units in a collective investment scheme, securities or securities‑based derivatives contracts for subscription or purchase, in the course of, or arising from, an unsolicited meeting with that other person; or | | (b) | make an invitation to any person to subscribe for or purchase units in a collective investment scheme, securities or securities‑based derivatives contracts, in the course of, or arising from, an unsolicited meeting with that other person. [4/2017] |
| (2) Subsection (1) does not apply to any person who makes an offer or invitation in respect of units in a collective investment scheme, securities or securities‑based derivatives contracts that does not need a prospectus by virtue of section 274, 275, 304 or 305. [4/2017] |
(3) The Authority may exempt —| (a) | any person or class of persons; or | | (b) | any class or description of units in a collective investment scheme, securities or securities‑based derivatives contracts, |
| from compliance with subsection (1), subject to such conditions as the Authority may determine. |
[4/2017] |
| (4) Every person who acts, incites, causes or procures any person to act in contravention of subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 6 months or to both and, in the case of a second or subsequent offence, to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 12 months or to both. |
| (5) Where any person is convicted of having made an offer or invitation in contravention of subsection (1), the court before which the person is convicted may order that any contract made as a result of the offer or invitation is void and may give such consequential directions as it thinks proper for the repayment of any money or the retransfer of any units in a collective investment scheme, securities or securities‑based derivatives contracts, as the case may be. [4/2017] |
| (6) An appeal against any order made under subsection (5) and any consequential directions shall lie to the General Division of the High Court. [40/2019] |
(7) In this section —| (a) | “securities” has the meaning given by section 2 and also includes the securities of an entity or a business trust, whether the entity or business trust is in existence or is to be formed; | | (b) | “securities‑based derivatives contracts” has the meaning given by section 2 and also includes securities‑based derivatives contracts of an entity or a business trust, whether the entity or business trust is in existence or is to be formed; | | (c) | “unit”, in relation to a collective investment scheme, has the meaning given by section 2 and also includes units in a collective investment scheme, whether the collective investment scheme is in existence or is to be formed; | | (d) | a reference to an offer or invitation in respect of securities, securities‑based derivatives contracts or units in a collective investment scheme for subscription or purchase includes an offer or invitation in respect of securities, securities‑based derivatives contracts or units in a collective investment scheme (as the case may be) by way of barter or exchange. [4/2017] |
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| Division 4 — Capital Markets Products |
| Interpretation of this Division |
309A.—(1) In this Division, unless the context otherwise requires —“issuer” means —| (a) | in relation to an offer of units in a collective investment scheme, the responsible person for the collective investment scheme; or | | (b) | [Deleted by Act 4 of 2017] | | (c) | in relation to an offer of any other capital markets products, the entity that issues or will issue the capital markets products being offered; |
|
| “prospectus” means any prospectus, notice, circular, material, advertisement, publication or other document used to make an offer of any capital markets products; |
“relevant person” means —| (a) | a holder of a capital markets services licence; | | (b) | a person who is exempted under section 99(1)(a) or (b) from the requirement to hold a capital markets services licence; | | (c) | a person licensed under the Financial Advisers Act 2001 in respect of advising on any investment product; | | (d) | a person who is exempted under section 20(1)(a), (b), (c), (d) or (e) of the Financial Advisers Act 2001 from holding a financial adviser’s licence; | | (e) | such other person as the Authority may prescribe by regulations made under section 341; or | | (f) | a representative of any person referred to in paragraph (a), (b), (c), (d) or (e). [34/2012; 4/2017] |
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(2) For the purposes of this Part, a person makes an offer of any capital markets products if, and only if, as principal —| (a) | the person makes (either personally or by an agent) an offer to any person in Singapore which upon acceptance would give rise to a contract for the issue or sale of those capital markets products by the firstmentioned person or another person with whom the firstmentioned person has made arrangements for that issue or sale; or | | (b) | the person invites (either personally or by an agent) any person in Singapore to make an offer which upon acceptance would give rise to a contract for the issue or sale of those capital markets products by the firstmentioned person or another person with whom the firstmentioned person has made arrangements for that issue or sale. [34/2012] |
|
| (3) In subsection (2), “sale” includes any disposal for valuable consideration. [34/2012] |
| (4) To avoid doubt, the obligations imposed by this Division in relation to any capital markets products are in addition to the obligations imposed under Divisions 1, 2 and 3 in relation to those capital markets products. [34/2012] |
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| Obligation of issuer to determine, and to notify approved exchange and relevant person of, classification of capital markets products |
309B.—(1) An issuer must not make an offer of any capital markets products unless —| (a) | the issuer has determined the classification of those capital markets products; | | (b) | where those capital markets products are or will be listed for quotation or quoted on a market operated by an approved exchange, the issuer has notified the approved exchange in writing of the classification of those capital markets products; and | | (c) | where those capital markets products are or will be offered through any relevant person, the issuer has notified that relevant person in writing of the classification of those capital markets products. [34/2012] |
| (2) A relevant person must not make an offer of any capital markets products unless the relevant person has received a notification under subsection (1)(c) in respect of those capital markets products. [34/2012] |
(3) Where, after any notification has been given under subsection (1)(b) or (c) or this subsection in respect of any capital markets products, there is a change in the classification of those capital markets products, the issuer of those capital markets products must, within such time as the Authority may prescribe by regulations made under section 341 —| (a) | if those capital markets products are or will be listed for quotation or quoted on an approved exchange, notify the approved exchange in writing of the new classification of those capital markets products; and | | (b) | if those capital markets products are or will be offered through any relevant person, notify that relevant person in writing of the new classification of those capital markets products. [34/2012] |
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| (4) Without affecting section 337(1), the Authority may, by regulations made under section 341, exempt any person or class of persons from any provision of this section, subject to such conditions or restrictions as the Authority may prescribe in those regulations. [34/2012] |
| (5) Without affecting section 337(3) and (4), the Authority may, by written notice, exempt any person from any provision of this section, subject to such conditions or restrictions as the Authority may specify by written notice. [34/2012] |
| (6) It is not necessary to publish any exemption granted under subsection (5) in the Gazette. [34/2012] |
| (7) Every person who is granted an exemption under subsection (4) must satisfy every condition or restriction imposed on the person under that subsection. [34/2012] |
| (8) Every person who is granted an exemption under subsection (5) must satisfy every condition or restriction imposed on the person under that subsection. [34/2012] |
| (9) Any person who contravenes subsection (1), (2), (3), (7) or (8) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
(10) In this section —“classification”, in relation to any capital markets products, means the classification of the capital markets products as either of the following:| (a) | prescribed capital markets products; | | (b) | capital markets products other than prescribed capital markets products; |
|
| “prescribed capital markets products” means any capital markets products that belong to any class of capital markets products that is prescribed by the Authority, by regulations made under section 341, for the purposes of this definition. [34/2012] |
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| Use of term “capital protected” or “principal protected” |
309C.—(1) A person must not, when describing or referring to any capital markets products which are, will be or have been the subject of an offer or intended offer, do either or both of the following:| (a) | use the term “capital protected” or any of its derivatives in any language in the name or description or any representation of those capital markets products, or within any prospectus relating to those capital markets products; | | (b) | use the term “principal protected” or any of its derivatives in any language in the name or description or any representation of those capital markets products, or within any prospectus relating to those capital markets products. [34/2012] |
| (2) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
|
| Use of term “product highlights sheet” |
309D.—(1) A person must not, when describing or referring to any publication in respect of any offer or intended offer of any capital markets products, use the term “product highlights sheet” or any of its derivatives in any language in the name or description or any representation of that publication, unless —| (a) | that publication is a product highlights sheet —| (i) | in respect of an offer that is made in or accompanied by a prospectus or profile statement that complies with section 240; and | | (ii) | in respect of which section 240AA(1)(a) and (b) has been complied with; |
| | (b) | that publication is a product highlights sheet —| (i) | in respect of an offer that is made in or accompanied by a prospectus or profile statement that complies with section 296; and | | (ii) | in respect of which section 296A(1)(a) and (b) has been complied with; |
| | (c) | that person belongs to any class of persons declared by the Authority, by order in the Gazette, to be a class of persons who may, when describing or referring to any publication in respect of any offer or intended offer of such capital markets products as the Authority may specify in the order, use that term or any of its derivatives in any language in the name or description or any representation of that publication; or | | (d) | the Authority has given consent in writing to that person to use that term or any of its derivatives in any language, when describing or referring to any publication in respect of any offer or intended offer of such capital markets products as the Authority may specify in writing, in the name or description or any representation of that publication. [34/2012] |
| (2) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 and, in the case of a continuing offence, to a further fine not exceeding $5,000 for every day or part of a day during which the offence continues after conviction. [34/2012] |
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