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Contents  

Long Title

Part I PRELIMINARY

Part II ADMINISTRATION OF THIS ACT

Part III CONSTITUTION OF COMPANIES

Division 1 — Incorporation

Division 2 — Powers

Part IV SHARES, DEBENTURES AND CHARGES

Division 1 — Prospectuses

Division 2 — Restrictions on allotment and commencement of business

Division 3 — Shares

Division 3A — Reduction of share capital

Division 4 — Substantial shareholdings

Division 5 — Debentures

Division 5A — Exemptions from Divisions 1 and 5 in relation to Prospectus Requirements

Division 6 — Interests other than shares, debentures, etc.

Division 7 — Title and transfers

Division 7A — The Central Depository System — a book-entry or scripless system for the transfer of securities

Division 8 — Registration of charges

Part V MANAGEMENT AND ADMINISTRATION

Division 1 — Office and name

Division 2 — Directors and officers

Division 3 — Meetings and proceedings

Division 4 — Register of members

Division 5 — Annual return

Part VI ACCOUNTS AND AUDIT

Division 1 — Accounts

Division 2 — Audit

Part VII ARRANGEMENTS, RECONSTRUCTIONS AND AMALGAMATIONS

Part VIII RECEIVERS AND MANAGERS

Part VIIIA JUDICIAL MANAGEMENT

Part IX INVESTIGATIONS

Part X WINDING UP

Division 1 — Preliminary

Division 2 — Winding up by Court

Subdivision (1) — General

Subdivision (2) — Liquidators

Subdivision (3) — Committees of inspection

Subdivision (4) — General powers of Court

Division 3 — Voluntary winding up

Subdivision (1) — Introductory

Subdivision (2) — Provisions applicable only to members’ voluntary winding up

Subdivision (3) — Provisions applicable only to creditors’ voluntary winding up

Subdivision (4) — Provisions applicable to every voluntary winding up

Division 4 — Provisions applicable to every mode of winding up

Subdivision (1) — General

Subdivision (2) — Proof and ranking of claims

Subdivision (3) — Effect on other transactions

Subdivision (4) — Offences

Subdivision (5) — Dissolution

Division 5 — Winding up of unregistered companies

Part XI VARIOUS TYPES OF COMPANIES, ETC.

Division 1 — Investment companies

Division 2 — Foreign companies

Part XII GENERAL

Division 1 — Enforcement of this Act

Division 2 — Offences

Division 3 — Miscellaneous

FIRST SCHEDULE Repealed Written Laws

SECOND SCHEDULE Fees to be Paid to the Registrar

THIRD SCHEDULE Repealed

FOURTH SCHEDULE Table A Regulations for Management of A Company Limited by Shares

FIFTH SCHEDULE

SIXTH SCHEDULE Statement in Lieu of Prospectus

SEVENTH SCHEDULE Statement Required Pursuant to Division 6 of Part Iv

EIGHTH SCHEDULE Annual Return of A Company Having A Share Capital

NINTH SCHEDULE Accounts and Consolidated Accounts

TENTH  SCHEDULE Take-over Offers

ELEVENTH  SCHEDULE Powers of Judicial Manager

Legislative Source Key

Legislative History

Comparative Table

 
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Companies Act
(CHAPTER 50)

(Original Enactment: Act 42 of 1967)

REVISED EDITION 2006
(31st October 2006)
An Act relating to companies.
[29th December 1967]
PART I
PRELIMINARY
Short title
1.  This Act may be cited as the Companies Act.
Division into Parts
2.  This Act is divided into Parts, Divisions and Subdivisions as follows:
...
Preliminary
sections 1-7A.
...
Administration of this Act
sections 8-16.
Part III
Constitution of Companies
sections 17-42A
...
Division 1 — Incorporation
sections 17-22.
Division 2 — Powers
sections 23-42A.
Part IV
Shares,
Debentures and Charges
sections 2-141
...
Division 1 — Prospectuses sections 2-56.
 
...
Division 2 — Restrictions on allotment and commencement of business sections 57-62.
 
...
Division 3 — Shares sections 62A-78.
 
...
Division 3A — Reduction of Share Capital sections 78A-78K.
 
...
Division 4 — Substantial shareholdings sections 79-92.
 
...
Division 5 — Debentures sections 93-106.
 
...
Division 5A — Exemptions from Divisions 1 and 5 in relation to Prospectus Requirements sections 6 to 106L.
 
...
Division 6 — Interests other than shares, debentures, etc. sections 7-120.
 
...
Division 7 — Title and transfers sections 121-130.
 
...
Division 7A — The Central Depository System — a book-entry or scripless system for the transfer of securities sections 130A-130P.
 
...
Division 8 — Registration of charges sections 131-141.
 
 
 
Part V
Management and Administration
sections 142-198
...
Division 1 — Office and name sections 142-144.
 
...
Division 2 — Directors and officers sections 145-173.
 
...
Division 3 — Meetings and proceedings sections 173A-189.
 
...
Division 4 — Register of members sections 190-196.
 
...
Division 5 — Annual return sections 197-198.
Part VI
Accounts and Audit
...
Division 1 — Accounts sections 199-204.
...
Division 2 — Audit sections 205-209B.
...
Arrangements, Reconstructions and Amalgamations sections 210-216B.
...
Receivers and Managers
...
...
Judicial Management
...
...
Investigations sections 228-246.
 
 
Part X
Winding Up
sections 247-354
...
Division 1 — Preliminary sections 247-252.
 
...
Division 2 — Winding up by Court sections 253-289.
 
...
Subdivision (1) General sections 253-262.
 
...
Subdivision (2) Liquidators sections 263-276.
 
...
Subdivision (3) Committees of inspection sections 277-278.
 
...
Subdivision (4) General powers of Court sections 279-289.
 
...
Division 3 — Voluntary winding up sections 290-312.
 
...
Subdivision (1) Introductory sections 290-293.
 
...
Subdivision (2) Provisions applicable only to members’ voluntary winding up sections 294-295.
 
...
Subdivision (3) Provisions applicable only to creditors’ voluntary winding up sections 296-299.
 
...
Subdivision (4) Provisions applicable to every voluntary winding up sections 300-312.
 
...
Division 4 — Provisions applicable to every mode of winding up sections 313-349.
 
...
Subdivision (1) General sections 313-326.
 
...
Subdivision (2) Proof and ranking of claims sections 327-328.
 
...
Subdivision (3) Effect on other transactions sections 329-335.
 
...
Subdivision (4) Offences sections 336-342.
 
...
Subdivision (5) Dissolution sections 343-349.
 
...
Division 5 — Winding Up of Unregistered Companies sections 350-354.
 
 
 
Part XI
Various Types of Companies, etc.
sections 2-386
...
Division 1 — Investment Companies sections 2-364.
 
...
Division 2 — Foreign Companies sections 365-386.
...
Division 1 — Enforcement of this Act sections 387-399.
 
...
Division 2 — Offences sections 400-409A.
 
...
Division 3 — Miscellaneous sections 410-411.
Repeals
3.
—(1)  The written laws mentioned in the First Schedule to the extent to which they are therein expressed to be repealed or amended are hereby repealed or amended accordingly.
Transitory provisions
(2)  Unless the contrary intention appears in this Act —
(a)
all persons, things and circumstances appointed or created under any of the repealed or amended written laws or existing or continuing under any of such written laws immediately before 29th December 1967 shall under and subject to this Act continue to have the same status, operation and effect as they respectively would have had if such written laws had not been so repealed or amended; and
(b)
in particular and without affecting the generality of paragraph (a), such repeal shall not disturb the continuity of status, operation or effect of any Order in Council, order, rule, regulation, scale of fees, appointment, conveyance, mortgage, deed, agreement, resolution, direction, instrument, document, memorandum, articles, incorporation, nomination, affidavit, call, forfeiture, minute, assignment, register, registration, transfer, list, licence, certificate, security, notice, compromise, arrangement, right, priority, liability, duty, obligation, proceeding, matter or thing made, done, effected, given, issued, passed, taken, validated, entered into, executed, lodged, accrued, incurred, existing, pending or acquired under any of such written laws before that date.
[S 258/67]
(3)  Nothing in this Act shall affect the Table in any repealed written law corresponding to Table A in the Fourth Schedule or any part thereof (either as originally enacted or as altered in pursuance of any statutory power) or the corresponding Table in any former written law relating to companies (either as originally enacted or as so altered) so far as the same applies to any company existing on 29th December 1967.
[S 258/67]
(4)  The provisions of this Act with respect to winding up other than the provisions of Subdivision (5) of Division 4 of Part X shall not apply to any company or society of which the winding up has commenced before 29th December 1967, but every such company or society shall be wound up in the same manner and with the same incidents as if this Act had not been passed and for the purposes of the winding up the written laws under which the winding up commenced shall be deemed to remain in full force.
[Aust., s. 4]
Interpretation
4.
—(1)  In this Act, unless the contrary intention appears —
“accounting records”, in relation to a corporation, includes such working papers and other documents as are necessary to explain the methods and calculations by which accounts of the corporation are made up;
“Accounting Standards” means the accounting standards made or formulated by the Accounting Standards Council under Part III of the Accounting Standards Act 2007 and applicable to companies and to foreign companies in respect of their operations in Singapore for the purposes of this Act;
[39/2007 wef 01/11/2007]
“accounts” means profit and loss accounts and balance-sheets and includes notes (other than auditors’ reports or directors’ reports) attached or intended to be read with any of those profit and loss accounts or balance-sheets;
“Act” includes any regulations;
“annual general meeting”, in relation to a company, means a meeting of the company required to be held by section 175;
“annual return” means —
(a)
in relation to a company having a share capital, the return required to be made by section 197(1); and
(b)
in relation to a company not having a share capital, the return required to be made by section 197(5),
and includes any document accompanying the return;
“approved liquidator” means —
(a)
a person who falls within a class of persons declared as approved liquidators under section 9(1); or
(b)
a person who has been approved under section 9(2) as a liquidator and whose approval has not been revoked;
“articles” means articles of association;
“audit requirements” means the requirements of sections 201(4) and (4A) and 207;
“Authority” means the Accounting and Corporate Regulatory Authority established under the Accounting and Corporate Regulatory Authority Act (Cap. 2A);
“banking corporation” means a licensed bank under any written law relating to banking;
“books” includes any account, deed, writing or document and any other record of information, however compiled, recorded or stored, whether in written or printed form or on microfilm or by electronic process or otherwise;
“borrowing corporation” means a corporation that is or will be under a liability (whether or not such liability is present or future) to repay any money received or to be received by it in response to an invitation to the public to subscribe for or purchase debentures of the corporation;
“branch register” means —
(a)
in relation to a company —
(i)
a branch register of members of the company kept in pursuance of section 196; or
(ii)
a branch register of holders of debentures kept in pursuance of section 93,
as the case may require; and
(b)
in relation to a foreign company, a branch register of members of the company kept in pursuance of section 379;
“business day” means any day other than a Saturday, Sunday or public holiday;
“certified”, in relation to a copy of a document, means certified in the prescribed manner to be a true copy of the document and, in relation to a translation of a document, means certified in the prescribed manner to be a correct translation of the document into the English language;
“charge” includes a mortgage and any agreement to give or execute a charge or mortgage whether upon demand or otherwise;
“company” means a company incorporated pursuant to this Act or pursuant to any corresponding previous written law;
“company having a share capital” includes an unlimited company with a share capital;
“company limited by guarantee” means a company formed on the principle of having the liability of its members limited by the memorandum to such amount as the members may respectively undertake to contribute to the assets of the company in the event of its being wound up;
“company limited by shares” means a company formed on the principle of having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them;
“contributory”, in relation to a company, means a person liable to contribute to the assets of the company in the event of its being wound up, and includes the holder of fully paid shares in the company and, prior to the final determination of the persons who are contributories, includes any person alleged to be a contributory;
“corporation” means any body corporate formed or incorporated or existing in Singapore or outside Singapore and includes any foreign company but does not include —
(a)
any body corporate that is incorporated in Singapore and is by notification of the Minister in the Gazette declared to be a public authority or an instrumentality or agency of the Government or to be a body corporate which is not incorporated for commercial purposes;
(b)
any corporation sole;
(c)
any co-operative society;
(d)
any registered trade union; or
(e)
any limited liability partnership;
“Court” means the High Court or a judge thereof;
“corresponding previous written law” means any written law relating to companies which has been at any time in force in Singapore and which corresponds with any provision in this Act;
“creditors’ voluntary winding up” means a winding up under Division 3 of Part X, other than a members’ voluntary winding up;
“debenture” includes debenture stock, bonds, notes and any other securities of a corporation whether constituting a charge on the assets of the corporation or not, but does not include —
(a)
a cheque, letter of credit, order for the payment of money or bill of exchange;
(b)
subject to the regulations, a promissory note having a face value of not less than $100,000 and having a maturity period of not more than 12 months;
(c)
for the purposes of the application of this definition to a provision of this Act in respect of which any regulations made thereunder provide that the word “debenture” does not include a prescribed document or a document included in a prescribed class of documents, that document or a document included in that class of documents, as the case may be;
“default penalty” means a default penalty within the meaning of section 408;
“director” includes any person occupying the position of director of a corporation by whatever name called and includes a person in accordance with whose directions or instructions the directors of a corporation are accustomed to act and an alternate or substitute director;
“document” includes summons, order and other legal process, and notice and register;
“electronic communication” means communication transmitted (whether from one person to another, from one device to another, from a person to a device or from a device to a person) —
(a)
by means of a telecommunication system; or
(b)
by other means but while in an electronic form,
such that it can (where particular conditions are met) be received in legible form or be made legible following receipt in non-legible form;
“emoluments”, in relation to a director or auditor of a company, includes any fees, percentages and other payments made (including the money value of any allowances or perquisites) or consideration given, directly or indirectly, to the director or auditor by that company or by a holding company or a subsidiary of that company, whether made or given to him in his capacity as a director or auditor or otherwise in connection with the affairs of that company or of the holding company or the subsidiary;
“equity share” means any share which is not a preference share;
“exempt private company” means —
(a)
a private company in the shares of which no beneficial interest is held directly or indirectly by any corporation and which has not more than 20 members; or
(b)
any private company, being a private company that is wholly owned by the Government, which the Minister, in the national interest, declares by notification in the Gazette to be an exempt private company;
“expert” includes engineer, valuer, accountant and any other person whose profession or reputation gives authority to a statement made by him;
“filed” means filed under this Act or any corresponding previous written law;
“financial year”, in relation to any corporation, means the period in respect of which any profit and loss account of the corporation laid before it in general meeting is made up, whether that period is a year or not;
“foreign company” means —
(a)
a company, corporation, society, association or other body incorporated outside Singapore; or
(b)
an unincorporated society, association or other body which under the law of its place of origin may sue or be sued, or hold property in the name of the secretary or other officer of the body or association duly appointed for that purpose and which does not have its head office or principal place of business in Singapore;
“guarantor corporation”, in relation to a borrowing corporation, means a corporation that has guaranteed or has agreed to guarantee the repayment of any money received or to be received by the borrowing corporation in response to an invitation to the public to subscribe for or purchase debentures of the borrowing corporation;
“liquidator” includes the Official Receiver when acting as the liquidator of a corporation;
“limited company” means a company limited by shares or by guarantee or, prior to the expiry of the period of 2 years as specified in section 17(6), a company limited both by shares and guarantee;
“limited liability partnership” has the same meaning as in section 2(1) of the Limited Liability Partnerships Act 2005 (Act 5 of 2005);
“listed corporation” means a corporation that has been admitted to the official list of a securities exchange in Singapore and has not been removed from that official list;
“lodged” means lodged under this Act or any corresponding previous written law;
“manager”, in relation to a company, means the principal executive officer of the company for the time being by whatever name called and whether or not he is a director;
“marketable securities” means debentures, funds, stocks, shares or bonds of any government or of any local authority or of any corporation or society and includes any right or option in respect of shares in any corporation and units in a collective investment scheme within the meaning of section 2 of the Securities and Futures Act (Cap. 289);
“members’ voluntary winding up” means a winding up under Division 3 of Part X, where a declaration has been made and lodged in pursuance of section 293;
“memorandum” means memorandum of association;
“minimum subscription”, in relation to any shares offered to the public for subscription, means the amount stated in the prospectus relating to the offer as the minimum amount which in the opinion of the directors must be raised by the issue of the shares so offered;
“office copy”, in relation to any Court order or other Court document, means a copy authenticated under the hand or seal of the Registrar or other proper officer of the Court;
“officer”, in relation to a corporation, includes —
(a)
any director or secretary of the corporation or a person employed in an executive capacity by the corporation;
(b)
a receiver and manager of any part of the undertaking of the corporation appointed under a power contained in any instrument; and
(c)
any liquidator of a company appointed in a voluntary winding up,
but does not include —
(d)
any receiver who is not also a manager;
(e)
any receiver and manager appointed by the Court;
(f)
any liquidator appointed by the Court or by the creditors; or
(g)
a judicial manager appointed by the Court under Part VIIIA;
“Official Receiver” means the Official Assignee appointed under the Bankruptcy Act (Cap. 20) and includes the deputy of any such Official Assignee and any person appointed as Assistant Official Assignee;
“preference share”, in relation to sections 5, 64 and 180, means a share, by whatever name called, which does not entitle the holder thereof to the right to vote at a general meeting (except in the circumstances specified in section 180(2)(a), (b) and (c)) or to any right to participate beyond a specified amount in any distribution whether by way of dividend, or on redemption, in a winding up, or otherwise;
“prescribed” means prescribed under this Act or by the rules;
“prescribed person” means a person, or a person within a class of persons, prescribed by the Minister;
“principal register”, in relation to a company, means the register of members of the company kept in pursuance of section 190;
“printed” includes typewritten or lithographed or reproduced by any mechanical means;
“private company” means —
(a)
any company which immediately prior to 29th December 1967 was a private company under the provisions of the repealed written laws;
(b)
any company incorporated as a private company by virtue of section 18; or
(c)
any company converted into a private company pursuant to section 31(1),
being a company which has not ceased to be a private company under section 31 or 32;
“profit and loss account” includes income and expenditure account, revenue account or any other account showing the results of the business of a corporation for a period;
“prospectus” means any prospectus, notice, circular, material, advertisement, publication or other document —
(a)
inviting applications or offers from the public to subscribe for or purchase; or
(b)
offering to the public for subscription or purchase,
any shares in or debentures of, or any units of shares in or debentures of, a corporation or proposed corporation, and includes any document deemed to be a prospectus under section 257 of the Securities and Futures Act (Cap. 289), but does not include —
(i)
a profile statement; or
(ii)
any material, advertisement or publication which is authorised by section 251 (other than subsection (5)) of that Act;
“public accountant” means a person who is registered or deemed to be registered under the Accountants Act (Cap. 2) as a public accountant;
“public company” means a company other than a private company;
“registered” means registered under this Act or any corresponding previous enactment;
“Registrar” means the Registrar of Companies appointed under this Act and includes any Deputy or Assistant Registrar of Companies;
“regulations” means regulations made under this Act;
“related corporation”, in relation to a corporation, means a corporation that is deemed to be related to the first-mentioned corporation by virtue of section 6;
“repealed written laws” means the written laws repealed by this Act;
“resolution for voluntary winding up” means the resolution referred to in section 290;
“Rules” means Rules of Court;
“share” means share in the share capital of a corporation and includes stock except where a distinction between stocks and shares is expressed or implied;
“solicitor” means an advocate and solicitor of the Supreme Court;
“statutory meeting” means the meeting referred to in section 174;
“statutory report” means the report referred to in section 174;
“Table A” means Table A in the Fourth Schedule;
“telecommunication system” has the same meaning as in the Telecommunications Act (Cap. 323);
“treasury share” means a share which —
(a)
was (or is treated as having been) purchased by a company in circumstances in which section 76H applies; and
(b)
has been held by the company continuously since the treasury share was so purchased;
“unit”, in relation to a share, debenture or other interest, means any right or interest, whether legal or equitable, in the share, debenture or other interest, by whatever name called and includes any option to acquire any such right or interest in the share, debenture or other interest;
“unlimited company” means a company formed on the principle of having no limit placed on the liability of its members;
“voting share”, in relation to a body corporate, means an issued share in the body corporate, not being —
(a)
a share to which, in no circumstances, is there attached a right to vote; or
(b)
a share to which there is attached a right to vote only in one or more of the following circumstances:
(i)
during a period in which a dividend (or part of a dividend) in respect of the share is in arrear;
(ii)
upon a proposal to reduce the share capital of the body corporate;
(iii)
upon a proposal that affects rights attached to the share;
(iv)
upon a proposal to wind up the body corporate;
(v)
upon a proposal for the disposal of the whole of the property, business and undertakings of the body corporate;
(vi)
during the winding up of the body corporate.
[S 258/67; 62/70; 10/74; 15/84; 13/87; 22/93; 36/2000; 42/2001; 12/2002; 8/2003; 3/2004; 4/2004; 5/2004; 5/2005; 21/2005]
[39/2007 wef 01/11/2007]
Directors
(2)  For the purposes of this Act, a person shall not be regarded as a person in accordance with whose directions or instructions the directors of a company are accustomed to act by reason only that the directors act on advice given by him in a professional capacity.
When statement untrue
(3)  For the purposes of this Act, a statement included in a statement in lieu of prospectus shall be deemed to be untrue if it is misleading in the form and context in which it is included.
[42/2001]
When statement included in statement in lieu of prospectus
(4)  For the purposes of this Act, a statement shall be deemed to be included in a statement in lieu of prospectus if it is contained in any report or memorandum appearing on the face thereof or by reference incorporated therein or issued therewith.
[42/2001]
Invitation to lend money deemed invitation to purchase debentures
(5)  For the purposes of this Act, any invitation to the public to deposit money with or lend money to a corporation (other than a corporation that is a prescribed entity referred to in section 239(4) of the Securities and Futures Act (Cap. 289) shall be deemed to be an invitation to subscribe for or purchase debentures of the corporation.
[42/2001]
(5A)  For the purposes of this Act, any document that is issued or intended or required to be issued by a corporation acknowledging or evidencing or constituting an acknowledgment of the indebtedness of the corporation in respect of any money that is or may be deposited with or lent to the corporation in response to such an invitation shall be deemed to be a debenture.
[42/2001]
(6)  [Deleted by Act 42 of 2001]
(7)  Unless the contrary intention appears, any reference in this Act to a person being or becoming bankrupt or to a person assigning his estate for the benefit of his creditors or making an arrangement with his creditors under any written law relating to bankruptcy or to a person being an undischarged bankrupt or to any status, condition, act, matter or thing under or in relation to the law of bankruptcy shall be construed as including a reference to a person being or becoming bankrupt or insolvent or to a person making any such assignment or arrangement or to a person being an undischarged bankrupt or insolvent or to the corresponding status, condition, act, matter or thing (as the case requires) under any written law relating to bankruptcy or insolvency.
As to what constitutes affairs of a corporation
(8)  A reference in section 8A, 8C, 8D, 216, Part IX, section 254(1)(f), 286, 287 or 402 to the affairs of a corporation shall, unless the contrary intention appears, be construed as including a reference to —
(a)
the promotion, formation, membership, control, business, trading, transactions and dealings (whether alone or jointly with another person or other persons and including transactions and dealings as agent, bailee or trustee), property (whether held alone or jointly with another person or other persons and including property held as agent, bailee or trustee), liabilities (including liabilities owed jointly with another person or other persons and liabilities as trustee), profits and other income, receipts, losses, outgoings and expenditure of the corporation;
(b)
in the case of a corporation (not being a trustee corporation) that is a trustee (but without limiting the generality of paragraph (a)), matters concerned with the ascertainment of the identity of the persons who are beneficiaries under the trust, their rights under the trust and any payments that they have received, or are entitled to receive, under the terms of the trust;
(c)
the internal management and proceeding of the corporation;
(d)
any act or thing done (including any contract made and any transaction entered into) by or on behalf of the corporation, or to or in relation to the corporation or its business or property, at a time when —
(i)
a receiver, or a receiver and manager, is in possession of, or has control over, property of the corporation;
(ii)
the corporation is under judicial management;
(iii)
a compromise or an arrangement made between the corporation and another person or other persons is being administered; or
(iv)
the corporation is being wound up,
and, without limiting the generality of the foregoing, any conduct of such a receiver or such a receiver and manager, or such a judicial manager, of any person administering such a compromise or arrangement or of any liquidator or provisional liquidator of the corporation;
(e)
the ownership of shares in, debentures of, and interests issued by, the corporation;
(f)
the power of persons to exercise, or to control the exercise of, the rights to vote attached to shares in the corporation or to dispose of, or to exercise control over the disposal of, such shares;
(g)
matters concerned with the ascertainment of the persons who are or have been financially interested in the success or failure, or apparent success or failure, of the corporation or are or have been able to control or materially to influence the policy of the corporation;
(h)
the circumstances under which a person acquired or disposed of, or became entitled to acquire or dispose of, shares in, debentures of, or interests issued by, the corporation;
(i)
where the corporation has issued interests, any matters concerning the financial or business undertaking, scheme, common enterprise or investment contract to which the interests relate; and
(j)
matters relating to or arising out of the audit of, or working papers or reports of an auditor concerning, any matters referred to in any of the preceding paragraphs.
[13/87]
(9)  For the purposes of this Act, wherever a reference to the affairs of a company or a foreign company appears it shall be construed as including a reference to the affairs of a corporation as defined in subsection (8).
(10)  A reference in this Act to the directors of a company shall, in the case of a company which has only one director, be construed as a reference to that director.
[5/2004]
(11)  A reference in this Act to the doing of any act by 2 or more directors of a company shall, in the case of a company which has only one director, be construed as the doing of that act by that director.
[5/2004]
[UK, 1985, s. 162A; UK, Treasury Shares, reg. 3; Aust., 1961, s. 5]
Definition of subsidiary and holding company
5.
—(1)  For the purposes of this Act, a corporation shall, subject to subsection (3), be deemed to be a subsidiary of another corporation, if —
(a)
that other corporation —
(i)
controls the composition of the board of directors of the first-mentioned corporation;
(ii)
controls more than half of the voting power of the first-mentioned corporation; or
(iii)
holds more than half of the issued share capital of the first-mentioned corporation (excluding any part thereof which consists of preference shares and treasury shares); or
(b)
the first-mentioned corporation is a subsidiary of any corporation which is that other corporation’s subsidiary.
[21/2005]
(2)  For the purposes of subsection (1), the composition of a corporation’s board of directors shall be deemed to be controlled by another corporation if that other corporation by the exercise of some power exercisable by it without the consent or concurrence of any other person can appoint or remove all or a majority of the directors, and for the purposes of this provision that other corporation shall be deemed to have power to make such an appointment if —
(a)
a person cannot be appointed as a director without the exercise in his favour by that other corporation of such a power; or
(b)
a person’s appointment as a director follows necessarily from his being a director or other officer of that other corporation.
(3)  In determining whether one corporation is a subsidiary of another corporation —
(a)
any shares held or power exercisable by that other corporation in a fiduciary capacity shall be treated as not held or exercisable by it;
(b)
subject to paragraphs (c) and (d), any shares held or power exercisable —
(i)
by any person as a nominee for that other corporation (except where that other corporation is concerned only in a fiduciary capacity); or
(ii)
by, or by a nominee for, a subsidiary of that other corporation, not being a subsidiary which is concerned only in a fiduciary capacity,
shall be treated as held or exercisable by that other corporation;
(c)
any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned corporation or of a trust deed for securing any issue of such debentures shall be disregarded; and
(d)
any shares held or power exercisable by, or by a nominee for, that other corporation or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other corporation if the ordinary business of that other corporation or its subsidiary, as the case may be, includes the lending of money and the shares are held or power is exercisable as aforesaid by way of security only for the purposes of a transaction entered into in the ordinary course of that business.
(4)  A reference in this Act to the holding company of a company or other corporation shall be read as a reference to a corporation of which that last-mentioned company or corporation is a subsidiary.
(5)  For the purposes of this Act, the Depository, as defined in section 130A, shall not be regarded as a holding company of a corporation by reason only of the shares it holds in that corporation as a bare trustee.
[22/93]
[UK, 1948, s. 154; Aust., 1961, s. 6]
Definition of ultimate holding company
5A.  For the purposes of this Act, a corporation is the ultimate holding company of another corporation if —
(a)
the other corporation is a subsidiary of the first-mentioned corporation; and
(b)
the first-mentioned corporation is not itself a subsidiary of any corporation.
[13/87]
Definition of wholly owned subsidiary
5B.  For the purposes of this Act, a corporation is a wholly owned subsidiary of another corporation if none of the members of the first-mentioned corporation is a person other than —
(a)
that other corporation;
(b)
a nominee of that other corporation;
(c)
a subsidiary of that other corporation being a subsidiary none of the members of which is a person other than that other corporation or a nominee of that other corporation; or
(d)
a nominee of such subsidiary.
[13/87]
When corporations deemed to be related to each other
6.  Where a corporation —
(a)
is the holding company of another corporation;
(b)
is a subsidiary of another corporation; or
(c)
is a subsidiary of the holding company of another corporation,
that first-mentioned corporation and that other corporation shall for the purposes of this Act be deemed to be related to each other.
[Aust., 1961, s. 6 (5)]
Interests in shares
7.
—(1)  The following subsections have effect for the purposes of Division 4 of Part IV and sections 163, 164 and 165.
[62/70; 49/73; 10/74]
(2)  Where the property subject to a trust consists of or includes shares and a person knows or has reasonable grounds for believing that he has an interest under the trust and the property subject to the trust consists of or includes those shares, he shall be deemed to have an interest in those shares.
(3)  A unit in a collective investment scheme within the meaning of section 2 of the Securities and Futures Act (Cap. 289) —
(a)
that is issued or offered to the public for subscription or purchase, or for which the public is invited to subscribe for or purchase, and that has been so subscribed or purchased; or
(b)
that is issued for the purpose of an offer to the public by and is held by the manager concerned within the meaning of section 283 of that Act,
does not constitute an interest in a share.
[42/2001]
(4)  Where a body corporate has, or is by the provisions of this section deemed to have, an interest in a share and —
(a)
the body corporate is, or its directors are, accustomed or under an obligation whether formal or informal to act in accordance with the directions, instructions or wishes of a person; or
(b)
a person has a controlling interest in the body corporate,
that person shall be deemed to have an interest in that share.
[38/98]
(4A)  Where a body corporate has, or is by the provisions of this section (apart from this subsection) deemed to have, an interest in a share and —
(a)
a person is;
(b)
the associates of a person are; or
(c)
a person and his associates are,
entitled to exercise or control the exercise of not less than 20% of the votes attached to the voting shares in the body corporate, that person shall be deemed to have an interest in that share.
[38/98]
(5)  For the purposes of subsection (4A), a person is an associate of another person if the first-mentioned person is —
(a)
a corporation that, by virtue of section 6, is deemed to be related to that other person;
(b)
a person in accordance with whose directions, instructions or wishes that other person is accustomed or is under an obligation whether formal or informal to act in relation to the share referred to in subsection (4);
(c)
a person who is accustomed or is under an obligation whether formal or informal to act in accordance with the directions, instructions or wishes of that other person in relation to that share;
(d)
a body corporate that is, or the directors of which are, accustomed or under an obligation whether formal or informal to act in accordance with the directions, instructions or wishes of that other person in relation to that share; or
(e)
a body corporate in accordance with the directions, instructions or wishes of which, or of the directors of which, that other person is under an obligation whether formal or informal to act in relation to that share.
[62/70; 38/98]
(6)  Where a person —
(a)
has entered into a contract to purchase a share;
(b)
has a right, otherwise than by reason of having an interest under a trust, to have a share transferred to himself or to his order, whether the right is exercisable presently or in the future and whether on the fulfilment of a condition or not;
(c)
has the right to acquire a share, or an interest in a share, under an option, whether the right is exercisable presently or in the future and whether on the fulfilment of a condition or not; or
(d)
is entitled (otherwise than by reason of his having been appointed a proxy or representative to vote at a meeting of members of a corporation or of a class of its members) to exercise or control the exercise of a right attached to a share, not being a share of which he is the registered holder,
that person shall be deemed to have an interest in that share.
[62/70]
(7)  A person shall not be deemed not to have an interest in a share by reason only that he has the interest in the share jointly with another person.
[62/70]
(8)  It is immaterial, for the purposes of determining whether a person has an interest in a share, that the interest cannot be related to a particular share.
[62/70]
(9)  There shall be disregarded —
(a)
an interest in a share if the interest is that of a person who holds the share as bare trustee;
(b)
an interest in a share of a person whose ordinary business includes the lending of money if he holds the interest only by way of security for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money;
(c)
an interest of a person in a share, being an interest held by him by reason of his holding a prescribed office;
(ca)
an interest of a company in its own shares being purchased or otherwise acquired in accordance with sections 76B to 76G (including treasury shares); and
(d)
a prescribed interest in a share, being an interest of such person, or of the persons included in such class of persons, as is prescribed.
[62/70; 38/98; 21/2005]
(10)  An interest in a share shall not be disregarded by reason only of —
(a)
its remoteness;
(b)
the manner in which it arose; or
(c)
the fact that the exercise of a right conferred by the interest is, or is capable of being made, subject to restraint or restriction.
[62/70]
[UK, Treasury Shares, Sch., para. 17]
Solvency statement and offence for making false statement
7A.
—(1)  In this Act, unless the context otherwise requires, “solvency statement”, in relation to a proposed redemption of preference shares by a company out of its capital under section 70, a proposed giving of financial assistance by a company under section 76(9A) or (9B) or a proposed reduction by a company of its share capital under section 78B or 78C, means a statement by the directors of the company —
(a)
that they have formed the opinion that, as regards the company’s situation at the date of the statement, there is no ground on which the company could then be found to be unable to pay its debts;
(b)
that they have formed the opinion —
(i)
if it is intended to commence winding up of the company within the period of 12 months immediately following the date of the statement, that the company will be able to pay its debts in full within the period of 12 months beginning with the commencement of the winding up; or
(ii)
if it is not intended so to commence winding up, that the company will be able to pay its debts as they fall due during the period of 12 months immediately following the date of the statement; and
(c)
that they have formed the opinion that the value of the company’s assets is not less than the value of its liabilities (including contingent liabilities) and will not, after the proposed redemption, giving of financial assistance or reduction (as the case may be), become less than the value of its liabilities (including contingent liabilities),
being a statement which complies with subsection (2).
[21/2005]
(2)  The solvency statement —
(a)
if the company is exempt from audit requirements under section 205B or 205C, shall be in the form of a statutory declaration; or
(b)
if the company is not such a company, shall be in the form of a statutory declaration or shall be accompanied by a report from its auditor that he has inquired into the affairs of the company and is of the opinion that the statement is not unreasonable given all the circumstances.
[21/2005]
(3)  In forming an opinion for the purposes of subsection (1)(a) and (b), the directors of the company must take into account all liabilities of the company (including contingent liabilities).
[21/2005]
(4)  In determining, for the purposes of subsection (1)(c), whether the value of the company’s assets is or will become less than the value of its liabilities (including contingent liabilities) the directors of the company —
(a)
must have regard to —
(i)
the most recent financial statements of the company that comply with section 201(1A), (3) and (3A), as the case may be; and
(ii)
all other circumstances that the directors know or ought to know affect, or may affect, the value of the company’s assets and the value of its liabilities (including contingent liabilities); and
(b)
may rely on valuations of assets or estimates of liabilities that are reasonable in the circumstances.
[21/2005]
(5)  In determining, for the purposes of subsection (4), the value of a contingent liability, the directors of a company may take into account —
(a)
the likelihood of the contingency occurring; and
(b)
any claim the company is entitled to make and can reasonably expect to be met to reduce or extinguish the contingent liability.
[21/2005]
(6)  A director of a company who makes a solvency statement without having reasonable grounds for the opinions expressed in it 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.
[21/2005]
[UK, Bill, 2002, Clause 63; Companies, s. 76F (4) to (6)]
PART II
ADMINISTRATION OF THIS ACT
Administration of Act and appointment of Registrar of Companies, etc.
8.
—(1)  The Authority shall be responsible for the administration of this Act, subject to the general or special directions of the Minister.
[3/2004]
(1A)  The Minister may, after consultation with the Authority —
(a)
appoint an officer of the Authority to be the Registrar of Companies; and
(b)
from among the officers of the Authority, public officers and the officers of any other statutory board, appoint such number of Deputy Registrars and Assistant Registrars of Companies as he considers necessary,
for the proper administration of this Act.
[3/2004]
(1B)  The Authority may give to the Registrar such directions, not inconsistent with the provisions of this Act, as to the exercise of his powers, functions or duties under this Act, and the Registrar shall give effect to such directions.
[3/2004]
(2)  Subject to the general direction and control of the Registrar and to such restrictions and limitations as may be prescribed, anything by this Act appointed or authorised or required to be done or signed by the Registrar may be done or signed by any such Deputy or Assistant Registrar and shall be as valid and effectual as if done or signed by the Registrar.
(3)  No person dealing with any Deputy or Assistant Registrar shall be concerned to see or inquire whether any restrictions or limitations have been prescribed, and every act or omission of a Deputy or Assistant Registrar so far as it affects any such person shall be as valid and effectual as if done or omitted by the Registrar.
Certain signatures to be judicially noticed
(4)  All courts, judges and persons acting judicially shall take judicial notice of the seal and signature of the Registrar and of any Deputy or Assistant Registrar.
Fees
(5)  There shall be paid to the Registrar —
(a)
the fees specified in the Second Schedule; and
(b)
such other fees as are prescribed.
(6)  The Minister may by notification in the Gazette add to, vary or amend the fees specified in the Second Schedule.
[15/84]
(6A)  All fees collected by the Registrar under this Act shall be paid into the funds of the Authority.
[3/2004]
(7)  The Minister may by notification in the Gazette add to, vary or amend the Eighth Schedule in relation to the contents of the annual return of a company having a share capital.
[13/87; 12/2002]
[Aust., 1961, s. 7]
Inspection of books of corporation
8A.
—(1)  Where the Minister is satisfied that there is good reason for so doing, he may at any time —
(a)
give directions to a corporation requiring that corporation at such place and time as may be specified in the directions to produce such books relating to the affairs of a corporation as may be so specified; or
(b)
authorise any person (referred to in this section and section 8B as an authorised person), on producing (if required to do so) evidence of his authority to require that corporation to produce to him any books relating to the affairs of a corporation which the authorised person may specify.
[13/87]
(2)  Where by virtue of subsection (1) the Minister or an authorised person has power to require the production of any books from a corporation relating to the affairs of a corporation, the Minister or that authorised person shall have the like power to require production of those books from any person who appears to the Minister or authorised person to be in possession of them; but where any such person claims a lien on any books produced by him, the production shall be without prejudice to the lien.
[13/87]
(3)  Any power conferred by this section to require a corporation or other person to produce books relating to the affairs of a corporation shall include power —
(a)
if the books are produced —
(i)
to make copies of, or take extracts from, them; and
(ii)
to require that person who is a present or past officer of, or who is or was at any time employed by the corporation to provide an explanation of any of them; and
(b)
if the books are not produced, to require the person required to produce them to state to the best of his knowledge and belief, where they are.
[13/87]
(4)  A statement made by a person in compliance with a requirement imposed by this section may be used in evidence against him.
[13/87]
(5)  A power conferred by this section to make a requirement of a person extends, if the person is a body corporate, including a body corporate that is in the course of being wound up, or was a body corporate, being a body corporate that has been dissolved, to making that requirement of any person who is or has been an officer of the body corporate.
[13/87]
(6)  If a requirement to produce books relating to the affairs of a corporation or provide an explanation or make a statement which is imposed by virtue of this section is not complied with, the corporation or other person on whom the requirement was imposed shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 6 months or to both.
[13/87]
(7)  Where a person is charged with an offence under subsection (6) in respect of a requirement to produce any books relating to the affairs of a corporation, it shall be a defence to prove that they were not in his possession or under his control or that it was not reasonably practicable for him to comply with the requirement.
[13/87]
(8)  A person, who in purported compliance with a requirement imposed by the section to provide an explanation or a statement which he knows to be false or misleading in a material particular or recklessly provides or makes an explanation or a statement which 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 $20,000 or to imprisonment for a term not exceeding 2 years or to both.
[13/87]
Power of Magistrate to issue warrant to seize books
8B.
—(1)  If a Magistrate is satisfied, on information on oath or affirmation laid by an authorised person, that there are reasonable grounds for suspecting that there are on any premises any books of which production has been required by virtue of section 8A and which have not been produced in compliance with that requirement, the Magistrate may issue a warrant authorising any police officer, together with any other persons named in the warrant, to enter the premises specified in the information (using such force as is reasonably necessary for the purpose) and to search the premises and take possession of any books appearing to be such books or papers as are referred to in this subsection, or to take, in relation to any books so appearing, any other steps which may appear necessary for preserving them and preventing interference with them and to deliver any books, possession of which is so taken, to an authorised person.
[13/87]
(2)  Every warrant issued under this section shall continue in force until the end of the period of one month after the date on which it was issued.
[13/87]
(3)  Where under this section a person takes possession of, or secures against interference, any books, and a person has a lien on the books, the taking of possession of the books or the securing of the books against interference does not prejudice the lien.
[13/87]
(4)  Where, under this section, a person takes possession of, or secures against interference, any books, that person or any authorised person to whose possession the books were delivered —
(a)
may make copies of, or take extracts from, the books;
(b)
may require any person who was party to the compilation of the books to make a statement providing any explanation that that person is able to provide as to any matter relating to the compilation of the books or as to any matter to which the books relate;
(c)
may retain possession of the books for such period as is necessary to enable the books to be inspected, and copies of, or extracts from, the books to be made or taken, by or on behalf of the Minister; and
(d)
during that period shall permit a person who would be entitled to inspect any one or more of those books if they were not in the possession of the first-mentioned person to inspect at all reasonable times such of those books as that person would be so entitled to inspect.
[13/87]
(5)  A person who obstructs the exercise of a right of entry or search conferred by virtue of a warrant issued under this section, or who obstructs the exercise of a right so conferred to take possession of any books, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 6 months or to both.
[13/87]
(6)  The powers conferred by this section are in addition to, and not in derogation of, any other power conferred by law.
[13/87]
Copies of or extracts from books to be admitted in evidence
8C.
—(1)  Subject to this section, in any legal proceedings, whether proceedings under this Act or otherwise, a copy of or extract from a book relating to the affairs of a corporation is admissible in evidence as if it were the original book or the relevant part of the original book.
[13/87]
(2)  A copy of or extract from a book is not admissible in evidence under subsection (1) unless it is proved that the copy or extract is a true copy of the book or of the relevant part of the book.
[13/87]
(3)  For the purposes of subsection (2), evidence that a copy of or extract from a book is a true copy of the book or of a part of the book may be given by a person who has compared the copy or extract with the book or the relevant part of the book and may be given either orally or by an affidavit sworn, or by a declaration made, before a person authorised to take affidavits or statutory declarations.
[13/87]
Destruction, mutilation, etc., of company documents
8D.
—(1)  An officer of a corporation to which section 8A(1) applies, who destroys, mutilates or falsifies, or is privy to the destruction, mutilation or falsification of a document affecting or relating to the property or affairs of the corporation, or makes or is privy to the making of a false entry in such a document, shall, unless he proves that he had no intention to conceal the affairs of the corporation or to defeat the law, be guilty of an offence.
[13/87]
(2)  A person to whom subsection (1) applies who fraudulently either parts with, alters or makes an omission in any such document, or who is privy to fraudulent parting with, fraudulent altering or fraudulent making of an omission in, any such document, shall be guilty of an offence.
[13/87]
(3)  A person guilty of an offence under this section shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both.
[13/87]
(4)  In this section, “officer of a corporation” includes a person who —
(a)
was at any time an officer of the corporation; or
(b)
has, or had, a financial or other interest in the affairs of the corporation.
[13/87]
Saving for advocates and solicitors
8E.  Nothing in sections 8A and 8B shall compel the production by an advocate and solicitor of a document containing a privileged communication made by or to him in that capacity or authorise the taking of possession of any such document which is in his possession but if the advocate and solicitor refuses to produce the document he shall nevertheless be obliged to give the name and address (if he knows them) of the person to whom or by or on behalf of whom the communication was made.
[13/87]
Investigation of certain matters
8F.  Without prejudice to the powers conferred upon the Minister under section 8A, where the Minister has reason to suspect that a person has committed an offence under this Act, he may make such investigation as he thinks expedient for the due administration of this Act.
[13/87]
Savings for banks, insurance companies and certain financial institutions
8G.  Nothing in section 8A shall authorise the Minister to call for the production of books of a banking corporation or of any company carrying on insurance business or of any financial institution that is subject to control by the Monetary Authority of Singapore under sections 27 and 28 of the Monetary Authority of Singapore Act (Cap. 186) and nothing in section 8F shall authorise the Minister to conduct an investigation into any such corporation, company or financial institution.
[13/87]
Security of information
8H.
—(1)  No information or document relating to the affairs of a corporation which has been obtained under section 8A or 8B shall, without the previous consent in writing of that corporation, be published or disclosed, except to the Minister, the Registrar of Companies and their officers or to an inspector appointed under Part IX, unless the publication or disclosure is required —
(a)
with a view to the institution of or otherwise for the purposes of, any criminal proceedings pursuant to, or arising out of this Act or any criminal proceedings for an offence entailing misconduct in connection with the management of the corporation’s affairs or misapplication or wrongful retention of its property;
(b)
for the purpose of complying with any requirement or exercising any power imposed or conferred by this Act in connection with reports made by inspectors appointed under Part IX;
(c)
with a view to the institution by the Minister of proceedings for the winding up of companies under this Act of the corporation; or
(d)
for the purpose of proceedings under section 8A or 8B.
[13/87]
(2)  A person who publishes or discloses any information or document in contravention of this section 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 2 years or to both.
[13/87]
Approved liquidators
9.
—(1)  The Minister may, by order published in the Gazette, declare that persons within a specified class of persons shall be approved liquidators for the purposes of this Act.
[5/2004]
(2)  Any person who does not fall within a class of persons declared under subsection (1) may apply to the Minister to be approved as a liquidator for the purposes of this Act, and the Minister, if satisfied as to the experience and capacity of the applicant, may, on payment of the fee set out in the Second Schedule, approve such person as a liquidator for the purposes of this Act.
[5/2004]
(3)  Any approval granted by the Minister under subsection (2) may be made subject to such limitations or conditions as he thinks fit and may be revoked at any time by him by the service of a written notice of revocation on the approved person.
[5/2004]
(4)  Every approval under subsection (2) including a renewal of approval of a liquidator shall remain in force until 31st March in the third year following the year in which the approval was granted unless sooner revoked by the Minister.
[5/2004]
(5)  The Minister may delegate his power under subsection (2) to any person charged with the responsibility for the registration or control of accountants in Singapore.
[5/2004]
(6)  Any person who is dissatisfied with the decision of any person to whom the Minister has delegated his power under subsection (2) may appeal to the Minister who may in his discretion confirm, reverse or vary such decision.
[5/2004]
Company auditors
10.
—(1)  A person shall not knowingly consent to be appointed, and shall not knowingly act, as auditor for any company and shall not prepare, for or on behalf of a company, any report required by this Act to be prepared by an auditor of the company —
(a)
if he is not a public accountant;
(b)
if he is indebted to the company or to a corporation that is deemed to be related to that company by virtue of section 6 in an amount exceeding $2,500;
(c)
if he is —
(i)
an officer of the company;
(ii)
a partner, employer or employee of an officer of the company; or
(iii)
a partner or employee of an employee of an officer of the company; or
(d)
if he is responsible for or if he is the partner, employer or employee of a person responsible for the keeping of the register of members or the register of holders of debentures of the company.
[5/2004]
(2)  Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000.
[15/84]
(3)  For the purposes of subsection (1), a person shall be deemed to be an officer of a company if he is an officer of a corporation that is deemed to be related to the company by virtue of section 6 or except where the Minister, if he thinks fit in the circumstances of the case, directs otherwise, if he has, at any time within the preceding period of 12 months been an officer or promoter of the company or of such a corporation.
(4)  For the purposes of this section, a person shall not be deemed to be an officer by reason only of his having been appointed as auditor of a corporation.
(5)  An accounting firm shall not knowingly consent to be appointed, and shall not knowingly act, as auditor for any company and shall not prepare, for or on behalf of a company, any report required by this Act to be prepared by an auditor of the company if any partner of the firm (whether or not he is a public accountant) is a person described in subsection (1)(b), (c) or (d).
[5/2004]
(6)  If an accounting firm contravenes subsection (5), every partner of the firm shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000.
[5/2004]
(7)  An accounting corporation shall not knowingly consent to be appointed, and shall not knowingly act, as auditor for any company and shall not prepare, for or on behalf of a company, any report required by this Act to be prepared by an auditor of the company if —
(a)
any director of the corporation (whether or not he is a public accountant); or
(b)
any employee of the corporation, who is a public accountant and practising as such in that corporation,
is a person described in subsection (1)(b), (c) or (d).
[5/2004]
(8)  If an accounting corporation contravenes subsection (7) —
(a)
the corporation; and
(b)
the director or employee who caused the contravention,
shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000.
[5/2004]
(9)  No company or person shall appoint any individual as auditor of a company unless the individual has prior to such appointment consented in writing to act as auditor of that company.
[5/2004]
(10)  No company or person shall appoint any accounting firm or accounting corporation as auditor of a company unless the firm or corporation has prior to such appointment consented, in writing under the hand of at least one partner of the firm or director of the corporation, as the case may be, to act as auditor of that company.
[5/2004]
(11)  Where an accounting firm is appointed as the auditor of a company in the name of the firm, such appointment shall take effect and operate as if the partners of the firm at the time of the appointment, who are public accountants at that time, have been appointed as auditors of the company.
[5/2004]
(12)  Where an accounting corporation is appointed as the auditor of a company in the name of the corporation, such appointment shall take effect and operate as if the directors and employees of the corporation who are practising as public accountants in that corporation have been appointed as auditors of the company.
[5/2004]
(13)  Subsection (12) shall apply to a director or an employee practising as a public accountant in an accounting corporation, even if his appointment as director or employment with the corporation commenced after the date on which the corporation was appointed as auditor of the company.
[5/2004]
(14)  In this section —
“accounting corporation” means a company approved or deemed to be approved as an accounting corporation under the Accountants Act (Cap. 2);
“accounting firm” means a firm approved or deemed to be approved as an accounting firm under the Accountants Act (Cap. 2).
[5/2004]
[Aust., 1961, s. 9]
Disqualification of liquidators
11.
—(1)  Subject to this section, a person shall not, except with the leave of the Court, consent to be appointed, and shall not act as liquidator of a company —
(a)
if he is not an approved liquidator;
(b)
if he is indebted to the company or to a corporation that is deemed to be related to the company by virtue of section 6 in an amount exceeding $2,500;
(c)
if he is —
(i)
an officer of the company;
(ii)
a partner, employer or employee of an officer of the company; or
(iii)
a partner or employee of an employee of an officer of the company;
(d)
if he is an undischarged bankrupt;
(e)
if he has assigned his estate for the benefit of his creditors or has made an arrangement with his creditors pursuant to any law relating to bankruptcy; or
(f)
if he has been convicted of an offence involving fraud or dishonesty punishable on conviction by imprisonment for 3 months or more.
(2)  Subsection (1)(a) and (c) shall not apply —
(a)
to a members’ voluntary winding up; or
(b)
to a creditors’ voluntary winding up, if by a resolution carried by a majority of the creditors in number and value present in person or by proxy and voting at a meeting of which 7 days’ notice has been given to every creditor stating the object of the meeting, it is determined that that paragraph shall not so apply.
(3)  For the purposes of subsection (1), a person shall be deemed to be an officer of a company if he is an officer of a corporation that is deemed to be related to the company by virtue of section 6 or has, at any time within the preceding period of 24 months, been an officer or promoter of the company or of such a corporation.
(4)  A person shall not be appointed as liquidator of a company unless he has prior to such appointment consented in writing to act as such liquidator.
(5)  Nothing in this section shall affect any appointment of a liquidator made before 29th December 1967.
[S 258/67]
(6)  Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000.
[15/84]
[Aust., 1961, s. 10]
Registers
12.
—(1)  The Registrar shall, subject to this Act, keep such registers as he considers necessary in such form as he thinks fit.
Inspection of register
(2)  Any person may, on payment of the prescribed fee —
(a)
inspect any document, or if there is a microfilm of any such document, that microfilm, filed or lodged with the Registrar; or
(b)
require a certificate of the incorporation of any company or any other certificate issued under this Act or a copy of or extract from any document kept by the Registrar to be given or certified by the Registrar.
[15/84]
(2A)  Subsection (2) shall not apply to such exempt private company that is wholly owned by the Government as the Minister may, by notification in the Gazette, specify where he considers that it would not be in the public interest for —
(a)
any document relating to any such company maintained by the Registrar in whatever form to be inspected by any member of the public; and
(b)
any certificate or copy of or extract from any document relating to any such company to be given or certified to any member of the public.
[22/93]
(2B)  Notwithstanding the cancellation of any notification referred to in subsection (2A) in respect of a company, subsection (2) shall not apply to any document or certificate relating to that company that is filed or lodged with the Registrar, or issued under the Act, before the date of such cancellation, whether or not that company remains an exempt private company wholly owned by the Government, and whether or not it has been wound up.
[12/2002]
Evidentiary value of copies certified by Registrar
(3)  A copy of or extract from any document, including a copy produced by way of microfilm or electronic medium filed or lodged at the office of the Registrar certified to be a true copy or extract under the hand and seal of the Registrar shall in any proceedings be admissible in evidence as of equal validity with the original document.
[15/84; 22/93]
Evidence of statutory requirements
(4)  In any legal proceedings, a certificate under the hand and seal of the Registrar that a requirement of this Act specified in the certificate —
(a)
had or had not been complied with at a date or within a period specified in the certificate; or
(b)
had been complied with upon a date specified in the certificate but not before that date,
shall be received as prima facie evidence of the matters specified in the certificate.
Registrar may refuse to register or receive document
(5)  If the Registrar is of the opinion that any document submitted to him —
(a)
contains any matter contrary to law;
(b)
by reason of any omission or misdescription has not been duly completed;
(c)
does not comply with the requirements of this Act; or
(d)
contains any error, alteration or erasure,
he may refuse to register or receive the document and request that the document be appropriately amended or completed and resubmitted or that a fresh document be submitted in its place.
Appeal
(6)  Any party aggrieved by the refusal of the Registrar to register any corporation or to register or receive any document or by any other act or decision of the Registrar may appeal to the Court which may confirm the refusal, act or decision or give such directions in the matter as seem proper or otherwise determine the matter but this subsection shall not apply to any act or decision of the Registrar —
(a)
in respect of which any provision in the nature of an appeal or review is expressly provided in this Act; or
(b)
which is declared by this Act to be conclusive or final or is embodied in any document declared by this Act to be conclusive evidence of any act, matter or thing.
[22/93]
Destruction, etc., of old records
(7)  The Registrar may, if in his opinion it is no longer necessary or desirable to retain any document which has been microfilmed or converted to electronic form, destroy or give it to the National Archives of Singapore.
[15/84; 22/93]
[Aust., 1961, s. 12]
Filing service
12A.
—(1)  Where the Registry of Companies provides a service whereby documents under this Act may be filed or lodged with or submitted to the Registrar electronically, neither the Government nor any of its employees nor any authorised agents shall be liable for any loss or damage, suffered by any person by reason of any errors or omissions, of whatever nature or however caused, appearing in any document obtained by any person under the service if such errors or omissions are made in good faith and in the ordinary course of the discharge of the duties of these employees or authorised agents or have occurred or arisen as a result of any defect or breakdown in the service or in any of the equipment used for the service.
[13/87; 22/93; 12/2002]
(1A)  The Minister may by regulations permit or require any document —
(a)
to be filed or lodged with or submitted to the Registrar under this Act; or
(b)
to be issued by the Registrar under this Act,
to be filed, lodged, submitted or issued using the service referred to in subsection (1).
[12/2002]
(1B)  The regulations under subsection (1A) may —
(a)
permit or require such document to be filed, lodged or submitted by a prescribed person on behalf of the person concerned under specified circumstances; and
(b)
contain such transitional and other supplementary and incidental provisions as appear to the Minister to be appropriate.
[12/2002]
Evidentiary value of copies of electronically filed documents certified by Registrar
(2)  A copy of or extract from any document electronically filed or lodged with or submitted to the Registrar under subsection (1) supplied or issued by the Registrar and certified to be a true copy or extract thereof under the hand and seal of the Registrar shall in any proceedings be admissible in evidence as of equal validity with the original document.
[13/87; 12/2002]
(3)  Any information supplied by the Registrar that is certified by the Registrar under his hand and seal to be a true extract from any document filed or lodged with or submitted to the Registrar using the service referred to in subsection (1) shall in any proceedings be admissible in evidence and be presumed, unless evidence to the contrary is adduced, to be a true extract from such document.
[12/2002]
(4)  Subsections (2) and (3) have effect notwithstanding the provisions of any other written law.
[12/2002]
(5)  In this section, “document” means any application, form, report, certification, notice, confirmation, declaration or other document to be filed or lodged with or submitted to the Registrar or, as the case may be, any certificate, notice or other document to be issued by the Registrar.
[12/2002]
Rectification of register
12B.
—(1)  Where it appears to the Court, as a result of evidence adduced before it by an applicant company, that any particular recorded in a register is erroneous or defective, the Court may, by order, direct the Registrar to rectify the register on such terms and conditions as seem to the Court just and expedient, as are specified in the order and the Registrar shall, upon receipt of the order, rectify the register accordingly.
[13/87]
(2)  An order of the Court made under subsection (1) may require that a fresh document, showing the rectification, shall be filed by the applicant company with the Registrar together with a copy of the Court order, and a copy of the Court application.
[13/87; 12/2002]
(3)  Notwithstanding subsections (1) and (2), an officer of a company may notify the Registrar in the prescribed form of any typographical or clerical error contained in any document relating to the company lodged with the Registrar.
[36/2000]
(4)  The Registrar may, upon receipt of any notification referred to in subsection (3), rectify the registers accordingly.
[36/2000]
Enforcement of duty to make returns
13.
—(1)  If a corporation or person, having made default in complying with —
(a)
any provision of this Act or of any other law which requires the filing or lodging in any manner with the Registrar or the Official Receiver of any return, account or other document or the giving of notice to him of any matter; or
(b)
any request of the Registrar or the Official Receiver to amend or complete and resubmit any document or to submit a fresh document,
fails to make good the default within 14 days after the service on the corporation or person of a notice requiring it to be done, the Court may, on an application by any member or creditor of the corporation or by the Registrar or the Official Receiver, make an order directing the corporation and any officer thereof or such person to make good the default within such time as is specified in the order.
(2)  Any such order may provide that all costs of and incidental to the application shall be borne by the corporation or by any officer of the corporation responsible for the default or by such person.
(3)  Nothing in this section shall limit the operation of any written law imposing penalties on a corporation or its officers or such person in respect of any such default.
[Aust., 1961, s. 12 (8) to (10)]
Relodging of lost registered documents
14.
—(1)  If in the case of any corporation incorporated or registered under this Act or any corresponding previous written law the memorandum or articles or any other document relating to the corporation filed or lodged with the Registrar has been lost or destroyed, the corporation may apply to the Registrar for leave to lodge a copy of the document as originally filed or lodged.
(2)  On such application being made the Registrar may direct notice thereof to be given to such persons and in such manner as he thinks fit.
(3)  The Registrar upon being satisfied —
(a)
that the original document has been lost or destroyed;
(b)
of the date of the filing or lodging thereof with the Registrar; and
(c)
that a copy of such document produced to the Registrar is a correct copy,
may certify upon that copy that he is so satisfied and direct that that copy be lodged in the manner required by law in respect of the original.
(4)  Upon the lodgment, that copy for all purposes shall, from such date as is mentioned in the certificate as the date of the filing or lodging of the original with the Registrar, have the same force and effect as the original.
(5)  The Court may, by order upon application by any person aggrieved and after notice to any other person whom the Court directs, confirm, vary or rescind the certificate and the order may be lodged with the Registrar and shall be registered by him, but no payments, contracts, dealings, acts and things made, had or done in good faith before the registration of such order and upon the faith of and in reliance upon the certificate shall be invalidated or affected by such variation or rescission.
(6)  No fee shall be payable upon the lodging of a document under this section.
[Aust., 1961, s. 13]
Size, durability and legibility of documents delivered to Registrar
15.
—(1)  For the purposes of securing that the documents delivered to the Registrar under the provisions of this Act are of a standard size, durable and easily legible, the Minister may by regulations prescribe such requirements (whether as to size, weight, quality or colour of paper, size, type or colour of lettering, or otherwise) as he may consider appropriate; and different requirements may be so prescribed for different documents or classes of documents.
[15/84]
(2)  If under any such provision there is delivered to the Registrar a document (whether an original document or a copy) which in the opinion of the Registrar does not comply with such requirements prescribed under this section as are applicable to it, the Registrar may serve on any person by whom under that provision the document was required to be delivered (or, if there are 2 or more such persons, may serve on any of them) a notice stating his opinion to that effect and indicating the requirements so prescribed with which in his opinion the document does not comply.
[15/84]
(3)  Where the Registrar serves a notice under subsection (2) with respect to a document delivered under any such provision, then, for the purposes of any written law which enables a penalty to be imposed in respect of any omission to deliver to the Registrar a document required to be delivered under that provision (and, in particular, for the purposes of any such law whereby such a penalty may be imposed by reference to each day during which the omission continues) —
(a)
any duty imposed by that provision to deliver such a document to the Registrar shall be treated as not having been discharged by the delivery of that document; but
(b)
no account shall be taken of any days falling within the period mentioned in subsection (4).
[15/84]
(4)  The period referred to in subsection (3)(b) is the period beginning on the day on which the document was delivered to the Registrar as mentioned in subsection (2) and ending on the fourteenth day after the date of service of the notice under subsection (2) by virtue of which subsection (3) applies.
[15/84]
(5)  In this section, any reference to delivering a document shall be construed as including a reference to sending, forwarding, producing or (in the case of a notice) giving it.
[15/84]
Instant Information Service — exclusion of liability for errors or omissions
16.  Where the Registry of Companies provides a service (to be called an Instant Information Service) to the public whereby computerised information of prescribed particulars of a company registered under this Act is supplied to the public on payment of a prescribed fee, neither the Government nor any of its employees in the Registry of Companies involved in the supply of such information shall be liable for any loss or damage suffered by members of the public by reason of any errors or omissions of whatever nature appearing therein or however caused if made in good faith and in the ordinary course of the discharge of the duties of such employees.
[15/84]
Supply of magnetic tapes — exclusion of liability for errors or omissions
16A.  Where the Registrar furnishes information, whether in bulk or otherwise, to any person by way of magnetic tapes or by any electronic means, neither the Government nor any of the employees in the Registry of Companies nor any authorised agents involved in the furnishing of such information shall be liable for any loss or damage suffered by that person by reason of errors or omissions of whatever nature appearing therein or however caused if made in good faith and in the ordinary course of the discharge of the duties of those employees or authorised agents.
[22/93]
PART III
CONSTITUTION OF COMPANIES
Division 1 — Incorporation
Formation of companies
17.
—(1)  Subject to the provisions of this Act, any person may, whether alone or together with another person, by subscribing his name or their names to a memorandum and complying with the requirements as to registration, form an incorporated company.
[5/2004]
(2)  A company may be —
(a)
a company limited by shares;
(b)
a company limited by guarantee; or
(c)
an unlimited company.
[15/84]
(3)  No company, association or partnership consisting of more than 20 persons shall be formed for the purpose of carrying on any business that has for its object the acquisition of gain by the company, association or partnership, or by the individual members thereof, unless it is registered as a company under this Act, or is formed in pursuance of some other written law in Singapore or letters patent.
(4)  So much of subsection (3) as prohibits the formation of an association or a partnership consisting of more than 20 persons shall not apply to an association or a partnership formed solely or mainly for the purpose of carrying on any profession or calling which under the provisions of any written law may be exercised only by persons who possess the qualifications laid down in such written law for the purpose of carrying on that profession or calling.
[15/84; 4/2004]
(5)  As from 15th August 1984, no company limited by guarantee with a share capital shall be registered under this Act.
[15/84]
(6)  The prohibition referred to in subsection (5) shall not affect a company limited by guarantee which has a share capital and is registered as such before 15th August 1984 and section 38(2) shall continue to apply to a company so registered; but any such company shall, within 2 years of that date, elect to convert and re-register that company either as a company limited by shares or as a company limited by guarantee.
[15/84]
(7)  The conversion of a company referred to in subsection (6) shall be effected by lodging with the Registrar a special resolution determining the conversion of the company from a company limited by guarantee with a share capital to a company limited by shares or to a company limited by guarantee, as the case may be, and altering its memorandum and articles of association to the extent that is necessary to bring them into conformity with the requirements of this Act relating to the memorandum and articles of a company limited by shares or of a company limited by guarantee, as the case may be.
[15/84]
(8)  On compliance by a company with subsection (7) and on the issue by the Registrar of a notice of incorporation of the company in accordance with the special resolution, the company shall be a company limited by shares or a company limited by guarantee, as the case may be.
[15/84; 12/2002]
(9)  Upon the application of a company and payment of the prescribed fee, the Registrar shall issue to the company a certificate of confirmation of incorporation under his hand and seal.
[12/2002]
[Aust., 1961, s. 14]
Private company
18.
—(1)  A company having a share capital may be incorporated as a private company if its memorandum or articles —
(a)
restricts the right to transfer its shares; and
(b)
limits to not more than 50 the number of its members (counting joint holders of shares as one person and not counting any person in the employment of the company or of its subsidiary or any person who while previously in the employment of the company or of its subsidiary was and thereafter has continued to be a member of the company).
[5/2004]
(2)  Where, on 29th December 1967, neither the memorandum nor articles of a company that is a private company by virtue of paragraph (a) ofthe definition of “private company” in section 4(1) contain the restrictions and limitations required by subsection (1) to be included in the memorandum or articles of a company that may be incorporated as a private company, the articles of the company shall be deemed to include each such restriction or limitation that is not so included and a restriction on the right to transfer its shares that is so deemed to be included in its articles shall be deemed to be a restriction that prohibits the transfer of shares except to a person approved by the directors of the company.
[21/2005]
(3)  Where a restriction or limitation deemed to be included in the articles of a company under subsection (2) is inconsistent with any provision already included in the memorandum or articles of the company, that restriction or limitation shall, to the extent of the inconsistency, prevail.
[21/2005]
(4)  A private company may, by special resolution, alter any restriction on the right to transfer its shares included, or deemed to be included, in its memorandum or articles or any limitation on the number of its members included, or deemed to be included, in its memorandum or articles, but not so that the memorandum and articles of the company cease to include the limitation required by subsection (1)(b) to be included in the memorandum or articles of a company that may be incorporated as a private company.
Registration and incorporation
19.
—(1)  A person desiring the incorporation of a company shall —
(a)
submit to the Registrar the memorandum and articles of the proposed company and such other documents as may be prescribed;
(b)
furnish the Registrar with such information as may be prescribed; and
(c)
pay the Registrar the prescribed fee.
[12/2002]
(2)  Either —
(a)
a prescribed person engaged in the formation of the proposed company; or
(b)
a person named in the articles as a director or the secretary of the proposed company,
shall make a declaration to the Registrar that —
(i)
all of the requirements of this Act relating to the formation of the company have been complied with; and
(ii)
he has verified the identities of the subscribers to the memorandum, and of the persons named in the memorandum or articles as officers of the proposed company,
and the Registrar may accept such declaration as sufficient evidence of those matters.
[12/2002; 8/2003]
(3)  Upon receipt of the documents, information and payment referred to in subsection (1) and declaration referred to in subsection (2), the Registrar shall, subject to this Act, register the company by registering its memorandum and articles.
[12/2002]
Notice of incorporation
(4)  On the registration of the memorandum the Registrar shall issue in the prescribed manner a notice of incorporation in the prescribed form stating that the company is, on and from the date specified in the notice, incorporated, and that the company is —
(a)
a company limited by shares;
(b)
a company limited by guarantee; or
(c)
an unlimited company,
as the case may be, and where applicable, that it is a private company.
[15/84; 12/2002]
Effect of incorporation
(5)  On and from the date of incorporation specified in the notice issued under subsection (4) but subject to this Act, the subscribers to the memorandum together with such other persons as may from time to time become members of the company shall be a body corporate by the name contained in the memorandum capable immediately of exercising all the functions of an incorporated company and of suing and being sued and having perpetual succession and a common seal with power to hold land but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is provided by this Act.
[12/2002]
Members of company
(6)  The subscribers to the memorandum shall be deemed to have agreed to become members of the company and on the incorporation of the company shall be entered as members in its register of members, and every other person who agrees to become a member of a company and whose name is entered in its register of members shall be a member of the company.
(7)  Upon the application of a company and payment of the prescribed fee, the Registrar shall issue to the company a certificate of confirmation of incorporation under his hand and seal.
[12/2002]
[UK, 1948, ss. 12-15, 26; Aust., 1961, s. 16]
Power to refuse registration
20.
—(1)  Without prejudice to the powers of the Registrar under section 12(5), where a memorandum is delivered for registration under section 19, the Registrar shall not register the memorandum unless he is satisfied that all the requirements of this Act in respect of the registration and of all matters precedent and incidental thereto have been complied with.
[15/84]
(2)  Notwithstanding anything in this Act or any rule of law, the Registrar shall refuse to register the memorandum of a proposed company where he is satisfied that —
(a)
the proposed company is likely to be used for an unlawful purpose or for purposes prejudicial to public peace, welfare or good order in Singapore; or
(b)
it would be contrary to the national security or interest for the proposed company to be registered.
[15/84]
(3)  Any person aggrieved by the decision of the Registrar under subsection (2) may, within 30 days of the date of the decision, appeal to the Minister whose decision shall be final.
[15/84]
Minimum of one member
20A.  A company shall have at least one member.
[5/2004]
[Aust., 2001, s. 114]
Membership of holding company
21.
—(1)  A corporation cannot be a member of a company which is its holding company, and any allotment or transfer of shares in a company to its subsidiary shall be void.
(2)  Subsection (1) shall not apply where the subsidiary is concerned as personal representative, or where it is concerned as trustee, unless the holding company or a subsidiary thereof is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of a business which includes the lending of money.
(3)  This section shall not prevent a subsidiary which, on 29th December 1967, is a member of its holding company, from continuing to be a member but, subject to subsection (2), the subsidiary shall have no right to vote at meetings of the holding company or any class of members thereof.
[S 258/67]
(4)  This section shall not prevent a subsidiary from continuing to be a member of its holding company if, at the time when it becomes a subsidiary thereof, it already holds shares in that holding company, but —
(a)
subject to subsection (2), the subsidiary shall have no right to vote at meetings of the holding company or any class of members thereof; and
(b)
the subsidiary shall, within the period of 12 months or such longer period as the Court may allow after becoming the subsidiary of its holding company, dispose of all of its shares in the holding company.
(5)  Subject to subsection (2), subsections (1), (3) and (4) shall apply in relation to a nominee for a corporation which is a subsidiary as if references in those subsections to such a corporation included references to a nominee for it.
(6)  This section shall not operate to prevent the allotment of shares in a holding company to a subsidiary which already lawfully holds shares in the holding company if the allotment is made by way of capitalisation of reserves of the holding company and is made to all members of the holding company on a basis which is in direct proportion to the number of shares held by each member in the holding company.
(7)  Where but for this section a subsidiary would have been entitled to subscribe for shares in the holding company, the holding company may, on behalf of the subsidiary, sell the shares for which the subsidiary would otherwise have been entitled to subscribe.
(8)  In relation to a holding company that is a company limited by guarantee, the reference in this section to shares shall be construed as including a reference to the interest of its members as such, whatever the form of that interest.
[15/84]
[UK, 1948, s. 27; Aust., s. 17]
Requirements as to memorandum
22.
—(1)  The memorandum of every company shall be dated and shall state, in addition to other requirements —
(a)
the name of the company;
(b)
[Deleted by Act 5 of 2004]
(c)
[Deleted by Act 21 of 2005]
(d)
if the company is a company limited by shares, that the liability of the members is limited;
(e)
if the company is a company limited by guarantee, that the liability of the members is limited and that each member undertakes to contribute to the assets of the company, in the event of its being wound up while he is a member or within one year after he ceases to be a member, for payment of the debts and liabilities of the company contracted before he ceases to be a member and of the costs, charges and expenses of winding up and for adjustment of the rights of the contributories among themselves, such amount as may be required not exceeding a specified amount;
(f)
if the company is an unlimited company, that the liability of the members is unlimited;
(g)
the full names, addresses and occupations of the subscribers thereto; and
(h)
that such subscribers are desirous of being formed into a company in pursuance of the memorandum and (where the company is to have a share capital) respectively agree to take the number of shares in the capital of the company set out opposite their respective names.
[12/2002; 5/2004; 21/2005]
(1A)  On 30th January 2006, any provision (or part thereof) then subsisting in the memorandum of any company which states —
(a)
the amount of share capital with which the company proposes to be or is registered; or
(b)
the division of the share capital of the company into shares of a fixed amount,
shall, in so far as it relates to the matters referred to in either or both of paragraphs (a) and (b), be deemed to be deleted.
[21/2005]
(2)  Each subscriber to the memorandum shall, if the company is to have a share capital, make a declaration to the Registrar, either by himself or through a prescribed person authorised by him, as to the number of shares (not being less than one) that he agrees to take.
[12/2002]
(3)  A statement in the memorandum of a company limited by shares that the liability of members is limited shall mean that the liability of the members is limited to the amount, if any, unpaid on the shares respectively held by them.
(4)  A copy of the memorandum, duly signed by the subscribers and stating, if the company is to have a share capital, the number of shares that each subscriber has agreed to take, shall be kept at the registered office of the company.
[12/2002]
[Aust., 1961, s. 18]
Division 2 — Powers
Capacity and powers of company
23.
—(1)  Subject to the provisions of this Act and any other written law and its memorandum or articles of association, a company has —
(a)
full capacity to carry on or undertake any business or activity, do any act or enter into any transaction; and
(b)
for the purposes of paragraph (a), full rights, powers and privileges.
[5/2004]
(1A)  A company may have the objects of the company included in its memorandum.
[5/2004]
(1B)  The memorandum or articles of association of a company may contain a provision restricting its capacity, rights, powers or privileges.
[5/2004]
[NZ, 1993, s. 16]
Restriction as to power of certain companies to hold lands
(2)  A company formed for the purpose of providing recreation or amusement or promoting commerce, industry, art, science, religion or any other like object not involving the acquisition of gain by the company or by its individual members shall not acquire any land without the approval of the Minister but the Minister may empower any such company to hold lands in such quantity and subject to such conditions as he thinks fit.
[12/2002]
(3)  Notice of a decision of the Minister under subsection (2) shall be given by the Registrar on behalf of the Minister to the company.
[12/2002]
(4)  The decision of the Minister under subsection (2) shall be final and shall not be called in question by any court.
[12/2002]
(5)  Upon the application of a company and payment of the prescribed fee, the Registrar shall issue to the company a certificate confirming the decision under subsection (2).
[12/2002]
[Aust., 1961, s. 19; NZ, 1993, s. 16]
Power of company to provide for employees on cessation of business
24.
—(1)  The powers of a company shall, if they would not otherwise do so, be deemed to include power to make provision, in connection with any cessation of the whole or any part of the business carried on by the company or any subsidiary of the company, for the benefit of persons employed or formerly employed by the company or its subsidiary.
[10/74]
(2)  Subsection (1) relates only to the capacity of a company as a body corporate and is without prejudice to any provision in a company’s memorandum or articles requiring any exercise of the power mentioned in that subsection to be approved by the company in general meeting or otherwise prescribing the manner in which that power is to be exercised.
[10/74]
Ultra vires transactions
25.
—(1)  No act or purported act of a company (including the entering into of an agreement by the company and including any act done on behalf of a company by an officer or agent of the company under any purported authority, whether express or implied, of the company) and no conveyance or transfer of property, whether real or personal, to or by a company shall be invalid by reason only of the fact that the company was without capacity or power to do such act or to execute or take such conveyance or transfer.
(2)  Any such lack of capacity or power may be asserted or relied upon only in —
(a)
proceedings against the company by any member of the company or, where the company has issued debentures secured by a floating charge over all or any of the company’s property, by the holder of any of those debentures or the trustee for the holders of those debentures to restrain the doing of any act or acts or the conveyance or transfer of any property to or by the company;
(b)
any proceedings by the company or by any member of the company against the present or former officers of the company; or
(c)
any application by the Minister to wind up the company.
[42/2005]
(3)  If the unauthorised act, conveyance or transfer sought to be restrained in any proceedings under subsection (2)(a) is being or is to be performed or made pursuant to any contract to which the company is a party, the Court may, if all the parties to the contract are parties to the proceedings and if the Court considers it to be just and equitable, set aside and restrain the performance of the contract and may allow to the company or to the other parties to the contract, as the case requires, compensation for the loss or damage sustained by either of them which may result from the action of the Court in setting aside and restraining the performance of the contract but anticipated profits to be derived from the performance of the contract shall not be awarded by the Court as a loss or damage sustained.
[Aust., 1961, s. 20]
No constructive notice
25A.  Notwithstanding anything in the memorandum or articles of a company, a person is not affected by, or deemed to have notice or knowledge of the contents of, the memorandum or articles of, or any other document relating to, the company merely because —
(a)
the memorandum, articles or document is registered by the Registrar; or
(b)
the memorandum, articles or document is available for inspection at the registered office of the company.
[5/2004]
[NZ, 1993, s. 19]
General provisions as to alteration of memorandum
26.
—(1)  Unless otherwise provided in this Act, the memorandum of a company may be altered by special resolution.
[5/2004]
(1A)  Subsection (1) is subject to section 26A and to any provision included in the memorandum of a company in accordance with that section.
[5/2004]
(1B)  Notwithstanding subsection (1), a provision contained in the memorandum of a company immediately before 1st April 2004 and which could not be altered under the provisions of this Act in force immediately before that date, may be altered only if all the members of the company agree.
[5/2004]
(2)  In addition to observing and subject to any other provision of this Act requiring the lodging with the Registrar of any resolution of a company or order of the Court or other document affecting the memorandum of a company, the company shall within 14 days after the passing of any such resolution or the making of any such order lodge with the Registrar a copy of such resolution or other document or a copy of such order together with (unless the Registrar dispenses therewith) a copy of the memorandum as altered, and if default is made in complying with this subsection the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and also to a default penalty.
[12/2002]
(3)  The Registrar shall register every resolution, order or other document lodged with him under this Act that affects the memorandum of a company and, where an order is so registered, shall issue to the company a notice of the registration of that order.
[12/2002]
(4)  [Deleted by Act 12 of 2002]
(5)  Notice of the registration shall be published in such manner, if any, as the Court or the Registrar directs.
(6)  The Registrar shall, where appropriate, issue a notice of incorporation in accordance with the alteration made to the memorandum.
[12/2002]
(7)  Upon the application of a company and payment of the prescribed fee, the Registrar shall issue to the company a certificate, under his hand and seal, confirming the incorporation in accordance with the alteration made to the memorandum.
[12/2002]
[Aust., 1961, s. 21; UK, Bill, 2002, Clause 20]
Power to entrench provisions of memorandum and articles of company
26A.
—(1)  An entrenching provision may —
(a)
be included in the memorandum or articles with which a company is formed; and
(b)
at any time be inserted in the memorandum or articles of a company only if all the members of the company agree.
[5/2004]
(2)  An entrenching provision may be removed or altered only if all the members of the company agree.
[5/2004]
(3)  The provisions of this Act relating to the alteration of the memorandum or articles of a company are subject to any entrenching provision in the memorandum or articles of a company.
[5/2004]
(4)  In this section, “entrenching provision” means a provision of the memorandum or articles of a company to the effect that other specified provisions of the memorandum or articles —
(a)
may not be altered in the manner provided by this Act; or
(b)
may not be so altered except —
(i)
by a resolution passed by a specified majority greater than 75% (the minimum majority required by this Act for a special resolution); or
(ii)
where other specified conditions are met.
[5/2004]
[UK, Bill, 2002, Clause 21]
Names of companies
27.
—(1)  Except with the consent of the Minister, a company shall not be registered by a name that in the opinion of the Registrar —
(a)
is undesirable;
(b)
is identical to that of any other company, limited liability partnership or corporation, or to a business name; or
(c)
[Deleted by Act 12 of 2002]
(d)
is a name of a kind that the Minister has directed the Registrar not to accept for registration.
[15/84; 12/2002; 5/2005]
(2)  Notwithstanding anything in this section and section 28 (other than section 28(4)), where the Registrar is satisfied that the company has been registered (whether through inadvertence or otherwise and whether before, on or after 30th January 2006) by a name —
(a)
which is referred to in subsection (1);
(b)
which so nearly resembles the name of another company or corporation or a business name as to be likely to be mistaken for it; or
(c)
the use of which has been restrained by an injunction granted under the Trade Marks Act (Cap. 332),
the Registrar may direct the first-mentioned company to change its name, and the company shall comply with the direction within 6 weeks after the date of the direction or such longer period as the Registrar may allow, unless the direction is annulled by the Minister.
[21/2005]
(2A)  Any person may apply, in writing, to the Registrar to give a direction to a company under subsection (2) on a ground referred to in that subsection; but the Registrar shall not consider any application to give a direction to a company on the ground referred to in subsection (2)(b) unless the Registrar receives the application within 12 months from the date of incorporation of the company.
[12/2002]
(2B)  If the company fails to comply with subsection (2), the company and its officers shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and also to a default penalty.
[12/2002]
(2C)  The Registrar may, if he is satisfied that the company to which the direction under subsection (2) was given had applied for registration under that name in bad faith, require the company to pay the Registrar such fees as may be prescribed by the Minister, and such fees shall be recoverable as a debt due to the Government.
[12/2002]
(2D)  The Registrar may, by publication in the Gazette, make such rules as he considers appropriate for the purposes of determining the matters referred to in subsections (1) and (2).
[12/2002]
(3)  In this section and section 28, “business name” has the meaning assigned to that expression in the Business Registration Act (Cap. 32).
[15/84; 12/2002]
(4)  For the purpose of subsection (2), the reference to a corporation therein shall include a reference to a corporation whether or not it is registered under Division 2 of Part XI.
[15/84]
(5)  A company aggrieved by the decision of the Registrar under subsection (2) or (2C) may within 30 days of the date of the decision appeal to the Minister whose decision shall be final.
[15/84; 12/2002]
(5A)  For the avoidance of doubt, where the Registrar makes a decision under subsection (2) or the Minister makes a decision under subsection (5), he shall accept as correct any decision of the Court to grant an injunction referred to in subsection (2)(c).
[21/2005]
(6)  The Minister shall cause a direction given by him under subsection (1) to be published in the Gazette.
(7)  Subject to section 29, a limited company shall have either “Limited” or “Berhad” as part of and at the end of its name.
[12/2002]
(8)  A private company shall have the word “Private” or “Sendirian” as part of its name, inserted immediately before the word “Limited” or “Berhad” or, in the case of an unlimited company, at the end of its name.
(9)  It shall be lawful to use and no description of a company shall be deemed inadequate or incorrect by reason of the use of —
(a)
the abbreviation “Pte.” in lieu of the word “Private” or the abbreviation “Sdn.” in lieu of the word “Sendirian” contained in the name of a company;
(b)
the abbreviation “Ltd.” in lieu of the word “Limited” or the abbreviation “Bhd.” in lieu of the word “Berhad” contained in the name of a company; or
(c)
any of such words in lieu of the corresponding abbreviation contained in the name of a company.
(10)  A person may apply in the prescribed form to the Registrar for the reservation of a name set out in the application as —
(a)
the name of an intended company;
(b)
the name to which a company proposes to change its name; or
(c)
the name under which a foreign company proposes to be registered, either originally or upon change of name.
(11)  A company shall not be registered under section 19(3) and the Registrar shall not approve the change of name of a company under section 28(2) unless the name which it is proposed to be registered or the proposed new name, as the case may be, has been reserved under subsection (12).
[15/84; 12/2002]
(12)  If the Registrar is satisfied as to the bona fides of the application and that the proposed name is a name by which the intended company, company or foreign company could be registered —
(a)
without contravention of subsection (1) in the case of a company (whether originally or upon change of name); and
(b)
without contravention of section 378 in the case of a foreign company (whether originally or upon change of name),
he shall reserve the proposed name for a period of 2 months from the date of the lodging of the application.
[22/93]
(13)  If, at any time during a period for which a name is reserved, application is made to the Registrar for an extension of that period and the Registrar is satisfied as to the bona fides of the application, he may extend that period for a further period of 2 months.
(14)  During a period for which a name is reserved, no company (other than the intended company or company in respect of which the name is reserved) shall be registered under this Act, whether originally or upon change of name, under the reserved name.
[22/93; 12/2002]
(15)  The reservation of a name under this section in respect of an intended company, company or foreign company does not in itself entitle the intended company, company or foreign company to be registered by that name, either originally or upon change of name.
[UK, 1948, s. 17; Aust., 1961, s. 22]
Change of name
28.
—(1)  A company may by special resolution resolve that its name should be changed to a name by which the company could have been registered without contravention of section 27(1).
(2)  If the Registrar approves the name which the company has resolved should be its new name, he shall register the company under the new name and issue to the company a notice of incorporation of the company under the new name and, upon the issue of such notice, the change of name shall become effective.
[12/2002]
(3)  If the name of a company is, whether through inadvertence or otherwise or whether originally or by a change of name —
(a)
a name by which the company could not be registered without contravention of section 27(1);
(b)
a name that so nearly resembles the name of another company or corporation or a business name as to be likely to be mistaken for it; or
(c)
a name the use of which has been restrained by an injunction granted under the Trade Marks Act (Cap. 332),
the company may by special resolution change its name to a name that is not referred to in paragraph (a), (b) or (c) and, if the Registrar so directs, shall so change it within 6 weeks after the date of the direction or such longer period as the Registrar may allow, unless the direction is annulled by the Minister.
[21/2005]
(3A)  Any person may apply in writing to the Registrar to give a direction to a company under subsection (3) on a ground referred to in that subsection; but the Registrar shall not consider any application to give a direction to a company on the ground referred to in subsection (3)(b) unless the Registrar receives the application within 12 months from the date of change of name of the company.
[12/2002]
(3B)  If the company fails to comply with subsection (3), the company and its officers shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and also to a default penalty.
[12/2002]
(3C)  The Registrar may, if he is satisfied that the company to which the direction under subsection (3) was given had applied for registration under the name first-mentioned in that subsection in bad faith, require the company to pay the Registrar such fees as may be prescribed by the Minister, and such fees shall be recoverable as a debt due to the Government.
[21/2005]
(3D)  A company aggrieved by the decision of the Registrar under subsection (3) or (3C) may within 30 days of the date of the decision appeal to the Minister whose decision shall be final.
[21/2005]
(3E)  For the avoidance of doubt, where the Registrar makes a decision under subsection (3) or the Minister makes a decision under subsection (3D), he shall accept as correct any decision of the Court to grant an injunction referred to in subsection (3)(c).
[21/2005]
(4)  Where the name of a company incorporated pursuant to any corresponding previous written law has not been changed since 29th December 1967, the Registrar shall not, except with the approval of the Minister, exercise his power under subsection (3) to direct the company to change its name.
[S 258/67]
(5)  Upon the application of a company and payment of the prescribed fee, the Registrar shall issue to the company a certificate, under his hand and seal, confirming the incorporation of the company under the new name.
[12/2002]
(6)  A change of name pursuant to this Act shall not affect the identity of the company or any rights or obligations of the company or render defective any legal proceedings by or against the company, and any legal proceedings that might have been continued or commenced by or against it by its former name may be continued or commenced by or against it by its new name.
[UK, 1948, s. 18; Aust., 1961, s. 23]
Omission of “Limited” or “Berhad” in name of charitable and other companies
29.
—(1)  Where it is proved to the satisfaction of the Minister that a proposed limited company is being formed for the purpose of providing recreation or amusement or promoting commerce, industry, art, science, religion, charity, pension or superannuation schemes or any other object useful to the community, that it has some basis of national or general public interest and that it is in a financial position to carry out the objects for which it is to be formed and will apply its profits (if any) or other income in promoting its objects and will prohibit the payment of any dividend to its members, the Minister may (after requiring, if he thinks fit, the proposal to be advertised in such manner as he directs either generally or in a particular case) approve that it be registered as a company with limited liability without the addition of the word “Limited” or “Berhad” to its name, and the company may be registered accordingly.
[12/2002]
(2)  Where it is proved to the satisfaction of the Minister —
(a)
that the objects of a limited company are restricted to those specified in subsection (1) and to objects incidental or conducive thereto;
(b)
that the company has some basis of national or general public interest;
(c)
that the company is in a financial position to carry out the objects for which it was formed; and
(d)
that by its constitution the company is required to apply its profits, if any, or other income in promoting its objects and is prohibited from paying any dividend to its members,
the Minister may grant his approval to the company to change its name to a name which does not contain the word “Limited” or “Berhad”, being a name approved by the Registrar.
[12/2002]
(3)  The Minister may grant his approval on such conditions as the Minister thinks fit, and those conditions shall be binding on the company and shall, if the Minister so directs, be inserted in the memorandum or articles of the company and the memorandum or articles may by special resolution be altered to give effect to any such direction.
[12/2002]
(4)  Where the memorandum or articles of a company include, as a result of a direction of the Minister given pursuant to subsection (3) or pursuant to any corresponding previous written law, a provision that the memorandum or articles shall not be altered except with the consent of the Minister, the company may, with the consent of the Minister, by special resolution alter any provision of the memorandum or articles.
(5)  A company shall, while an approval granted under this section to it is in force, be exempted from complying with the provisions of this Act relating to the use of the word “Limited” or “Berhad” as any part of its name.
[12/2002]
(6)  Any approval granted under this section may at any time be revoked by the Minister and, upon revocation, the Registrar shall enter the word “Limited” or “Berhad” at the end of the name of the company in the register, and the company shall thereupon cease to enjoy the exemption granted by reason of the approval under this section but before the approval is so revoked the Minister shall give to the company notice in writing of his intention and shall afford it an opportunity to be heard.
[12/2002]
(7)  Where the approval of the Minister under this section is revoked, the memorandum or articles of the company may be altered by special resolution so as to remove any provision in or to the effect that the memorandum or articles may be altered only with the consent of the Minister.
[12/2002; 5/2004]
(8)  Notice of any approval under this section shall be given by the Registrar on behalf of the Minister to the company or proposed limited company.
[12/2002]
(9)  Upon the application of the company or proposed limited company and payment of the prescribed fee, the Registrar shall issue to the company or proposed limited company a certificate confirming the approval under this section.
[12/2002]
[UK, 1948, s. 19; Aust., 1961, s. 24]
Registration of unlimited company as limited company, etc.
30.
—(1)  Subject to this section —
(a)
an unlimited company may convert to a limited company if it was not previously a limited company that became an unlimited company in pursuance of paragraph (b); and
(b)
a limited company may convert to an unlimited company if it was not previously an unlimited company that became a limited company in pursuance of paragraph (a) or any corresponding previous written law.
[15/84]
(2)  Where a company applies to the Registrar for a change of status as provided by subsection (1) and, subject to section 33(8) and (9) as applied by subsection (7), lodges with the application the prescribed documents relating to the application, the Registrar shall, upon registration of such prescribed documents so lodged as are registrable under this Act, issue to the company a notice of incorporation —
(a)
appropriate to the change of status applied for; and
(b)
specifying, in addition to the particulars prescribed in respect of a notice of incorporation of a company of that status, that the notice is issued in pursuance of this section,
and, upon the issue of such a notice of incorporation, the company shall be deemed to be a company having the status specified therein.
[15/84; 12/2002]
(3)  Where the status of a company is changed in pursuance of this section, notice of the change of status shall be published in such manner, if any, as the Registrar may direct.
[15/84]
(3A)  Upon the application of the company and payment of the prescribed fee, the Registrar shall issue to the company a certificate, under his hand and seal, confirming the incorporation of the company with the new status.
[12/2002]
(4)  In subsection (2), “prescribed documents”, in relation to an application referred to in that subsection, means —
(a)
a copy of a special resolution of the company —
(i)
resolving to change the status of the company and specifying the status sought;
(ii)
making such alterations to the memorandum of the company as are necessary to bring the memorandum into conformity with the requirements of this Act relating to the memorandum of a company of the status sought;
(iii)
making — where the company has registered articles — such alterations and additions to the articles, if any, as are necessary to bring the articles into conformity with the requirements of this Act relating to the articles of a company of the status sought;
(iv)
adopting — where the company has no registered articles — such articles, if any, as are required by this Act to be registered in respect of a company of the status sought or are proposed by the company as the registered articles of the company upon the change in its status; and
(v)
changing the name of the company to a name by which it could be registered if it were a company of the status sought;
(b)
where, by a special resolution referred to in paragraph (a), the memorandum of the company is altered or the articles of the company are altered or added to, or articles are adopted by the company — a copy of the memorandum as altered, the articles as altered or added to, or the articles adopted, as the case may be; and
(c)
in the case of an application by a limited company to convert to an unlimited company —
(i)
the prescribed form of assent to the application subscribed by or on behalf of all the members of the company; and
(ii)
a declaration by or on behalf of a director or the secretary of the company, or a prescribed person authorised by the company, verifying that the persons by whom or on whose behalf such a form of assent is subscribed constitute the whole membership of the company and, if a member has not subscribed the form himself, that the director, secretary or prescribed person making the declaration has taken all reasonable steps to satisfy himself that each person who subscribed the form was lawfully empowered to do so.
[15/84; 12/2002]
(5)  Section 26(2) to (6) shall not apply to or in relation to an application under this section or to any prescribed documents in relation to the application.
[15/84]
(6)  A special resolution passed for the purposes of an application under this section shall take effect only upon the issue under this section of a notice of incorporation of the company to which the resolution relates.
[15/84; 12/2002]
(7)  With such modifications as may be necessary, section 33 (except subsection (1) thereof) applies to and in respect of the proposal, passing and lodging, and the cancellation or confirmation by the Court, of a special resolution relating to a change of status as if it were a special resolution under that section.
[15/84]
(8)  A change in the status of a company in pursuance of this section does not operate —
(a)
to create a new legal entity;
(b)
to prejudice or affect the identity of the body corporate constituted by the company or its continuity as a body corporate;
(c)
to affect the property, or the rights or obligations, of the company; or
(d)
to render defective any legal proceedings by or against the company,
and any legal proceedings that could have been continued or commenced by or against it prior to the change in its status may, notwithstanding the change in its status, be continued or commenced by or against it after the change in its status.
[15/84]
Change from public to private company
31.
—(1)  A public company having a share capital may convert to a private company by lodging with the Registrar a copy of a special resolution —
(a)
determining to convert to a private company and specifying an appropriate alteration to its name; and
(b)
altering the provisions of its memorandum or articles so far as is necessary to impose the restrictions and limitations referred to in section 18(1).
[5/2004]
Change from private to public company
(2)  A private company may, subject to its memorandum or articles, convert to a public company by lodging with the Registrar —
(a)
a copy of a special resolution determining to convert to a public company and specifying an appropriate alteration to its name;
(b)
a statement in lieu of prospectus; and
(c)
a declaration in the prescribed form verifying that section 61(2)(b) has been complied with,
and thereupon the restrictions and limitations referred to in section 18(1) as included in or deemed to be included in the memorandum or articles of such company shall cease to form part of the memorandum or articles.
[12/2002; 5/2004]
(3)  On compliance by a company with subsection (1) or (2) and on the issue of a notice of incorporation altered accordingly the company shall be a private company or a public company (as the case requires).
[12/2002]
(3A)  The company shall, within one month of the issue of the notice of incorporation referred to in subsection (3), lodge with the Registrar in the prescribed form a list of persons holding shares in the company.
[12/2002]
(4)  A conversion of a company pursuant to subsection (1) or (2) shall not affect the identity of the company or any rights or obligations of the company or render defective any legal proceedings by or against the company, and any legal proceedings that could have been continued or commenced by or against it prior to the conversion may, notwithstanding any change in the company’s name or capacity in consequence of the conversion, be continued or commenced by or against it after the conversion.
(5)  Upon the application of the company and payment of the prescribed fee, the Registrar shall issue to the company a certificate, under his hand and seal, confirming the incorporation of the company with the new status.
[12/2002]
[Aust., 1961, s. 26]
Default in complying with requirements as to private companies
32.
—(1)  [Deleted by Act 5 of 2004]
(2)  Where —
(a)
default has been made in relation to a private company in complying with a limitation of a kind specified in section 18(1)(b) that is included, or is deemed to be included in the memorandum or articles of the company;
(b)
[Deleted by Act 5 of 2004]
(c)
the memorandum or articles of a private company have been so altered that they no longer include restrictions or limitations of the kinds specified in section 18(1); or
(d)
a private company has ceased to have a share capital,
the Registrar may by notice served on the company determine that, on such date as is specified in the notice, the company ceased to be a private company.
[5/2004]
(3)  Where, under this section, the Court or the Registrar determines that a company has ceased to be a private company —
(a)
the company shall be a public company and shall be deemed to have been a public company on and from the date specified in the order or notice;
(b)
the company shall, on the date so specified be deemed to have changed its name by the omission from its name of the word “Private” or the word “Sendirian”, as the case requires; and
(c)
the company shall, within a period of 14 days after the date of the order or the notice, lodge with the Registrar —
(i)
a statement in lieu of prospectus; and
(ii)
a declaration in the prescribed form verifying that section 61(2)(b) has been complied with.
[12/2002; 21/2005]
(4)  Where the Court is satisfied that a default or alteration referred to in subsection (2) has occurred but that it was accidental or due to inadvertence or to some other sufficient cause or that on other grounds it is just and equitable to grant relief, the Court may, on such terms and conditions as to the Court seem just and expedient, determine that the company has not ceased to be a private company.
[5/2004]
(5)  A company that, by virtue of a determination made under this section, has become a public company shall not convert to a private company without the leave of the Court.
(6)  If default is made in complying with subsection (3)(c), the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and also to a default penalty.
[15/84]
(7)  [Deleted by Act 5 of 2004]
(8)  Where default is made in relation to a private company in complying with any restriction or limitation of a kind specified in section 18(1) that is included, or deemed to be included, in the memorandum or articles of the company, the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months.
[15/84; 5/2004]
[UK, 1948, s. 29; Aust., 1961, s. 27]
Alterations of objects in memorandum
33.
—(1)  Subject to this section, a company may by special resolution alter the provisions of its memorandum with respect to the objects of the company, if any.
[5/2004]
(2)  Where a company proposes to alter its memorandum, with respect to the objects of the company, it shall give by post 21 days’ written notice specifying the intention to propose the resolution as a special resolution and to submit it for passing to a meeting of the company to be held on a day specified in the notice.
(3)  The notice shall be given to all members, and to all trustees for debenture holders and, if there are no trustees for any class of debenture holders, to all debenture holders of that class whose names are, at the time of the posting of the notice, known to the company.
(4)  The Court may in the case of any person or class of persons for such reasons as to it seem sufficient dispense with the notice required by subsection (2).
(5)  If an application for the cancellation of an alteration is made to the Court in accordance with this section by —
(a)
the holders of not less in the aggregate than 5% of the total number of issued shares of the company or any class of those shares or, if the company is not limited by shares, not less than 5% of the company’s members; or
(b)
the holders of not less than 5% in nominal value of the company’s debentures,
the alteration shall not have effect except so far as it is confirmed by the Court.
[10/74; 21/2005]
(5A)  For the purposes of subsection (5), any of the company’s issued share capital held as treasury shares shall be disregarded.
[21/2005]
(6)  The application shall be made within 21 days after the date on which the resolution altering the company’s objects was passed, and may be made on behalf of the persons entitled to make the application by such one or more of their number as they appoint in writing for the purpose.
(7)  On the application, the Court —
(a)
shall have regard to the rights and interests of the members of the company or of any class of them as well as to the rights and interests of the creditors;
(b)
may if it thinks fit adjourn the proceedings in order that an arrangement may be made to the satisfaction of the Court for the purchase (otherwise than by the company) of the interests of dissentient members;
(c)
may give such directions and make such orders as it thinks expedient for facilitating or carrying into effect any such arrangement; and
(d)
may make an order cancelling the alteration or confirming the alteration either wholly or in part and on such terms and conditions as it thinks fit.
(8)  Notwithstanding any other provision of this Act, a copy of a resolution altering the objects of a company shall not be lodged with the Registrar before the expiration of 21 days after the passing of the resolution, or if any application to the Court has been made, before the application has been determined by the Court, whichever is the later.
(9)  A copy of the resolution shall be lodged with the Registrar by the company within 14 days after the expiration of the 21 days referred to in subsection (8), but if an application has been made to the Court in accordance with this section, the copy shall be lodged with the Registrar together with a copy of the order of the Court within 14 days after the application has been determined by the Court.
[12/2002]
(10)  On compliance by a company with subsection (9), the alteration, if any, of the objects shall take effect.
(11)  For the avoidance of doubt, a reference in this section to the alteration of any provision of the memorandum of a company or the alteration of the objects of a company includes the removal of that provision or of all or any of those objects.
[5/2004]
[UK, 1948, s. 5; UK, Treasury Shares, Sch., para. 1; Aust., 1961, s. 28]
Alteration of memorandum by company pursuant to repeal and re-enactment of sections 10 and 14 of Residential Property Act
34.
—(1)  Where the memorandum of a company contains any of the provisions referred to in section 10(1) of the Residential Property Act (Cap. 274) in force immediately before 31st March 2006, the company may, be special resolution, amend its memorandum to remove that provision.
[9/2006]
(2)  Where the memorandum of a company contains a provision to the effect that its memorandum or articles of association shall not be altered to remove any of the provisions referred to in section 10(1) of the Residential Property Act in force immediately before 31st March 2006 except in accordance with the requirements of that Act —
(a)
that provision shall cease to have effect as from that date; and
(b)
the company may, by special resolution, amend its memorandum to remove that provision.
[9/2006]
Articles of association
35.
—(1)  There may in the case of a company limited by shares and there shall in the case of a company limited by guarantee or an unlimited company be registered with the memorandum, articles signed by the subscribers to the memorandum prescribing regulations for the company.
[15/84]
(2)  Articles shall comply with such requirements as may be prescribed.
[12/2002]
(3)  [Deleted by Act 21 of 2005]
(4)  In the case of an unlimited company or a company limited by guarantee the articles shall state the number of members with which the company proposes to be registered.
[15/84]
(5)  Where a company to which subsection (4) applies changes the number of its members so that it is different from the registered number, the company shall, within 14 days after the date on which the change was resolved or took place, lodge with the Registrar notice of the change in the prescribed form.
[12/2002]
(6)  Every company which makes default in complying with subsection (5) and every officer of the company who is in default in complying with that subsection shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and also to a default penalty.
[15/84]
[UK, 1948, ss. 6, 7; Aust., 1961, s. 29]
Adoption of Table A in Fourth Schedule
36.
—(1)  Articles may adopt all or any of the regulations contained in Table A.
(2)  In the case of a company limited by shares incorporated after 29th December 1967, if articles are not registered, or if articles are registered then, in so far as the articles do not exclude or modify the regulations contained in Table A, those regulations shall so far as applicable be the articles of the company in the same manner and to the same extent as if they were contained in registered articles.
[S 258/67]
[UK, 1948, s. 8; Aust., 1961, s. 30]
Alteration of articles
37.
—(1)  Subject to this Act (in particular section 26A and any provision included in its articles in accordance with that section) and to any conditions in its memorandum, a company may by special resolution alter or add to its articles.
[5/2004]
(2)  Any alteration or addition so made in the articles shall, subject to this Act, on and from the date of the special resolution or such later date as is specified in the resolution, be as valid as if originally contained therein and be subject in like manner to alteration by special resolution.
(3)  Subject to this section, any company shall have the power and shall be deemed always to have had the power to amend its articles by the adoption of all or any of the regulations contained in Table A, by reference only to the regulations in that Table or to the numbers of particular regulations contained therein, without being required in the special resolution effecting the amendment to set out the text of the regulations so adopted.
[UK, 1948, s. 10; Aust., 1961, s. 31]
As to memorandum and articles of companies limited by guarantee
38.
—(1)  In the case of a company limited by guarantee, every provision in the memorandum or articles or in any resolution of the company purporting to give any person a right to participate in the divisible profits of the company, otherwise than as a member, shall be void.
[15/84]
(2)  For the purposes of the provisions of this Act relating to the memorandum of a company limited by guarantee and of this section, every provision in the memorandum or articles or in any resolution of a company limited by guarantee purporting to divide the undertaking of the company into shares or interests shall be treated as a provision for a share capital notwithstanding that the number of the shares or interests is not specified thereby.
[21/2005]
[UK, 1948, s. 21; Aust., 1961, s. 32]
Effect of memorandum and articles
39.
—(1)  Subject to this Act, the memorandum and articles shall when registered bind the company and the members thereof to the same extent as if they respectively had been signed and sealed by each member and contained covenants on the part of each member to observe all the provisions of the memorandum and of the articles.
(2)  All money payable by any member to the company under the memorandum or articles shall be a debt due from him to the company.
As to effect of alterations on members who do not consent
(3)  Notwithstanding anything in the memorandum or articles of a company, no member of the company, unless either before or after the alteration is made he agrees in writing to be bound thereby, shall be bound by an alteration made in the memorandum or articles after the date on which he became a member so far as the alteration requires him to take or subscribe for more shares than the number held by him at the date on which the alteration is made or in any way increases his liability as at that date to contribute to the share capital of or otherwise to pay money to the company.
[UK, 1948, ss. 20, 22; Aust., 1961, s. 33]
Copies of memorandum and articles
40.
—(1)  A company shall, on being so required by any member, send to him a copy of the memorandum and of the articles, if any, subject to payment of $5 or such lesser sum as is fixed by the directors.
(2)  Where an alteration is made in the memorandum or articles of a company, a copy of the memorandum or articles shall not be issued by the company after the date of alteration unless —
(a)
the copy is in accordance with the alteration; or
(b)
a printed copy of the order or resolution making the alteration is annexed to the copy of the memorandum or articles and the particular clauses or articles affected are indicated in ink.
(3)  [Omitted of *
*  Subsection (3)section 40 is omitted from the 2006 Ed., being obsolete by virtue of the amendment to section 186 of the 1994 Ed. by the Companies (Amendment) Act 2003 (Act 8 of 2003).
]
(4)  If default is made in complying with this section the company and every officer of the company who is in default shall be guilty of an offence.
[UK, 1948, ss. 24, 25; Aust., 1961, s. 34]
Ratification by company of contracts made before incorporation
41.
—(1)  Any contract or other transaction purporting to be entered into by a company prior to its formation or by any person on behalf of a company prior to its formation may be ratified by the company after its formation and thereupon the company shall become bound by and entitled to the benefit thereof as if it had been in existence at the date of the contract or other transaction and had been a party thereto.
[10/74; 13/87]
(2)  Prior to ratification by the company the person or persons who purported to act in the name or on behalf of the company shall in the absence of express agreement to the contrary be personally bound by the contract or other transaction and entitled to the benefit thereof.
Form of contract
(3)  Contracts on behalf of a corporation may be made as follows:
(a)
a contract which if made between private persons would by law be required to be in writing under seal may be made on behalf of the corporation in writing under the common seal of the corporation;
(b)
a contract which if made between private persons would by law be required to be in writing signed by the parties to be charged therewith may be made on behalf of the corporation in writing signed by any person acting under its authority, express or implied;
(c)
a contract which if made between private persons would by law be valid although made by parol only (and not reduced into writing) may be made by parol on behalf of the corporation by any person acting under its authority, express or implied,
and any contract so made shall be effectual in law and shall bind the corporation and its successors and all other parties thereto and may be varied or discharged in the manner in which it is authorised to be made.
[UK, 1948, s. 32 (1) and (2); Aust., 1961, s. 35 (1)]
Authentication of documents
(4)  A document or proceeding requiring authentication by a corporation may be signed by an authorised officer of the corporation and need not be under its common seal.
[UK, 1948, s. 36; Aust., 1961, s. 35 (2)]
Execution of deeds
(5)  A corporation may by writing under its common seal empower any person, either generally or in respect of any specified matters, as its agent or attorney to execute deeds on its behalf and a deed signed by such an agent or attorney on behalf of the corporation and under his seal, or, subject to subsection (7), under the appropriate official seal of the corporation shall bind the corporation and have the same effect as if it were under its common seal.
[UK, 1948, s. 34; Aust., 1961, s. 35 (3)]
(6)  The authority of any such agent or attorney shall as between the corporation and any person dealing with him continue during the period, if any, mentioned in the instrument conferring the authority, or if no period is therein mentioned then until notice of the revocation or determination of his authority has been given to the person dealing with him.
[UK, 1948, s. 35 (4); Aust., 1961, s. 35 (4)]
Official seal for use abroad
(7)  A corporation whose objects require or comprise the transaction of business outside Singapore may, if authorised by its articles, have for use in any place outside Singapore an official seal, which shall be a facsimile of the common seal of the corporation with the addition on its face of the name of the place where it is to be used and the person affixing any such official seal shall, in writing under his hand, certify on the instrument to which it is affixed the date on which and the place at which it is affixed.
[Aust., 1961, s. 35 (5)]
Authority of agent of a corporation need not be under seal, unless seal required by law of foreign state
(8)  The fact that a power of attorney or document of authorisation given to or in favour of the donee of the power or agent of a corporation is not under seal shall not, if such power of attorney or document of authorisation is valid as a power of attorney or document of authorisation in accordance with the laws of the country under which such corporation is incorporated, affect for any purpose intended to be effected in Singapore the validity or effect of any instrument under seal executed on behalf of that corporation by such donee of the power or agent, which shall for all such purposes whatsoever be as valid as if such authority had been under seal.
[13/87]
Retrospective application
(9)  Subsection (8) shall also apply to every instrument under seal executed before 15th May 1987 on behalf of any corporation by a donee of a power or an agent of that corporation whose authority was not under seal.
[13/87]
Prohibition of carrying on business with fewer than statutory minimum of members
42.  [Repealed by Act 5 of 2004]
Company or foreign company with a charitable purpose which contravenes the Charities Act or regulations made thereunder may be wound up or struck off the register
42A.
—(1)  This section shall apply to a company or a foreign company —
(a)
that is registered under the Charities Act (Cap. 37); or
(b)
that has as its sole object or one of its principal objects a charitable purpose connected with persons, events or objects outside Singapore.
[22/93]
(2)  A company or foreign company to which this section applies that is convicted of an offence under the Charities Act or any regulations made thereunder shall be deemed to be a company or foreign company, as the case may be, that is being used for purposes prejudicial to public welfare and may be liable, in the case of a company, to be wound up by the Court under section 254(1)(m) or, in the case of a foreign company, to have its name struck off the register by the Registrar under section 377(8).
[22/93]
(3)  In this section, “charitable purpose” means any charitable purpose or object or any other religious, public or social purpose or object, whether or not charitable under the law of Singapore.
[22/93]
PART IV
SHARES, DEBENTURES AND CHARGES
Division 1 — Prospectuses
Requirement to issue form of application for shares or debentures with a prospectus
43.  [Repealed by S 236/2002]
As to invitations to the public to lend money to or to deposit money with a corporation
44.  [Repealed by S 236/2002]
Contents of prospectuses
45.  [Repealed by S 236/2002]
Profile statement
45A.  [Repealed by S 236/2002]
Exemption from requirements as to form or content of prospectus or profile statement
46.  [Repealed by S 236/2002]
Abridged prospectus for renounceable rights issues
47.  [Repealed by S 236/2002]
Restrictions on advertisements, etc.
48.  [Repealed by S 236/2002]
As to retention of over-subscriptions in debenture issues
49.  [Repealed by S 236/2002]
Registration of prospectus
50.  [Repealed by S 236/2002]
Lodging supplementary document or replacement document
50A.  [Repealed by S 236/2002]
Exemption for certain governmental and international corporations as regards the signing of a copy of prospectus by all directors
51.  [Repealed by S 236/2002]
Document containing offer of shares for sale deemed prospectus
52.  [Repealed by S 236/2002]
Allotment of shares and debentures where prospectus indicates application to list on stock exchange
53.  [Repealed by S 236/2002]
Expert’s consent to issue of prospectus containing statement by him
54.  [Repealed by S 236/2002]
Civil liability for false or misleading statements and omissions
55.  [Repealed by S 236/2002]
Persons liable to inform person making offer or invitation about certain deficiencies
55A.  [Repealed by S 236/2002]
Defences
55B.  [Repealed by S 236/2002]
Criminal liability for false or misleading statements and omissions
56.  [Repealed by S 236/2002]
Division 2 — Restrictions on allotment and commencement of business
Prohibition of allotment unless minimum subscription received
57.  [Repealed by S 236/2002]
Application and moneys to be held by the company in trust in a separate bank account until allotment
58.  [Repealed by S 236/2002]
Restriction on allotment in certain cases
59.
—(1)  A public company having a share capital which does not issue a prospectus on or with reference to its formation shall not allot any of its shares or debentures unless, at least 3 days before the first allotment of either shares or debentures, there has been lodged with the Registrar a statement in lieu of prospectus which complies with the requirements of this Act.
(2)  If default is made in complying with this section the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months.
[15/84]
(3)  Every director of a company who knowingly contravenes or permits or authorises the contravention of subsection (1) shall —
(a)
be guilty of an offence; and
(b)
be liable in addition to the penalty or punishment for the offence to compensate the company and allottee respectively for any loss, damages or costs which the company or allottee has sustained or incurred thereby.
[42/2001]
(4)  No proceedings for the recovery of any compensation referred to in subsection (3)(b) shall be commenced after the expiration of 2 years from the date of the allotment.
[42/2001]
[UK, 1948, s. 48; Aust., 1961, s. 50]
Requirements as to statements in lieu of prospectus
60.
—(1)  To comply with the requirements of this Act, a statement in lieu of prospectus lodged by or on behalf of a company —
(a)
shall be signed by every person who is named therein as a director or a proposed director of the company or by his agent authorised in writing;
(b)
shall, subject to Part III of the Sixth Schedule, be in the form of and state the matters specified in Part I of that Schedule and set out the reports specified in Part II of that Schedule; and
(c)
shall, where the persons making any report specified in Part II of that Schedule have made therein or have, without giving the reasons, indicated therein any such adjustments as are mentioned in paragraph 5 of Part III of that Schedule, have endorsed thereon or attached thereto a written statement signed by those persons setting out the adjustments and giving the reasons therefor.
(2)  The Registrar shall not accept for registration any statement in lieu of prospectus unless it appears to him to comply with the requirements of this Act.
(3)  Where in any statement in lieu of prospectus there is any untrue statement or wilful non-disclosure, any director who signed the statement in lieu of prospectus shall, unless he proves either that the untrue statement or non-disclosure was immaterial or that he had reasonable ground to believe and did up to the time of the delivery for registration of the statement in lieu of prospectus believe that the untrue statement was true or the non-disclosure immaterial, be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both.
[15/84]
[UK, 1948, s. 48; Aust., 1961, s. 51]
Restrictions on commencement of business in certain circumstances
61.
—(1)  Where a company having a share capital has issued a prospectus inviting the public to subscribe for its shares, the company shall not commence any business or exercise any borrowing power —
(a)
if any money is or may become liable to be repaid to applicants for any shares or debentures offered for public subscription by reason of any failure to apply for or obtain permission for listing for quotation on any securities exchange; or
(b)
unless —
(i)
shares held subject to the payment of the whole amount thereof in cash have been allotted to an amount not less in the whole than the minimum subscription;
(ii)
every director has paid to the company on each of the shares taken or contracted to be taken by him, and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares offered for public subscription; and
(iii)
there has been lodged with the Registrar a declaration in the prescribed form by —
(A)
the secretary or one of the directors of the company; or
(B)
a prescribed person authorised by the company,
verifying that sub-paragraphs (i) and (ii) have been complied with.
[12/2002; 8/2003]
(2)  Where a public company having a share capital has not issued a prospectus inviting the public to subscribe for its shares, the company shall not commence any business or exercise any borrowing power unless —
(a)
there has been lodged with the Registrar a statement in lieu of prospectus which complies with the provisions of this Act;
(b)
every director of the company has paid to the company on each of the shares taken or contracted to be taken by him, and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares payable in cash; and
(c)
there has been lodged with the Registrar a declaration in the prescribed form by —
(i)
the secretary or one of the directors of the company; or
(ii)
a prescribed person authorised by the company,
verifying that paragraph (b) has been complied with.
[12/2002; 8/2003]
(3)  The Registrar shall, on the lodgment of the declaration under subsection (1)(b)(iii) or (2)(c), as the case may be, issue a notice in the prescribed form that the company is entitled to commence business and to exercise its borrowing powers; and that notice shall be conclusive evidence of the matters stated in it.
[12/2002]
(4)  Any contract made by a company before the date on which it is entitled to commence business shall be provisional only and shall not be binding on the company until that date, and on that date it shall become binding.
(5)  Where shares and debentures are offered simultaneously by a company for subscription, nothing in this section shall prevent the receipt by the company of any money payable on application for the debentures.
(6)  If any company commences business or exercises borrowing powers in contravention of this section, every person who is responsible for the contravention shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $4,000 and to a default penalty of $250.
[15/84]
(7)  Upon the application of a company which has received a notice under subsection (3) and payment of the prescribed fee, the Registrar shall issue to the company a certificate, under his hand and seal, confirming that the company is entitled to commence business and to exercise its borrowing powers, and that certificate shall be conclusive evidence of the matters stated in it.
[12/2002]
[UK, 1948, s. 109; Aust., 1961, s. 52]
Restriction on varying contracts referred to in prospectus, etc.
62.  A company shall not before the statutory meeting vary the terms of a contract referred to in the prospectus or statement in lieu of prospectus, unless the variation is made subject to the approval of the statutory meeting.
[UK, 1948, s. 42; Aust., 1961, s. 53]
Division 3 — Shares
No par value shares
62A.
—(1)  Shares of a company have no par or nominal value.
[21/2005]
(2)  Subsection (1) shall apply to all shares, whether issued before, on or after 30th January 2006.
[21/2005]
[Aust., 2001, s. 254C]
Transitional provisions for section 62A
62B.
—(1)  For the purpose of the operation of this Act on or after 30th January 2006 in relation to a share issued before that date —
(a)
the amount paid on the share shall be the sum of all amounts paid to the company at any time for the share (but not including any premium); and
(b)
the amount unpaid on the share shall be the difference between the price of issue of the share (but not including any premium) and the amount paid on the share.
[21/2005]
(2)  On 30th January 2006, any amount standing to the credit of a company’s share premium account and any amount standing to the credit of a company’s capital redemption reserve shall become part of the company’s share capital.
[21/2005]
(3)  Notwithstanding subsection (2), a company may use the amount standing to the credit of its share premium account immediately before 30th January 2006 to —
(a)
provide for the premium payable on redemption of debentures or redeemable preference shares issued before that date;
(b)
write off —
(i)
the preliminary expenses of the company incurred before that date; or
(ii)
expenses incurred, or commissions or brokerages paid or discounts allowed, on or before that date, for or on any duty, fee or tax payable on or in connection with any issue of shares of the company;
(c)
pay up, pursuant to an agreement made before that date, shares which were unissued before that date and which are to be issued on or after that date to members of the company as fully paid bonus shares;
(d)
pay up in whole or in part the balance unpaid on shares issued before that date to members of the company; or
(e)
pay dividends declared before that date, if such dividends are satisfied by the issue of shares to members of the company.
[21/2005]
(4)  Notwithstanding subsection (2), if the company carries on insurance business in Singapore immediately before 30th January 2006, it may also apply the amount standing to the credit of its share premium account immediately before that date by appropriation or transfer to any fund established and maintained pursuant to the Insurance Act (Cap. 142).
[21/2005]
(5)  Notwithstanding subsection (1), the liability of a shareholder for calls in respect of money unpaid on shares issued before 30th January 2006 (whether on account of the par value of the shares or by way of premium) shall not be affected by the shares ceasing to have a par value.
[21/2005]
(6)  For the purpose of interpreting and applying, on or after 30th January 2006, a contract (including the memorandum and articles of the company) entered into before that date or a trust deed or other document executed before that date —
(a)
a reference to the par or nominal value of a share shall be a reference to —
(i)
if the share is issued before that date, the par or nominal value of the share immediately before that date;
(ii)
if the share is issued on or after that date but shares of the same class were on issue immediately before that date, the par or nominal value that the share would have had if it had been issued then; or
(iii)
if the share is issued on or after that date and shares of the same class were not on issue immediately before that date, the par or nominal value determined by the directors,
and a reference to share premium shall be taken to be a reference to any residual share capital in relation to the share;
(b)
a reference to a right to a return of capital on a share shall be taken to be a reference to a right to a return of capital of a value equal to the amount paid in respect of the share’s par or nominal value; and
(c)
a reference to the aggregate par or nominal value of the company’s issued share capital shall be taken to be a reference to that aggregate as it existed immediately before that date as —
(i)
increased to take account of the par or nominal value as defined in paragraph (a) of any shares issued on or after that date; and
(ii)
reduced to take account of the par or nominal value as defined in paragraph (a) of any shares cancelled on or after that date.
[21/2005]
(7)  A company may —
(a)
at any time before —
(i)
the date it is required under section 197(4) to lodge its first annual return after 30th January 2006; or
(ii)
the expiry of 6 months from 30th January 2006,
whichever is the earlier; or
(b)
within such longer period as the Registrar may, if he thinks fit in the circumstances of the case, allow,
file with the Registrar a notice in the prescribed form of its share capital.
[21/2005]
(8)  Unless a company has filed a notice of its share capital under subsection (7), the Registrar may for the purposes of the records maintained by the Authority adopt, as the share capital of the company, the aggregate nominal value of the shares issued by the company as that value appears in the Authority’s records immediately before 30th January 2006.
[21/2005]
[Aust., Corporations, ss. 1444, 1449; Companies, s. 69 (2) (modified)]
Return as to allotments
63.
—(1)  Where a company makes any allotment of its shares, other than a deemed allotment, the company shall within 14 days thereafter lodge with the Registrar a return of the allotments stating —
(a)
the number of the shares comprised in the allotment;
(b)
the amount (if any) paid or deemed to be paid on the allotment of each share;
(ba)
the amount (if any) unpaid on each share referred to in paragraph (b);
(c)
where the capital of the company is divided into shares of different classes the class of shares to which each share comprised in the allotment belongs; and
(d)
the full name, identification, nationality (if such identification or nationality, as the case may be, is required by the Registrar) and address of, and the number and class of shares held by —
(i)
each of its members; or
(ii)
if it has more than 50 members as a result of the allotment, each of the 50 members who, following the allotment, hold the most number of shares in the company (excluding treasury shares).
[12/2002; 21/2005]
(1A)  A return of allotments referred to in subsection (1) by a company the shares of which are listed on a stock exchange in Singapore need not state the particulars referred to in subsection (1)(d).
[12/2002]
(2)  In subsection (1), “identification” means in the case of a person issued with an identity card, the number of his identity card and, in the case of a person not issued with an identity card, particulars of his passport or such other similar evidence of identification as is available.
[15/84]
(3)  [Deleted by Act 12 of 2002]
(4)  Where shares are allotted as fully or partly paid up otherwise than in cash and the allotment is made pursuant to a contract in writing, the company shall lodge with the return the contract evidencing the entitlement of the allottee or a copy of any such contract certified as prescribed.
[12/2002]
(5)  If a certified copy of a contract is lodged, the original contract duly stamped shall if the Registrar so requests be produced at the same time to the Registrar.
(6)  Where shares are allotted as fully or partly paid up otherwise than in cash and the allotment is made —
(a)
pursuant to a contract not reduced to writing;
(b)
pursuant to a provision in the memorandum or articles; or
(c)
in satisfaction of a dividend declared in favour of, but not payable in cash to, the shareholders, or in pursuance of the application of moneys held by the company in an account or reserve in paying up unissued shares to which the shareholders have become entitled,
the company shall lodge with the return a statement containing such particulars as are prescribed but, where the shares are allotted pursuant to a scheme of arrangement approved by the Court under section 210, the company may lodge a copy of the order of the Court in lieu of the statement in the prescribed form.
[12/2002]
(7)  In this section, “deemed allotment” means an issue of shares without formal allotment to subscribers to the memorandum.
[12/2002]
(8)  If default is made in complying with this section, every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $4,000 and to a default penalty of $250.
[15/84]
[UK, 1948, s. 52; Aust., 1961, s. 54]
As to voting rights of equity shares in certain companies
64.
—(1)  Notwithstanding any provision in this Act or in the memorandum or articles of a company to which this section applies, but subject to sections 76J and 180(1), each equity share issued by such a company after 29th December 1967 shall confer the right at a poll at any general meeting of the company to one vote, and to one vote only, in respect of each equity share unless it is a management share issued by a newspaper company under section 10 of the Newspaper and Printing Presses Act (Cap. 206).
[15/84; 22/93; 21/2005]
(2)  Where any company to which this section applies has, prior to 29th December 1967, or, while it was a company to which this section did not apply, issued any equity share which does not comply with subsection (1), the company shall not issue any invitation to subscribe for or to purchase any shares or debentures of such company until the voting rights attached to each share of that company have been duly varied so as to comply with subsection (1).
[S 258/67]
(3)  For the purposes of this section, any alteration of the rights of issued preference shares so that they become equity shares shall be deemed to be an issue of equity shares.
(4)  The Minister may, by order published in the Gazette, declare that subsection (1) shall apply to all or any equity shares or any class of equity shares which have been issued before 29th December 1967 by a company to which this section applies and which is specified in the declaration and thereupon that subsection shall apply to such equity shares so issued by such company from such date as is specified in the declaration being a date not less than one year after the making of the declaration.
(5)  This section shall apply to a public company having a share capital.
[8/2003]
(6)  Any person who makes any invitation to the public in breach of subsection (2) 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 2 years.
[15/84]
Differences in calls and payments, etc.
65.
—(1)  A company if so authorised by its articles may —
(a)
make arrangements on the issue of shares for varying the amounts and times of payment of calls as between shareholders;
(b)
accept from any member the whole or a part of the amount remaining unpaid on any shares although no part of that amount has been called up; and
(c)
pay dividends in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others.
[UK, 1948, s. 59; Aust., 1961, ss. 55, 56]
Reserve liability
(2)  A limited company may by special resolution determine that any portion of its share capital which has not been already called up shall not be capable of being called up except in the event and for the purposes of the company being wound up, and thereupon that portion of its share capital shall not be capable of being called up except in the event and for the purposes of the company being wound up, but no such resolution shall prejudice the rights of any person acquired before the passing of the resolution.
[Aust., 1961, s. 56]
Share warrants
66.
—(1)  A company shall not issue any share warrant stating that the bearer of the warrant is entitled to the shares therein specified and which enables the shares to be transferred by delivery of the warrant.
[13/87]
(2)  The bearer of a share warrant issued before 29th December 1967 shall be entitled, on surrendering it for cancellation, to have his name entered in the register of members.
(3)  The company shall be responsible for any loss incurred by any person by reason of the company entering in the register the name of a bearer of a share warrant issued before 29th December 1967 in respect of the shares therein specified without the warrant being surrendered and cancelled.
[Aust., 1961, s. 57]
Power to pay certain commissions, and prohibition of payment of all other commissions, discounts, etc.
67.  [Repealed by Act 21 of 2005]
Power to issue shares at a discount
68.  [Repealed by Act 21 of 2005]
Issue of shares at premium
69.  [Repealed by Act 21 of 2005]
Relief from section 69
69A.  [Repealed by Act 21 of 2005]
Merger relief
69B.  [Repealed by Act 21 of 2005]
Relief from section 69 in respect of group reconstruction
69C.  [Repealed by Act 21 of 2005]
Retrospective relief from section 69 in certain circumstances
69D.  [Repealed by Act 21 of 2005]
Provisions supplementary to sections 69B and 69C
69E.  [Repealed by Act 21 of 2005]
Power to make provision extending or restricting relief from section 69
69F.  [Repealed by Act 21 of 2005]
Redeemable preference shares
70.
—(1)  Subject to this section, a company having a share capital may, if so authorised by its articles, issue preference shares which are, or at the option of the company are to be, liable to be redeemed and the redemption shall be effected only on such terms and in such manner as is provided by the articles.
(2)  The redemption shall not be taken as reducing the amount of share capital of the company.
[21/2005]
(3)  The shares shall not be redeemed unless they are fully paid up.
[21/2005]
(4)  The shares shall not be redeemed out of the capital of the company unless —
(a)
all the directors have made a solvency statement in relation to such redemption; and
(b)
the company has lodged a copy of the statement with the Registrar.
[21/2005]
(5)  [Deleted by Act 21 of 2005]
(6)  [Deleted by Act 21 of 2005]
(7)  [Deleted by Act 21 of 2005]
(8)  If a company redeems any redeemable preference shares it shall within 14 days after so doing give notice thereof to the Registrar specifying the shares redeemed.
[UK, 1948, s. 58; Aust., 1961, s. 61]
Power of company to alter its share capital
71.
—(1)  A company, if so authorised by its articles, may in general meeting alter its share capital in any one or more of the following ways:
(a)
[Deleted by Act 21 of 2005]
(b)
consolidate and divide all or any of its share capital;
(c)
convert all or any of its paid-up shares into stock and reconvert that stock into paid-up shares;
(d)
subdivide its shares or any of them, so however that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived;
(e)
cancel the number of shares which at the date of the passing of the resolution in that behalf have not been taken or agreed to be taken by any person or which have been forfeited and diminish the amount of its share capital by the number of the shares so cancelled.
[21/2005]
(1A)  The company may lodge with the Registrar notice of any alteration referred to in subsection (1)(b), (c), (d) or (e) in the prescribed form.
[12/2002]
Cancellations
(2)  A cancellation of shares under this section shall not be deemed to be a reduction of share capital within the meaning of this Act.
As to share capital of unlimited company on re-registration
(3)  An unlimited company having a share capital may by any resolution passed for the purposes of section 30(1) —
(a)
increase the amount of its share capital by increasing the issue price of each of its shares, but subject to the condition that no part of the increased capital shall be capable of being called up except in the event and for the purposes of the company being wound up; and
(b)
in addition or alternatively, provide that a specified portion of its uncalled share capital shall not be capable of being called up except in the event and for the purposes of the company being wound up.
[21/2005]
Notice of increase of share capital
(4)  [Deleted by Act 21 of 2005]
(5)  [Deleted by Act 21 of 2005]
[UK, 1948, ss. 61, 64; Aust., 1961, s. 62]
Validation of shares improperly issued
72.  Where a company has purported to issue or allot shares and the creation, issue or allotment of those shares was invalid by reason of any provision of this or any other written law or of the memorandum or articles of the company or otherwise or the terms of issue or allotment were inconsistent with or unauthorised by any such provision the Court may, upon application made by the company or by a holder or mortgagee of any of those shares or by a creditor of the company and upon being satisfied that in all the circumstances it is just and equitable to do so, make an order validating the issue or allotment of those shares or confirming the terms of issue or allotment thereof or both and upon a copy of the order being lodged with the Registrar those shares shall be deemed to have been validly issued or allotted upon the terms of the issue or allotment thereof.
[12/2002]
[Aust., 1961, s. 63]
Special resolution for reduction of share capital
73.  [Repealed by Act 21 of 2005]
Rights of holders of classes of shares
74.
—(1)  If, in the case of a company the share capital of which is divided into different classes of shares, provision is made by the memorandum or articles for authorising the variation or abrogation of the rights attached to any class of shares in the company, subject to the consent of any specified proportion of the holders of the issued shares of that class or the sanction of a resolution passed at a separate meeting of the holders of those shares, and in pursuance of that provision, the rights attached to any such class of shares are at any time varied or abrogated, the holders of not less in the aggregate than 5% of the issued shares of that class may apply to the Court to have the variation or abrogation cancelled, and, if any such application is made, the variation or abrogation shall not have effect until confirmed by the Court.
[10/74]
(1A)  For the purposes of subsection (1), any of the company’s issued share capital held as treasury shares shall be disregarded.
[21/2005]
(2)  An application shall not be invalid by reason of the applicants or any of them having consented to or voted in favour of the resolution for the variation or abrogation if the Court is satisfied that any material fact was not disclosed by the company to those applicants before they so consented or voted.
(3)  The application shall be made within one month after the date on which the consent was given or the resolution was passed or such further time as the Court allows, and may be made on behalf of the shareholders entitled to make the application by such one or more of their number as they appoint in writing for the purpose.
(4)  On the application the Court, after hearing the applicant and any other persons who apply to the Court to be heard and appear to the Court to be interested, may, if satisfied having regard to all the circumstances of the case that the variation or abrogation would unfairly prejudice the shareholders of the class represented by the applicant, disallow the variation or abrogation, as the case may be, and shall, if not so satisfied, confirm it and the decision of the Court shall be final.
(5)  The company shall, within 14 days after the making of an order by the Court on any such application, lodge a copy of the order with the Registrar and if default is made in complying with this provision the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and also to a default penalty.
[15/84; 12/2002]
(6)  The issue by a company of preference shares ranking pari passu with existing preference shares issued by the company shall be deemed to be a variation of the rights attached to those existing preference shares unless the issue of the first-mentioned shares was authorised by the terms of issue of the existing preference shares or by the articles of the company in force at the time the existing preference shares were issued.
(7)  For the purposes of this section, the alteration of any provision in the memorandum or articles of a company which affects or relates to the manner in which the rights attaching to the shares of any class may be varied or abrogated shall be deemed to be a variation or abrogation of the rights attached to the shares of that class.
(8)  This section shall not operate so as to limit or derogate from the rights of any person to obtain relief under section 216.
[UK, 1948, s. 72; UK, 2003, Sch., para. 9; Aust., 1961, s. 65]
Rights of holders of preference shares to be set out in memorandum or articles
75.
—(1)  No company shall allot any preference shares or convert any issued shares into preference shares unless there are set out in its memorandum or articles the rights of the holders of those shares with respect to repayment of capital, participation in surplus assets and profits, cumulative or non-cumulative dividends, voting and priority of payment of capital and dividend in relation to other shares or other classes of preference shares.
(2)  If default is made in complying with this section the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000.
[15/84]
[Aust., 1961, s. 66]
Company financing dealings in its shares, etc.
76.
—(1)  Except as otherwise expressly provided by this Act, a company shall not —
(a)
whether directly or indirectly, give any financial assistance for the purpose of, or in connection with —
(i)
the acquisition by any person, whether before or at the same time as the giving of financial assistance, of —
(A)
shares or units of shares in the company; or
(B)
shares or units of shares in a holding company of the company; or
(ii)
the proposed acquisition by any person of —
(A)
shares or units of shares in the company; or
(B)
shares or units of shares in a holding company of the company;
(b)
whether directly or indirectly, in any way —
(i)
acquire shares or units of shares in the company; or
(ii)
purport to acquire shares or units of shares in a holding company of the company; or
(c)
whether directly or indirectly, in any way, lend money on the security of —
(i)
shares or units of shares in the company; or
(ii)
shares or units of shares in a holding company of the company.
[13/87]
(2)  A reference in this section to the giving of financial assistance includes a reference to the giving of financial assistance by means of the making of a loan, the giving of a guarantee, the provision of security, the release of an obligation or the release of a debt or otherwise.
[13/87]
(3)  For the purposes of this section, a company shall be taken to have given financial assistance for the purpose of an acquisition or proposed acquisition referred to in subsection (1)(a) (referred to in this subsection as the relevant purpose) if —
(a)
the company gave the financial assistance for purposes that included the relevant purpose; and
(b)
the relevant purpose was a substantial purpose of the giving of the financial assistance.
[13/87]
(4)  For the purposes of this section, a company shall be taken to have given financial assistance in connection with an acquisition or proposed acquisition referred to in subsection (1)(a) if, when the financial assistance was given to a person, the company was aware that the financial assistance would financially assist —
(a)
the acquisition by a person of shares or units of shares in the company; or
(b)
where shares in the company had already been acquired — the payment by a person of any unpaid amount of the subscription payable for the shares, or the payment of any calls on the shares.
[13/87; 21/2005]
(5)  If a company contravenes subsection (1), the company shall not be guilty of an offence, notwithstanding section 407, but each officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 3 years or to both.
[13/87]
(6)  Where a person is convicted of an offence under subsection (5) and the Court by which he is convicted is satisfied that the company or another person has suffered loss or damage as a result of the contravention that constituted the offence, that Court may, in addition to imposing a penalty under that subsection, order the convicted person to pay compensation to the company or other person, as the case may be, of such amount as the Court specifies, and any such order may be enforced as if it were a judgment of the Court.
[13/87]
(7)  The power of a Court under section 391 to relieve a person to whom that section applies, wholly or partly and on such terms as the Court thinks fit, from a liability referred to in that section extends to relieving a person against whom an order may be made under subsection (6) from the liability to have such an order made against him.
[13/87]
(8)  Nothing in subsection (1) prohibits —
(a)
the payment of a dividend by a company in good faith and in the ordinary course of commercial dealing;
(b)
a payment made by a company pursuant to a reduction of capital in accordance with Division 3A of this Part;
(c)
the discharge by a company of a liability of the company that was incurred in good faith as a result of a transaction entered into on ordinary commercial terms;
(d)
anything done in pursuance of an order of Court made under section 210;
(e)
anything done under an arrangement made in pursuance of section 306;
(f)
anything done under an arrangement made between a company and its creditors which is binding on the creditors by virtue of section 309;
(g)
where a corporation is a borrowing corporation by reason that it is or will be under a liability to repay moneys received or to be received by it —
(i)
the giving, in good faith and in the ordinary course of commercial dealing, by a company that is a subsidiary of the borrowing corporation, of a guarantee in relation to the repayment of those moneys, whether or not the guarantee is secured by any charge over the property of that company; or
(ii)
the provision, in good faith and in the ordinary course of commercial dealing, by a company that is a subsidiary of the borrowing corporation, of security in relation to the repayment of those moneys;
(ga)
the giving by a company in good faith and in the ordinary course of commercial dealing of any representation, warranty or indemnity in relation to an offer to the public of, or an invitation to the public to subscribe for or purchase, shares or units of shares in that company;
(h)
the purchase by a company of shares in the company pursuant to an order of a Court;
(i)
the creation or acquisition, in good faith and in the ordinary course of commercial dealing, by a company of a lien on shares in the company (other than fully-paid shares) for any amount payable to the company in respect of the shares; or
(j)
the entering into, in good faith and in the ordinary course of commercial dealing, of an agreement by a company with a subscriber for shares in the company permitting the subscriber to make payments for the shares by instalments,
but nothing in this subsection —
(i)
shall be construed as implying that a particular act of a company would, but for this subsection, be prohibited by subsection (1); or
(ii)
shall be construed as limiting the operation of any rule of law permitting the giving of financial assistance by a company, the acquisition of shares or units of shares by a company or the lending of money by a company on the security of shares or units of shares.
[13/87; 21/2005]
(9)  Nothing in subsection (1) prohibits —
(a)
the making of a loan, or the giving of a guarantee or the provision of security in connection with one or more loans made by one or more other persons, by a company in the ordinary course of its business where the activities of that company are regulated by any written law relating to banking, finance companies or insurance or are subject to supervision by the Monetary Authority of Singapore and where —
(i)
the lending of money, or the giving of guarantees or the provision of security in connection with loans made by other persons, is done in the course of such activities; and
(ii)
the loan that is made by the company, or, where the guarantee is given or the security is provided in respect of a loan, that loan is made on ordinary commercial terms as to the rate of interest, the terms of repayment of principal and payment of interest, the security to be provided and otherwise;
(b)
the giving by a company of financial assistance for the purpose of, or in connection with, the acquisition or proposed acquisition of shares or units of shares in the company or in a holding company of the company to be held by or for the benefit of employees of the company or of a corporation that is related to the company, including any director holding a salaried employment or office in the company or in the corporation; or
(c)
the purchase or acquisition or proposed purchase or acquisition by a company of its own shares in accordance with sections 76B to 76G.
[13/87; 38/98; 21/2005]
(9A)  Nothing in subsection (1) prohibits the giving by a company of financial assistance for the purpose of, or in connection with, an acquisition or proposed acquisition by a person of shares or units of shares in the company or in a holding company of the company if —
(a)
the amount of the financial assistance, together with any other financial assistance given by the company under this subsection repayment of which remains outstanding, would not exceed 10% of the aggregate of —
(i)
the total paid-up capital of the company; and
(ii)
the reserves of the company,
as disclosed in the most recent financial statements of the company that comply with section 201;
(b)
the company receives fair value in connection with the financial assistance;
(c)
the board of directors of the company passes a resolution that —
(i)
the company should give the assistance;
(ii)
giving the assistance is in the best interests of the company; and
(iii)
the terms and conditions under which the assistance is given are fair and reasonable to the company;
(d)
the resolution sets out in full the grounds for the directors’ conclusions;
(e)
all the directors of the company make a solvency statement in relation to the giving of the financial assistance;
(f)
within 10 business days of providing the financial assistance, the company sends to each member a notice containing particulars of —
(i)
the class and number of shares or units of shares in respect of which the financial assistance was or is to be given;
(ii)
the consideration paid or payable for those shares or units of shares;
(iii)
the identity of the person receiving the financial assistance and, if that person is not the beneficial owner of those shares or units of shares, the identity of the beneficial owner; and
(iv)
the nature and, if quantifiable, the amount of the financial assistance; and
(g)
not later than the business day next following the day when the notice referred to in paragraph (f) is sent to members of the company, the company lodges with the Registrar a copy of that notice and a copy of the solvency statement referred to in paragraph (e).
[21/2005]
(9B)  Nothing in subsection (1) prohibits the giving by a company of financial assistance for the purpose of, or in connection with, an acquisition or proposed acquisition by a person of shares or units of shares in the company or in a holding company of the company if —
(a)
the board of directors of the company passes a resolution that —
(i)
the company should give the assistance;
(ii)
giving the assistance is in the best interests of the company; and
(iii)
the terms and conditions under which the assistance is given are fair and reasonable to the company;
(b)
the resolution sets out in full the grounds for the directors’ conclusions;
(c)
all the directors of the company make a solvency statement in relation to the giving of the financial assistance;
(d)
not later than the business day next following the day when the resolution referred to in paragraph (a) is passed, the company sends to each member having the right to vote on the resolution referred to in paragraph (e) a notice containing particulars of —
(i)
the directors’ resolution referred to in paragraph (a);
(ii)
the class and number of shares or units of shares in respect of which the financial assistance is to be given;
(iii)
the consideration payable for those shares or units of shares;
(iv)
the identity of the person receiving the financial assistance and, if that person is not the beneficial owner of those shares or units of shares, the identity of the beneficial owner;
(v)
the nature and, if quantifiable, the amount of the financial assistance; and
(vi)
such further information and explanation as may be necessary to enable a reasonable member to understand the nature and implications for the company and its members of the proposed transaction;
(e)
a resolution is passed —
(i)
by all the members of the company present and voting either in person or by proxy at the relevant meeting; or
(ii)
if the resolution is proposed to be passed by written means under section 184A, by all the members of the company,
to give that assistance;
(f)
not later than the business day next following the day when the resolution referred to in paragraph (e) is passed, the company lodges with the Registrar a copy of that resolution and a copy of the solvency statement referred to in paragraph (c); and
(g)
the financial assistance is given not more than 12 months after the resolution referred to in paragraph (e) is passed.
[21/2005]
(9C)  A company shall not give financial assistance under subsection (9A) or (9B) if, before the assistance is given —
(a)
any of the directors who voted in favour of the resolution under subsection (9A)(c) or (9B)(a), respectively —
(i)
ceases to be satisfied that the giving of the assistance is in the best interests of the company; or
(ii)
ceases to be satisfied that the terms and conditions under which the assistance is proposed are fair and reasonable to the company; or
(b)
any of the directors no longer has reasonable grounds for any of the opinions expressed in the solvency statement.
[21/2005]
(9D)  A director of a company is not relieved of any duty to the company under section 157 or otherwise, and whether of a fiduciary nature or not, in connection with the giving of financial assistance by the company for the purpose of, or in connection with, an acquisition or proposed acquisition of shares or units of shares in the company or in a holding company of the company, by —
(a)
the passing of a resolution by the board of directors of the company under subsection (9A) for the giving of the financial assistance; or
(b)
the passing of a resolution by the board of directors of the company, and the passing of a resolution by the members of the company, under subsection (9B) for the giving of the financial assistance.
[21/2005]
(10)  Nothing in subsection (1) prohibits the giving by a company of financial assistance for the purpose of, or in connection with, an acquisition or proposed acquisition by a person of shares or units of shares in the company or in a holding company of the company if —
(a)
the company, by special resolution, resolves to give financial assistance for the purpose of or in connection with, that acquisition;
(b)
where —
(i)
the company is a subsidiary of a listed corporation; or
(ii)
the company is not a subsidiary of a listed corporation but is a subsidiary whose ultimate holding company is incorporated in Singapore,
the listed corporation or the ultimate holding company, as the case may be, has, by special resolution, approved the giving of the financial assistance;
(c)
the notice specifying the intention to propose the resolution referred to in paragraph (a) as a special resolution sets out —
(i)
particulars of the financial assistance proposed to be given and the reasons for the proposal to give that assistance; and
(ii)
the effect that the giving of the financial assistance would have on the financial position of the company and, where the company is included in a group of corporations consisting of a holding company and a subsidiary or subsidiaries, the effect that the giving of the financial assistance would have on the financial position of the group of corporations,
and is accompanied by a copy of a statement made in accordance with a resolution of the directors, setting out the names of any directors who voted against the resolution and the reasons why they so voted, and signed by not less than 2 directors, stating whether, in the opinion of the directors who voted in favour of the resolution, after taking into account the financial position of the company (including future liabilities and contingent liabilities of the company), the giving of the financial assistance would be likely to prejudice materially the interests of the creditors or members of the company or any class of those creditors or members;
(d)
the notice specifying the intention to propose the resolution referred to in paragraph (b) as a special resolution is accompanied by a copy of the notice, and a copy of the statement, referred to in paragraph (c);
(e)
not later than the day next following the day when the notice referred to in paragraph (c) is despatched to members of the company there is lodged with the Registrar a copy of that notice and a copy of the statement that accompanied that notice;
(f)
the notice referred to in paragraph (c) and a copy of the statement referred to in that paragraph are sent to —
(i)
all members of the company;
(ii)
all trustees for debenture holders of the company; and
(iii)
if there are no trustees for, or for a particular class of, debenture holders of the company — all debenture holders, or all debenture holders of that class, as the case may be, of the company whose names are, at the time when the notice is despatched, known to the company;
(g)
the notice referred to in paragraph (d) and the accompanying documents are sent to —
(i)
all members of the listed corporation or of the ultimate holding company;
(ii)
all trustees for debenture holders of the listed corporation or of the ultimate holding company; and
(iii)
if there are no trustees for, or for a particular class of, debenture holders of the listed corporation or of the ultimate holding company — all debenture holders or debenture holders of that class, as the case may be, of the listed corporation or of the ultimate holding company whose names are, at the time when the notice is despatched, known to the listed corporation or the ultimate holding company;
(h)
within 21 days after the date on which the resolution referred to in paragraph (a) is passed or, in a case to which paragraph (b) applies, the date on which the resolution referred to in that paragraph is passed, whichever is the later, a notice —
(i)
setting out the terms of the resolution referred to in paragraph (a); and
(ii)
stating that any of the persons referred to in subsection (12) may, within the period referred to in that subsection, make an application to the Court opposing the giving of the financial assistance,
is published in a daily newspaper circulating generally in Singapore;
(i)
no application opposing the giving of the financial assistance is made within the period referred to in subsection (12) or, if such an application or applications has or have been made, the application or each of the applications has been withdrawn or the Court has approved the giving of the financial assistance; and
(j)
the financial assistance is given in accordance with the terms of the resolution referred to in paragraph (a) and not earlier than —
(i)
in a case to which sub-paragraph (ii) does not apply — the expiration of the period referred to in subsection (12); or
(ii)
if an application or applications has or have been made to the Court within that period —
(A)
where the application or each of the applications has been withdrawn — the withdrawal of the application or of the last of the applications to be withdrawn; or
(B)
in any other case — the decision of the Court on the application or applications.
[8/2003]
(10A)  If the resolution referred to in subsection (10)(a) or (b) is proposed to be passed by written means under section 184A, subsection (10)(f) or (g), as the case may be, shall be complied with at or before the time —
(a)
agreement to the resolution is sought in accordance with section 184C; or
(b)
documents referred to in section 183(3A) in respect of the resolution are served on or made accessible to members of the company in accordance with section 183(3A),
as the case may be.
[13/87; 8/2003]
(11)  Where, on application to the Court by a company, the Court is satisfied that the provisions of subsection (10) have been substantially complied with in relation to a proposed giving by the company of financial assistance of a kind mentioned in that subsection, the Court may, by order, declare that the provisions of that subsection have been complied with in relation to the proposed giving by the company of financial assistance.
[13/87]
(12)  Where a special resolution referred to in subsection (10)(a) is passed by a company, an application to the Court opposing the giving of the financial assistance to which the special resolution relates may be made, within the period of 21 days after the publication of the notice referred to in subsection (10)(h) —
(a)
by a member of the company;
(b)
by a trustee for debenture holders of the company;
(c)
by a debenture holder of the company;
(d)
by a creditor of the company;
(e)
if subsection (10)(b) applies by —
(i)
a member of the listed corporation or ultimate holding company that passed a special resolution referred to in that subsection;
(ii)
a trustee for debenture holders of that listed corporation or ultimate holding company;
(iii)
a debenture holder of that listed corporation or ultimate holding company; or
(iv)
a creditor of that listed corporation or ultimate holding company; or
(f)
by the Registrar.
[13/87]
(13)  Where an application or applications opposing the giving of financial assistance by a company in accordance with a special resolution passed by the company is or are made to the Court under subsection (12), the Court —
(a)
shall, in determining what order or orders to make in relation to the application or applications, have regard to the rights and interests of the members of the company or of any class of them as well as to the rights and interests of the creditors of the company or of any class of them; and
(b)
shall not make an order approving the giving of the financial assistance unless the Court is satisfied that —
(i)
the company has disclosed to the members of the company all material matters relating to the proposed financial assistance; and
(ii)
the proposed financial assistance would not, after taking into account the financial position of the company (including any future or contingent liabilities), be likely to prejudice materially the interests of the creditors or members of the company or of any class of those creditors or members,
and may do all or any of the following:
(A)
if it thinks fit, make an order for the purchase by the company of the interests of dissentient members of the company and for the reduction accordingly of the capital of the company;
(B)
if it thinks fit, adjourn the proceedings in order that an arrangement may be made to the satisfaction of the Court for the purchase (otherwise than by the company or by a subsidiary of the company) of the interests of dissentient members;
(C)
give such ancillary or consequential directions and make such ancillary or consequential orders as it thinks expedient;
(D)
make an order disapproving the giving of the financial assistance or, subject to paragraph (b), an order approving the giving of the financial assistance.
[13/87]
(14)  Where the Court makes an order under this section in relation to the giving of financial assistance by a company, the company shall, within 14 days after the order is made, lodge with the Registrar a copy of the order.
[13/87; 12/2002]
(15)  The passing of a special resolution by a company for the giving of financial assistance by the company for the purpose of, or in connection with, an acquisition or proposed acquisition of shares or units of shares in the company, and the approval by the Court of the giving of the financial assistance, do not relieve a director of the company of any duty to the company under section 157 or otherwise, and whether of a fiduciary nature or not, in connection with the giving of the financial assistance.
[13/87]
(16)  A reference in this section to an acquisition or proposed acquisition of shares or units of shares is a reference to any acquisition or proposed acquisition whether by way of purchase, subscription or otherwise.
[13/87]
(17)  This section does not apply in relation to the doing of any act or thing pursuant to a contract entered into before 15th May 1987 if the doing of that act or thing would have been lawful if this Act had not been enacted.
[13/87]
[UK, 1948, s. 54; Aust., 1961, s. 67; NZ, 1993, ss. 76-80; Companies, s. 76 (15) (modified)]
Consequences of company financing dealings in its shares, etc.
76A.
—(1)  The following contracts or transactions made or entered into in contravention of section 76 shall be void:
(a)
a contract or transaction by which a company acquires or purports to acquire its own shares or units of its own shares, or shares or units of shares in its holding company; and
(b)
a contract or transaction by which a company lends money on the security of its own shares or units of its own shares, or on the security of shares or units of shares in its holding company.
[13/87]
(2)  Subject to subsection (1), a contract or transaction made or entered into in contravention of section 76, or a contract or transaction related to such contract or transaction, shall be voidable at the option of the company. The company may, subject to the following provisions of this section, avoid any contract or transaction to which this subsection applies by giving notice in writing to the other party or parties to the contract or transaction.
[13/87]
(3)  The Court may, on the application of a member of a company, a holder of debentures of a company, a trustee for the holders of debentures of a company or a director of a company, by order, authorise the member, holder of debentures, trustee or director to give a notice or notices under subsection (2) in the name of the company.
[13/87]
(4)  Where —
(a)
a company makes or performs a contract, or engages in a transaction;
(b)
the contract is made or performed, or the transaction is engaged in, in contravention of section 76 or the contract or transaction is related to a contract that was made or performed, or to a transaction that was engaged in, in contravention of that section; and
(c)
the Court is satisfied, on the application of the company or of any other person, that the company or that other person has suffered, or is likely to suffer, loss or damage as a result of —
(i)
the making or performance of the contract or the engaging in of the transaction;
(ii)
the making or performance of a related contract or the engaging in of a related transaction;
(iii)
the contract or transaction being void by reason of subsection (1) or avoided under subsection (2); or
(iv)
a related contract or transaction being void by reason of subsection (1) or avoided under subsection (2),
the Court may make such order or orders as it thinks just and equitable (including, without limiting the generality of the foregoing, all or any of the orders mentioned in subsection (5)) against any party to the contract or transaction or to the related contract or transaction, or against the company or against any person who aided, abetted, counselled or procured, or was, by act or omission, in any way, directly or indirectly, knowingly concerned in or party to the contravention.
[13/87]
(5)  The orders that may be made under subsection (4) include —
(a)
an order directing a person to refund money or return property to the company or to another person;
(b)
an order directing a person to pay to the company or to another person a specified amount of the loss or damage suffered by the company or other person; and
(c)
an order directing a person to indemnify the company or another person against any loss or damage that the company or other person may suffer as a result of the contract or transaction or as a result of the contract or transaction being or having become void.
[13/87]
(6)  If a certificate signed by not less than 2 directors, or by a director and a secretary, of a company stating that the requirements of section 76(9A), (9B) or (10) (as the case may be), inclusive, have been complied with in relation to the proposed giving by the company of financial assistance for the purposes of an acquisition or proposed acquisition by a person of shares or units in the company or in a holding company of the company is given to a person —
(a)
the person to whom the certificate is given is not under any liability to have an order made against him under subsection (4) by reason of any contract made or performed, or any transaction engaged in, by him in reliance on the certificate; and
(b)
any such contract or transaction is not invalid, and is not voidable under subsection (2), by reason that the contract is made or performed, or the transaction is engaged in, in contravention of section 76 or is related to a contract that was made or performed, or to a transaction that was engaged in, in contravention of that section.
[13/87; 21/2005]
(7)  Subsection (6) does not apply in relation to a person to whom a certificate is given under that subsection in relation to a contract or transaction if the Court, on application by the company concerned or any other person who has suffered, or is likely to suffer, loss or damage as a result of the making or performance of the contract or the engaging in of the transaction, or the making or performance of a related contract or the engaging in of a related transaction, by order, declares that it is satisfied that the person to whom the certificate was given became aware before the contract was made or the transaction was engaged in that the requirements of section 76(9A), (9B) or (10) (as the case may be) had not been complied with in relation to the financial assistance to which the certificate related.
[13/87; 21/2005]
(8)  For the purposes of subsection (7), a person shall, in the absence of proof to the contrary, be deemed to have been aware at a particular time of any matter of which an employee or agent of the person having duties or acting on behalf of the person in relation to the relevant contract or transaction was aware at the time.
[13/87]
(9)  In any proceeding, a document purporting to be a certificate given under subsection (6) shall, in the absence of proof to the contrary, be deemed to be such a certificate and to have been duly given.
[13/87]
(10)  A person who has possession of a certificate given under subsection (6) shall, in the absence of proof to the contrary, be deemed to be the person to whom the certificate was given.
[13/87]
(11)  If a person signs a certificate stating that the requirements of section 76(9A), (9B) or (10) (as the case may be) have been complied with in relation to the proposed giving by a company of financial assistance and any of those requirements had not been complied with in respect of the proposed giving of that assistance at the time when the certificate was signed by that person, the person shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both.
[13/87; 21/2005]
(12)  It is a defence to a prosecution for an offence under subsection (11) if the defendant proves that at the time when he signed the certificate he believed on reasonable grounds that all the requirements of section 76(9A), (9B) or (10) (as the case may be) had been complied with in respect of the proposed giving of financial assistance to which the certificate relates.
[13/87; 21/2005]
(13)  The power of a Court under section 391 to relieve a person to whom that section applies, wholly or partly and on such terms as the Court thinks fit, from a liability referred to in that section extends to relieving a person against whom an order may be made under subsection (4) from the liability to have such an order made against him.
[13/87]
(14)  If a company makes a contract or engages in a transaction under which it gives financial assistance as mentioned in section 76(1)(a) or lends money as mentioned in section 76(1)(c), any contract or transaction made or engaged in as a result of or by means of, or in relation to, that financial assistance or money shall be deemed for the purposes of this section to be related to the first-mentioned contract or transaction.
[13/87]
(15)  Any rights or liabilities of a person under this section (including rights or liabilities under an order made by the Court under this section) are in addition to and not in derogation of any rights or liabilities of that person apart from this section but, where there would be any inconsistency between the rights and liabilities of a person under this section or under an order made by the Court under this section and the rights and liabilities of that person apart from this section, the provisions of this section or of the order made by the Court shall prevail.
[13/87]
Company may acquire its own shares
76B.
—(1)  Notwithstanding section 76, a company may, in accordance with this section and sections 76C to 76G, purchase or otherwise acquire shares issued by it if it is expressly permitted to do so by its articles.
[38/98; 36/2000]
(2)  This section and sections 76C to 76G shall apply to ordinary shares, stocks and preference shares.
[36/2000]
(3)  The total number of ordinary shares and stocks in any class that may be purchased or acquired by a company during the relevant period shall not exceed 10% (or such other percentage as the Minister may by notification prescribe) of the total number of ordinary shares and stocks of the company in that class ascertained —
(a)
as at the date of the last annual general meeting of the company held before any resolution passed pursuant to section 76C, 76D, 76DA or 76E; or
(b)
as at the date of such resolution,
whichever is the higher, unless —
(i)
the company has, at any time during the relevant period, reduced its share capital by a special resolution under section 78B or 78C; or
(ii)
the Court has, at any time during the relevant period, made an order under section 78I confirming the reduction of share capital of the company.
[21/2005]
(3A)  Where a company has reduced its share capital by a special resolution under section 78B or 78C, or the Court has made an order under section 78I, the total number of ordinary shares and stocks of the company in any class shall, notwithstanding subsection (3)(a) and (b), be taken to be the total number of ordinary shares and stocks of the company in that class as altered by the special resolution of the company or the order of the Court, as the case may be.
[21/2005]
(3B)  The total number of preference shares in any class which are not redeemable under section 70 that may be purchased or acquired by a company during the relevant period shall not exceed 10% (or such other percentage as the Minister may by notification prescribe) of the total number of non-redeemable preference shares of the company in that class ascertained —
(a)
as at the date of the last annual general meeting of the company held before any resolution passed pursuant to section 76C, 76D, 76DA or 76E; or
(b)
as at the date of such resolution,
whichever is the higher, unless —
(i)
the company has, at any time during the relevant period, reduced its share capital by a special resolution under section 78B or 78C; or
(ii)
the Court has, at any time during the relevant period, made an order under section 78I confirming the reduction of share capital of the company.
[21/2005]
(3C)  Where a company has reduced its share capital by a special resolution under section 78B or 78C, or the Court has made an order under section 78I, the total number of non-redeemable preference shares of the company in any class shall, notwithstanding subsection (3B)(a) and (b), be taken to be the total number of non-redeemable preference shares of the company in that class as altered by the special resolution of the company or the order of the Court, as the case may be.
[21/2005]
(3D)  There shall be no limit on the number of redeemable preference shares that may be purchased or acquired by a company during the relevant period.
[36/2000]
(3E)  For the purposes of this section, any of the company’s ordinary shares held as treasury shares shall be disregarded.
[21/2005]
(4)  In subsection (3), “relevant period” means the period commencing from the date the last annual general meeting of the company was held or if no such meeting was held the date it was required by law to be held before the resolution in question is passed, and expiring on the date the next annual general meeting is or is required by law to be held, whichever is the earlier, after the date the resolution in question is passed.
[38/98]
(5)  Ordinary shares that are purchased or acquired by a company pursuant to section 76C, 76D, 76DA or 76E shall, unless held in treasury in accordance with section 76H, be deemed to be cancelled immediately on purchase or acquisition.
[21/2005]
(5A)  Preference shares that are purchased or acquired by a company pursuant to section 76C, 76D, 76DA or 76E shall be deemed to be cancelled immediately on purchase or acquisition.
[21/2005]
(6)  On the cancellation of a share under subsection (5) or (5A), the rights and privileges attached to that share expire.
[38/98; 21/2005]
(7)  For the purposes of this section, shares are deemed to be purchased or acquired on the date on which the company would, apart from subsection (5), become entitled to exercise the rights attached to the shares.
[38/98]
(8)  Within 30 days of the passing of a resolution referred to in section 76C, 76D, 76DA or 76E, the directors of the company shall lodge with the Registrar a copy of the resolution.
[38/98; 8/2003]
(9)  Within 30 days of the purchase or acquisition of the shares, the directors of the company shall lodge with the Registrar the notice of the purchase or acquisition in the prescribed form with the following particulars:
(a)
the date of the purchase or acquisition;
(b)
the number of shares purchased or acquired;
(c)
the number of shares cancelled;
(d)
the number of shares held as treasury shares;
(e)
the company’s issued share capital before the purchase or acquisition;
(f)
the company’s issued share capital after the purchase or acquisition;
(g)
the amount of consideration paid by the company for the purchase or acquisition of the shares;
(h)
whether the shares were purchased or acquired out of the profits or the capital of the company; and
(i)
such other particulars as may be required in the prescribed form.
[38/98; 8/2003; 21/2005]
(10)  Nothing in this section or in sections 76C to 76G shall be construed so as to limit or affect an order of the Court made under any section that requires a company to purchase or acquire its own shares.
[38/98]
[UK, 1985, s. 162; Aust., Co. Law Rev. Act, 1998, Sch. 1 (ss. 257A, 257B, 257H); Aust., 2001, s. 254Y; NZ, 1993, ss. 58, 59, 66]
Authority for off-market acquisition on equal access scheme
76C.
—(1)  A company, whether or not it is listed on a securities exchange, may make a purchase or acquisition of its own shares otherwise than on a securities exchange (referred to in this section as an off-market purchase) if the purchase or acquisition is made in accordance with an equal access scheme authorised in advance by the company in general meeting.
[38/98; 42/2001]
(2)  The notice specifying the intention to propose the resolution to authorise an off-market purchase referred to in subsection (1) must —
(a)
specify the maximum number of shares or the maximum percentage of ordinary issued share capital authorised to be purchased or acquired;
(b)
determine the maximum price which may be paid for the shares;
(c)
specify a date on which the authority is to expire, being a date that must not be later than the date on which the next annual general meeting of the company is or is required by law to be held, whichever is the earlier; and
(d)
specify the sources of funds to be used for the purchase or acquisition including the amount of financing and its impact on the company’s financial position.
[38/98]
(3)  The resolution authorising an off-market purchase referred to in subsection (2) must state the particulars referred to in subsection (2)(a), (b) and (c).
[38/98]
(4)  The authority for an off-market purchase referred to in subsection (2) may, from time to time, be varied or revoked by the company in general meeting.
[38/98]
(5)  A resolution to confer or vary the authority for an off-market purchase under this section may determine the maximum price for purchase or acquisition by —
(a)
specifying a particular sum; or
(b)
providing a basis or formula for calculating the amount of the price in question without reference to any person’s discretion or opinion.
[38/98]
(6)  For the purposes of this section and sections 76D and 76DA, an “equal access scheme” means a scheme which satisfies all the following conditions:
(a)
the offers under the scheme are to be made to every person who holds shares to purchase or acquire the same percentage of their shares;
(b)
all of those persons have a reasonable opportunity to accept the offers made to them; and
(c)
the terms of all the offers are the same except that there shall be disregarded —
(i)
differences in consideration attributable to the fact that the offers relate to shares with different accrued dividend entitlements;
(ii)
differences in consideration attributable to the fact that the offers relate to shares with different amounts remaining unpaid; and
(iii)
differences in the offers introduced solely to ensure that each member is left with a whole number of shares.
[38/98; 8/2003]
[Aust., Co. Law Rev. Act, 1998, Sch. 1 (s. 257B)]
Authority for selective off-market acquisition
76D.
—(1)  A company may make a purchase or acquisition of its own shares otherwise than on a securities exchange and not in accordance with an equal access scheme (referred to in this section as a selective off-market purchase) if —
(a)
the purchase or acquisition is made in accordance with an agreement authorised in advance under subsection (2); and
(b)
the company is not listed on a securities exchange.
[38/98; 42/2001]
(2)  The terms of the agreement for a selective off-market purchase must be authorised by a special resolution of the company, with no votes being cast by any person whose shares are proposed to be purchased or acquired or by his associated persons, and subsections (3) to (13) shall apply with respect to that authority and to resolutions conferring it.
[38/98]
(3)  The notice specifying the intention to propose a special resolution to authorise an agreement for a selective off-market purchase must —
(a)
specify a date on which the authority is to expire, being a date that must not be later than the date on which the next annual general meeting of the company is or is required by law to be held, whichever is the earlier; and
(b)
specify the sources of funds to be used for the purchase or acquisition including the amount of financing and its impact on the company’s financial position.
[38/98]
(4)  The special resolution authorising a selective off-market purchase referred to in subsection (2) must state the expiry date referred to in subsection (3)(a).
[38/98]
(4A)  If the special resolution referred to in subsection (2) is proposed to be passed by written means under section 184A —
(a)
a person whose shares are proposed to be purchased or acquired or any of his associated persons shall not be regarded as a member having the right to vote on the resolution at a general meeting of the company for the purposes of section 184A;
(b)
subsection (7) does not apply; but all documents referred to in this section shall be given to all members having the right to vote on the resolution at a general meeting for the purposes of section 184A at or before the time —
(i)
agreement to the resolution is sought in accordance with section 184C; or
(ii)
documents referred to in section 183(3A) in respect of the resolution are served on or made accessible to them in accordance with section 183(3A),
as the case may be.
[8/2003]
(5)  The authority referred to in subsection (2) may, from time to time, be varied or revoked by a special resolution with no votes being cast by any person whose shares are proposed to be purchased or acquired or by his associated persons.
[38/98]
(6)  For the purposes of subsections (2) and (5) —
(a)
a member or his associated persons who holds any of the shares to which the resolution relates is regarded as exercising the voting rights carried by those shares not only if he votes in respect of them on a poll on the question whether the resolution shall be passed, but also if he votes on the resolution otherwise than on a poll;
(b)
notwithstanding anything in the company’s articles, any member of the company may demand a poll on that question; and
(c)
a vote and a demand for a poll by a person as proxy for a member or any of his associated persons are the same respectively as a vote and a demand by the member.
[38/98]
(7)  The special resolution referred to in subsection (2) is not effective for the purposes of this section unless (if the proposed agreement is in writing) a copy of the agreement or (if not) a written memorandum of its terms is available for inspection by members of the company both —
(a)
at the company’s registered office for not less than 15 days ending with the date of the meeting at which the resolution is passed; and
(b)
at the meeting itself.
[38/98]
(8)  A memorandum of terms so made available must include the names of any members holding shares to which the agreement relates and where a member holds such shares as nominee for another person, the name of that other person; and a copy of the agreement so made available must have annexed to it a written memorandum specifying any such names which do not appear in the agreement itself.
[38/98]
(9)  A company may agree to a variation of an existing agreement so approved, but only if the variation is authorised, before it is agreed to, by a special resolution of the company, with no votes being cast by any person whose shares are proposed to be purchased or acquired or by his associated persons.
[38/98]
(10)  Subsections (3) to (7) shall apply to the authority for a proposed variation as they apply to the authority for a proposed agreement except that a copy of the original agreement or (as the case may require) a memorandum of its terms, together with any variations previously made, must also be available for inspection in accordance with subsection (7).
[38/98]
(11)  The rights of a company under an agreement for a selective off-market purchase approved under this section shall not be capable of being assigned except by order of the Court made pursuant to any provision of this Act or any other written law.
[38/98]
(12)  An agreement by a company to release its rights under an agreement for a selective off-market purchase approved under this section is void unless the terms of the release agreement are approved in advance before the agreement is entered into by a special resolution of the company with no votes being cast by any person whose shares are proposed to be purchased or acquired or by his associated persons; and subsections (3) to (7) shall apply to the approval for a proposed release agreement as they apply to authority for the proposed variation of an existing agreement.
[38/98]
(13)  A resolution to confer or vary authority for a selective off-market purchase under this section may determine the maximum price for purchase or acquisition by —
(a)
specifying a particular sum; or
(b)
providing a basis or formula for calculating the amount of the price in question without reference to any person’s discretion or opinion.
[38/98]
(14)  For the purposes of this section, “associated person” in relation to a person means —
(a)
the person’s spouse, child or step-child; or
(b)
a person who would, by virtue of section 7(5), be treated as an associate of the first-mentioned person.
[38/98]
[UK, 1985, s. 164; Aust., Co. Law Rev. Act 1998, Sch. 1 (s. 257D)]
Contingent purchase contract
76DA.
—(1)  A company may, whether or not it is listed on a securities exchange, make a purchase or acquisition of its own shares under a contingent purchase contract if the proposed contingent purchase contract is authorised in advance by a special resolution of the company.
[8/2003]
(2)  Subject to subsection (3), the authority under subsection (1) may, from time to time, be varied or revoked by a special resolution of the company.
[8/2003]
(3)  The notice specifying the intention to propose a special resolution to authorise a contingent purchase contract must specify a date on which the authority is to expire and that date must not be later than the date on which the next annual general meeting of the company is or is required by law to be held, whichever is the earlier.
[8/2003]
(4)  The special resolution referred to in subsection (1) is invalid for the purposes of this section unless a copy of the proposed contingent purchase contract is available for inspection by members of the company —
(a)
at the company’s registered office for not less than 15 days ending with the date of the meeting at which the resolution is passed; and
(b)
at the meeting itself.
[8/2003]
(5)  A company may agree to a variation of an existing contingent purchase contract so approved if, and only if, the variation is authorised, before it is agreed to, by a special resolution of the company.
[8/2003]
(6)  Subsections (2), (3) and (4) shall apply to the authority for a proposed variation as they apply to the authority for a proposed contingent purchase contract, except that a copy of the original contract, together with any variations previously made, must also be available for inspection in accordance with subsection (4).
[8/2003]
(7)  The company may only make an offer to enter into a contingent purchase contract in accordance with all of the following conditions:
(a)
the offer must be made to every person who holds shares of the same class in the company;
(b)
the number of shares that a company is obliged or entitled to purchase or acquire under the contract from any person, in relation to the total number of shares of the same class held by that person, must be of the same proportion for every person who holds shares of that class to whom the offer is made; and
(c)
the terms of all offers in respect of each class of shares must be the same.
[8/2003]
(8)  For the avoidance of doubt, the company may purchase or acquire shares under a contingent purchase contract from any person whether or not the offer to enter into the contract was originally made to him.
[8/2003]
(9)  In this section, “contingent purchase contract” means a contract entered into by a company and relating to any of its shares —
(a)
which does not amount to a contract to purchase or acquire those shares; but
(b)
under which the company may (subject to any condition) become entitled or obliged to purchase or acquire those shares.
[8/2003]
[UK, 1985, s. 165]
Authority for market acquisition
76E.
—(1)  A company shall not make a purchase or acquisition of its own shares on a securities exchange (referred to in this section as a market purchase) unless the purchase or acquisition has been authorised in advance by the company in general meeting.
[38/98; 42/2001]
(2)  The notice specifying the intention to propose the resolution to authorise a market purchase must —
(a)
specify the maximum number of shares or the maximum percentage of ordinary issued share capital authorised to be purchased or acquired;
(b)
determine the maximum price which may be paid for the shares;
(c)
specify a date on which the authority is to expire, being a date that must not be later than the date on which the next annual general meeting of the company is or is required by law to be held, whichever is the earlier; and
(d)
specify the sources of funds to be used for the purchase or acquisition including the amount of financing and its impact on the company’s financial position.
[38/98]
(3)  The authority for a market purchase may be unconditional or subject to conditions and must state the particulars referred to in subsection (2)(a), (b) and (c).
[38/98]
(4)  The authority for a market purchase may, from time to time, be varied or revoked by the company in general meeting but the variation must comply with subsections (2) and (3).
[38/98]
(5)  A resolution to confer or vary authority for a market purchase under this section may determine the maximum price for purchase or acquisition by —
(a)
specifying a particular sum; or
(b)
providing a basis or formula for calculating the amount of the price in question without reference to any person’s discretion or opinion.
[38/98]
[UK, 1985, s. 166]
Payments to be made only if company is solvent
76F.
—(1)  A payment made by a company in consideration of —
(a)
acquiring any right with respect to the purchase or acquisition of its own shares in accordance with section 76C, 76D, 76DA or 76E;
(b)
the variation of an agreement approved under section 76D or 76DA; or
(c)
the release of any of the company’s obligations with respect to the purchase or acquisition of any of its own shares under an agreement approved under section 76D or 76DA,
may be made out of the company’s capital or profits so long as the company is solvent.
[21/2005]
(2)  If the requirements in subsection (1) are not satisfied in relation to an agreement —
(a)
in a case within subsection (1)(a), no purchase or acquisition by the company of its own shares in pursuance of that agreement is lawful;
(b)
in a case within subsection (1)(b), no such purchase or acquisition following the variation is lawful; and
(c)
in a case within subsection (1)(c), the purported release is void.
[21/2005]
(3)  Every director or manager of a company who approves or authorises, the purchase or acquisition of the company’s own shares or the release of obligations, knowing that the company is not solvent shall, without prejudice to any other liability, 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.
[21/2005]
(4)  For the purposes of this section, a company is solvent if —
(a)
the company is able to pay its debts in full at the time of the payment referred to in subsection (1) and will be able to pay its debts as they fall due in the normal course of business during the period of 12 months immediately following the date of the payment; and
(b)
the value of the company’s assets is not less than the value of its liabilities (including contingent liabilities) and will not after the proposed purchase, acquisition or release, become less than the value of its liabilities (including contingent liabilities).
[21/2005]
(5)  In determining, for the purposes of subsection (4), whether the value of a company’s assets is less than the value of its liabilities (including contingent liabilities), the directors or managers of a company —
(a)
must have regard to —
(i)
the most recent financial statements of the company that comply with section 201(1A), (3) and (3A), as the case may be; and
(ii)
all other circumstances that the directors or managers know or ought to know affect, or may affect, the value of the company’s assets and the value of the company’s liabilities (including contingent liabilities); and
(b)
may rely on valuations of assets or estimates of liabilities that are reasonable in the circumstances.
[21/2005]
(6)  In determining, for the purposes of subsection (5), the value of a contingent liability, the directors or managers of a company may take into account —
(a)
the likelihood of the contingency occurring; and
(b)
any claim the company is entitled to make and can reasonably expect to be met to reduce or extinguish the contingent liability.
[21/2005]
[Companies, s. 76F (modified)]
Reduction of capital or profits or both on cancellation of repurchased shares
76G.  Where under section 76C, 76D, 76DA or 76E, shares of a company are purchased or acquired, and cancelled under section 76B(5), the company shall —
(a)
reduce the amount of its share capital where the shares were purchased or acquired out of the capital of the company;
(b)
reduce the amount of its profits where the shares were purchased or acquired out of the profits of the company; or
(c)
reduce the amount of its share capital and profits proportionately where the shares were purchased or acquired out of both the capital and the profits of the company,
by the total amount of the purchase price paid by the company for the shares cancelled.
[21/2005]
Treasury shares
76H.
—(1)  Where ordinary shares or stocks are purchased or otherwise acquired by a company in accordance with sections 76B to 76G, the company may —
(a)
hold the shares or stocks (or any of them); or
(b)
deal with any of them, at any time, in accordance with section 76K.
[21/2005]
(2)  Where ordinary shares or stocks are held under subsection (1)(a) then, for the purposes of section 190 (Register and index of members), the company shall be entered in the register as the member holding those shares or stocks.
[21/2005]
[UK, 1985, s. 162A; UK, Treasury Shares, reg. 3]
Treasury shares: maximum holdings
76I.
—(1)  Where a company has shares of only one class, the aggregate number of shares held as treasury shares shall not at any time exceed 10% of the total number of shares of the company at that time.
[21/2005]
(2)  Where the share capital of a company is divided into shares of different classes, the aggregate number of the shares of any class held as treasury shares shall not at any time exceed 10% of the total number of the shares in that class at that time.
[21/2005]
(3)  Where subsection (1) or (2) is contravened by a company, the company shall dispose of or cancel the excess shares in accordance with section 76K before the end of the period of 6 months beginning with the day on which that contravention occurs, or such further period as the Registrar may allow.
[21/2005]
(4)  In subsection (3), “the excess shares” means such number of the shares, held by the company as treasury shares at the time in question, as resulted in the limit being exceeded.
[21/2005]
[UK, 1985, s. 162B; UK, Treasury Shares, reg. 3]
Treasury shares: voting and other rights
76J.
—(1)  This section shall apply to shares which are held by a company as treasury shares.
[21/2005]
(2)  The company shall not exercise any right in respect of the treasury shares and any purported exercise of such a right is void.
[21/2005]
(3)  The rights to which subsection (2) applies include any right to attend or vote at meetings (including meetings under section 210) and for the purposes of this Act, the company shall be treated as having no right to vote and the treasury shares shall be treated as having no voting rights.
[21/2005]
(4)  No dividend may be paid, and no other distribution (whether in cash or otherwise) of the company’s assets (including any distribution of assets to members on a winding up) may be made, to the company in respect of the treasury shares.
[21/2005]
(5)  Nothing in this section is to be taken as preventing —
(a)
an allotment of shares as fully paid bonus shares in respect of the treasury shares; or
(b)
the subdivision or consolidation of any treasury share into treasury shares of a smaller amount, if the total value of the treasury shares after the subdivision or consolidation is the same as the total value of the treasury share before the subdivision or consolidation, as the case may be.
[21/2005]
(6)  Any shares allotted as fully paid bonus shares in respect of the treasury shares shall be treated for the purposes of this Act as if they were purchased by the company at the time they were allotted, in circumstances in which section 76H applied.
[21/2005]
[UK, 1985, s. 162C; UK, Treasury Shares, reg. 3]
Treasury shares: disposal and cancellation
76K.
—(1)  Where shares are held as treasury shares, a company may at any time —
(a)
sell the shares (or any of them) for cash;
(b)
transfer the shares (or any of them) for the purposes of or pursuant to an employees’ share scheme;
(c)
transfer the shares (or any of them) as consideration for the acquisition of shares in or assets of another company or assets of a person;
(d)
cancel the shares (or any of them); or
(e)
sell, transfer or otherwise use the treasury shares for such other purposes as the Minister may by order prescribe.
[21/2005]
(2)  In subsection (1)(a), “cash”, in relation to a sale of shares by a company, means —
(a)
cash (including foreign currency) received by the company;
(b)
a cheque received by the company in good faith which the directors have no reason for suspecting will not be paid;
(c)
a release of a liability of the company for a liquidated sum; or
(d)
an undertaking to pay cash to the company on or before a date not more than 90 days after the date on which the company agrees to sell the shares.
[21/2005]
(3)  But if the company receives a notice under section 215 (Power to acquire shares of shareholders dissenting from scheme or contract approved by 90% majority) that a person desires to acquire any of the shares, the company shall not, under subsection (1), sell or transfer the shares to which the notice relates except to that person.
[21/2005]
(4)  The directors may take such steps as are requisite to enable the company to cancel its shares under subsection (1) without complying with section 78B (Reduction of share capital by private company), 78C (Reduction of share capital by public company) or 78I (Court order approving reduction).
[21/2005]
(5)  Within 30 days of the cancellation or disposal of treasury shares in accordance with subsection (1), the directors of the company shall lodge with the Registrar the notice of the cancellation or disposal of treasury shares in the prescribed form with such particulars as may be required in the form, together with payment of the prescribed fee.
[21/2005]
[UK, 1985, s. 162D; UK, Treasury Shares, reg. 3]
Options over unissued shares
77.
—(1)  An option granted after 29th December 1967 by a public company which enables any person to take up unissued shares of the company after a period of 5 years has elapsed from the date on which the option was granted shall be void.
[S 258/67]
(1A)  An option granted on or after 18th November 1998 by a public company which enables any employee of that company or its related corporation (including any director holding a salaried office or employment in that company or corporation) to take up unissued shares of the company after a period of 10 years has elapsed from the date on which the option was granted shall be void and subsection (1) shall not apply to such an option.
[38/98]
(2)  Subsection (1) or (1A) shall not apply in any case where the holders of debentures have an option to take up shares of the company by way of redemption of the debentures.
[38/98]
[Aust., 1961, s. 68]
Power of company to pay interest out of capital in certain cases
78.  Where any shares of a company are issued for the purpose of raising money to defray the expenses of the construction of any works or buildings or the provision of any plant which cannot be made profitable for a long period, the company may pay interest on so much of such share capital (except treasury shares) as is for the time being paid up and charge the interest so paid to capital as part of the cost of the construction or provision but —
(a)
no such payment shall be made unless it is authorised, by the articles or by special resolution, and is approved by the Court;
(b)
before approving any such payment, the Court may at the expense of the company appoint a person to inquire and report as to the circumstances of the case, and may require the company to give security for the payment of the costs of the inquiry;
(c)
the payment shall be made only for such period as is determined by the Court, but in no case extending beyond a period of 12 months after the works or buildings have been actually completed or the plant provided;
(d)
the rate of interest shall in no case exceed 5% per annum or such other rate as is for the time being prescribed; and
(e)
the payment of the interest shall not operate as a reduction of the amount paid up on the shares in respect of which it is paid.
[21/2005]
[UK, 1948, s. 65; Aust., 1961, s. 69]
Division 3A — Reduction of share capital
Preliminary
78A.
—(1)  A company may reduce its share capital under the provisions of this Division in any way and, in particular, do all or any of the following:
(a)
extinguish or reduce the liability on any of its shares in respect of share capital not paid up;
(b)
cancel any paid-up share capital which is lost or unrepresented by available assets;
(c)
return to shareholders any paid-up share capital which is more than it needs.
[21/2005]
(2)  A company may not reduce its share capital in any way except by a procedure provided for it by the provisions of this Division.
[21/2005]
(3)  A company’s memorandum or articles may exclude or restrict any power to reduce share capital conferred on the company by this Division.
[21/2005]
(4)  In this Division —
“Comptroller” means the Comptroller of Income Tax appointed under section 3(1) of the Income Tax Act (Cap. 134);
“reduction information”, in relation to a proposed reduction of share capital by a special resolution of a company, means the following information:
(a)
the amount of the company’s share capital that is thereby reduced; and
(b)
the number of shares that are thereby cancelled;
“resolution date”, in relation to a resolution, means the date when the resolution is passed.
[21/2005]
(5)  This Division shall not apply to an unlimited company, and shall not preclude such a company from reducing in any way its share capital.
[21/2005]
(6)  This Division shall not apply to the purchase or acquisition or proposed purchase or acquisition by a company of its own shares in accordance with sections 76B to 76G.
[21/2005]
[UK, 1985, s. 50]
Reduction of share capital by private company
78B.
—(1)  A private company limited by shares may reduce its share capital in any way by a special resolution if the company —
(a)
sends to the Comptroller a notice —
(i)
stating that the resolution has been passed; and
(ii)
containing the text of the resolution and the resolution date,
within 8 days beginning with the resolution date;
(b)
meets the solvency requirements; and
(c)
meets such publicity requirements as may be prescribed by the Minister,
but the resolution and the reduction of the share capital shall take effect only as provided by section 78E.
[21/2005]
(2)  Notwithstanding subsection (1), the company need not meet the solvency requirements if the reduction of share capital is solely by way of cancellation of any paid-up share capital which is lost or unrepresented by available assets.
[21/2005]
(3)  For the purposes of subsection (1), the company meets the solvency requirements if —
(a)
all the directors of the company make a solvency statement in relation to the reduction of capital; and
(b)
the statement is made —
(i)
in time for subsection (4)(a) to be complied with; but
(ii)
not before the beginning of the period of 15 days ending with the resolution date.
[21/2005]
(4)  Unless subsection (2) applies, the company —
(a)
shall —
(i)
if the resolution for reducing share capital is a special resolution to be passed by written means under section 184A, ensure that every copy of the resolution served under section 183(3A) or 184C(1) (as the case may be) is accompanied by a copy of the solvency statement; or
(ii)
if the resolution is a special resolution to be passed in a general meeting, throughout that meeting make the solvency statement or a copy of it available for inspection by the members at that meeting; and
(b)
shall, throughout the 6 weeks beginning with the resolution date, make the solvency statement or a copy of it available at the company’s registered office for inspection free of charge by any creditor of the company.
[21/2005]
(5)  The resolution does not become invalid by virtue only of a contravention of subsection (4), but every officer of the company who is in default shall be guilty of an offence.
[21/2005]
(6)  Any requirement under subsection (4)(b) ceases if the resolution is revoked.
[21/2005]
[UK, 1985, s. 51]
Reduction of share capital by public company
78C.
—(1)  A public company may reduce its share capital in any way by a special resolution if the company —
(a)
sends to the Comptroller a notice —
(i)
stating that the resolution has been passed; and
(ii)
containing the text of the resolution and the resolution date,
within 8 days beginning with the resolution date;
(b)
meets the solvency requirements; and
(c)
meets such publicity requirements as may be prescribed by the Minister,
but the resolution and the reduction of the share capital shall take effect only as provided by section 78E.
[21/2005]
(2)  Notwithstanding subsection (1), the company need not meet the solvency requirements if the reduction of share capital is solely by way of cancellation of any paid-up share capital which is lost or unrepresented by available assets.
[21/2005]
(3)  The company meets the solvency requirements if —
(a)
all the directors of the company make a solvency statement in relation to the reduction of share capital;
(b)
the statement is made —
(i)
in time for subsection (4)(a) to be complied with; but
(ii)
not before the beginning of the period of 22 days ending with the resolution date; and
(c)
a copy of the solvency statement is lodged with the Registrar, together with the copy of the resolution required to be lodged with the Registrar under section 186, within 15 days beginning with the resolution date.
[21/2005]
(4)  Unless subsection (2) applies, the company shall —
(a)
throughout the meeting at which the resolution is to be passed, make the solvency statement or a copy of it available for inspection by the members at the meeting; and
(b)
throughout the 6 weeks beginning with the resolution date, make the solvency statement or a copy of it available at the company’s registered office for inspection free of charge by any creditor of the company.
[21/2005]
(5)  The resolution does not become invalid by virtue only of a contravention of subsection (4), but every officer of the company who is in default shall be guilty of an offence.
[21/2005]
(6)  Any requirement under subsection (3)(c) or (4)(b) ceases if the resolution is revoked.
[21/2005]
[UK, 1985, ss. 52, 53, 88]
Creditor’s right to object to company’s reduction
78D.
—(1)  This section shall apply where a company has passed a special resolution for reducing share capital under section 78B or 78C.
[21/2005]
(2)  Any creditor of the company to which this subsection applies may, at any time during the 6 weeks beginning with the resolution date, apply to the Court for the resolution to be cancelled.
[21/2005]
(3)  Subsection (2) shall apply to a creditor of the company who, at the date of his application to the Court, is entitled to any debt or claim which, if that date were the commencement of the winding up of the company, would be admissible in proof against the company.
[21/2005]
(4)  When an application is made under subsection (2) —
(a)
the creditor shall as soon as possible serve the application on the company; and
(b)
the company shall as soon as possible give to the Registrar notice of the application.
[21/2005]
[UK, 1985, s. 54]
Position at end of period for creditor objections
78E.
—(1)  Where —
(a)
a private company passes a special resolution for reducing its share capital and meets the requirements under section 78B(1)(a) and (c) and the solvency requirements under section 78B(3) (if applicable); and
(b)
no application for cancellation of the resolution has been made under section 78D(2) during the 6 weeks beginning with the resolution date,
for the reduction of share capital to take effect, the company must lodge with the Registrar —
(i)
a copy of the resolution in accordance with section 186; and
(ii)
the following documents after the end of 6 weeks, and before the end of 8 weeks, beginning with the resolution date:
(A)
a copy of the solvency statement under section 78B(3) (if applicable);
(B)
a statement made by the directors confirming that the requirements under section 78B(1)(a) and (c) and the solvency requirements under section 78B(3) (if applicable) have been complied with, and that no application for cancellation of the resolution has been made; and
(C)
a notice containing the reduction information.
[21/2005]
(2)  Where —
(a)
a public company passes a special resolution for reducing its share capital and meets the requirements under section 78C(1)(a) and (c) and the solvency requirements (if applicable) under section 78C(3); and
(b)
no application for cancellation of the resolution has been made under section 78D(2) during the 6 weeks beginning with the resolution date,
for the reduction of share capital to take effect, the company must lodge with the Registrar the following documents after the end of 6 weeks, and before the end of 8 weeks, beginning with the resolution date:
(i)
a statement made by the directors confirming that the requirements under section 78C(1)(a) and (c) and the solvency requirements under section 78C(3) (if applicable) have been complied with, and that no application for cancellation of the resolution has been made; and
(ii)
a notice containing the reduction information.
[21/2005]
(3)  Where —
(a)
a private company passes a special resolution for reducing its share capital and meets the requirements under section 78B(1)(a) and (c) and the solvency requirements under section 78B(3) (if applicable); but
(b)
during the 6 weeks beginning with the resolution date, one or more applications for cancellation of the resolution are made under section 78D(2),
for the reduction of share capital to take effect, the following conditions must be satisfied:
(i)
the company has complied with section 78D(4)(b) (notification to Registrar) in relation to all such applications;
(ii)
the proceedings in relation to each such application have been brought to an end —
(A)
by the dismissal of the application under section 78F; or
(B)
without determination (for example, because the application has been withdrawn); and
(iii)
the company has, within 15 days beginning with the date on which the last such proceedings were brought to an end in accordance with paragraph (ii), lodged with the Registrar —
(A)
a statement made by the directors confirming that the requirements under section 78B(1)(a) and (c), the solvency requirements under section 78B(3) (if applicable) and section 78D(4)(b) have been complied with, and that the proceedings in relation to each such application have been brought to an end by the dismissal of the application or without determination;
(B)
in relation to each such application which has been dismissed by the Court, a copy of the order of the Court dismissing the application; and
(C)
a notice containing the reduction information.
[21/2005]
(4)  Where —
(a)
a public company passes a special resolution for reducing its share capital and meets the requirements under section 78C(1)(a) and (c) and the solvency requirements under section 78C(3) (if applicable); but
(b)
during the 6 weeks beginning with the resolution date, one or more applications for cancellation of the resolution are made under section 78D(2),
for the reduction of capital to take effect, the following conditions must be satisfied:
(i)
the company has complied with section 78D(4)(b) (notification to Registrar) in relation to all such applications;
(ii)
the proceedings in relation to each such application have been brought to an end —
(A)
by the dismissal of the application under section 78F; or
(B)
without determination (for example, because the application has been withdrawn); and
(iii)
the company has, within 15 days beginning with the date on which the last such proceedings were brought to an end in accordance with paragraph (ii), lodged with the Registrar —
(A)
a statement made by the directors confirming that the requirements under section 78C(1)(a) and (c), the solvency requirements under section 78C(3) (if applicable) and section 78D(4) have been complied with, and that the proceedings in relation to each such application have been brought to an end by the dismissal of the application or without determination;
(B)
in relation to each such application which has been dismissed by the Court, a copy of the order of the Court dismissing the application; and
(C)
a notice containing the reduction information.
[21/2005]
(5)  The resolution in a case referred to in subsection (1), (2), (3) or (4), and the reduction of the share capital, shall take effect when the Registrar has recorded the information lodged with him in the appropriate register.
[21/2005]
[UK, 1985, ss. 55, 57]
Power of Court where creditor objection made
78F.
—(1)  An application by a creditor under section 78D shall be determined by the Court in accordance with this section.
[21/2005]
(2)  The Court shall make an order cancelling the resolution if, at the time the application is considered, the resolution has not been cancelled previously, any debt or claim on which the application was based is outstanding and the Court is satisfied that —
(a)
the debt or claim has not been secured and the applicant does not have other adequate safeguards for it; and
(b)
it is not the case that security or other safeguards are unnecessary in view of the assets that the company would have after the reduction.
[21/2005]
(3)  Otherwise, the Court shall dismiss the application.
[21/2005]
(4)  Where the Court makes an order under subsection (2), the company must send notice of the order to the Registrar within 15 days beginning with the date the order is made.
[21/2005]
(5)  If a company contravenes subsection (4), every officer of the company who is in default shall be guilty of an offence.
[21/2005]
(6)  For the purposes of this section, a debt is outstanding if it has not been discharged, and a claim is outstanding if it has not been terminated.
[21/2005]
[UK, 1985, ss. 56, 58]
Reduction by special resolution subject to Court approval
78G.
—(1)  A company limited by shares may, as an alternative to reducing its share capital under section 78B or 78C, reduce it in any way by a special resolution approved by an order of the Court under section 78I, but the resolution and the reduction of the share capital shall not take effect until —
(a)
that order has been made;
(b)
the company has complied with section 78I(3) (lodgment of information with Registrar); and
(c)
the Registrar has recorded the information lodged with him under section 78I(3) in the appropriate register.
[21/2005]
(2)  The company shall —
(a)
within 8 days beginning with the resolution date; and
(b)
in any case, before making an application to the Court under subsection (1),
send to the Comptroller a notice stating that the resolution has been passed and containing the text of the resolution and the resolution date.
[21/2005]
[UK, 1985, s. 59]
Creditor protection
78H.
—(1)  This section shall apply if a company makes an application under section 78G(1) and the proposed reduction of share capital involves either —
(a)
a reduction of liability in respect of unpaid share capital; or
(b)
the payment to a shareholder of any paid-up share capital,
and also applies if the Court so directs in any other case where a company makes an application under that section.
[21/2005]
(2)  Upon the application to the Court, the Court shall settle a list of qualifying creditors.
[21/2005]
(3)  If the proposed reduction of share capital involves either —
(a)
a reduction of liability in respect of unpaid share capital; or
(b)
the payment to a shareholder of any paid-up share capital,
the Court may, if having regard to any special circumstances of the case it thinks it appropriate to do so, direct that any class or classes of creditors shall not be qualifying creditors.
[21/2005]
(4)  For the purpose of settling the list of qualifying creditors, the Court —
(a)
shall ascertain, as far as possible without requiring an application from any creditor, the names of qualifying creditors and the nature and amount of their debts or claims; and
(b)
may publish notices fixing a day or days within which creditors not included in the list are to claim to be so included or are to be excluded from the list.
[21/2005]
(5)  Any officer of the company who —
(a)
intentionally conceals the name of a qualifying creditor;
(b)
intentionally misrepresents the nature or amount of the debt or claim of any creditor; or
(c)
aids, abets or is privy to any such concealment or misrepresentation,
shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $15,000 or to imprisonment for a term not exceeding 3 years.
[21/2005]
(6)  In this section and section 78I but subject to subsection (3), “qualifying creditor” means a creditor of the company who, at a date fixed by the Court, is entitled to any debt or claim which, if that date were the commencement of the winding up of the company, would be admissible in proof against the company.
[21/2005]
[UK, 1985, s. 60]
Court order approving reduction
78I.
—(1)  On an application by a company under section 78G(1), the Court may, subject to subsection (2), make an order approving the reduction in share capital unconditionally or on such terms and conditions as it thinks fit.
[21/2005]
(2)  If, at the time the Court considers the application, there is a qualifying creditor within the meaning of section 78H —
(a)
who is included in the Court’s list of qualifying creditors under that section; and
(b)
whose claim has not been terminated or whose debt has not been discharged,
the Court must not make an order approving the reduction unless satisfied, as respects each qualifying creditor, that —
(i)
he has consented to the reduction;
(ii)
his debt or claim has been secured or he has other adequate safeguards for it; or
(iii)
security or other safeguards are unnecessary in view of the assets the company would have after the reduction.
[21/2005]
(3)  Where an order is made under this section approving a company’s reduction in share capital, the company shall (for the reduction to take effect) lodge with the Registrar —
(a)
a copy of the order; and
(b)
a notice containing the reduction information,
within 90 days beginning with the date the order is made, or within such longer period as the Registrar may, on the application of the company and on receiving the prescribed fee, allow.
[21/2005]
[UK, 1985, s. 61]
Offences for making groundless or false statements
78J.  A director making a statement under section 78E(1)(ii)(B), (2)(i), (3)(iii)(A) or (4)(iii)(A) shall be guilty of an offence if the statement —
(a)
is false; and
(b)
is not believed by him to be true.
[21/2005]
[UK, 1985, s. 65]
Liability of members on reduced shares
78K.  Where a company’s share capital is reduced under any provision of this Division, a member of the company (past or present) is not liable in respect of the issue price of any share to any call or contribution greater in amount than the difference (if any) between —
(a)
the issue price of the share; and
(b)
the aggregate of the amount paid up on the share (if any) and the amount reduced on the share.
[21/2005]
Division 4 — Substantial shareholdings
Application and interpretation of Division
79.
—(1)  This section shall have effect for the purposes of this Division but shall not prejudice the operation of any other provision of this Act.
(2)  A reference to a company is a reference —
(a)
to a company all or any of the shares in which are listed for quotation on the official list of a securities exchange as defined in the Securities and Futures Act (Cap. 289);
(b)
to a body corporate, being a body incorporated in Singapore, that is for the time being declared by the Minister, by notification in the Gazette, to be a company for the purposes of this Division; or
(c)
to a body, not being a body corporate formed in Singapore, that is for the time being declared by the Minister, by notification in the Gazette, to be a company for the purposes of this Division.
[62/70; 49/73; 42/2001]
(3)  In relation to a company the whole or a portion of the share capital of which consists of stock, an interest of a person in any such stock shall be deemed to be an interest in an issued share in the company having attached to it the same rights as are attached to that stock.
[21/2005]
(4)  A reference in the definition of “voting share” in section 4(1) to a body corporate includes a reference to a body referred to in subsection (2)(c).
Persons obliged to comply with Division
80.
—(1)  The obligation to comply with this Division extends to all natural persons, whether resident in Singapore or not and whether citizens of Singapore or not, and to all bodies corporate, whether incorporated or carrying on business in Singapore or not.
[62/70]
(2)  This Division extends to acts done or omitted to be done outside Singapore.
(3)  The Minister may, by order published in the Gazette, exempt any person or any class of persons from all or any of the provisions of this Division, subject to such terms or conditions as may be prescribed.
[5/2004]
Substantial shareholdings and substantial shareholders
81.
—(1)  For the purposes of this Division, a person has a substantial shareholding in a company if —
(a)
he has an interest or interests in one or more voting shares in the company; and
(b)
the total votes attached to that share, or those shares, is not less than 5% of the total votes attached to all the voting shares in the company.
[21/2005]
(2)  For the purposes of this Division, a person has a substantial shareholding in a company, being a company the share capital of which is divided into 2 or more classes of shares, if —
(a)
he has an interest or interests in one or more voting shares included in one of those classes; and
(b)
the total votes attached to that share, or those shares, is not less than 5% of the total votes attached to all the voting shares included in that class.
[21/2005]
(3)  For the purposes of this Division, a person who has a substantial shareholding in a company is a substantial shareholder in that company.
(4)  In this section and section 83, “voting shares” exclude treasury shares.
[21/2005]
(5)  [Deleted by Act 21 of 2005]
[Aust. 1961, s. 69C; Aust., 2001, s. 9]
Substantial shareholder to notify company of his interests
82.
—(1)  A person who is a substantial shareholder in a company shall give notice in writing to the company stating his name and address and full particulars (including unless the interest or interests cannot be related to a particular share or shares the name of the person who is registered as the holder) of the voting shares in the company in which he has an interest or interests and full particulars of each such interest and of the circumstances by reason of which he has that interest.
[62/70; 49/73; 13/87]
(2)  The notice shall be given —
(a)
if the person was a substantial shareholder on 1st October 1971 — within one month after that date; or
(b)
if the person became a substantial shareholder after that date — within 2 business days after becoming a substantial shareholder.
[8/2003; S249/71]
(3)  The notice shall be so given notwithstanding that the person has ceased to be a substantial shareholder before the expiration of whichever period referred to in subsection (2) is applicable.
[Aust. 1961, s. 69D]
Substantial shareholder to notify company of change in interests
83.
—(1)  Where there is a change in the percentage level of the interest or interests of a substantial shareholder in a company in voting shares in the company, the substantial shareholder shall give notice in writing to the company stating the information specified in subsection (2) within 2 business days after he becomes aware of such a change.
[8/2003]
(2)  The information referred to in subsection (1) shall be —
(a)
the name and address of the substantial shareholder;
(b)
the date of the change and the circumstances leading to that change; and
(c)
such other particulars as may be prescribed.
[8/2003]
(3)  In subsection (1), “percentage level”, in relation to a substantial shareholder, means the percentage figure ascertained by expressing the total votes attached to all the voting shares in which the substantial shareholder has an interest or interests immediately before or (as the case may be) immediately after the relevant time as a percentage of the total votes attached to —
(a)
all the voting shares in the company; or
(b)
where the share capital of the company is divided into 2 or more classes of shares, all the voting shares included in the class concerned,
and, if it is not a whole number, rounding that figure down to the next whole number.
[8/2003; 21/2005]
[Aust. 1961, s. 69E; Aust., 2001, s. 671B; UK, 1985, s. 200; HK S(DI), s. 5]
Person who ceases to be substantial shareholder to notify company
84.
—(1)  A person who ceases to be a substantial shareholder in a company shall give notice in writing to the company stating his name and the date on which he ceased to be a substantial shareholder and full particulars of the circumstances by reason of which he ceased to be a substantial shareholder.
[62/70; 10/74; 13/87]
(2)  The notice shall be given within 2 business days after the person ceased to be a substantial shareholder.
[8/2003]
[Aust. 1961, s. 69F]
References to operation of section 7
85.  The circumstances required to be stated in the notice under section 82, 83 or 84 include circumstances by reason of which, having regard to section 7 —
(a)
a person has an interest in voting shares;
(b)
a change has occurred in an interest in voting shares; or
(c)
a person has ceased to be a substantial shareholder in a company,
respectively.
[62/70]
[Aust. 1961, s. 69G]
Persons holding shares as trustees
86.
—(1)  A person who holds voting shares in a company, being voting shares in which a non-resident has an interest, shall give to the non-resident a notice in the prescribed form as to the requirements of this Division.
[62/70; 49/73; 13/87]
(2)  The notice shall be given —
(a)
if the first-mentioned person holds the shares on 1st October 1971 — within 14 days after that date; or
(b)
if the first-mentioned person did not hold the shares on that date — within 2 days after becoming the holder of the shares.
[S 249/71]
(3)  In this section, “non-resident” means a person who is not resident in Singapore or a body corporate that is not incorporated in Singapore.
(4)  Nothing in this section affects the operation of section 80.
Registrar may extend time for giving notice under this Division
87.  The Registrar may, on the application of a person who is required to give a notice under this Division, in his discretion, extend, or further extend, the time for giving the notice.
Company to keep register of substantial shareholders
88.
—(1)  A company shall keep a register in which it shall immediately enter —
(a)
in alphabetical order the names of persons from whom it has received a notice under section 82; and
(b)
against each name so entered, the information given in the notice and, where it receives a notice under section 83 or 84, the information given in that notice.
[62/70; 49/73; 15/84]
(2)  The register shall be kept at the registered office of the company, or, if the company does not have a registered office, at the principal place of business of the company in Singapore and shall be open for inspection by a member of the company without charge and by any other person on payment for each inspection of a sum of $2 or such lesser sum as the company requires.
(3)  A person may request the company to furnish him with a copy of the register or any part of the register on payment in advance of a sum of $1 or such lesser sum as the company requires for every page or part thereof required to be copied and the company shall send the copy to that person, within 14 days or such longer period as the Registrar thinks fit, after the day on which the request is received by the company.
(4)  The Registrar may at any time in writing require the company to furnish him with a copy of the register or any part of the register and the company shall furnish the copy within 7 days after the day on which the requirement is received by the company.
[49/73]
(5)  If default is made in complying with this section, the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 and in the case of a continuing offence to a further fine of $500 for every day during which the offence continues after conviction.
[15/84]
(6)  A company is not, by reason of anything done under this Division —
(a)
to be taken for any purpose to have notice of; or
(b)
to be put upon inquiry as to,
a right of a person to or in relation to a share in the company.
[Aust. 1961, s. 69K]
Offences against certain sections
89.  A person who fails to comply with section 82, 83, 84 or 86 shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 and in the case of a continuing offence to a further fine of $500 for every day during which the offence continues after conviction.
[62/70; 15/84]
[Aust. 1961, s. 69L]
Defence to prosecutions
90.
—(1)  It is a defence to a prosecution for failing to comply with section 82, 83, 84 or 86 if the defendant proves that his failure was due to his not being aware of a fact or occurrence the existence of which was necessary to constitute the offence and that —
(a)
he was not so aware on the date of the summons; or
(b)
he became so aware less than 7 days before the date of the summons.
[62/70; 15/84]
(2)  For the purposes of subsection (1), a person shall conclusively be presumed to have been aware of a fact or occurrence at a particular time —
(a)
of which he would, if he had acted with reasonable diligence in the conduct of his affairs, have been aware at that time; or
(b)
of which an employee or agent of the person, being an employee or agent having duties or acting in relation to his master’s or principal’s interest or interests in a share or shares in the company concerned, was aware or would, if he had acted with reasonable diligence in the conduct of his master’s or principal’s affairs, have been aware at that time.
Powers of Court with respect to defaulting substantial shareholders
91.
—(1)  Where a person is a substantial shareholder, or at any time after 1st October 1971 has been a substantial shareholder in a company and has failed to comply with section 82, 83 or 84, the Court may, on the application of the Minister, whether or not that failure still continues, make one or more of the following orders:
(a)
an order restraining the substantial shareholder from disposing of any interest in shares in the company in which he is or has been a substantial shareholder;
(b)
an order restraining a person who is, or is entitled to be registered as, the holder of shares referred to in paragraph (a) from disposing of any interest in those shares;
(c)
an order restraining the exercise of any voting or other rights attached to any share in the company in which the substantial shareholder has or has had an interest;
(d)
an order directing the company not to make payment, or to defer making payment, of any sum due from the company in respect of any share in which the substantial shareholder has or has had an interest;
(e)
an order directing the sale of all or any of the shares in the company in which the substantial shareholder has or has had an interest;
(f)
an order directing the company not to register the transfer or transmission of specified shares;
(g)
an order that any exercise of the voting or other rights attached to specified shares in the company in which the substantial shareholder has or has had an interest be disregarded;
(h)
for the purposes of securing compliance with any other order made under this section, an order directing the company or any other person to do or refrain from doing a specified act.
[62/70; S249/71]
(2)  Any order made under this section may include such ancillary or consequential provisions as the Court thinks just.
(3)  An order made under this section directing the sale of a share may provide that the sale shall be made within such time and subject to such conditions, if any, as the Court thinks fit, including, if the Court thinks fit, a condition that the sale shall not be made to a person who is, or, as a result of the sale, would become a substantial shareholder in the company.
(4)  The Court may direct that, where a share is not sold in accordance with an order of the Court under this section, the share shall vest in the Registrar.
(5)  The Court shall, before making an order under this section and in determining the terms of such an order, satisfy itself, so far as it can reasonably do so, that the order would not unfairly prejudice any person.
(6)  The Court shall not make an order under this section, other than an order restraining the exercise of voting rights, if it is satisfied —
(a)
that the failure of the substantial shareholder to comply as mentioned in subsection (1) was due to his inadvertence or mistake or to his not being aware of a relevant fact or occurrence; and
(b)
that in all the circumstances, the failure ought to be excused.
(7)  The Court may, before making an order under this section, direct that notice of the application be given to such persons as it thinks fit or direct that notice of the application be published in such manner as it thinks fit, or both.
(8)  The Court may rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.
(9)  Section 347 applies in relation to a share that vests in the Registrar under this section as it applies in relation to an estate or interest in property vested in the Official Receiver under the first-mentioned section.
(10)  Any person who contravenes or fails to comply with an order made under this section that is applicable to him shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 and, in the case of a continuing offence, to a further fine of $500 for every day during which the offence continues after conviction.
(11)  Subsection (10) does not affect the powers of the Court in relation to the punishment of contempt of the Court.
[Aust. 1961, s. 69N]
Power of company to require disclosure of beneficial interest in its voting shares
92.
—(1)  Any company all of the shares in which are listed for quotation on the official list of a securities exchange as defined in the Securities and Futures Act (Cap. 289) may by notice in writing require any member of the company within such reasonable time as is specified in the notice —
(a)
to inform it whether he holds any voting shares in the company as beneficial owner or as trustee; and
(b)
if he holds them as trustee, to indicate so far as he can the persons for whom he holds them (either by name or by other particulars sufficient to enable those persons to be identified) and the nature of their interest.
[10/74; 42/2001]
(2)  Where a company is informed in pursuance of a notice given to any person under subsection (1) or under this subsection that any other person has an interest in any of the voting shares in a company, the company may by notice in writing require that other person within such reasonable time as is specified in the notice —
(a)
to inform it whether he holds that interest as beneficial owner or as trustee; and
(b)
if he holds it as trustee, to indicate so far as he can the persons for whom he holds it (either by name or by other particulars sufficient to enable them to be identified) and the nature of their interest.
(3)  Any company to which this section applies may by notice in writing require any member of the company to inform it, within such reasonable time as is specified in the notice, whether any of the voting rights carried by any voting shares in the company held by him are the subject of an agreement or arrangement under which another person is entitled to control his exercise of those rights and, if so, to give particulars of the agreement or arrangement and the parties to it.
(4)  Whenever a company receives information from a person in pursuance of a requirement imposed on him under this section with respect to shares held by a member of the company, it shall be under an obligation to inscribe against the name of that member in a separate part of the register kept by it under section 88 —
(a)
the fact that the requirement was imposed and the date on which it was imposed; and
(b)
the information received in pursuance of the requirement.
(5)  Section 88 shall apply in relation to the part of the register referred to in subsection (4) as it applies in relation to the remainder of the register and as if references to subsection (1) of that section included references to subsection (4).
(6)  Subject to subsection (7), any person who —
(a)
fails to comply with a notice under this section; or
(b)
in purported compliance with such a notice makes any statement which he knows to be false in a material particular or recklessly makes any statement which is false in a material particular,
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 2 years.
[15/84]
(7)  A person shall not be guilty of an offence under subsection (6)(a) if he proves that the information in question was already in the possession of the company or that the requirement to give it was for any other reason frivolous or vexatious.
Division 5 — Debentures
Register of debenture holders and copies of trust deed
93.
—(1)  Every company which issues debentures (not being debentures transferable by delivery) shall keep a register of holders of the debentures at the registered office of the company or at some other place in Singapore.
(2)  Every company shall within 7 days after the register is first kept at a place other than the registered office lodge with the Registrar notice of the place where the register is kept and shall, within 7 days after any change in the place at which the register is kept, lodge with the Registrar notice of the change.
(3)  The register shall except when duly closed be open to the inspection of the registered holder of any debentures and of any holder of shares in the company and shall contain particulars of the names and addresses of the debenture holders and the amount of debentures held by them.
(4)  For the purposes of this section, a register shall be deemed to be duly closed if closed in accordance with the provisions contained in the articles or in the debentures or debenture stock certificates, or in the trust deed or other document relating to or securing the debentures, during such periods (not exceeding in the aggregate 30 days in any calendar year) as is therein specified.
(5)  Every registered holder of debentures and every holder of shares in a company shall at his request be supplied by the company with a copy of the register of the holders of debentures of the company or any part thereof on payment of $1 for every page or part thereof required to be copied, but the copy need not include any particulars as to any debenture holder other than his name and address and the debentures held by him.
(6)  A copy of any trust deed relating to or securing any issue of debentures shall be forwarded by the company to a holder of those debentures at his request on payment of the sum of $3 or such less sum as is fixed by the company, or where the copy has to be specially made to meet the request on payment of $1 for every page or part thereof required to be copied.
(7)  If inspection is refused, or a copy is refused or not forwarded within a reasonable time (but not more than one month) after a request has been made pursuant to this section, the company and every officer of the company who is in default shall be guilty of an offence.
(8)  A company which issues debentures may cause to be kept in any place outside Singapore a branch register of debenture holders which shall be deemed to be part of the company’s register of debenture holders and Division 4 of Part V shall with such adaptations as are necessary apply to and in relation to the keeping of a branch register of debenture holders.
(9)  If a company fails to comply with this section, the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and also to a default penalty.
[15/84]
[UK, 1948, s. 87; Aust., 1961, s. 70]
Specific performance of contracts
94.  A contract with a company to take up and pay for any debentures of the company may be enforced by an order for specific performance.
[UK, 1948, s. 92; Aust., 1961, s. 71]
Perpetual debentures
95.  A condition in any debenture or in any deed for securing any debentures whether the debenture or deed is issued or made before or after 29th December 1967 shall not be invalid by reason only that the debentures are thereby made irredeemable or redeemable only on the happening of a contingency however remote or on the expiration of a period however long, any rule of law or equity to the contrary notwithstanding.
[S 258/67]
[UK, 1948, s. 89; Aust., 1961, s. 72]
Reissue of redeemed debentures
96.
—(1)  Where a company has redeemed any debentures whether before or after 29th December 1967 —
(a)
unless any provision to the contrary, whether express or implied, is contained in the articles or in any contract entered into by the company; or
(b)
unless the company has, by passing a resolution to that effect or by some other act, manifested its intention that the debentures shall be cancelled,
the company shall have and shall be deemed always to have had power to reissue the debentures, either by reissuing the same debentures or by issuing other debentures in their place but the reissue of a debenture or the issue of one debenture in place of another under this subsection, whether the reissue or issue was made before or after that date, shall not be regarded as the issue of a new debenture for the purpose of any provision limiting the amount or number of debentures that may be issued by the company.
(2)  After the reissue the person entitled to the debentures shall have and shall be deemed always to have had the same priorities as if the debentures had never been redeemed.
(3)  Where a company has either before or after 29th December 1967 deposited any of its debentures to secure advances on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the company having ceased to be in debit while the debentures remain so deposited.
[S 258/67]
[UK, 1948, s. 90; Aust., 1961, s. 73]
Qualifications of trustee for debenture holders
97.  [Repealed by S 236/2002]
Retirement of trustees
98.  [Repealed by S 236/2002]
Contents of trust deed
99.  [Repealed by S 236/2002]
Power of Court in relation to certain irredeemable debentures
100.
—(1)  Notwithstanding anything in any debenture or trust deed, the security for any debentures which are irredeemable or redeemable only on the happening of a contingency shall, if the Court so orders, be 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 the holder of any of the debentures the Court is satisfied that —
(a)
at the time of the issue of the debentures the assets of the corporation 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 corporation 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) shall 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 corporation and creditors.
(3)  Subsection (1) shall not apply in relation to any debenture that is offered to the public for subscription or purchase.
[42/2001]
[Aust., 1961, s. 74c]
Duties of trustees
101.  [Repealed by S 236/2002]
Powers of trustee to apply to Court for directions, etc.
102.  [Repealed by S 236/2002]
Obligations of borrowing corporation
103.  [Repealed by S 236/2002]
Obligation of guarantor corporation to furnish information
104.  [Repealed by S 236/2002]
Loans and deposits to be immediately repayable on certain events
105.  [Repealed by S 236/2002]
Liability of trustees for debenture holders
106.  [Repealed by S 236/2002]
Division 5A — Exemptions from
Divisions 1 and 5 in relation to
Prospectus Requirements
Interpretation
106A.  [Repealed by S 236/2002]
Offer made by or to certain persons or under certain circumstances
106B.  [Repealed by S 236/2002]
Offer made to certain institutions or persons
106C.  [Repealed by S 236/2002]
Offer to sophisticated investors
106D.  [Repealed by S 236/2002]
Circumstances in which a prospectus is not