Jurisdiction - Singapore
Regulatory & Compliance
Drew & Napier
Singapore – New Regime On Disclosure Of Interests Under The Securities And Futures Act.

26 November, 2012

 

Legal News & Analysis – Asia Pacific – Singapore – Regulatory & Compliance

 

INTRODUCTION
 
The Securities and Futures (Amendment) Act 2009 (“Amendment Act”) was passed by Parliament on 19 January 2009. The amendments have taken effect in several stages, and the latest set of amendments in relation to the disclosure of interests regime under Part VII of the Securities and Futures Act (“SFA”) came into force on 19 November 2012. Such amendments:  
 
  • (a) consolidate the disclosure requirements for listed corporations, listed registered and recognised business trusts (“BTs”) and real estate investment trusts (“REITs”) under the SFA; 
  • (b) no longer require directors and substantial shareholders to separately report their interests and changes, in securities to the Singapore Exchange (“SGX”). The amended provisions require disclosure to be made to the listed entity and for the listed entity to announce this information; 
  • (c) extend the notification requirements to Chief Executive Officers (“CEOs”) who are not directors; 
  • (d) extend the notification requirements for directors and substantial shareholders to report their interests or changes, which currently apply only to Singapore incorporated listed companies, and to foreign-incorporated corporations with a primary listing on the SGX; 
  • (e) extend the notification regime to managers of REITs and BTs; 
  • (f) introduce electronic forms for use by directors, CEOs and substantial shareholders/unitholders to notify their interests or change in interest, and to introduce changes to the SGXNet announcement template to allow the listed entity to attach the electronic notification form directly for dissemination; and 
  • (g) introduce a stiffer penalty of up to S$250,000 and/or imprisonment for a term not exceeding two years for material contraventions which are committed intentionally or recklessly with the possibility of civil penalties for such flagrant breaches. 
 
The key disclosure obligations are set out below. 
 
DISCLOSURE OBLIGATIONS 
 
Under the previous regime, the following disclosure obligations were applicable to substantial shareholders and directors in respect of their interests in securities in Singaporeincorporated listed companies: 
 
  • (a) substantial shareholders (who have an interest in 5% or more of the voting shares in a listed company) had to make notifications upon acquiring an interest in 5% or more of the voting shares in a Singapore-incorporated listed company, or upon any changes in a substantial shareholder’s interests in voting shares; and 
  • (b) directors had to make notifications in respect of interests in voting shares upon becoming a director of the Singaporeincorporated listed company, and upon any changes in interests in voting shares.
 
Such notifications had to be made to both the listed company and SGX within two business days. With effect from 19 November 2012, such disclosure obligations have been consolidated under the SFA. While disclosure obligations remain largely the same:  
 
  • (a) the disclosure obligations have been extended beyond Singapore-incorporated companies listed on SGX, to foreignincorporated corporations with a primary listing on SGX (each a “listed corporation”); 
  • (b) the disclosure obligations have been extended to CEOs (who are not directors of listed corporations); and
  • (c) the obligation to notify SGX of any notifications of interests and changes received from directors, CEOs and substantial shareholders has been shifted to listed corporations. 
 
TIMELINE FOR DISCLOSURE OF INTERESTS
 
The timeline for notification of the listed corporation by directors, CEOs and substantial shareholders in relation to the disclosure of interest obligations outlined above remains unchanged. Such notifications have to be made within two business days. 
 
Upon receipt of such notifications, a listed corporation is obliged to announce or otherwise disseminate the information contained in such notifications before the end of the next business day. 
 
SECURITIES HELD ON BEHALF OF A BENEFICIAL OWNER
 
Disclosure obligations imposed on beneficial owner and authorised holder
 
With effect from 19 November 2012, where a person holds securities on behalf of a beneficial owner (“authorised holder”), the authorised holder has an obligation to inform the beneficial owner of any acquisition or disposal of such securities within two business days, except where:  
 
  • (a) the acquisition or disposal of such securities was effected according to the instructions of the beneficial owner, or 
  • (b) the authorised holder holds the securities as a bare trustee, custodian or nominee on behalf of the beneficial owner.  
 
The beneficial owner of such securities also has an obligation to take reasonable steps to ensure that the authorised holder notifies him of any acquisition or disposal of such securities within two business days.  
 
Power to require disclosure of beneficial interest  
 
A listed corporation has the right to seek confirmation from a shareholder on whether: 
 
  • (a) he holds any voting shares as beneficial owner or trustee; 
  • (b) he holds such voting shares as trustee, the persons for whom he holds them and the nature of their interests; and 
  • (c) any voting rights carried by any voting shares held by such shareholder are the subject of an agreement or arrangement under which another person is entitled to control such shareholder’s exercise of those rights.  
 
Upon receipt of such written request, a shareholder is obliged to provide the listed corporation with the requested information.  
 
APPLICABLE SECURITIES
 
As regards substantial shareholders of listed corporations, the notification obligations extend to voting shares held by such shareholder, even if such shareholder has disposal but not voting rights in voting shares. 
 
For directors and CEOs, in addition to voting shares, the notification requirements under the new regime extend to interests in: 
 
  • (a) non-voting shares; 
  • (b) debentures; 
  • (c) rights or options;  
  • (d) contracts with a right to call for or make 
  • delivery of shares; and  
  • (e) participatory interests,  
 
in the listed corporation (collectively, “relevant securities”). The notification requirements under the new regime in relation to directors of a listed corporation incorporated in Singapore further extends to interests in the relevant securities of related corporations of the listed corporation.  
 
FORM OF NOTIFICATION
 
From 19 November 2012, notifications have to be made in MAS’s prescribed notification forms, available on MAS’s website here.  
 
Electronic notification forms may be emailed to the listed corporation, while non-electronic notification forms may be scanned and emailed, faxed or delivered by hand to the listed corporation.  
 
While a listed corporation may upload an electronically completed form onto SGXNet directly, it is required to transcribe the information contained in a non-electronic form onto the electronic form before uploading it onto SGXNet, which may give rise to the possibility of transcription errors.   
 
PENALTIES FOR NON-COMPLIANCE
 
From 19 November 2012, penalties for noncompliance are significantly higher in certain circumstances. The fine imposed has increased from S$25,000 and S$2,500 respectively, per day for a continuing offence to S$250,000 and S$25,000 respectively, per day for a continuing offence in the case where a contravention was intentional or reckless, or false or misleading information was knowingly released in purported compliance of the provisions.   
 
Further, if the contravention was committed by an individual, such individual may be imprisoned for a term not exceeding two years. In other circumstances, the penalty for non-compliance is a fine not exceeding S$25,000 and S$2,500 respectively, per day during which the offence continues after conviction. 
 
The disclosure obligations arise upon the relevant persons becoming aware of the interests or changes. A person is presumed to be aware of such interests or changes if he would have been aware had he acted with reasonable diligence. In the case where a person is an entity, the officers (in the case of a body corporate or unincorporated association), partners or managers (in the case of a limited liability partnership) and partners (in the case of a partnership) are required to act with reasonable diligence. 
 
LISTED BTS AND REITS
 
With respect to BTs and REITs, the provisions regarding disclosure of interests obligations are largely similar to those applicable to listed corporations, except that, the additional disclosure obligations would apply:  
 
  • (a) directors and CEOs of the trusteemanager of a BT or of a responsible person of a REIT, shall notify the trusteemanager or the responsible person (as applicable) of interests or changes in units or derivatives of units in the BT or REIT, and debentures or units of debentures in the BT or REIT; and 
  • (b) substantial unitholders of a BT or a REIT shall notify the trustee-manager of the BT or the trustee and responsible person of the REIT (respectively) of interests or changes thereof in percentage interests in voting units of the BT or REIT. 
 
Further, the following persons will also need to notify their interests: 
 
  • (a) persons whose percentage of interest in the voting shares in a trustee-manager of a BT or in the voting shares in a responsible person for a REIT, are to notify the trustee-manager or the responsible person (as applicable) upon changes in interests in voting shares when the percentage of interest reaches, crosses or falls below certain thresholds, namely, 15%, 30%, 50% and 75%; and 
  • (b) trustee-managers (in the case of BTs) or the responsible persons (in the case of REITs) are to notify SGX and disseminate information of their interests, or changes in their interests, in units in the BT or in the REIT, or derivatives of units in the BT, or debentures of the BT or of the REIT, or units of debentures of the BT or of the REIT. 
 
Lastly, trustee-managers (in the case of listed BTs) or the trustee  (in the case of listed REITs) are to keep a register of substantial unitholders in the BT or REIT (as the case may be), notify SGX and disseminate information on any of the abovementioned notifications received from the relevant persons. 
 
REFERENCES
 
Please click on the links below to refer to the relevant documents: 
 
1. Securities and Futures (Amendment) Act 2009.
2. Securities and Futures (Amendment) Act (Commencement Notification) 2012.
3. Securities and Futures (Disclosure of Interests) Regulations 2012.
4. MAS Press Release dated 8 October 2012: MAS Simplifies and Enhances Requirements on Disclosure of Interests in Listed Entities.
5. Frequently Asked Questions on Disclosure of Interests, issued by MAS on 23 November 2012.
6. MAS Response to Feedback Received on the Consultation Paper on Draft Securities and Futures (Disclosure of Interests) Regulations, released on 8 October 2012.

 

 

For further information, please contact:

 

Gary Pryke, Managing Director, Drew & Napier 

gary.pryke@drewnapier.com 

 

Petrus Y S HuangDirector, Drew & Napier

petrus.huang@drewnapier.com

 

Eric Chan, Director, Drew & Napier 

eric.chan@drewnapier.com

 

Ralph Lim, Director, Drew & Napier 

ralph.lim@drewnapier.com

 

Lam Shiao Ning, Director, Drew & Napier 

shiaoning.lam@drewnapier.com

 

 

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