PROSPECTUS GUIDELINES. - Guidelines Supplement 1 For Listing Of Foreign- Incorporated Companies

Transcription

1 PROSPECTUS GUIDELINES - Guidelines Supplement 1 For Listing Of Foreign- Incorporated Companies

2 The following requirements are to be read in conjunction with the existing on Public Offering and shall be deemed in addition to and not in derogation thereof, and where applicable, the same shall apply to any subsequent issue, offer or invitation of securities. The term foreign corporation shall have the meaning given in Guidance Note 7A of the Polices and Guidelines on Issue/ Offer of Securities. GENERAL Requirements of disclosure in Malaysia are the minimum requirement. However, reference to international best practice may be considered for certain areas not presently covered under these Guidelines. Notwithstanding the above, the SC reserves the right, in its absolute discretion, to call for such additional disclosures as may be considered appropriate in any particular case. COVER PAGE Additional Particulars about the Foreign Corporation The following particulars about the foreign corporation: the name and place where the corporation was established or incorporated together with the company registration number, where applicable; the statute or regulatory provision under which the corporation was established or incorporated; and that the corporation had been registered as a foreign company in Malaysia under the Companies Act, 1965 together with the foreign company registration number; INSIDE COVER Jurisdiction/ Circulation The prospectus shall contain the following statements on the Inside Cover or at the very least on Page 1 of the prospectus- 1. Governing Law/ Choice of Jurisdiction This prospectus has been prepared in the context of an issue, offer or invitation of securities under the laws of Malaysia. 2. Circulation of Prospectus in Intended Jurisdictions A copy of this prospectus has been lodged with the Registrar of Companies in Malaysia as required under the Act, It is intended to circulate this prospectus in Malaysia. 1

3 3. Investor Warning: Restriction on the Circulation The circulation of this prospectus and the issue, offer or invitation of the securities may be/ is restricted in certain jurisdictions outside Malaysia and therefore persons into whose possession this document comes should seek advice on and observe any such restrictions. This prospectus does not constitute an issue, offer or invitation by anyone in any jurisdiction in which such issue, offer or invitation is not authorised or to any person to whom it is unlawful to make such issue, offer or invitation. INFORMATION SUMMARY/INVESTOR WARNING 1. Details of the Foreign Corporation There shall be disclosed in the prospectus: (iv) the date and place where the foreign corporation was established or incorporated; the statue or regulatory provision under which the foreign corporation was established or incorporated; the address of the registered office of the foreign corporation and the address of the registered office in Malaysia; and the principal place of business or base of operations; 2. The salient features of the constitution of the foreign corporation There shall be disclosed a summary of all provisions of the constituent documents in so far as they may affect shareholders rights and protection and directors powers 1. DETAILS OF PUBLIC OFFERING 1. Issue, Offer or Invitation Not in Contravention of Existing Laws and Regulations There shall be a statement that the prospectus and the issue, offer or invitation of the public offering is not in derogation of or in contravention of any of the applicable laws and regulations of the jurisdiction in which the foreign corporation is incorporated/ registered. 2. Utilisation of Proceeds 1 To be cross-referenced to the section of the prospectus pertaining to extracts of the Articles of Association 2

4 Full details of utilisation of any proceeds shall be disclosed in the prospectus. The foreign corporation shall also disclose the details of the approval and condition(s) imposed by the Controller of Foreign Exchange in respect of repatriation/ migration of proceeds, if any. A copy of the approval shall be provided as part of the accompanying documents for registration of the prospectus. RISK FACTORS The prospectus shall contain explicit disclosures on the relevant risk factors, including: any risks associated with foreign currency transactions including but not limited to restrictions and fluctuations; any risks associated with legal uncertainties concerning comparability and enforceability of the laws and enforceability of judgements of the two jurisdictions; and political and country risks of the jurisdiction and such other jurisdictions where the foreign corporation intends to carry on or is carrying on material business activity, or intends to or has set up its base of operations. APPROVALS & CONDITIONS Where applicable, there shall be disclosed in the prospectus any regulatory approvals and conditions imposed by the regulators of the jurisdiction of the foreign corporation. FINANCIAL INFORMATION & REPORTS 1. Accounting Standards The financial statements & reports set out in the prospectus shall be prepared in accordance with the approved accounting standards as defined in the Financial Reporting Act The information to be disclosed in the financial statements and reports shall not be less than that required to be disclosed in respect of specific matters in the accounts of a company incorporated under the Companies Act, 1965 and approved accounting standards as defined in the Financial Reporting Act Foreign Currencies and Exchange Rates All financial statements or reports disclosed in the prospectus which are in currency other than in RM, must be translated into RM. The closing rates of the currency or the prevailing exchange rates at the date of the transaction shall be disclosed together with a statement that the exchange 3

5 rate is subject to change. Where applicable, the prospectus shall also disclose information in respect of movements in the exchange rate over the last 5 years. The prospectus shall disclose any restrictions regarding foreign currency transactions. EXPERTS REPORTS Salient Features/Provisions of the Relevant Laws of and Regulations of the Jurisdiction of the Foreign Corporation There shall be experts report(s) prepared for inclusion in the prospectus, that shall cover, at the minimum (i.e. including but not limited to), the salient terms of the relevant laws and regulations of the jurisdiction of the foreign corporation in respect of the following: (a) (b) (c) (d) (e) (f) (g) (h) (j) (k) (l) (m) (n) (o) (p) (q) (r) Incorporation Constitutional Documents Taxation Exchange Control Repatriation of Proceeds Share Capital Alteration of Share Capital Purchase of the Company of its own Shares Distributions and Dividends Charges on the Assets of the Company Take-overs and Mergers Appointment of Directors Duties of the Directors Conduct of Meetings and Proceedings of the Company Loans to Directors Shareholders Rights and Obligations Protection of Minorities Filing/ Keeping and inspection of Corporate Records 4

6 (s) (t) (u) (v) (w) Accounting Records Auditing Requirements Winding-up Procedures under the Laws of the Foreign Corporation Securities Offering Jurisdictional arrangement(s) and/ or Treaties between Malaysia and the Jurisdiction of the Foreign Corporation on matters pertaining to Enforcement of Judgement in respect of Criminal and Civil actions. Where appropriate, cross-references shall be made to relevant parts of the body of the prospectus e.g. references to extracts of the Articles of Association. There shall be a statement that the prospectus and the issue, offer or invitation of the public offering is not in derogation of or in contravention of any of the applicable laws and regulations of the jurisdiction of the foreign corporation. There shall be a warning that any person wishing to have a detailed review of the relevant laws and regulations of the jurisdiction of the foreign corporation, or a detailed explanation on the comparability and/ or discrepancy of the relevant laws and regulations between that jurisdiction and that of Malaysia, is recommended to seek independent legal advice from experts of that jurisdiction. MISCELLANEOUS House Keeping There shall be a statement that the foreign corporation has been registered with Registrar of Companies pursuant Division 2 Part XI of the Companies Act 1965, as a Foreign Company. The prospectus shall disclose the address of the registered office of the foreign corporation and the registered address of the office in Malaysia. (i.e. the office that maintains the records and reports and which all communications and notices may be addressed and which shall be accessible to the public). The prospectus shall also disclose the principal place of business or base of operations. There shall be a statement in the prospectus that the office that maintains records in Malaysia, shall keep records of all constituent documents (originals/ true copies, as the case may be) of the foreign corporation including but not limited to the memorandum and articles of association, the certificate of incorporation, licences, the register of shareholders, transfers and mortgage and the secretarial filings and returns, and it shall be the place where originals or certified true copies of all documents disclosed in the prospectus, which are to be made available for inspection, shall be inspected. 5

7 PROSPECTUS REGISTRATION Accompanying Documents 1. Certificate of Registration The foreign corporation/ issuer shall provide a certified true copy of the certificate of registration of the foreign corporation, issued by the Registrar of Companies pursuant Division 2 Part XI of the Companies Act 1965, as part of the accompanying documents for registration of the prospectus. 2. Agreements disclosed in the Prospectus All agreements accompanying the registrable copy of the prospectus shall be true copies certified by a qualified 2 solicitor or by the solicitor who prepared that agreement. 3. Constituent Documents There shall be certified true copies of constituent documents of the foreign corporation in so far as they may affect shareholders rights and protection and directors powers. 4. Translation All documents and information furnished, including accounts, which are in the language other than Bahasa Malaysia or English, must be accompanied by a certified Bahasa Malaysia or English translation. 2 Qualified solicitor in this context shall mean the due diligence lawyer and or his agents as he case may be. 6