Singapore legislation
Section 86
Section 86
Certification by chief executive officer and board of directors of trustee‑manager
(1)
Subject to subsections (4) and (5), the trustee‑manager of a registered business trust must —
cause the written statements required by subsections (2) and (3) to be made out in accordance with those subsections; and
ensure that the written statements mentioned in paragraph (a) are annexed to the profit and loss account of the registered business trust required under section 76(1).
(2)
Subject to subsection (4), the board of directors of the trustee‑manager of a registered business trust must make a written statement, in accordance with a resolution of the board of directors of the trustee‑manager and signed by at least 2 directors on behalf of the board of directors, certifying that —
fees or charges paid or payable out of the trust property of the registered business trust to the trustee‑manager are in accordance with the trust deed of the registered business trust;
interested person transactions are not detrimental to the interests of all the unitholders of the registered business trust as a whole based on the circumstances at the time of the transaction; and
the board of directors of the trustee‑manager is not aware of any violation of duties of the trustee‑manager which would have a materially adverse effect on the business of the registered business trust or on the interests of all the unitholders of the registered business trust as a whole.
(3)
Subject to subsection (5), the chief executive officer of the trustee‑manager of a registered business trust must, in his or her personal capacity, make a written statement certifying that he or she is not aware of any violation of duties of the trustee‑manager which would have a materially adverse effect on the business of the registered business trust or on the interests of all the unitholders of the registered business trust as a whole.
(4)
Where the board of directors of the trustee‑manager of a registered business trust is unable to provide a written statement in accordance with subsection (2), for the reason that —
the board of directors is of the opinion that the assertions referred to in subsection (2) are not true; or
there is a divergence of views among the directors of the trustee‑manager as to the accuracy of the assertions referred to in subsection (2),the trustee‑manager need not annex the written statement required by subsection (2) to the profit and loss account of the registered business trust required under section 76(1), but the board of directors must provide an explanation, including the important factors for the inability to provide such a written statement, and the explanation must be annexed by the trustee‑manager to the profit and loss account of the registered business trust required under section 76(1).
(5)
Where the chief executive officer of the trustee‑manager of a registered business trust is unable to provide a written statement in accordance with subsection (3) for the reason that he or she is of the opinion that the assertion referred to in subsection (3) is not true, the trustee‑manager need not annex the written statement required by subsection (3) to the profit and loss account of the registered business trust required under section 76(1), but the chief executive officer of the trustee‑manager must provide an explanation, including the important factors for his or her inability to provide such a written statement, and the explanation must be annexed by the trustee‑manager to the profit and loss account of the registered business trust required under section 76(1).
(6)
Any person who contravenes subsection (1), (2), (3), (4) or (5) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000.
(7)
If the board of directors of the trustee‑manager of a registered business trust makes a written statement mentioned in subsection (2) without any reasonable basis for arriving at the conclusions as set forth in the statement, any director of the trustee‑manager who permits or authorises the statement to be made shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 2 years or to both.
(8)
If the chief executive officer of the trustee‑manager of a registered business trust makes a written statement mentioned in subsection (3) without any reasonable basis for arriving at the conclusions as set forth in the statement, the chief executive officer shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 2 years or to both.
(9)
For the purposes of this section, a person or group of persons is deemed to have an interest in shares or units (as the case may be) if that person or group of persons is deemed to have an interest in the shares or units (as the case may be) under section 4 of the Securities and Futures Act 2001.
(10)
In this section —
Definition
“associate” —
in relation to an individual who is a director, chief executive officer or controlling shareholder of the trustee‑manager of a registered business trust or a controlling unitholder of a registered business trust, means —
his or her immediate family;
a trustee, when acting in the trustee’s capacity as such trustee, of any trust of which the individual or his or her immediate family is a beneficiary or, in the case of a discretionary trust, is a discretionary object; or
any corporation in which the individual and his or her immediate family together (whether directly or indirectly) have an interest in shares entitling the beneficial owners thereof the right to cast, whether by proxy or in person, at least 30% of the total votes able to be cast at a general meeting of the corporation; and
in relation to a corporation which is a controlling shareholder of the trustee‑manager of a registered business trust or a controlling unitholder of a registered business trust, means any corporation which is its related corporation or associated company;
Definition
“associated company”, in relation to a corporation, means —
any corporation in which the corporation or its subsidiary has, or the corporation and its subsidiary together have, an interest in shares entitling the beneficial owners thereof the right to cast, whether by proxy or in person, at least 20% but not more than 50% of the total votes able to be cast at a general meeting of the corporation; or
any corporation, other than a subsidiary of the corporation or a corporation which is an associated company by virtue of paragraph (a), the policies of which the corporation or its subsidiary, or the corporation together with its subsidiary, is able to control or influence materially;
Definition
“chief executive officer”, in relation to the trustee‑manager of a registered business trust, means any individual, by whatever name described, who is —
in the direct employment of, acting for or by arrangement with, the trustee‑manager of a registered business trust; and
principally responsible for the management and conduct of the trustee‑manager;
Definition
“control”, in relation to a corporation, means the capacity to determine the outcome of decisions on the financial and operating policies of the corporation, having regard to the following considerations:
the practical influence which can be exerted (rather than the rights which can be enforced); and
any practice or pattern of behaviour affecting the financial and operating policies of the corporation (even if it involves a breach of an agreement or a breach of trust),but excludes any capacity to influence decisions on the financial and operating policies of a corporation where such influence is required to be exercised for the benefit of other persons pursuant to an obligation imposed under any written law, rule of law, contract or order of court;
Definition
“controlling shareholder”, in relation to a corporation, means —
a person who has an interest in the voting shares of a corporation and who exercises control over the corporation; or
a person who has an interest in shares entitling the beneficial owners thereof the right to cast, whether by proxy or in person, 30% or more of the total votes able to be cast at a general meeting of the corporation, unless the person does not exercise control over the corporation;
Definition
“controlling unitholder”, in relation to a registered business trust, means a person who has an interest or interests in units representing 30% or more of the total voting rights of all the unitholders of the registered business trust;
Definition
“immediate family”, in relation to an individual, means the individual’s spouse, son, adopted son, stepson, daughter, adopted daughter, stepdaughter, father, stepfather, mother, stepmother, brother, stepbrother, sister or stepsister;
Definition
“interested person”, in relation to a registered business trust, means —
the trustee‑manager of the registered business trust;
a related corporation of the trustee‑manager of the registered business trust;
an associated company of the trustee‑manager of the registered business trust;
a director, chief executive officer or controlling shareholder of the trustee‑manager of the registered business trust;
an associate of a director, chief executive officer or controlling shareholder of the trustee‑manager of the registered business trust;
a controlling unitholder of the registered business trust; or
an associate of a controlling unitholder of the registered business trust;
Definition
“interested person transaction” means a transaction between the trustee‑manager of a registered business trust on behalf of the registered business trust and an interested person of the registered business trust.