Formalities

Date of reorganisation

Can a corporate reorganisation be backdated or deemed to have already taken place, for example from the start of the financial year?

The method of corporate reorganisation will decide whether it can be backdated or deemed to have already taken place. For example, that flexibility is available for a scheme of arrangement. A scheme of arrangement has to be approved by an order of court and the court order has no effect until lodged with ACRA. Upon lodgement with ACRA, the order will take effect on the date of lodgement or on such earlier date as may be specified in the court order.

On the other hand, the same flexibility is not available for an amalgamation. An amalgamation will be effective on the date shown on the notice of amalgamation issued by ACRA. This notice will only be issued after the shareholders have granted approval for the amalgamation and the relevant documents (including the amalgamation proposal) and prescribed fees have been lodged with and paid to ACRA. If the amalgamation proposal specifies an effective date, the amalgamation will take effect on such date, provided that the specified effective date is the same or later than the date on which the lodgement and payment have been completed and made. If no date is provided for in the amalgamation proposal, the amalgamation will take effect on lodgement and payment.

Documentation

What documentation is required in a corporate reorganisation?

Given the variety of methods to effect a corporate reorganisation, the documentation required will vary between transactions. Generally, we would classify such documentation into the following broad categories.

A restructuring agreement

This agreement will set out the reorganisation plan formulated by the parties, the steps involved and the responsibilities of the parties in respect of the plan (for example, the responsibilities of the parties to seek the relevant internal and external approvals). It will provide for the assets and liabilities to be transferred between the parties to the restructuring or reorganisation and the manner of transfer. To avoid confusion, the agreement may provide a detailed breakdown of the asset disposition if some and not all of the assets and liabilities will be transferred from one party to another as part of the reorganisation.

Approvals

For internal approvals, the relevant board and shareholder resolutions, and other corporate documents will have to be prepared and executed accordingly. For external approvals from third parties (for example, from contract counterparties and governmental authorities), application forms, consent letters or transfer documents will have to be completed, obtained or entered into with such external third parties. It may also be necessary to obtain new licences or permits from governmental and regulatory authorities as part of the reorganisation.

Completion

Common ancillary documents in a reorganisation that we would expect at completion include:

  • various transfer instruments or agreements to effect the transfer of the assets (for example, share transfer instruments or novation agreements);
  • letters of resignation or appointment in respect of outgoing and incoming directors and other key officers of the entities involved;
  • transitional services agreements setting out the terms on which the transferor will provide services to the transferee during the transitional period; and
  • documentation evidencing that the reorganisation has been effected (for example, notices of amalgamations or court orders in respect of schemes of arrangement).
Representations, warranties and indemnities

Should representations, warranties or indemnities be given by the parties in a corporate reorganisation?

Representations, warranties and indemnities should be given if the corporate reorganisation involves unrelated parties. We would not expect the same for an intra-group corporate reorganisation.

Assets versus going concern

Does it make any difference whether assets or a business as a going concern are transferred?

There are differences in respect of the transfer of employment of employees (see question 8) and the payment of GST (see question 13).

Types of entity

Explain any differences between public, private, government or non-profit entities to consider when undertaking a corporate reorganisation.

The key difference lies in the applicable laws and regulations governing such entities. Public and private companies in Singapore are generally subject to the Companies Act. Unlisted public companies with more than 50 shareholders and net tangible assets of S$5 million or more are further subject to the Code. Public companies listed on the SGX are also subject to both the Code and the Listing Manual. Governmental entities are subject to the relevant statutes under which they are established. Those statutes would set out, inter alia, the functions, duties and powers of such entities. Non-profit entities are subject to the Charities Act, Chapter 37 of Singapore and the Commissioner of Charities in terms of its governance, practices and regulatory compliance.

Post-reorganisation steps

Do any filings or other post-reorganisation steps need to be taken after the corporate reorganisation takes place?

See question 6 in relation to the key national authorities involved in a corporate reorganisation and the relevant filings to be made and approvals to be obtained.