ACT 125
COMPANIES ACT 1965 (REVISED - 1973)

 
FIFTH SCHEDULE [Section 39] - Prospectus
 
FIFTH SCHEDULE [Section 39] - Prospectus (COMPANIES ACT 1965 (REVISED - 1973) - ACT 125)

[Section 39]

PROSPECTUS

PART I

Matters to be Stated



1. The number of founders or management or deferred shares, if any, and the nature and extent of the interest of the holders of those shares in the property and profits of the company.

2. The number of shares, if any, fixed by the articles as the qualification of a director, and any provision in the articles as to the remuneration of the directors.

3. The names, descriptions, and addresses of all the directors or proposed directors.

4. Where the prospectus relates to shares, particulars as to—

    (a) the minimum amount which, in the opinion of the directors, must be raised by the issue of those shares in order to provide the sums, or, if any part thereof is to be defrayed in any other manner, the balance of the sums, required to be provided in respect of each of—

      (i) the purchase price of any property purchased or to be purchased which is to be defrayed in whole or in part out of the proceeds of the issue;

      (ii) any preliminary expenses payable by the company, and any commission so payable to any person in consideration of his agreeing to subscribe for, or of his procuring or agreeing to procure subscriptions for, any shares in the company;

      (iii) the repayment of any money borrowed by the company in respect of any of the foregoing matters; and

    (b) the amounts to be provided in respect of the matters aforesaid otherwise than out of the proceeds of the issue and the sources out of which those amounts are to be provided.

5. The nature of the company's business and the names of all corporations which are by virtue of section 6 deemed to be related to the company.

6. The time of the opening of the subscription lists.

7. The amount payable on application and allotment on each share or where that amount may vary during the currency of the offer, the basis of calculation of the amount so payable and, in the case of a second or subsequent offer of shares, the number, description and amount offered for subscription on each previous allotment made within the two preceding years, the number actually allotted, and the amount, if any, paid on the shares so allotted.

8. The number, description, and amount of any shares in or debentures of the company which any person has, or is entitled to be given, an option to subscribe for, together with the following particulars of the option:

    (a) the period during which it is exercisable;

    (b) the price to be paid for shares or debentures subscribed for under it;

    (c) the consideration, if any, given or to be given for it or for the right to it; and

    (d) the names and addresses of the persons to whom it or the right to it was given or, if given to existing shareholders or debenture holders as such, the relevant shares or debentures.

9. The number and amount of shares and debentures which within the two preceding years have been issued, or agreed to be issued, as fully or partly paid up otherwise than in cash, and in the latter case the extent to which they are so paid up, and in either case the consideration for which those shares or debentures have been issued or are proposed or intended to be issued.

10. (1) With respect to any property to which this paragraph applies—

    (a) the names and addresses of the vendors;

    (b) the amount payable in cash, shares, or debentures to the vendor and, where there is more than one separate vendor, or the corporation is a sub-purchaser, the amount so payable to each vendor; and

    (c) short particulars of any transaction relating to the property completed within the two preceding years in which any vendor of the property to the corporation or any person who is, or was at the time of the transaction, a promoter or a director or proposed director of the corporation had any interest, direct or indirect.

(2) The property to which this paragraph applies is property purchased or acquired by the corporation or by any subsidiary of the corporation or proposed so to be purchased or acquired, which is to be paid for wholly or partly out of the proceeds of the issue offered for subscription by the prospectus or the purchase or acquisition of which has not been completed at the date of the issue of the prospectus, other than property the contract for the purchase or acquisition whereof was entered into in the ordinary course of the corporation's or the subsidiary's business, the contract not being made in contemplation of the issue nor the issue in consequence of the contract.

11. The amount, if any, paid or payable as purchase money in cash, shares, or debentures for any property to which the last preceding paragraph applies, specifying the amount, if any, payable for goodwill.

12. The amount, if any, paid within the two preceding years, or payable, as commission (but not including commission to sub-underwriters) for subscribing or agreeing to subscribe, or procuring or agreeing to procure subscriptions, for any shares in or debentures of the corporation, or the rate of any such commission, and the names of any directors or promoters or experts or proposed directors who are entitled to receive any such commission and the amount or rate thereof.

13. The amount or estimated amount of preliminary expenses and the persons by whom any of these expenses have been paid or are payable, and the amount or estimated amount of the expenses of the issue and the persons by whom any of those expenses have been paid or are payable.

14. Any amount or benefit paid or given within the two preceding years or intended to be paid or given to any promoter, and the consideration for the payment or the giving of the benefit.

15. The dates of, parties to, and general nature of every material contract, not being a contract entered into in the ordinary course of the business carried on or intended to be carried on by the corporation or a contract entered into more than two years before the date of issue of the prospectus.

16. The names and addresses of the auditors of the corporation.

17. Full particulars of the nature and extent of the interest, direct or indirect, if any, of every director and of every expert in the promotion of, or in the property proposed to be acquired by, the corporation, or, where the interest of such a director or such an expert consists in being a partner in a firm or a holder of shares or debentures in a corporation the nature and extent of the interest of the firm, or corporation, and where the interest of such a director or such an expert consists in a holding of shares or debentures in a corporation a statement of the nature and extent of the interest of the director or expert in the corporation, with a statement of all sums paid or agreed to be paid to him or to the firm in cash or shares or otherwise by any person in the case of a director either to induce him to become, or to qualify him as, a director, or otherwise for services rendered by him or by the firm or corporation in connection with the promotion or formation of the corporation or (in the case of an expert) for services rendered by him or the firm or corporation in connection with the promotion or formation of the corporation. For the purposes of this paragraph a director or expert shall be deemed to have an indirect interest in a corporation if he has any beneficial interest in shares or debentures of a corporation which has an interest in the promotion of, or in the property proposed to be acquired by the corporation or if he has any beneficial interest in shares or debentures in a corporation which is by virture of section 6 deemed to be related to that first mentioned corporation.

18. Where the prospectus relates to shares, if the share capital of the corporation is divided into different classes of shares, the right of voting at meetings of the corporation conferred by, and the rights in respect of capital and dividends attached to, the several classes of shares respectively.

19. In the case of a corporation which has been carrying on business, or of a business which has been carried on, for less than three years, the length of time during which the business of the corporation or the business to be acquired, as the case may be, has been carried on.

PART II

Reports to be Set Out

20. (1) A report by an approved company auditor, who shall be named in the prospectus with respect to—

    (a) profits and losses and assets and liabilities of the corporation and of any guarantor corporation referred to in the prospectus, in accordance with subparagraph (2) or (3), as the case requires; and

    (b) the rates of the dividends, if any, paid by the corporation in respect of each class of shares in respect of each of the five financial years immediately preceding the issue of the prospectus, giving particulars of each such class of shares on which those dividends have been paid and particulars of the cases in which no dividends have been paid in respect of any class of shares in respect of any of those years,

and, if no accounts have been made up in respect of any part of the period of five years ending on a date three months before the issue of the prospectus, containing a statement of that fact.

(2) If the corporation or the guarantor corporations have no subsidiaries, the report shall—

    (a) so far as regards profits and losses, deal with the profits or losses of the corporation and of the guarantor corporations referred to in the prospectus in respect of each of the five financial years immediately preceding the last date to which the accounts of the corporation or the guarantor corporations were made up; and

    (b) so far as regards assets and liabilities, deal with the assets and liabilities of the corporation and of the guarantor corporations referred to in the prospectus at the last date to which the accounts of the corporation and the guarantor corporations were made up,

which date shall in no case be more than six months before the issue of the prospectus.

(3) If the corporation or the guarantor corporations have subsidiaries, the report shall—

    (a) so far as regards profits and losses—

      (i) deal as aforesaid separately with the corporation's and the guarantor corporations' (other than subsidiaries) profits or losses as provided by subparagraph (2) and in addition deal as aforesaid either—

        (A) as a whole with the combined profits or losses of their subsidiaries; or

        (B) individually with the profits or losses of each subsidiary; or

      (ii) deal as aforesaid as a whole with the profits or losses of the corporation and of the guarantor corporations and with the combined profits or losses of their subsidiaries;

    (b) so far as regards assets and liabilities, deal as aforesaid separately with the corporation's and the guarantor corporations' (other than subsidiaries) assets and liabilities as provided by subparagraph (2), and in addition deal as aforesaid either—

      (i) as a whole with the combined assets and liabilities of its or their subsidiaries, with or without the corporation's assets and liabilities; or

      (ii) individually with the assets and liabilities of each subsidiary,

    and shall indicate as respects the profits or losses and assets and liabilities of the subsidiaries the allowance to be made for persons other than members of the corporation.

(4) If the prospectus relates to shares in or debentures of a borrowing corporation the report shall state separately estimates of the amounts of moneys owing and payable to the corporation and the amounts of all liabilities payable by the borrowing corporation—

    (a) not later than two years;

    (b) later than two years but not later than five years; and

    (c) later than five years,

calculated from the last date to which the accounts of the borrowing corporation were made up.

21. If the proceeds, or any part of the proceeds, of the issue of the shares or debentures are to be applied directly or indirectly in the purchase of any business, a report by an approved company auditor (who shall be named in the prospectus) with respect to—

    (a) the profits or losses of the business in respect of each of the five financial years immediately preceding the last date to which the accounts of the business were made up; and

    (b) the assets and liabilities of the business at the last date to which the accounts of the business were made up,

which date shall in no case be more than six months before the issue of the prospectus.

22. (1) If—

    (a) the proceeds, or any part of the proceeds, of the issue of the shares or debentures are to be applied directly or indirectly in any manner resulting in the acquisition by the corporation of shares in any other corporation; and

    (b) by reason of that acquisition or anything to be done in consequence thereof or in connection therewith that corporation will become a subsidiary of the corporation,

a report by an approved company auditor (who shall be named in the prospectus) with respect to—

    (c) the profits or losses of the other corporation in respect of each of the five financial years immediately preceding the last date to which the accounts of the corporation were made up; and

    (d) the assets and liabilities of the other corporation at the last date to which the accounts of the corporation were made up,

which date shall in no case be more than six months before the issue of the prospectus.

(2) The report shall—

    (a) indicate how the profits or losses of the other corporation dealt with by the report would, in respect of the shares to be acquired, have concerned members of the corporation and what allowance would have fallen to be made, in relation to assets and liabilities so dealt with, for holders of other shares, if the corporation had at all material times held the shares to be acquired; and

    (b) where the other corporation has subsidiaries, deal with the profits or losses and the assets and liabilities of the corporation and its subsidiaries in the manner provided by paragraph 20 (3) in relation to the corporation and its subsidiaries.

23. A report by the directors as to whether after due inquiry by them in relation to the interval between the date to which the last accounts have been made up and a date not earlier than fourteen days before the issue of the prospectus—

    (a) the business of the corporation and its subsidiaries has in their opinion been satisfactorily maintained;

    (b) there have in their opinion arisen since the last annual general meeting of the corporation any circumstances adversely affecting the trading or the value of the assets of the corporation or any of its subsidiaries;

    (c) the current assets of the corporation and of its subsidiaries appear in the books at values which are believed to be realizable in the ordinary course of business;

    (d) there are any contingent liabilities by reason of any guarantees given by the corporation or any of its subsidiaries; or

    (e) there are, since the last annual report, any changes in published reserves or any unusual factors affecting the profit of the corporation and its subsidiaries,

and where any report is required pursuant to this paragraph it shall contain full details of all matters required to be dealt with in the report.

PART III

Provisions Applying to Parts I and II of this Schedule

24. Paragraphs 2, 13 (so far as it relates to preliminary expenses) and 17 shall not apply in the case of a prospectus issued more than two years after the date at which the company is entitled to commence business.

25. Every person shall for the purposes of this Schedule be deemed to be a vendor who has entered into any contract, absolute or conditional, for the sale or purchase, or for any option of purchase, of any property to be acquired by the corporation in any case where—

    (a) the purchase money is not fully paid at the date of the issue of the prospectus;

    (b) the purchase money is to be paid or satisfied wholly or in part out of the proceeds of the issue offered for subscription by the prospectus; or

    (c) the contract depends for its validity or fulfilment on the result of that issue.

26. Where any property to be acquired by the corporation is to be taken on lease this Schedule shall have effect as if the expression "vendor" includes the lessor, and the expression "purchase money" included the consideration for the lease, and the expression "sub-purchaser" included a sub-lessee.

27. References in paragraph 8 to an option to subscribe for shares or debentures shall include an option to acquire them from a person to whom they have been allotted or agreed to be allotted with a view to his offering them for sale, but shall not include an option to subscribe for or acquire shares pursuant to a bona fide underwriting or sub-underwriting agreement.

28. For the purposes of paragraph 10 where the vendors or any of them are a firm, the members of the firm shall not be treated as separate vendors.

29. If in the case of a corporation which has been carrying on business, or of a business which has been carried on, for less than five years, the accounts of the corporation or business have only been made up in respect of four years, three years, two years, or one year, Part II of this Schedule shall have effect as if references to four years, three years, two years, or one year, as the case may be, were substituted for references to five years.

30. The expression "financial year" in Part II of this Schedule means the year in respect of which the accounts of the corporation or of the business, as the case may be, are made up, and where by reason of any alteration of the date on which the financial year of the corporation or business terminates the accounts of the corporation or business have been made up for a period greater or less than a year, that greater or less period shall, for the purposes of that Part of this Schedule, be deemed to be a financial year.

31. Any report required by Part II of this Schedule shall either indicate by way of note any adjustments as respects the figures of any profits or losses or assets and liabilities dealt with by the report which appear to the persons making the report necessary or shall make those adjustments and indicate that adjustments have been made.

PART IV

Additional Matters to be Included in Prospectus Relating to Invitation to the Public to Deposit Money with or Lend Money to a Corporation

32. Where subsection 38(4) applies there shall be included—

    (a) a statement to the effect that the repayment of all moneys that have been or may be deposited with or lent to the corporation in response to the invitation is secured by a first charge given to the trustee for the holders of the debentures to be issued in relation to the deposit or loan over land vested in the corporation or in any of its guarantor corporations and that the charge has been duly registered, or is a registrable mortgage which has been lodged for registration, in accordance with the law relating to the registration of land charges in the place where the land is situated and that the aggregate amount of the moneys and of all other liabilities, if any, secured by the charge over that land ranking pari passu with the liability to repay those moneys does not exceed sixty per centum of the value of the corporation's interest in that land as shown in the valuation included in the prospectus; and

    (b) a copy of a written valuation of the corporation's interest in the land so mortgaged showing the nature and extent of the corporation's interest made not more than six months before the date of the prospectus by a person competent and qualified to make the valuation in the place where the land is situated who is not an officer or employee of the corporation or of any of its guarantor corporations or of any corporation that by virtue of section 6 is deemed to be related to either the firstmentioned corporation or any of its guarantor corporations.

33. (1) Where subsection 38(5) applies there shall be included—

    (a) a statement to the effect—

      (i) that the repayment of all moneys that have been or may be deposited with or lent to the corporation in response to the invitation has been secured by a charge in favour of the trustee for the holders of the debentures over the whole or any part of the tangible assets of the corporation and of its guarantor corporations or of any of them; and

      (ii) that having regard to the particulars in the summary made in accordance with subparagraph (1)

    (b) the tangible assets secured by the charge are sufficient and are reasonably likely to be sufficient to meet the liability for the repayment of all such moneys and all other liabilities ranking in priority thereto or pari passu therewith that have been or may be incurred; and

    (b) a summary made by the approved company auditor who has made for inclusion in the prospectus the report required by Part II of this Schedule with respect to the assets and liabilities of the borrowing corporation showing in tabular form the aggregate values (based upon the amounts as disclosed in the statements of the assets and liabilities of the borrowing corporation and its guarantor corporations which have been prepared for the purposes of paragraphs 20 and 31) of the tangible assets of the borrowing corporation and of its guarantor corporations which have been charged to secure the repayment of all moneys referred to in subparagraph (1)(a)(i), after making such adjustments as are proper to give a true and fair view of the tangible assets, available as security for the charge and, in particular, after making adjustments—

      (i) to exclude from those aggregate values such part of the value of any shares in or advances to a corporation as is reflected in or depends upon the tangible assets of that corporation which are otherwise included in the summary;

      (ii) to exclude from those aggregate values such part of the value of any shares in a corporation which is by virtue of section 6 deemed to be related to the borrowing corporation or the guarantor corporation (as the case requires) as is properly attributable to intangible assets of that first-mentioned corporation; and

      (iii) to add to those aggregate values the amount to be raised under the prospectus including the maximum amount of oversubscriptions which the prospectus in accordance with section 41 specifies may be retained.

(2) In the summary the approved company auditor—

    (a) shall show the amounts outstanding out of the aggregate amounts borrowed respectively by the borrowing corporation and by its guarantor corporations distinguishing between those which will rank for repayment in priority to the proposed issue and those which will rank pari passu with that proposed issue;

    (b) shall state by way of note or otherwise the total amount of the values of intangible assets excluded in making the adjustments required under subparagraph (1)(b)(ii);

    (c) may, where a corporation has given a charge over its assets to secure a liability the amount of which may vary from time to time, take into account the actual amount of the liability as at the date at which the summary is made up but (in that event) shall show by way of note the further amount which may be advanced under that charge;

    (d) may explain or qualify by way of note or otherwise any of the matters set out in the summary; and

    (e) shall disclose by way of note or otherwise the amount of advances by the borrowing corporation to any corporation which is by virtue of section 6 deemed to be related to the borrowing corporation distinguishing between advances which are secured and advances which are unsecured.

34. In every prospectus which relates to debentures there shall be included—

    (a) particulars of the limitations on the amount that the corporation may borrow;

    (b) a statement as to the amount of subscriptions that are being sought;

    (c) a statement as to whether or not the corporation reserves the right to accept or retain over-subscriptions and, if the corporation reserves such a right, the limit on the right so reserved expressed as a sum of money; and

    (d) where applicable, a statement as to whether or not the corporation has any right to create additional charges over any of the assets charged to secure the repayment of the deposits or loans which will rank in priority to or pari passu with that charge and if there is such a right particulars of its nature and extent.