The Security (Amendment) Act 2005
No. 15 of 2005. ANTIGUA
AND
BARBUDA
1The Securities (Amendment) Act, 2005.
Short title.
ANTIGUA AND BARBUDA
No. 15 of 2005
AN ACT to amend the Securities Act, 2001.
[ Published in the Official Gazette Vol. XXV
No. 57 dated 15th September, 2005 ]
ENACTED by the Parliament of Antigua and Barbuda as
follows:
1. This Act may be cited as the Securities (Amendment) Act,
2005.
2. Section 2(1) of the Securities Act, in this act referred to as
the principal Act, is amended by deleting the definition of
“company” and substituting the following:
“Company” includes a company, limited partnerships, unit
trust or other business entity, which is incorporated,
registered or otherwise established under the laws of a
member territory.”
3. The principal Act is amended by inserting after Part XV, the
following:
“PART XVA
LISTING AND TRADING FOREIGN SECURITIES,
LICENSING AND EXCHANGE MEMBERSHIP OF
FOREIGN MARKET PARTICIPANTS
153A. The securities of a foreign company
or a foreign government may be listed and
Amendment of
section 2(1).
Insertion of Part
XVA.
Listing and
trading foreign
securities.
[ L.S.]
I Assent,
James B. Carlisle,
Governor-General.
12th September, 2005.
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traded on securities exchange licensed under
this Part.
153B. Except as expressly exempted or
modified by the provisions of this Part, this
Act and any Regulations made there under
shall apply muatis mutandis to the listing and
trading of foreign securities.
153C. In this Part
“foreign company” includes a
company, limited
partnership, unit trust or other
business entity, which is
incorporated or otherwise
established under the laws of a
jurisdiction other than a member
territory;
“foreign custodian” means a
custodian incorporated in and
governed by the laws of a country
other than a member territory;
“foreign government” means a
government or political subdivision
of a government other than one of a
member territory.
“foreign individual” means any
individual who is a citizen of, resident
of, or belonger to any country other
than a member territory;
“foreign investment adviser” means
an investment adviser incorporated
in and governed by the laws of a
country other than a member
territory;
“foreign security” means a security
issued by a foreign company or
foreign government;
Application of
other Parts.
Interpretation.
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3The Securities (Amendment) Act, 2005.
“foreign securities exchange” means
a licensed securities exchange,
incorporated in and governed by the
laws of a country other than a member
territory;
“foreign securities registry” includes
a share registry incorporated in and
governed by the laws of a country
other than a member territory;
“member territory” has the same
meaning as the meaning assigned to
it in the Eastern Caribbean Securities
Regulatory Commission Agreement
dated 24th November, 2000.
153D. (1) A securities exchange may list or
trade foreign securities in accordance with the
terms and conditions of licence granted under
subsection (4).
(2) The Commission may, subject to such
terms and conditions as it considers
appropriate, license a foreign company as a
broker dealer, limited service broker, or
investment adviser.
(3) A foreign company which is licensed
by a foreign securities regulatory commission
as a broker dealer or limited service broker
may apply to the Commission for a securities
exchange licence under this Act.
(4) Subject to section 10(2), the
Commission may grant a Securities exchange
license to a foreign company which applies
under subsection (3).
(5) A foreign broker dealer or a foreign
limited service broker wishing to carry on
business in Antigua and Barbuda dealing in
securities, or holds himself out as carrying on
that business must be licensed by the
Commission.
Approval of the
Commission re-
quired.
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(6) Part IV of this Act shall apply to a
foreign broker dealer or a foreign limited service
broker carrying on the business of dealing in
securities pursuant to subsection (5).
(7) A foreign broker dealer or a foreign
limited service broker dealing in securities in
Antigua and Barbuda shall have an agent
resident in Antigua and Barbuda.
(8) No foreign investment Adviser shall
carry on business or hold himself out as
carrying on business as such foreign
investment adviser in a member territory unless
he is licensed by the Commission under
section 54 and 55.
(9) No person licensed by foreign securities
regulatory commission as a principal shall
carry on business or hold himself out as
carrying on business as such principal in a
member territory unless he is licensed under
section 60 and 61 of this Act.
(10) No person who is licensed by a foreign
securities regulatory commission as a
representative shall carry on business or hold
himself our as carrying on business in a
member territory unless he is licensed by the
Commission under sections 62, 63 and 64.
(11) For the purpose of this part the term
“carrying on business, or holding himself out
as carrying on business” as used in sub-
section 8, 9 and 10 shall include but not be
limited to —
(a) use of telephone, telegraph, mail,
internet, e-mail, or any other means
to communicate with investors or
potential investors located in a
member territory, whether on a regular
or sporadic basis;
(b) visiting investors or potential
investors in a member territory,
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whether single or in groups, to
communicate with them about an
investment in securities, whether on
a regular or sporadic basis; or
(c) registration as a principal or
representative with a securities
exchange in connection with a
foreign broker dealer or limited
service broker’s membership in a
securities exchange;
(d) engaging in any other activity or
combination of activities described
in
(i) section 47 in the case of
foreign broker dealers or
foreign limited service
brokers, or
(ii) section 53 in the case of
foreign investment
advisers,
if any part of the activity or
activities take place in a member
territory or is designed or
intended to communicate with
the persons present in a
member territory.
(12) A person is subject to the requirements
of subsections (8), (9) and (10) if he
participates in any of the activities listed in
subsection (11) even if he is not physically
present in a member territory when he
participates in the activity.
153E. (1) In determining whether or not a
public offer of foreign securities has been
made in a member territory, or whether the
requirements of this Act relating to public
offers apply in a particular case, the listing or
Public offer.
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trading of foreign securities on a securities
exchange shall not be taken into account.
153F. (1) The listing and trading of foreign
securities on a securities exchange pursuant
to this Part shall not, either by itself or in
conjunction with other activities by a person,
require the issuer of the foreign securities to
register with the Commission under section
97(3).
(2) Subsection (1) shall not be interpreted
to exempt issuers and offerors, who are
otherwise required to register with the
Commission under section 97(3), from the
requirement to register with the Commission.
153G. The provisions of Part X shall not
apply to the conduct of a foreign company
occurring on a foreign securities exchange or
otherwise accruing in a foreign jurisdiction,
unless the Commission determines on
consultation with the securities exchange,
where the security of the foreign company is
listed, that the conduct has a significant impact
on the market in Antigua and Barbuda.
153H. Part XI shall not apply to foreign
securities listed or traded in a securities
exchange unless the Commission determines
that the regulatory measures in the jurisdiction
of incorporation of the foreign issuer, its
directors and shareholders are not adequate
to protect the interests of the investing public.
153I. The provisions of Part XII of the Act
shall apply
(a) in the case of foreign securities
listed or traded on a licensed
securities exchange; only to the
acts of the issuer within the
member territory or to
transactions effected on or
Insider dealing and
other
Disclosure of
Shareholder of di-
rectors and sub-
stantial share-
holders.
Application of
Part XII.
Registration with
the Commission.
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information provided to, that
securities exchange; and
(b) in the cease of a foreign broker
dealer, limited service broker,
investment adviser or the principal
or representative of that person,
only to acts of the licensee within
the member territory or to
transactions effected on, or
information provided to, a
securities exchange.
153J. Notwithstanding any other
provision of any law to the contrary—
(a) the exclusive method of
transferring the ownership of
foreign securities listed and traded
on a securities exchange shall be
a transfer made in accordance
with the rules and procedure of a
clearing agency licensed by the
Commission under section 25
where the foreign securities are
transferred; and
(b) the exclusive method of
determining the ownership of
foreign securities listed and
traded on a securities exchange
shall be records of a securities
registry licensed by the
Commission under section 42
where the foreign securities are
registered.
153K. (1) Foreign securities listed and
traded on a licensed securities exchange may
be held by a foreign custodian and registered
with a foreign securities registry pursuant to
a written contrast between the foreign
custodian or registry and a custodian licensed
under section 57 or a securities registry
licensed under section 42.
Transfer and
ownership of for-
eign securities.
Custodian and
share registries
for foreign secu-
rities.
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(2) A securities exchange may, by rules,
determine the form and content of the
contracts referred to in subsection (1).
153L. (1) A securities exchange may, with
the approval of the commission, adopt rules
for expedited and simplified listing procedures
for foreign securities that are already listed on
a foreign securities exchange if the foreign
securities exchange has suitable listing,
compliance and regulatory standards and
practices.
(2) A securities exchange may, with the
approval of the Commission, adopt rules for
expedited and simplified membership
procedures for foreign broker dealers or
foreign limited service brokers that are already
subject to regulation in a suitable jurisdiction
if that jurisdiction is recognized for the
purposes of this Part by the Commission as
having suitable standards, compliance
practices and regulatory supervision of its
broker dealers.
4. Section 160(1) of the Principal Act is amended by deleting
paragraphs (n) and (o) and substituting the following:
“(n) the listing and trading of foreign securities;
(o) the licensing of foreign broker dealers and limited
service brokers;
(p) the licensing of foreign investment advisers;
(q) the licensing of principals and representatives of
foreign intermediaries;
(r) any matter which this Act provides is to be, or may
be, prescribed;
(s) the better carrying out of purposes and provisions
of this Act;
Amendment of
section 160.
Simplified listing
and membership
procedures in cer-
tain cases
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(t) any supplementary, incidental and traditional
provisions as appear to the Minister as necessary
or expedient.”
5. Section 165 of the principal Act is hereby repealed. Repeal of section
165 of the princi-
pal Act.
________
Printed at the Government Printing Office, Antigua and Barbuda,
by Eric T. Bennett, Acting Government Printer
— By Authority, 2005.
800—9.05 [ Price $4.00 ]
Passed by the House of Representatives
this 18th day of July, 2005.
D. Giselle Isaac-Arrindell,
Speaker.
Yvonne Henry,
Acting Clerk to the House of
Representatives.
Passed by the Senate this
12th day of August, 2005.
Hazlyn M. Francis,
President.
Yvonne Henry,
Acting Clerk to the Senate.
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1. The Securities (Amendment) Bill has been prepared to address issues related
to the development of a regional market and to allow the ECSE to compare effec-
tively in CARICOM as a regional exchange. The Bill seeks to address the following:
a. Permit the listing and trading of securities of a foreign company or a
foreign government on a securities exchange licensed by the ECSRC;
b. Eliminate duplicative registration requirements where listing is solely
for ECSE trading an not for other commercial purposes.
c. Accept compliance with other regulatory authorities where the ECSRC
is satisfied that adequate supervision exists. Accordingly, foreign bro-
kers that are members of the ECSE for trading purposes only and not
otherwise conducting business in the ECCU will only be required to
register with the ECSRC.
d. Facilitate the use of dematerialisation for the trading of foreign securi-
ties listed on the ECSE through immobilisation with a custodian and
the recording of ownership with a licensed registry so that evidence of
ownership in the ECCU is by book-entry only, while the issuer may still
maintain physical certificates in its home market.
2. Under this revised regime, the foreign issuer will need to apply to the ECSE for
listing using a simplified application and agree to comply with the rules of the ECSE,
which are subject to ECSRC review and approval. This new listing requirement
recognises that the issuer is already registered with another securities regulatory
authority in its home jurisdiction or listed on another recognised exchange. While
required to make disclose filings with the ECSRC or ECSE, copies of filings made
with the primary regulator will generally be acceptable. Where there are additional
disclosure requirements by the ECSRC, the issuer may issue addendums to provide
the additional information.
THE SECURITIES (AMENDMENT) BILL
SECTION 1
Section 1. addresses the short title of the Bill.
SECTION 2
Section 2 addresses the definition and interpretation of the term “company”. In light of
the varying structures that business entities now assume, it has become necessary to
expand the definition of company to include those institutions which have been
organised, incorporated, registered or otherwise established, but which do not fall
within the strict definition of a “company” as defined in the Companies Act.
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SECTION 3
Section 3 introduces a new PART XV (A) — Listing and Trading Foreign Securi-
ties, Licensing and Exchange Membership of Foreign Market participants
Section 153A
This section broadly authorizes the listing and trading of foreign securities on the
ECSE or any Exchange licensed by the Commission as provided in this Part. The
section basically opens up the market to the listing and trading of foreign securi-
ties.
Section 153B
This section brings the listing and trading of foreign securities under the Securities
Act 2001 and makes it subject to all other parts and Regulations made under the Act
except where expressly exempted.
Section 153C
This section closely follows the arrangement of the definitions contained in Sec-
tion 2 (Interpretation) of the Securities Act 2001. The foreign element has been
added to most of the terms to provided for the institutions that have been incorpo-
rated or established outside the member territories for purposes of developing a
single market space within CARICOM.
Section 153D
This section grants the ECSRC the power to regulate the gradual expansion of the
ECSE into the listing and trading of foreign securities and the admission of foreign
broker dealers as members. The section is drafted very broadly to enable the listing
of any type of security from any recognised jurisdiction in the world so that the
Securities Act need not be constantly amended.
Sub-section 153D (3) requires a foreign broker dealer or limited service broker that
is licensed by a foreign securities regulatory commission and who wishes to trade
securities on an exchange licensed to conduct business in the ECCU, to register
with the ECSRC. Once registered, the foreign broker dealer or limited service broker
may become a member of a licensed exchange provided that it meets the exchange
requirement for membership as set out in its rules, and trade securities on its own
behalf or on behalf of a foreign person. They would not be permitted to trade
securities on behalf of persons belonging to member territories.
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A foreign broker dealer or limited service broker wishing to carry on business in a
member territory must be licensed by the ECSRC under Part IV of the Securities Act
2001 and must be represented by an agent resident in the member territory.
The ECSRC has discretion to grant an exemption from the requirements of Part IV of
the Securities Act 2001, once the foreign broker dealer or limited service broker has
registered with it.
Sub-section 153D (8) requires that foreign investment advisor licensed by a foreign
securities regulatory commission, must be licensed by the ECSRC, if he conducts
business or holds himself out as conducting business in a member territory. Simi-
larly, a principal or representative of, a foreign broker dealer or limited service broker
licensed by a foreign securities regulatory commission, must be licensed by the
ECSRC if he conducts business or holds himself out as conducting business in a
member territory.
The Terms “conduct business” and “holds himself out as conducting business”
are both defined in sub-section 153D (11). A person does not have to be physically
present in the member territory when he participates in the activity.
Section 153E and 153F
The listing and trading of foreign securities on a securities exchange shall not be
taken into account in determining whether or not a public offer of foreign securities
has been made in a member territory. The sections made it clear that the listing and
trading of foreign securities on its own, does not subject the foreign issuer to the
“public offering” requirement of issuing a new prospectus, registering with the
ECSRC etc. However, a foreign issuer whose activities would otherwise subject it to
the public offering requirements is still required to register with the ECSRC and
issue a new prospectus.
Section 153G
The conduct of foreign company occurring on a foreign securities exchange or in a
foreign jurisdiction would not be subject to Part X of the Securities Act 2001,
unless the Commission determines that the conduct has or will have a significant
impact on the market in a member territory. This section applies only to transac-
tions affecting securities on the ECSE and not to activities of the issuer in other
jurisdictions.
Section 153H
Generally Part XI of the Act shall not apply to foreign securities listed or trade on a
securities exchange. Where the Commission is of the view that the laws of the
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issuer’s home jurisdiction are not adequate to protect the interest of the investing
public in a member territory, it may require the issuer of foreign securities listed, its
directors and substantial shareholders, to comply with Part XI.
Section 153I
Part XII of the Securities Act 2001, gives the Commission power to, request infor-
mation from market participants, exchange information with other commissions and
to inspect and investigate the books, records and other documents of a licensee.
With respect to foreign securities listed and traded on a licensed securities ex-
change, the provisions of Part XII of the Securities Act 2001, shall only apply to
transactions, information and acts effected on or provided to, that securities ex-
change. The provisions of this part would only be applied to activities taking place
in a member territory.
Section 153J
Pursuant to this section, the ownership of foreign securities listed can only be
transferred in accordance with the rules and procedures of a licensed clearing
agency. Ownership of the said securities can only be determined from the records
of the securities registry. The section attempts to guarantee that foreign securities
listed and traded on a licensed exchange must be registered and transferred in the
same fashion as domestic securities and that no legal dispute about ownership or
transfer will arise.
Section 153K
Foreign securities listed and traded on a licensed securities exchange can be held
by a foreign custodian or registered with a foreign securities registry provided that
there is a written contract between the foreign custodian or registry and a custo-
dian or registry licensed under the Securities Act 2001. Therefore this section
permits a foreign investor to utilise the services of a foreign custodian or registry,
provided that there is a contract between the foreign registry or custodian and the
registry of custodian in the member territory.
Section 153L
This section permits a securities (with the permission of the ECSRC) to adopt
simplified listing and membership procedures to list foreign securities which are
already listed on a recognised securities exchange in another jurisdiction, provided
that exchange has suitable listing, compliance, and regulatory standards and prac-
tices. Similarly, a securities exchange may adopt simplified listing and membership
procedures for foreign broker dealers and foreign limited service brokers that are
already subject to regulation in a suitable, recognised jurisdiction. Here this section
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permits the exchange to adopt simplified listing and membership procedures where
the foreign jurisdiction has suitable listing, compliance and regularly standards and
practices.
SECTION 4
This amendment expands Section 160 (1) of the Securities Act 2001 to permit the
Minister to make additional Regulations with respect to foreign securities and
foreign market participants.
SECTION 165
Section 165 of the Securities Act of 2001 is repealed and the principal Stamp Act in
each of the participating member territories will be amended accordingly.
Hon. Justin L. Simon Q.C.,
Attorney General and
Minister of Legal Affairs.
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15The Securities (Amendment) Act, 2005.
ANTIGUA AND BARBUDA
THE SECURITIES (AMENDMENT) ACT, 2005
ARRANGEMENT OF SECTIONS
Section
1. Short title.
2. Amendment of section 2(1)
3. Insertion of PART XVA.
4. Amendment of section 160.
5. Repeal of section 165 of the principal Act.
