UTIES ACT 2001
ARRANGEMlmT OF PARTS
PART I GENERAL PROVISIONS .......................................................................... 1
PART I1 SECURITIES EXCHANGES ...................................................................... 7
PART 111 CLEARING AGENCIES AND SHARE REGISTRIES ......................... 15
....................................... PART IV LICENSING OF MARKET PARTICIPANTS 27
PART V CONDUCT OF SECURITIES BUSINESS ............................................. 53
PART VI REGISTERS OF INTERESTS IN SECURITIES .................................... 62
PART W OFFERS OF CORPORATE SECURITIES .............................................. 66
PART VIII REGISTRATION OF CORPORATE ISSUERS ...................................... 69
PART IX COLLECTIVE INVESTMENT SCHEMES .............................................. 70
PART X INSIDER DEALING AND OTHER MARKET ABUSES .................... 82
PART XI DISCLOSURE OF SHAREHOLDINGS OF DIRECTORS
AND SUBSTANTIAL SHAREHOLDERS ............................................. 88
.................... PART XII INFORMATION. INSPECTION AND MSTIGATION 91
PART XIII TAKE OVERS ........................................................................................... 100
PART XIV SELF REGULATORY ORGANISATIONS ......................................... 101
PART XV UNCERTIFICATED SECURITIES ......................................................... 105
...... PART XVI MISCELLANEOUS . ................................................................... 106
No. 14 of2001. Securities Act, 2001. 1 ANTIGUA
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[ L.S. ]
I Assent,
James B. Carlisle,
Governor-General.
I st October, 200 1
ANTIGUA AND BARBUDA
No. 14 of 2001
AN ACT to provide for the protection of investors in securities
through a regional Eastern Caribbean Securities Regulatory
Commission, by regulating the securities market, exchanges
and persons engaged in securities business, and by regulating
the public issue of securities and to provide for related matters.
[ 15th November, 2001 ]
ENACTED by the Parliament of Antigua and Barbuda as
follows -
PART I
GENERAL PROVISIONS
1. This Act may be cited as the Securities Act, 2001 and shall Short title and
come into operation on a day to be appointed by, the Minister by ~~I-III-IIencement.
notice published in the Gazette.
2. (1) In this Act, unless the context otherwise requires - Interpretation.
"accountant" means a person who is qualified as an
accountant by examination conducted by one of the
ANTIGUA 2
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Securities Act, 2001. No. 14 of 2001.
institutes of Chartered Accountants or Certified
Accountants in England and Wales, Ireland or Scotland,
the Canadian Institute of Chartered Accountants, the
Association of Chartered Certified Accountants, the
American Institute of Certified Public Accountants, the
Chartered Institute of Management Accountants, the
Certified General Accountants Association of Canada, the
Certified Management Accountants of Canada or such
other institute or body of accountants as may from time to
time be approved by the Commission, and is a practising
member in good standing of one of those institutes or is
otherwise approved by any supervisory body of the
accounting profession recognised under the law of Antigua
and Barbuda;
"accredited" is construed in accordance with section 64;
"advertisen~ent" includes every form of advertising, whether
in a publication, by the display of notices, signs, labels or
showcards, by means of circulars or other documents, by
an exhibition of pictures or photographic or
cinematographic films, by way of sound broadcasting or
television, by the distribution of recordings, by computer
output, or in any other manner, and "advertising" shall be
construed accordingly;
"Agreement" means the Agreement establishing the
Eastern Caribbean Securities Regulatory Commission made
on the 24th day ofNovember 2000, the text of which is set
out in the Schedule and to which the government of
Antigua and Barbuda is a party;
"broker dealer" means a person who carries on the business
of dealing in securities, or who holds himself out as
conducting such business, within the meaning of section
47;
"broker dealer's representative" means an individual in the
employment of, or acting for or by arrangement with, a
broker dealer, who deals in securities on behalf of that
broker dealer, whether he is paid a salary, wages,
commission or otherwise;
"clearing agency" means a company whose business is
No. 14 of 2001. Securities Act, 2001. 3 ANTIGUA
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the provision of services for the clearing and settlement of
transactions in securities;
"Commission" means the Eastern Caribbean Securities
Regulatory Commission established by Article 3 of the
Agreement;
"company" means a company incorporated or registered No. 18 of 1995.
under the Companies Act;
"dealing in securities" is construed in accordance with
section 47;
"Disciphary Committee" means the Disciphary Committee
established under section 140;
"document" includes -
(a) information recorded in any form; and
(b) in relation to information recorded otherwise
than in legible form, references to its production
include references to producing a copy of the
information in legible form;
"investment adviser" means a person who carries on
business giving advice on securities, or who holds himself
out as conducting such business, within the meaning of
section 53;
"investment adviser's representative" means an individual
in the employment of, or acting for or by arrangement with,
an investment adviser, who advises on securities on behalf
of that investment adviser, whether that individual is paid
a salary, wages, commission or otherwise;
"issuer" in relation to any securities, means the person by
whom they have been or are to be issued;
"licensee" means a person licensed under Part IV;
"limited service broker" is construed in accordance with
section 50;
ANTIGUA 4 Securities Act, 2001. No. 14 of 2001.
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"limited service broker's representative" means an
individual in the employment of, or acting for or by
arrangement with, a limited service broker, who deals in
securities on behalf of that broker, whether he is paid a
salary, wages, commission or otherwise;
"menlber" in relation to a securities exchange, means a
licensee who is admitted to membership of the exchange;
"Minister" means the Minister responsible for the subject
of finance;
"Monetary Council" means the Monetary Council
established under Article 7 of the Agreement establishing
the Eastern Caribbean Central Bank done at Port-of-Spain
on the 5th day of July 1983 which said Agreement is set
out in the Schedule to the Eastern Caribbean Central Bank
Agreement Act, 1983;
"participating Government" has the same meaning as in
the Agreement;
"person" includes a company and an individual;
"prescribed" means prescribed by regulations made by
the Minister on the recommendation of the Commission;
"principal" is construed in accordance with section 60;
"representative" means an accredited broker dealer's
representative, a limited service broker's representative or
an investment adviser's representative, as the case may
be, licensed under section 62;
"securities" means -
(a) shares and stock in the share capital of a
company;
(b) any instrument creating or acknowledging
indebtedness which is issued or proposed to
be issued by a company including, in
particular, debentures, debenture stock, loan
stock, bonds and notes;
No. 14 0f2001. Securities Act, 2001. 5 ANTIGUA
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(c) bonds and other instruments creating or
acknowledging indebtedness issued by or on
behalf of any participating Government;
(d) any right (whether conferred by warrant or
otherwise) to subscribe for shares or debt
securities;
(e) any option to acquire or dispose of any other
security;
Gf) units in a collective investment scheme,
including shares in or securities of an
investment company; and
(g) any other instruments prescribed to be
securities for the purposes of this Act,
but does not include -
(i) bills of exchange;
(ii) treasury bills with an original
maturity of less than ninety days;
(iii) promissory notes for less than two
hundred and seventy days;
(iv) certificates of deposit issued by a
licensed financial institution; or
(v) any other instrument prescribed,
on the recommendation of the
Commission, not to be securities
for the purposes of the Act;
"securities exchange" means a market, exchange, place or
facility which provides for bringing together on a regular
basis purchasers and sellers of securities, and sets rules
for the execution of securities transactions or for the
negotiation or conclusion of sales and purchases of
securities, but does not include
ANTIGUA 6 Securities Act, 2001. No. 14 of2001.
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(a) the office or facilities of a member of a licensed
securities exchange; or
(b) the office or facilities of a clearing agency or
securities depository;
"underwriting" includes the purchase of newly issued
securities for the purpose of public resale on behalf of the
issuer, and the guaranteeing to an issuer that the unsold
residue of the issuer's public issue or sale will be taken up.
(2) (a) A company is a subsidiary of another company (its
holding company) if that other company -
(i) holds a majority of the voting rights in
it;
(ii) is a member of it and has the right to
appoint or remove a majority of its board
of directors; or
(iii) is a member of it and controls alone,
pursuant to an agreement with other
shareholders, a majority of the voting
rights in it;
(b) A company is deemed to be a subsidiary of another
if the first mentioned company is a subsidiary of a
compa,ny whch is itself a subsidiary of that other
company.
Agreement to 3. The Agreement shall have the force of law in Antigua and
have force of law. ~ ~ b ~ d ~ .
Amendment to 4. Where an amendment to the Agreement becomes effective
Agreement. in accordance with Article 32 of the Agreement, the Minister
shall by Order amend the Schedule to this Act for the purpose of
including the amendment.
Estem Caribbean 5. The Commission is a legal body vested with all the powers
Securities
Regulatory
and characteristics of a body corporate having perpetual
Commission, succession and a common seal.
No. 14 of 2001. Securities Act, 2001. 7 ANTIGUA
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6. (1) The Commission shall be funded in accordance with Funding of
Article 24 of the Agreement. Commission.
(2) The Commission is authorised to impose such fees, charges
or levies as may be prescribed.
PART II
SE- EXCHANGES
7. (1) NO person shall establish or operate a securities exchange Restriction on
[in Territory] except under and in accordance with a securities establishment of
exchange licence granted by the Commission under this Act. ~ c ~ ~ ~ ~ s ,
(2) No person shall assist any other person in the operation of
a securities exchange unless that other person is the holder of a
securities exchange licence granted by the Commission under
this Act.
(3) A person who contravenes subsection (1) or (2) commits
an offence and is liable on summary conviction -
(a) in the case of an individual, to a fine of one hundred
thousand dollars or to imprisonment for two years or
to both;
(b) in the case of a company, to a fine of two hundred
thousand dollars; and
if the offence is a continuing offence, the individual or company
is liable to a further fine not exceeding one thousand dollars for
every day that the offence continues after conviction.
(4) A person convicted of an offence under this section shall,
following an assessment by the Commission, be liable to pay to
the Commission, any monies received or the monetary equivalent
of any assets obtained as a result of carrying on securities
business without a licence.
8. (1) With effect from the commencement of this Act, the Eastern Caribbean
Eastern Caribbean Securities Exchange Limited shall, subject to Securities
subsection (3), be deemed to be licensed under this Part. Exchange Limited.
ANTIGUA 8 Securities Act, 2001.
AND
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No. 14 of 2001.
(2) The Eastern Caribbean Securities Exchange Limited shall,
not later than twelve months afier the commencement of this Act
or within such longer period as the Commission will allow -
(a) take such steps as are necessary to ensure that it
satisfies the conditions specified in section 10 (2);
(bj notify the Commission in writing of the steps so taken;
and
(cj apply for a securities exchange licence under section
9.
(3) If the Eastern Caribbean Securities Exchange ~itnited fails
to take action in accordance with subsection (2) within the time
limited by or under that subsection, the Eastern Caribbean
Securities Exchange Limited shall cease to be deemed to be
licensed on the expiration of that period.
Application for 9. (1) Only a company whose sole activity is the operation of
securities a securities exchange may apply to the Commission for a securities
exchange. exchange licence.
(2) An application under subsection (1) shall be made in the
prescribed form and accompanied by the prescribed fee.
Grant of securities 10. (1) Upon receipt of an application duly made under
exchange licence. section 9, the Commissionmay grant a securities exchange licence
if it is satisfied that -
(a) it is appropriate to do so in the public interest, or for
the proper regulation of markets in securities; and
(b) the applicant satisfies the conditions specified in
subsection (2).
(2) The conditions to be satisfied by the applicant are that -
(a) the applicant's activities will be limited to the
operation of a securities exchange;
(b) the applicant can provide and maintain, to the
satisfaction of the Commission, adequate and
No. 14 0f2001. Securities Act, 2001. 9 ANTIGUA
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properly equipped facilities or systems for the
conduct of the business of a securities exchange;
(c) the applicant shall have not less than three members
who are engaged in the business of dealing in
securities independently of and in competition with
each other;
(d) the rules and practices proposed to be followed by
the applicant must be such as will ensure that
business conducted by means of its facilities or
systems will be conducted in an orderly manner and
so as to accord proper protection to investors;
(e) the applicant has made such arrangements as the
Commission considers satisfactory for -
(i) the clearing and settlement of dealings
in securities to ensure the performance
of transactions effected on the securities
exchange, and for the recording and
publication of such transactions;
(ii) market surveillance;
(iii) the effective monitoring and
enforcement of compliance with its rules,
this Act and regulations made under this
Act; and
(iv) investigating complaints in respect of
business transacted by any of its
members;
the applicant must have default rules which, where a
member of the securities exchange appears to be
unable, or likely to become unable, to meet his
obligations in respect of one or more market contracts,
enable action to be taken to close out his position in
respect of all unsettled market contracts to which he
is a party.
ANTIGUA 10 Securities Act, 2001.
AND
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No. 14 of2001.
Suspension and 11. (1) The Commission may suspend a securities exchange
revocation Of licence granted under section 10 if the company -
securities
exchange licence.
(a) temporarily ceases id operate the securities
exchange;
(b) goes into receivership;
(c) contravenes a provision of this Act;
(d) is operating in a manner detrimental to the public
interest;
(e) fails to provide the Commission with information
lawfully required;
0 fails to comply with a lawful direction of the
Commission; or
(g) fails to pay its annual licence fee as prescribed on or
before the anniversary of the day of the grant of its
licence.
(2) The Commission may revoke a securities exchange licence
granted under section 10 if the company -
(a) ceases to operate the securities exci,ange;
(b) is being woundup, compounds or compromises with
its creditors;
(c) contravenes a provision of this Act;
(d) is operating in a manner detrimental to the public
interest;
(e) fails to continue to comply with the conditions
specified in section 10 (2);
fails to pay its annual licence fee as prescribed on or
before the anniversary of the day of the grant of its
licence; or
(g) requests the Commission to do so.
No. 14 of 2001. Securities Act, 2001. 11 ANTIGUA
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(3) The Commission shall not revoke or suspend a securities
exchange licence without first giving the holder of the licence an
opportunity of being heard.
12. (1) A holder of a securities exchange licence-shall ensure, Of
of securities
so far as is reasonably practicable, an orderly and fair market in exchange licence,
the securities that are traded through its facilities.
(2) In performing its duties under subsection (I), the holder
of a securities exchange licence shall -
(a) act in the interests of the investing public; and
(b) ensure that such interests prevail where they conflict
with any other interests the company is required to
serve under any other law.
(3) The holder of a securities exchange licence shall ensure
that members comply with its rules, this Act and regulations
made under this Act.
(4) The holder of a securities exchange licence shall provide
and maintain at all times to the satisfaction of the Commission
(a) adequate and properly equipped premises for the
conduct of its business;
(b) competent personnel for the conduct of its business;
(c) automated or other systems with adequate capacity,
facilities to meet emergencies and security
arrangements.
(5) The holder of a securities exchange licence shall notify
the Commission immediately if it becomes aware -
(a) that a member is unable to comply with any Financial
resources regulation made under section 76; or
(b) of a financial irregularity or other matter which in the
opinion of the holder of the securities exchange
licence may indicate that the financial standing or
integrity of a member is in question, or that a member
ANTIGUA 12 Securities Act, 2001.
AND
BARBUDA
No. 14of2001.
may not be able to meet that member's legal
obligations.
Rules of secuntles 13. (1) Subject to the approval oft&: C i*-eriaiss~on, the holder
exchange of a securities exchange licence shall make rules for the proper
and efficient regulation, operation, management and control of
the securities exchange.
(2) Without limiting the general effect of subsection (I), the
holder of a securities exchange licence shall make rules
(a) in respect of applications for listing and the
requirements for listing;
(b) regarding agreements to be entered into between
the securities exchange and other persons for listing
securities and enforcing those agreements;
(c) regarding the cancellation and withdrawal of the
listing of securities and the suspension of dealings
in them;
(d) obliging a person to observe specified standards of
conduct or to perfornl, or refrain from performing,
specified acts reasonably imposed for the listing or
continued listing of securities; and
(e) regarding the penalties and sanctions which the
holder of the securities exchange licence may impose
for a breach of the rules of the securities exchange.
Amendment to 14. (1) A securities exchange that wishes to make any
rules of securities amendment to its rules shall submit a draft of the proposed
exchange. amendment to the Commission for approval.
(2) The Commission shall, within thirty days, of receipt of the
proposed amendment by notice in writing to the holder of the
securities exchange licence approve the amendment or disapprove
the whole or any specified part of the amendment in question
and until such notice is given the amendment shall not have
force and effect.
Fixing of trading 15. (1) The Minister may, on the recommendation of the
and position Commission, make regulations prescribing limits on the amount
limits.
No. 14of2001. Securities Act, 2001. 13 ANTIGUA
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of trading which may be done, or positions which may be held,
by a member of a securities exchange.
(2) Subsection (1) does not prohibit the Minister on the
recommendation of the Commission fiom fixing different trading
or position limits for different types of transactions, or from
exempting specified transactions.
(3) Without limiting the general effect of subsection (I), the
Minister may, on the recommendation of the Commission, make
regulations to prohibit a person from
(a) directly or indirectly entering, during a prescribed
period, into transactions of a specified class in excess
of the prescribed amount; or
(b) directly or indirectly holding or controlling positions
of a specified class in excess of a prescribed position
llmlt.
16. Where the Commission is satisfied that it is necessary for Power of
the protection of investors or for the proper regulation of a Commission to
securities exchange, the Commission may issue directions to the directions to
securities
holder of a securities exchange licence with respect to - exchange.
(a) trading on or through its facilities generally or with
respect to the trading of a particular security;
(b) the manner in which the securities exchange carries
on any aspect of its business, including the manner
of reporting off-market trades by members; or
(c) any other matter that the Commission considers
necessary for the effective administration of this Act;
and the holder of the securities exchange licence shall comply
with the direction.
17. Where the Commission considers it necessary for the Power of
protectioii of investors, it may by notice in writing require the Commission to
holder of a securities exchange licence to make or to amend or r2:riment to
repeal any rule and, on the Commission specifying the
amendments and the dates those amendments shall have force
and effect, the securities exchange shall comply with the
ANTIGUA 14 Securities Act, 2001. No. 14of2001.
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requirement as soon as practicable after receipt of the notice
from the Commission.
Securities 18. The holder of a securities exchange licence shall provide
exchange to assist such assistance to the Commission as the Commission
Commission. reasonably requires for the performance of its functions, including
the furnishmg of returns and providing information in respect of
dealings in securities or any other specified information as the
Commission may require for the proper administration of this
Act.
Disciplinary 19. (1) Where a securities exchange reprimands, fines,
action over suspends, expels or otherwise takes disciplinary action against a
members of a
securities member in accordance with its rules, the securities exchange shall,
exchange. within seven days of taking such action, give to the Commission
in writing particulars of the name of the member, the reason for
and nature of the action taken, the amount of any fine, and the
period of any suspension.
(2) Any action taken by a securities exchange under subsection
(1) shall be without prejudice to the power of the Commission to
take such action as it sees fit with regard to the member or the
licence held by the member.
Closure of 20. (1) The Commission may, after consulting the holder of a
securities securities exchange licence, direct it to close its market for a
exchange in
emergency. period not exceeding five trading days.
(2) The Commission may give the direction under subsection
(1) if it is of the opinion that the orderly transaction of business
on the securities exchange is being, or is likely to be, prevented
because -
(a) of an impending emergency or natural disaster or
where such emergency or disaster has occurred in
Antigua and Barbuda; or
(bj there exists an economic or financial crisis, whether
in Antigua and Barbuda or elsewhere, or any other
circumstance, which is likely to prevent orderly
trading on the securities exchange.
(3) The Commission may, on consultation with Monetary
Council, extend the direction for further periods not exceeding
ten trading days.
No. 14of2001. Securities Act, 2001. 15 ANTJGUA
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21. (1) No person other than the holder of a securities exchange Restriction on use
licence may take or use the title or description "stock exchange",
to exchanges, "stock market", "securities exchange" or "securities market" or markets, etc,
anything which so closely resembles any of them as to be
calculated to deceive.
(2) Subsection (1) shall not prevent a person from using any
of the restricted terms in connection with an application, including
application for the formation of a company, to the Commission
for a licence.
(3) A person who contravenes subsection (1) commits an
offence.
PART III
CLEARING AGENCIES AND SEcLMTES REGISTRIES
22. (1) In this Part - Interpretation.
"default proceedings" means any proceedings or other
action taken by a clearing agency under its default rules;
"default rules", for a clearing agency, means the rules of
the clearing agency required by section 26;
"defaulter" means a participant who is the subject of any
default proceedings;
"market charge" means a charge, whether fixed or floating,
granted in favour of a clearing agency -
(a) over property, specified in subsection (2), held
by or deposited with the clearing agency; and
(b) to secure liabilities arising directly with the
clearing agency facilitating the settlement of a
market contract;
"market collateral" means property, specified in subsection
(2), held by or deposited with a clearing agency to secure
liabilities arising hectly with the clearing agency facilitating
the settlement of a market contract;
ANTlGUA 16
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Securities Act, 2001. No. 14 of 2001.
"market contract" means a contract subject to the rules of
a clearing agency entered into by the clearing agency with
a participant under a novation which is both in accordance
with those rules and for the purpose of the clearing and
settlement of transactions in securities effected on, or
subject to the rules of a securities exchange;
"participant" means a person who, under the rules of a
clearing agency, may participate in one or more of the
services provided by the clearing agency in its capacity as
a clearing agency;
"relevant office-holder" means -
(a) the Official Receiver appointed under the
Bankruptcy Act;
(b) a person acting in relation to a company as its
liquidator, provisional liquidator, receiver or
manager;
(c) a person acting in relation to an individual as
his trustee in bankruptcy or interim receiver of
his property; or
(d) a person appointed under an order for the
administration in bankruptcy of an insolvent
estate of a deceased person;
"settlement", in relation to a market contract, includes partial
settlement;
(2) Property whlch may be subject to a market charge, or
provided as market collateral, is -
(a) money, letters of credit, bankers' drafts, certified
cheques, and any similar instruments;
(b) securities;
(c) futures contracts, and any similar financial contracts.
(3) Where a charge is granted partly for the purpose specified
in the defmition of "market charge" and partly for other purposes,
No. 14 0f2001. Securities Act, 2001. 17 ANTIGUA
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the charge shall be a market charge in so far as it has effect for
that specified purpose.
(4) Where collateral is granted partly for the purpose specified
in the definition of "market collateral" and partly for other
purposes, the collateral is market collateral in so far as it has been
provided for that specified purpose.
(5) References in this Part to the law on insolvency include
references to every provision made by or under -
(a) the Bankruptcy Act; Cap. 41.
(b) the Companies Act; and NO. 18 of 1995.
(c) any other enactment which is concerned with or in
any way related to the insolvency of a person.
(6) References in this Part to settlement in relation to a market
contract are references to the discharge of the rights and liabilities
of the parties to the contract, whether by performance, compromise
or otherwise.
23. (1) No person shall establish or operate a clearing agency Licensing of
except under and in accordance with a clearing agency licence clearing agencies.
granted by the Commission under this Act.
(2) No person shall assist any other person in the operation of
a clearing agency unless that other person is the holder of a
clearing agency licence.
(3) Subject to the provisions of this Part, the Commission may
license a company to operate a clearing agency, which shall be
the company's sole activity, where it is satisfied that it is
appropriate -
(a) in the interests of the investing public; and
(b) for the p;owr regulation of services for the clearing
and settlement of transactions in securities contracts
on a securities exchange.
24. (1) Only a company may apply to the Commission for a Application for
licence to operate a clearing agency. clearing agency
licence.
ANTIGUA 18 Securities Act, 2001. No. 14 of2001.
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(2) An application under subsection (1) shall -
(a) be made in the form prescribed by the Commission
and shall be completed in accordance with any
direction specified in the form;
(b) be accompanied by a copy of the applicant's rules;
and
(c) be accompanied by particulars of the securities
exchange, together with a letter of confurnation from
the securities exchange, with which the applicant
proposes to make clearing arrangements.
(3) At any time after receiving an application and before
determining it the Commission may require the applicant to
furnish additional information.
(4) Any information to be furnished to the Commission under
this section shall, if it so requires, be in such form or verified in
such manner as the Commission may specify.
Grant of clearing 25. On receipt of an application duly made in accordance with
agency licence. section 24 the Commission may grant a licence to operate a
clearing agency if it is satisfied that -
(a) it is appropriate to do so in the public interest;
(b) the applicant has financial resources sufficient for
the proper performance of its functions;
(c) the applicant has adequate arrangements and
resources for the effective monitoring and
enforcement of compliance with its rules;
(d) the applicant is able to provide clearing services
which would enable a securities exchange to ensure
the performance of transactions effected on the
market; and
the default rules of the applicant satisfy the requirements of
section 26.
No. 14of2001. Securities Act, 2001. 19 ANTIGUA
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26. (1) For the purposes of section 25, the rules of a clearing Rules of clearing
agency shall include provisions - agency.
(a) where a participant appears to be unable, or likely to
become unable, to meet the obligations in respect of
one or more market contracts, to enable action to be
taken to close out the participant's position in relation
to all unsettled market contracts to which the
participant is a party;
(b) where the clearing agency determines that the
activities of a participant presents or is likely to
present unreasonable risk to the clearance and
settlement systems to cease to act for the participant;
(c) to enable the settlement of all of the contracts by
providing for there to be payable by or to the
participant a sum of money in relation to each contract
if that is required after taking' into account all the
rights and liabilities of the participant under or in
respect of the contract concerned;
(d) to enable all sums of money payable by or to the
participant as determined in accordance with
paragraph (b) to be aggregated or set-off so as to
produce a net sum, if any, payable by or to the
participant;
(e) if any net sum referred to in paragraph (c) is payable
by the participant, to provide for that net sum to be
set-off against all property of the participant which
is either subject to a market charge or which has
been provided as market collateral (or set-off against
the proceeds of the realisation of such property) so
as to produce a further net sum, if any, payable by or
to the participant;
03 if any net sum referred to in paragraph (c) is payable
to the participant, to provide that all property of the
participant which is either subject to a market charge
or which has been provided as market collateral shall
cease to be subject to the market charge (but without
prejudice to any other form of charge to which it may
be subject) or to be market collateral (but without
ANTIGUA 20 Securities Act, 2001.
AND
BARBUDA
No. 14 of 2001.
prejudice to its provision as any other form of
collateral), as the case may be; and
(g) to provide for the certification by the clearing agency
of any net sum referred to in paragraph (c) payable
to the participant, or of any further net sum referred
to in paragraph (d) payable by or to the participant,
as the case may be, or if there is no such sum, the
certification by the clearing agency of that fact.
(2) Where a clearing agency takes default proceedings, all
subsequent action taken under its rules for settlement of market
contracts to which the defaulter is a party are to be treated as
taken under the default rules.
Approval of 27. (1) A clearing agency shall submit to the Commission -
amendments to
rules of clearing
agency. (a) all proposed rules and amendments to rules of the
clearing agency; and
(b) explanations of the purpose and likely effect,
including the effect on the investing public of all
proposed rules or amendments to rules.
in sufficient detail to enable the Commission to decide whether
to approve such rules or refuse to approve them.
(2) The proposed rules of a clearing agency or an amendment
to its rules shall not have effect unless the Commission has
approved them in writing.
(3) The Commission shall, within thuty days after receiving
the proposed rules or amendments for approval, give notice in
writing to the clearing agency that -
(a) it approves them; or
(b) it refuses to approve them.
(4) The Commission shall not refuse a proposed rule or an
amendment to a rule without first giving the clearing agency an
opportunity of being heard.
No. 14 of 2001. Securities Act, 2001. 21
28. An applicant for a licence under this Part shall forthwith
give written notice to the Commission of -
(a) any proposed alteration to, or
(b) the occurrence of any event which it knows affects
or may affect in a material respect,
information supplied to the Commission in relation to the
application, being a proposal or event made or occurring while
the application is pending a decision by the Commission.
29. It shall be a condition of every clearing agency licence
granted under this Part that -
(a) the licence is personal to the applicant and is not
transferable;
(b) the clearing agency shall forthwith give written notice
to the Commission of
(i) any proposed alteration to, or
(ii) the occurrence of any event which it
knows affects or may affect in a material
respect,
any matter in respect of which it was required to supply
information to the Commission;
(c) the consent of the Commission shall be obtained
prior to the making of any change in the constitution
or control of the clearing agency; and
(d) the clearing agency shall not carry on, or hold itself
out as carrying on, any business other than that of
providing clearing and settlement services.
30. (1) The Commission may at any time revoke or suspend a
clearing agency licence granted under this Part if it appears to
the Commission that the holder of the clearing agency licence -
ANTIGUA
AND
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Alteration of
facts disclosed in
application.
General
conditions.
Revocation and
suspension of
licence.
(a) has ceased to operate a clearing agency;
ANTIGUA 22
AND
BARBUDA
Securities Act, 2001. No. 14of2001.
(b) has failed to comply with any obligation to which it
is subject under this Act; or
(c) is operating in a manner detrimental to h e public
interest.
(2) Where the Commission suspends a licence, the suspension
may be for the period, or until .the happening of an event, the
Commission considers appropriate,
(3) The Commission shall not revoke or suspend a clearing
agency licence without first giving the holder of the licence an
opportunity of being heard.
Power of 31. Where the Commission is satisfied that it is necessary for
Commission to the protection of investors or for the proper regulation of a clearing
issue agency, the Commission may issue directions
(a) with respect to the manner in which the clearing
agency carries on any aspect of its business; or
(b) with respect to any other matter that the Commission
considers necessary for the effective administration
of this Act,
and the clearing agency shall comply with the direction.
~ u t y to assist 32. Notwithstanding any other law, a clearing agency shall
provide such assistance to the Commission as the Commission
reasonably requires for the performance of its functions, including
the furnishing of returns and the provision of information in
respect of securities transactions or any other specified
information as the Commission may require from time to time.
Proceedings of 33. (1) The following shall not be to any extent invalid at law
clear'ng agency for inconsistency with the law for distributing the assets of a
take precedence
over laws of person on insolvency, bankruptcy or winding up, or on the
insolvency. appointment of a receiver over any of the assets of a person
(a) a market contract;
(b) the rules of a clearing agency for the settlement of a
market contract;
No. 14 of2001. Securities Act, 2001. 23 ANTIGUA
AND
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(c) proceedings or other action taken under the rules of
a clearing agency for the settlement of a market
contract;
(d) a market charge;
(e) the default rules of a clearing agency; or
03 default proceedings.
(2) No person acting under the laws of insolvency, may exercise
any power to prevent or interfere with -
(a) the settlement of a market contract under the rules of
a clearing agency; or
(b) default proceedings.
34. (1) A clearing agency shall, upon completion by it of default Duty to report on
proceedings, make a report on such proceedings stating in respect completion of
of each defaulter - default proceedings.
(a) the net sum, if any, certified by the clearing agency
to be payable by or to the defaulter; or
(b) that no sum is payable.
(2) A clearing agency which has made a report pursuant to
subsection (1) shall supply the report to -
(a) the Commission;
(b) any relevant office-holder in relation to -
(i) the defaulter to whom the report relates;
or
(ii) that defaulter's estate;
(c) if there is no relevant office-holder referred to in
subsection (b), the defaulter to whom the report
relates.
(3) Where the Commission receives pursuant to subsection (2)
a report made pursuant to subsection (1), it may publish notice of
ANTIGUA 24 Securities Act, 2001
AND
BARBUDA
No. 14of2001.
that fact in such manner as it thinks appropriate to bring it to the
attention of creditors of the defaulter to whom the report relates.
(4) Where a relevant office-holder or defaulter receives
pursuant to subsection (2) a report made pursuant to subsection
(I), the office-holder or defaulter shall, at the request of a creditor
of the defaulter to whom .the report relates -
(a) make the report available for inspection by the
creditor;
(b) on payment of such reasonable fee as the relevant
office-holder or defaulter, as the case may be,
determines, supply to the creditor all or any part of
that report.
(5) In subsections (2), (3) and (4), "report" includes a copy of
a report.
Net sum payable 35. (1) Where a receiving or winding up order has been made,
on completion of or a resolution for voluntary winding up has been passed, any
default
proceedings.
net sum shall, notwithstanding any of the provisions of the
Bankruptcy Act or the Companies Act, be provable in the
ba rhp tcy or winding up or, as the case may be, shall be payable
to the relevant office-holder under the Bankruptcy Act or in the
case of a winding-up order under the Companies Act.
(2) This section applies to any net sum certified under section
34 (1) (a) by a clearing agency, upon the completion by it of any
default proceedings, to be payable by or to a defaulter.
Enforcement of 36. (1) Where property is subject to a market charge or has
judgements over been provided as market collateral, no execution or other legal
subject process for the enforcement of a judgement or order may be
to market charge.
commenced or continued, and no distress may be levied, against
the property by a person not seeking to enforce any interest in or
security over the property, except with the consent of the clearing
agency concerned.
(2) Where by virtue of this section a person would not be
entitled to enforce a judgement or order against any property,
any injunction or other remedy granted with a view to facilitating
the enforcement of any such judgement or order shall not extend
to that property.
No. 14 0f2001. Securities Act, 2001. 25 ANTIGUA
AND
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37. Where a participant - Participant to be
party to certain
transactions as
(a) in his capacity as such enters into any transaction principal,
(including a market contract) with a clearing agency;
and
(b) but for this subsection, would be a party to that
transaction as agent,
then as between the clearing agency and any other person
(including the participant and the person who is his principal in
respect of that transaction), the participant is for all purposes
(including any action, claim or demand, either civil or criminal) -
(i) deemed not to be a party to that transaction as
agent; and
(ii) deemed to be a party to that transaction as
principal,
notwithstanding any other enactment or rule of law.
38. (1) An action, claim or demand, either civil or criminal, for Securities
a right, title or interest held by any person in securities deposited deposited with
by a participant with a clearing agency in accordance with the agency
rules of the clearing agency, does not lie, and may not be
commenced or allowed, against the clearing agency or its
nominees, notwithstanding any other enactment or rule of law.
(2) The operation of subsection (1) in respect of securities
deposited with a clearing agency is subject to any modifications
and exclusions provided in the rules of the clearing agency.
39. Except to the extent that it expressly provides, this Part
does not operate to limit, restrict or otherwise affect -
(a) a right, tifle,*interest, privilege, obligation or liability
of a person;
(b) an investigation, legal proceeding or remedy in
respect of the right, title, interest, privilege, obligation
or liability.
ANTIGUA 26 Securities Act, 2001. No. 14of2001.
AND
BARBUDA
Securities 40. (1) A person shall not establish or operate, or assist in the
registries. operation of, a share registry business that is not licensed for
such purpose by the Commission.
(2) Subject to the provisions of h s Part, the Commission may
license a company to operate a share registry business where it
is satisfied that it is appropriate -
(a) in the interests of the investing public; and
(b) for the proper regulation of share registry services.
(3) A persan who contravenes subsection (1) commits an
offence.
Application for 41. (1) Only a company registered in Antigua and Barbuda
securities registry may apply to the Commission for a licence to operate a share
licence. registry.
(2) An application under subsection (1) shall -
(a) be made in the form prescribed by the Commission;
and
(b) be accompanied by the prescribed fee.
(3) At any time after receiving an application the Commission
may require an applicant to furnish additional information.
(4) Any information to be furnished to the Commission under
this section shall, if it so requires, be in such form or verified in
such manner as the Commission may specify.
Grant of securities 42. On receipt of an application duly made in accordance with
registry licence. section 4 1 the Commission may grant a licence to operate a share
registry if it is satisfied that the applicant has financial resources
sufficient for the proper performance of its functions.
Application of 43. Sections 28,29,30,3 1, and 32 shall apply mutatis mutandis
28 32 to a licensed share registry.
to securities
No. 14 0f2001. Securities Act, 2001. 27 ANTIGUA
AM1
BARBUDA
44. With effect from the commencement of thls Act, the Eastern Eastern Caribbean
Caribbean Central Securities Registry Limited shall be deemed to cenpal securities
Reglstry Limited. be licensed as a share registry under this Act.
45. With effect from the day of commencement of this Act, the Eastern Caribbean
Eastern Caribbean Central Securities Depository Limited shall be Securities
Depository
deemed to be licensed as a clearing agency and as a custodian Limited,
under this Act.
PART IV
LICENSING OF MARKET PARTICIPANTS
46. Subject to the provisions of this Part, no person shall Licensing
cany on business, or hold himself out as carrying on business, requirement.
as -
(a) a broker dealer;
(b) a limited service broker;
(c) an investment adviser;
(d) a custodian;
(e) a principal of a broker dealer, limited service broker
or corporate investment adviser; or
fl a representative of a broker dealer, limited service
broker or investment adviser,
unless that person is licensed to do so by the Commission under
this Part.
47. (1) Subject to the provisions of this Part, no person shall Broker dealers.
carry on business in Antigua and Barbuda dealing in securities,
or hold himself out as carrying on that business, unless that
person is a licensed broker dealer.
(2) No broker dealer shall operate other than in accordance
with its licence.
ANTIGUA 28 Securities Act, 2001.
AND
BARBUDA
No. 14 0f2001.
(3) A person is regarded as carrying on business dealing in
securities if that person (whether acting as principal or agent) by
way of business -
(a) makes or offers to make an agreement with another
person to enter into or offer to enter into an
agreement, for or with a view to acquiring, disposing
of, subscribing for or underwriting securities or in
anyway effects or causes to effect a securities
transaction; or
(b) manages a portfolio of securities for another person
on terms under which the fxst mentioned person
may hold property of the other person.
(4) A person is not regarded as carrying on business dealing
in securities, or as holding himself out as carrying on that
business, if that person -
(a) is carrying out functions as a clearing agency;
(b) deals in securities as principal only through a broker
dealer or its representative or a limited service broker;
(c) is an investment adviser and, in a manner consistent
with a licence granted to that persan, manages a
portfolio of securities for another person -
(i) without holding property of the other
person; and
(ii) on terms which preclude that person
from doing so; or
(d) gives advice on securities as an incident to the
person's practice as a lawyer or professional
accountant.
(5) For the purpose of subsections (3) and (4), and subsection
(3) of section 53, "hold" in relation to property includes the control
of its disposal but does not include the mere receipt and despatch
or delivery of a cheque or other order made payable to another
person.
No. 14 of 2001. Securities Act, 2001. 29 ANTIGUA
AND
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48. (1) The Commission may grant a broker dealer licence to a Grant of broker
company which applies in the prescribed manner and pays the licence.
prescribed fee.
(2) A licence granted under this section shall specify the
securities business activity that the broker dealer is permitted to
undertake and shall be restricted to such business as so specified.
(3) The Commission shall refuse to grant a broker dealer
licence unless the applicant -
(a) isacompany;
(b) employs at least one individual who is licensed as a
principal under section 60;
(c) employs at least one individual who is licensed as a
representative under section 62;
(d) has the prescribed minimum paid-up capital and is
able to meet the prescribed minimum net liquid capital
requirement in cash or readily marketable securities;
(e) complies with the insurance requirement under
section 80;
fl satisfies the Commission that it is a fit and proper
person to be licensed as a broker dealer;
(g) will be able, if licensed, to comply with the fmancial
resources regulations that may apply to it;
(h) has specified premises under section 49 (1) (c) that
are suitable for keeping records or other docun~ents.
(4).In considering whether an applicant is a fit and proper
person to be licensed, the Commission -
(a) shall have regard to, in respect of each of its directors
and officers
(i) his fmancial status;
ANTIGUA 30
AND
BARBUDA
Securities Act, 2001. No. 14of2001.
(ii) his educational or other qualifications
or experience having regard to the nature
of his application;
(iii) his ability to perform his proposed
function efficiently, honestly and fairly;
and
(iv) his reputation, character, financial
integrity and reliability; and
(b) may take into account any matter relating to -
(i) any person who is or is to be employed
by, or associated with, the applicant for
the purposes of the business to which
the application relates;
(ii) any person who will be acting as a
principal or representative in relation to
such business; and
(iii) any substantial shareholder, director or
officer of the company, any other
company in the same group of companies
or to any director or officer of any such
company.
(5) For the purposes of this section, the Commission may
have regard to any information in its possession whether h i s h e d
by the applicant or not.
( 6 ) In subsection (4) (b) (iii), "substantial shareholder", in
relation to a company, means a person who has an interest in
shares in the company
(a) the stated value of which is equal to or more than 5%
of the issued share capital of the company; ox
(b) which entitles the person to exercise or control the
exercise of 5% or more of the voting power at a
general meeting of the company.
(7) The Commission -
No. 14 of 2001. Securities Act, 2001. 31 ANTIGUA
AND
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(a) shall not refuse an application for a licence without
first giving the applicant an opportunity of being
heard; and
(b) if it refuses an application for a licence, shall notify
the applicant in writing of the refusal and the reasons
for such refusal.
49. (1) An application for a broker dealer licence shall be made Application for
in the prescribed form and accompanied by the prescribed fee,
licence. and shall -
(a) give the Commission information it reasonably
requires -
(i) about the services which the applicant
will hold itself out as being able to
provide if the application is allowed;
(ii) about the business which the applicant
proposes to carry on and to which the
application relates, and about any person
whom the applicant proposes to employ
or with whom the applicant intends to
be associated in the course of carrying
on the business; and
(iii) to enable the Commission to consider
the matters referred to in subsections
(3) and (4) of section 48;
(b) nominate as a principal at least one individual who
will actively participate in, and who d be responsible
for the supervision of, its business; and
(c) specify the location of all premises at which the
records or other documents of the business for which
the application is made are to be kept.
(2) The Commission may require an applicant to provide it
with such further mformation as the Commission W s necessary.
50. (1) A limited service broker means a person dealing in Limited service
securities whose licence is restricted to executing securities trades brokers.
ANTIGUA 32
AND
BARBUDA
Securities Act, 2001. No. 14 of 2001.
on its own account and on behalf of customers, together with
any necessary and incidental activities.
(2) A limited service broker shall not provide services such as
investment advice, investment banlung and underwriting or hold
discretionary accounts for custon~ers.
Grant of limited 51. (1) The Commission may grant a limited service broker
service broker licence to a company which applies in the prescribed manner and
licence. pays the prescribed fee.
(2) A limited service broker licence shall restrict the securities
business activity that the licensee is permitted to undertake to
execute securities trades on its own account and on behalf of
customers.
(3) The Commission shall refuse to grant a limited service
broker licence unless the applicant -
(a) is a company;
(b) employs at least one individual who is licensed as a
principal under section 60;
(c) employs at least one individual who is licensed as a
representative under section 62;
(d) has the prescribed minimum paid-up capital and is
able to meet the prescribed minimumnet liquid capital
requirement in cash or readily marketable securities;
and
(e) complies with the insurance requirement under
section 80.
@ satisfies the Commission that it is a fit and proper
person to be licensed as a limited service broker;
(g) will be able, if licensed, to comply with the financial
resources regulations made under section 76 that
may apply to it;
(h) has specified premises under section 52 (1) (c) that
are suitable for keeping records or other documents.
No. 14 of 2001. Securities Act, 2001. 33 ANTIGUA
AND
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(4) In considering whether an applicant is a fit and proper
person to be licensed, the Commission -
(a) shall have regard to, in respect of each of its directors
and officers -
(i) his financial status;
(ii) his educational or other qualifications
or experience having regard to the nature
of his application;
(iii) his ability to perform his proposed
function efficiently, honestly and fairly;
and -
(iv) his reputation, character, financial
integrity and reliability;
(b) may take into account any matter relating to -
(i) any person who is or is to be employed
by, or associated with, the applicant for
the purposes of the business to which
the application relates;
(ii) any person who will be acting as a
representative in relation to such
business; and
(iii) any substantial shareholder, director or
officer of the company, any other
company in the same group of companies
or to any director or officer of any such
company.
(5) For the purposes of this section, the Commission may
have regard to any infondation in its possession whether furnished
by the applicant or not.
(6) In subsection (4) (b) (iii), "substantial shareholder", in
relation to a company, means a person who has an interest in
shares in the company -
ANTIGUA 34 Securities Act, 2001. No. 14 of 2001.
AND
BARBUDA
(a) the stated value of which is equal to or more than 5%
of the issued share capital of the company; or
(b) which entitles the person to eszrcise or control the
exercise of 5% or more of .the voting power at a
general meeting of the company.
(7) The Commission -
(a) shall not refuse an application for a licence without
first giving the applicant an opportunity of being
heard; and
(b) if it refuses an application for a licence, shall notify
the applicant in writing of the refusal and the reasons
for it.
Application for 52. (1) An application for a limited service broker licence shall
limited be made in the prescribed form and accompanied by the prescribed
broker licence.
fee, and shall
(a) give the Commission information it reasonably
requires
(i) about the services which the applicant
will hold itself out as being able to
provide if the application is allowed;
(ii) about the business which the applicant
proposes to carry on and to which the
application relates, and about any person
whom the applicant proposes to employ
or with whom the applicant intends to
be associated in the course of carrying
on the business; and
(iii) to enable the Commission to consider
the matters referred to in subsections
(3) and (4) of section 5 1;
(b) nominate as a principal at least one individual who
will actively participate in, and who wdl be responsible
for the supervision of its business; and
No. 14 0f2001. Securities Act, 2001. 35 ANTIGUA
AND
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(c) specify the location of all premises at which the
records or other documents of the business for which
the application is made are to be kept.
(2) The Commission may require an applicant to provide it
with such W e r information as the Commission thinks necessary.
53. (1) No person shall carry on business in Antigua and Investment
Barbuda giving advice on securities, or hold himself out as advisers.
carrying on that business, unless he is a licensed investment
adviser.
(2) No investment adviser shall operate other than in
accordance with his licence.
(3) A person is regarded as carrying on business giving advice
on securities if he, by way of business -
(a) advises others concerning investment in securities;
(b) issues analyses or reports concerning specific
securities; or
(c) manages a portfolio of securities for another person
(i) without holding property of the other
person; and
(ii) on terms that preclude him from doing
SO.
(4) A person is not regarded as carrying on business giving
advice on securities if that person -
(a) is a broker dealer;
(b) is a financial institution licensed under the Banking Cap. 40
Act;
(c) is a lawyer or a professional accountant who gives
advice on securities as an incident to the practice of
that person's profession;
ANTIGUA 36 Securities Act, 2001
AND
BARBUDA
No. 14 0f2001.
(d) gives advice on securities only in a newspaper,
magazine, journal or other periodical publication -
(i) which is generally available to the public;
and
(ii) which does not have as its principal or
only object the provision of advice, or
the issue of analyses or reports,
concerning securities.
Grant of 54. (1) The Commission may grant an investment adviser
investment licence to an individual or a company who applies in the prescribed
adviser licence. manner and pays the prescribed fee.
(2) A licence granted under this section shall specify the
securities business activity or activities that the licensee is
permitted to undertake and the licensee shall be restricted to
such business as so specified.
(3) The Commission shall refuse to grant an investment adviser
licence unless the applicant -
(a) in the case of a company, employs at least one
individual who is licensed as a principal under section
60;
(b) in the case of a company, employs at least one
individual who is licensed as a representative under
section 62;
(c) has the prescribed minimum paid up capital;
(d) complies with the insurance requirement under
section 80;
(e) satisfies the Commission that the applicant is a fit
and proper person to be licensed as an investment
adviser;
fl will be able, if licensed, to comply with the financial
resources regulations made under section 76, that
will apply to him,
No. 14 0f2001. Securities Act, 2001. 37 ANTIGUA
AND
BARBUDA
(g) has specified premises under section 55 (1) (c) that
are suitable for keeping records or other documents.
(4) In considering whether an applicant is a fit and proper
person to be licensed, the Commission -
(a) shall have regard to, in respect of an applicant who
is an individual, and in the case of an applicant
company in respect of each of its directors and
officers -
(i) his financial status;
(ii) his educational or other qualifications
or experience having regard to the nature
of his application;
(iii) his ability to perform his proposed
function efficiently, honestly and fairly;
(iv) his reputation, character, financial
integrity and reliability; and
(v) his satisfactory completion of any
examination requirements as may be
prescribed;
(b) may take into account any matter relating to -
(i) any person who is or is to be employed
by, or associated with, the applicant for
the purposes of the business to which
the application relates;
(ii) any person who will be acting as a
principal or representative in relation to
such business; and
(iii) where the applicant is a company, any
substantial shareholder, director or
officer of the company, any other
company in the same group of companies
or to any director or officer of any such
company.
ANTIGUA 38
AND
BARBUDA
Securities Act, 2001. No. 14of2001.
(5) For the purposes of this section, the Commission niay
have regard to any information in its possession whether furnished
by the applicant or not.
(6) In subsection (4) 0) (iii), "substantial shareholder", in
relation to a company, means a person who has an interest in
shares in the company
(a) the stated value of which is equal to or more than 5%
of the issued share capital of the company; or
(b) which entitles the person to exercise or control the
exercise of 5% or more of the voting power at a
general meeting of the company.
(7) The Commission -
(a) shall not refuse an application for a licence without
first giving the applicant an opportunity of being
heard; and
(b) if it refuses an application for a licence, shall notify
the applicant in writing of the refusal and the reasons
for it.
Application for 55. (1) An application for an investment adviser licence shall
investment be mite in the prescribed form and accompanied by the prescribed
adviser licence. fee, andshall
(a) give the Commission information it reasonably
requires about the services which the applicant will
hold himself out as being able to provide if the
application is allowed;
(i) about the services which the applicant
will hold himself out as being able to
provide if the application is allowed;
(ii) about the business which the applicant's
company proposes to carry on and to
which the application relates; and
(iii) to enable the Commission to consider
the matters referred to in subsections
(3) and (4) of section 54; and
No. 14 of2001. Securities Act, 2001. 39 ANTIGUA
AND
BARBUDA
(b) nominate as a principal at least one individual who
wdl actively participate in, and who will be responsible
for the supervision of, its business; and
(c) specify the location of all prenlises at which the
records or other documents of the business for whch
the application is made are to be kept.
(2) The Commission may require an applicant to provide it
with such further information as the Commission thinks necessxy.
56. (1) No person shall carry on the business, in Antigua and Custodians.
Barbuda, of taking securities into custody for safe keeping, or
hold himself out as carrying on that business, unless that person
is a licensed custodian.
(2) No custodian shall operate other than in accordance with
a licence.
57. (1) The Commission may grant a custodian licence to a Grant of
company which applies in the prescribed manner and pays the custodian licence.
prescribed fee.
(2) A licence granted under this section shall specify the
securities business activity or activities that the licensee is
permitted to undertake and the licensee shall be restricted to
such business as so specified.
(3 ) The Commission shall refuse to grant a custodian licence
unless the applicant -
(a) is a bank or financial institution licensed under the
Banking Act; Cap. 41.
(b) is a trust company which is a subsidiary of such
bank or financial :Institution; or
(c) is a company other than a company referred to in
paragraph (b) that, has the prescribed minimum paid
up capital and the Commission is satisfied that the
applicant has the experience necessary to enable it
to conduct its business and to carry out its duties as
a securities custodian;
ANTIGUA 40
AND
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Securities Act, 2001. No. 14of2001.
(d) complies with the insurance requirement under
section 80;
(e) satisfies the Commission that it is a fit and proper
person to be licensed as a custodian;
fl will be able, if licensed, to comply with the financial
resources regulations made under section 76 that
may apply to it;
(g) has specified premises under section 58 (1) (b) that
are suitable for keeping records or other documents.
(4) In considering whether an applicant is a fit and proper
person to be licensed, the Commission -
(a) Shall have regard to, in respect of each of its directors
and officers
(i) his financial status;
(ii) his educational or other qualifications
or experience having regard to the nature
of his application;
(iii) his ability to perform his proposed
fimction efficiently, honestly and fairly;
and
(iv) his reputation, character, financial
integrity and reliability;
(b) may take into account any matter relating to -
(i) any person who is or is to be employed
by, or associated with, the applicant for
the purposes of the business to which
the application relates;
(ii) any person who will be acting as a
representative in relation to such
business; and
No. 14 0f2001. Securities Act, 2001. 41 ANTIGUA
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(iii) any substantial shareholder, director or
officer of the company, any other
company in the same group of companies
or to any director or officer of any such
company.
(5) For the purposes of this section, the Commission may
have regard to any information in its possession whether W s h e d
by the applicant or not.
(6) In subsection (4) (b) (iii), "substantial shareholder", in
relation to a company, means a person who has an interest in
shares in the company -
(a) the stated value of which is equal to or more than 5%
of the issued share capital of the company; or
(b) which entitles the person to exercise or control the
exercise of 5% or more of the voting power at a
general meeting of the company.
(7) The Commission -
(a) shall not refuse an application for a licence without
first giv$g the applicant an opportunity of being
heard; an8-
(b) if it refuses an application for a licence, shall notify
the applicant in writing of the refusal and the reasons
for it.
58. (1) An application for a custodian licence shall be made in Application for
the prescribed form and accompanied by the prescribed fee, and l
icence. .
shall -
(a) give the Commission information it reasonably
requires -
(i) , .about the services which the applicant
will hold himself out as being able to
provide if the application is approved;
(ii) about the business which the applicant
proposes to carry on and to which the
application relates, and about any person
ANTIGUA 42 Securities Act, 2001.
AND
BARBUDA
No. 14 0f2001.
whom the applicant proposes to employ
or with whom the applicant intends to
be associated in the course of carrying
on the busi~iess;
(iii) to enable the Commission to consider
the matters referred to in subsections
(3) and (4) of section 57; and
(b) specify the location of all premises at which the
records or other documents of the business for whch
the application is made are to be kept.
(2) The Commission may require an applicant to provide it
with such further information as the Commission thmks necessary.
Non-Application 59. Sections 56,57 and 58 shallnot apply to a licensed clearing
of sections 56 to agency that undertakes custodial services as an incident to its
58. business.
Grant of principal 60. ( 2 ) The commission may grant a principal licence to an
licence. individual who applies in the prescribed manner and pays the
prescribed fee.
(2) The Commission shall refuse to grant a principal licence
unless the applicant -
(a) is an individual;
(b) satisfies the Commission that the applicant -
(i) has sufficient educational or other
qualifications or experience;
(ii) has sufficient authority within the
company; and
(iii) is a fit and proper person, to supervise
the business for whch the company that
has nominated him is licensed or is
applying to be licensed;
(c) satisfies the Commission that he is a fit and proper
person to be licensed as a principal;
No. 14of2001. Securities Act, 2001. 43 ANTIGUA
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(d) supplies the Commission with the information that it
requires to assess whether he is a fit and proper
person to be a principal of the company;
(3) In considering whether an applicant is a fit and proper
person to be licensed the Commission shall have regard to the
applicant's
(a) financial status;
(b) educational or other qualifications or experience
having regard to the nature of the application;
(c) ability to perform his proposed function efficiently,
honestly and fairly;
(d) reputation, character, financial integrity and
reliability; and
(e) satisfactory completion of any examination
requirements as may be prescribed.
(4) For the purposes of this section, the Commission may
have regard to any information in its possession whether furnished
by the applicant or not.
(5) The Commission -
(a) shall not refuse an application for a licence without
first giving the applicant an opportunity of being
heard; and
(b) if it refuses an application for a licence, shall notify
the applicant in writing of the refusal and the reasons
for such refusal.
61. (1) An application for aprincipal's licence shall be made in Application for
the prescribed form and accompanied by the prescribed fee, and principal licence.
shall give the Commission information it reasonably requires -
(i) about the services which the applicant will hold
himself out as being able to provide if the application
is allowed;
ANTIGUA 44 Securities Act, 2001. No. 14 0f2001.
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(ii) about the business which the applicant's company
proposes to carry on and to which the application
relates; and
(iii) to enable the Commission to consider the matters
referred to in subsections (2) and (3) of section 60;
(2) The Conmission may require an applicant to provide it
with such further information as the Commission thinks necessary.
Grant of 62. (1) The Commission may grant a representative licence to
representative an individual who applies in the prescribed manner and pays the
licence. prescribed fee.
(2) The Commission shall refuse to grant a representative
licence unless the applicant -
(a) is an individual;
(b) has sufficiect educational or other qualifications or
experience;
(c) satisfies the Commission that the applicant is a fit
and proper person to be licensed as a representative;
(d) supplies the Commission with the inr~rmation that it
requires to assess whether the applicant is a fit and
proper person.
(3) In considering whether an applicant is a fit and proper
person to be licensed the Commission shall have regard to the
applicant's -
(a) financial status;
(b) educational or other qualifications or experience
having regard to the nature of the application;
(c) ability to perform his proposed function efficiently,
honestly and fairly;
(d) reputation, character, financial integrity and
reliability; and
No. 14 0f2001. Securities Act, 2001. 45 ANTIGUA
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(e) satisfactory completion of any examination
requirements prescribed by the Commission.
(4) For the purposes of this section, the Commission may
have regard to any information in its possession whether furnished
by the applicant or not.
(5) The Commission -
(a) shall not refuse an application for a licence without
first giving the applicant an opportunity of being
heard; and
(b) if it refuses an application for a licence, shall notify
the applicant in writing of the refusal and the reasons
for such refusal.
63. (1) An application for a representative licence shall be
made in the prescribed form and accompanied by the prescribed
fee, and shall give the Commission information it reasonably
requires -
(i) about the services which the applicant will hold
hmself out as being able to provide if the application
is allowed;
(ii) about the business which the applicant's company
proposes to carry on and to which the application
relates; and
(iii) to enable the Commission to consider the matters
referred to in subsections (2) and (3) of section 62;
(2) The Commission may require an applicant to provide it
with such hrther information as the Commission thinks necessary.
64. (1) Arepresentative is accredited to a broker dealer, limited Accreditation of
service broker or investment adviser for the purposes of this Part representatives.
only if -
(a) the licence of the representative states that he is
accredited to the licensee; and
ANTIGUA 46
AND
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Securities Act, 2001. No. 14 of 2001.
(b) the representative is recorded as being accredited in
the register maintained under section 68.
(2) The Commission shall not issue a representative licence
unless both the representative and the licensee have notified the
Commission in writing that he is, or is to be, accredited.
(3) If a licensee or representative notifies the Commission in
writing that the accreditation of the representative has been
terminated
(a) the Commission may amend the register of licensees
accordingly; and
(b) the representative shall return his licence to the
Commission within seven days of the Commission
requiring him to do so.
Power of 65. (1) Any licence granted by the Commission may contain
Commiss~on to such reasonable conditions it considers necessary.
impose
conditions.
(2) Conditions may be of general or special application and
may make different provision for different cases or classes of
cases.
(3) In the case of a condition of special application to a
particular licence the condition shall be for a specified period of
time.
(4) The Commission may, by written notice served on the
holder of the licence, amend or cancel any of the conditions or
attach new conditions provided that, in the case of proposed
new conditions, the Commission shall not impose them without
first giving the licensee an opportunity of being heard.
(5) A person to whom a licence is granted shall not, when
conducting business for which a licence is required, use a name
other than the name specified in the licence.
Revocation and 66. (1) The Commission may revoke a licence granted to an
individual under this Part if that individual
licences.
(a) is shown by certified medical evidence to be mentally
or physically incapable of performing the activities
to which the licence relates;
No. 14 0f2001. Securities Act, 2001. 47 ANTIGUA
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(b) is adjudged a bankrupt, in Antigua and Barbuda or
elsewhere;
(c) is convicted, whether in Antigua and Barbuda or
elsewhere, of fraud or any other offence involving
dishonesty;
(d) is convicted of an offence under this Act or
regulations made under this Act;
(e) contravenes or fails to comply with any condition
applicable in respect of the licence;
fl ceases to carry on the business for which that
individual is licensed;
(g) is the holder of a representative licence and the
licence of the licensee to whom that individual is
accredited is revoked or suspended;
(h) fails to pay the annual licence fee as prescribed on or
before the anniversary of the day of the grant of .the
licence; or
(i) by reason of any other circumstances, is no longer a
fit and proper person to hold a licence.
(2) The Commission may revoke a licence granted to a company
under this Part if -
(a) the company goes into liquidation or is ordered to
be wound up;
(b) a receiver or manager of all or a substantial part of
the property of the company is appointed;
(c) the company ceases to carry on the business for
which it is licensed;
(d) it has reason to believe that the company, or any of
its directors or employees, has not performed its or
his duties honestly and fairly;
ANTIGUA 48
AND
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Securities Act, 2001. No. 14of2001.
(e) the company contravenes or fails to comply with
any condition applicable in respect of the licence;
Cf) the company is in breach of th~s Act or any regulation
made under this Act;
(g) where applicable, the company does not continue to
employ at least one person who holds the appropriate
representative licence granted under this Act;
(h) the company fails to pay its annual licence fee as
prescribed on or before the anniversary of the day of
the grant of its licence; or
(i) by reason of any other circumstances, the company
is no longer a fit and proper person to hold a licence.
(3) The Commission may, if it thinks it necessary -
(a) as a matter of urgency for the protection of investors;
or
(b) as a result of any investigation under this Act or
regulations made under this Act;
suspend a !icence granted under this Part for the period, or until
the happening of an event, as the Commission considers
appropriate.
(4) The Commission may revoke a licence at the request of the
licensee.
(5) A person whose licence is revoked or suspended under
this Act shall be notified accordingly by the Commission and
shall, for the purpose of this Act, be deemed not to be licensed
from the date of notification of revocation or suspension, as the
case may be.
(6) The suspension or revocation of a license under thls Part
does not operate so as to -
(a) avoid or affect any agreement, transaction or
arrangement relating to a dealing in securities entered
into by the person whose licence has been
suspended or revoked, whether the agreement,
No. 14of2801. Securities Act, 2001. 49 ANTIGUA
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transaction or arrangement was entered into before
or after the suspension or revocation of the licence,
except that the licensee shall not be allowed to retain
any benefits charged or payable thereto; or
(b) affect any right, obligation, or liability arising under
any such agreement, transaction or arrangement.
67. (1) The Commission may by notice in writing give the Power of
licensee a direction under this section where it appears to the Commission to
Commission that - issue directions to licesees.
(a) it is desirable for the protection of investors; or
(b) the licensee is contravening, has contravened or is
about to contravene, or has failed to comply with
any provision of or requirement under this Act or
regulations made under this Act, or, in purported
compliance with any such provision or requirement
has furnished the Commission with information that
is false, inaccurate or misleading.
(2) A direction under this sectionmay contain all or any of the
following prohibitions or requirements -
(a) require a licensee to cease and desist from the
contravention;
(b) prohibit a licensee from entering into transactions of
a class or description specified in the notice or
entering into them otherwise than in circumstances
so specified or to an extent so specified;
(c) prohibit a licensee from soliciting business from a
person of a class or description so specified or from
persons other than persons of such a class or
description; or
(d) prohibit a licensee from carrying on business in a
specified winner or otherwise than in a specified
manner;
(e) as regards any assets whether in Antigua and
Barbuda or elsewhere and whether they are the assets
of the licensee or not -
ANTIGUA 50 Securities Act, 2001.
A m
BARJ3UDA
No. 14of2001.
(i) prohbit a licensee fiom &posing of such
assets or prohibit the licensee from
dealing with them in a manner specified
in the notict, or
(ii) require a licensee to deal with such
assets in, and only in, a manner specified
in the notice;
0 require a licensee to maintain in Antigua and Barbuda
assets of such value as appears to the Commission
to be desirable with a view to ensuring that the
licensee will be able to meet its liabilities in respect of
its licensed securities business;
(g) require a licensee to transfer control of assets of a
specified class or description to a trustee approved
by the Commission.
(3) A licensee shall comply with a hection of the Commission
under this section.
(4) A direction under this section shall be for such specified
period as the Commission considers necessary (which may be
extended as deemed necessary): Except that a direction issued
by the Commission containing any prohibition ; r requirement
under paragraphs (el, 03 or (a) of subsection (2) shall be for a
period not exceeding sixty days.
(5) A licensee who fails to comply with a direction of the
Commission commits an offence.
( 6 ) The Commission may, by written notice either of its own
motion or on the application of a licensee on whom a prohibition
or requirement has been imposed under this section, rescind or
vary the prohibition or requirement if it appears to the Commission
that it is no longer necessary for the prohibition or requirement
to take effect or continue in force or, as the case may be, that it
should take effect or continue in force in a different form.
68. (1) The Commission shall maintain a register of persons
holding licences granted under this Part in the form it considers
most appropriate.
No. 14of2001. Securities Act, 2001. 5 1 ANTIGUA
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(2) For each licensee other than a licensed principal or Register of
representative, the register shall record - licensees.
(a) the name and address of the licensee;
(b) the date on which the licence was granted;
(c) the type of securities business permitted by the
licence;
(d) any conditions attached to the licence;
(e) the name and address of every accredited
representative;
&I the name and address of every manager and officer;
(g) the location of the premises at which the records or
other docun~ents of the licensed business are kept;
(h) in the case of a company licensee, the name of the
principal, the name of each director and of the
secretary of the company, and the names and
respective shareholdings of each shareholder;
(I) any disciplinary action against the licensee;
) any order of suspension or revocation; and
(k ) such other particulars as the Commission considers
necessary in the interest of the investing or general
public.
(3) For each licensed principal or representative, the register
shall record -
(a) his name and address;
(b) the date on which the licence was granted;
(c) the name and address of the principal to whom he is
accredited;
(d) any order of revocation or suspension; and
ANTIGUA 52 Securities Act, 2001
AND
B r n U D A
No. 14 0f2001.
(e) such other particulars as the Commission considers
desirable in the interest of the investing or general
public.
(4) The register shall, during usual office hours, be open to
inspection free of charge by members of the public.
Notification of 69. (1) A licensee shall as soon as is practicable-and in any
chJarge in register event within seven days give notice in writing to the Commission
particulars. where -
(a) the licensee is a broker dealer, limited service broker,
investment adviser or custodian and ceases to carry
on the business to which its licence relates;
(b) a representative ceases to be a representative of the
licensee to whom the representative is accredited; or
(c) a change occurs in any matter particulars of which
are required by section 68 to be entered in the register
of licensees.
(2) A licensee who fails to comply with subsection (1) c o d t s
an offence.
Offences under 70. (1) Any person who carries on business requiring the
this Part. grant of a licence under this Pafl without holding such a licence,
or other than in accordance with his licence, commits an offence
and is liable on summary conviction
(a) in the case of an individual, to a fme of one hundred
thousand dollars or to imprisonment for two years or
to both;
(b) in the case of a company, to a fme of two hundred
thousand dollars; and
if the offence is a continuing offence, the individual or company
is liable to a further fine not exceeding one thousand dollars for
every day that the offence continues after conviction.
(2) A person convicted of an offence under this section shall,
following an assessment by the Commission, be liable to pay to
the Commission, any monies received or the monetary equivalent
Securities Act, 2001. 53 AN2?Ci'cTA
AND
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of any assets obtained as a result of carrying on securities
business without a licence.
PART v
CONDUCT OF SECe'EUP2ES BUSINESS
71. In the conduct of securities business, a licensee shall at all Standards of
times act according to the principles of best practice and, in conduct.
particular, shall -
(a) observe a high standard of integrity and fair dealing;
(b) act with due skill, care and diligence;
(c) observe high standards of market conduct;
((1) seek from customers information about their
circumstances and investment objectives which
might reasonably be expected to be relevant in
enabling the licensee to fulfil the licensee's
responsibilities to the customer;
(e) take reasonable steps to give every customer the
licensee advises, in a comprehensible way, any
information needed to enable the customer to make a
balanced and informed investment decision;
03 avoid any conflict of interest with customers and,
where such a conflict unavoidably arises, ensure fair
treatment to the customer by complete disclosure or
by declining to act;
(g) ensure that the interests of the licensee are not
unfairly placed above those of the customer;
fhj protect by way of segregation and identification,
those customer assets for which the licensee is
responsible;
( i ) maintain adequate fmancial resources to meet the
securities business conunitments of the licensee and
withstand the risks to which the business is subject;
ANTIGUA 54 Securities Act, 2001. No. 14of2001.
AND
BARBUDA
6) organise and control internal affairs in a responsible
manner;
(k) keep proper records;
( I ) have adequate arrangements to ensure that all staff
employed are suitable, adequately trained and
properly supervised, and establish and maintain well-
defined compliance procedures; and
(m) deal with the Commission in an open and cooperative
manner.
Business conduct 72. (1) The Minister may, on the recommendation of the
regulations. Commission, make regulations prescribing the manner in which
licensees are required to conduct their business.
(2) Where any contract for the sale or purchase of securities is
entered into in contravention of a regulation made under this
section, the contravention is actionable at the suit of any
customer who suffers loss as a result of the contravention.
Issue of contract 73. (1) A broker dealer and limited service broker shall, in
notes. respect of every contract for the purchase, sale or exchange of
securities entered into by it (whether as p c i p a l or agent), not
later than the end of the next trading day after the contract was
entered into, make out a contract note which complies with
subsection (2) and
(a) where the contract was entered into by the licextsee
as agent, deliver the original contract note to the
person on whose behalf it entered into the contract;
or
(b) where the contract was entered into by the licensee
as principal, retain the contract note for itself.
(2) The contract note shall state whether it is in respect of a
purchase, sale or exchange of securities and shall include -
(a) the name of the licensee and the address of the
principal place at which it carries on business;
(b) where the licensee is acting as principal, a statement
that it is so acting;
No. 14of2001. Securities Act, 2001. 5 5 ANTIGUA
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(c) the name and address of the person (if any) to whom
the licensee is required to give the contract note and
(where different) the name of the person for whom
the transaction was undertaken;
(d) the date of the contract, and the date on which the
contract note is made out;
(e) the quantity and description of the securities that
are the subject of the contract;
the price per unit of the securities;
(g) the amount of consideration under the contract or, in
the case of an exchange, sufficient particulars of the
securities exchanged to identify them;
(h) the rate or amount of commission payable in respect
of the contract;
(i) the amount of stamp duty (if any), payable in
connection with the contract and, where applicable,
in respect of the transfer;
) the date of settlement;
(k ) such other information as may be prescribed to
ensure that there is a complete audit trail for the
execution of customer instructions and the settlement
of market transactions.
74. (1) Except in accordance with regulations made by the Short selling
Minister, on the recommendation of the Commission, a person
shall not sell any listed securities which that person or that
person's principal does not own either for that person's own
account or for the account of another person.
(2) For the purposes of subsection (1) a person who sells
securities includes a person who -
(a) purports to sell the securities;
(b) offers to sell the securities;
(c) holds W e E o u t as entitled to sell the securities; or
(d) instructs a broker to sell the securities.
(3) For the purposes of subsection (I), a person is treated as
owning securities only if that person -
(a) or his agent is legally entitled to the securities;
(b) has purchased the securities, or has entered into an
unconditional contract to purchase the securities,
even if he does not yet have title to them;
(c) owns other securities convertible into or
exchangeable for the securities and has tendered the
other securities for conversion or exchange;
(d) has an option to acquire the securities and has
exercised the option; or
(e) has rights or warrants to subscribe to the securities
and has exercised the rights or warrants,
and that person or that person's agent has received or will receive
a fixed or currently ascertainable amount of the securities at a
fned or currently ascertainable price.
(4) A person who contravenes subsection (1) commits an
offence and is liable on summary conviction -
(a) in the case of an individual, to a fine of two hundred
thousand dollars or to imprisonment for three years
or to both;
(b) in the case of a company, to a fine of four hundred
rhousand dollars.
Accounts to be 75. (1) A broker dealer and a limited service broker shall keep
kept by broker such accounting and other records as will explain the transactions
dealers and
limited service
and financial position of all business relating to their licence and
brokers. enable true and fair profit and loss accounts and balance sheets
to be prepared from time to time, and shall keep those records in
such manner and form as to enable them to be conveniently and
properly audited.
No. 14 of 2001. Securities Act, 2081. 57 ANTIGUA
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(2) Without limiting the generality of subsection (I), a broker
dealer and a limited service broker shall maintain such accounts
and other records, and file such financial statements and reports,
as may be prescribed.
(3) The accounting and other records required to be maintained
under this section shall at all reasonable times be open to
inspection by the Commission or by an auditor appointed by the
Conmission.
(4) A iicensee to whom the fmancial resources regulations
made under section 76 apply shall keep its records in sufficient
detail to establish readily whether or not the financial resources
regulations are being complied with.
76. (1) The Minister may, on the recommendation of the Financial
Commission, make regulations requiring licensees to have and resources .
maintain, in respect of the securities business for which they are regulations
licensed, the fmancial resources set by the regulations:
(2) Financial resources regulations may -
(a) impose requirements which are absolute or which
vary from time to time by reference to factors which
either are specified in, or are to be determined in
accordance with, the regulations;
(b) impose requirements which apply differently to
different classes of business for which licensees are
licensed, and whlch take account of a business carried
on by the licensee with or in addition to, the business
referred to in subsection (1);
(c) provide for the assets, liabilities and other matters to
be taken into account under the regulations to
determine a person's financial resources and the
extent to w h h , and the manner in which, they are to
be taken into account for that purpose;
(d) require licensees to submit to the Commission, at
intervals set out in the regulations, returns of their
fmancial resources in a form set by the Commission.
ANTIGUA 58 Securities Act, 2001. No. 14of2001.
AND
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Failure to comply
with financial
regulations.
Monitoring
compliance with
financial
resources
regulations.
77. (1) If a licensee becomes unable to comply with financial
resources regulations that are made under section 76 and are
applicable to it, the licensee shall
(a) notify the Commission of such inability; and
(b) cease conducting business for which it is licensed,
otherwise than for the purpose of giving effect to an
agreement or arrangement permitted under its licence
and entered into before the time when it became
aware of such inability.
(2) The duties of a licensee under subsection (1) shall arise as
soon as it becomes aware, or should, with the exercise of
reasonable diligence, have become aware, of its inability to comply
with the financial resources regulations and in relation to
paragraph (a) of subsection (I), must be exercised within twenty
four hours after such awareness.
(3) A licensee that is a company is deemed to be aware of an
inability to comply with the financial resources regulations if a
director or officer of it is so aware or would, with the exercise of
reasonable diligence, have been aware of the inability.
(4) Where the Commission becomes aware of an inability by a
licensee to conlply with financial resources regulations the
Commissio~ gay, whether or not notice has been given under
subsection (1) -
(a) suspend the licence; or
(b) permit the licensee to carry on business on the
conditions, if any, the Commission imposes.
(5) A licensee who contravenes subsection (1) commits an
offence.
78. To ascertain whether or not a licensee complies with
financial resources regulations made under section 76, the
Commission or a person authorised by the Commission may
appoint in writing an auditor to exanzine, audit, and report, either
generally or in relation to any matter, on the books, accounts and
records of the licensee, and on money, securities or other property
held on account of any other person by the licensee or by a
nominee appointed by the licensee.
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79. (1) The Minister may, on the recommendation of the Customer's
Commission, make regulations with respect to the segregation Property.
and safekeeping of customers' money or securities held by
licensees on behalf of customers.
(2) Without limiting the general effect of subsection ( I ) ,
regulations may -
(a) make provision with respect to the opening and
keeping of customers' bank accounts, including
provision as to the circumstances in which money
other than customers' money may be paid into such
accounts and the circumstances in which and the
persons to whom money held in such accounts may
be paid out;
(b) require customers' money to be paid forthwith into a
segregated bank account the title of which contains
the word "customer";
(c) require the keeping of accounts and records in
respect of customers' money or securities; and
(d) require the accounts and records to be examined by
an accountant and require the accountant to report
to the Commission whether in his opinion the
provisions of the regulations have been complied
with and on such other matters as may be specified
in the regulations.
(3) A licensee who is accountable for securities that are the
property of another person and that the licensee or a nominee
controlled by it holds, shall -
(a) hold and account for them in the manner prescribed;
(b) not dispose of, assign or lend the securities or deposit
them as security for loans or advances except as
may be prescribed.
(4) Money or other property held by a licensee on account of
a customer shall not be available for payment of the debts of the
licensee or liable to be paid or taken in execution under the order
or process of any court against the licensee.
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No. 14of2001.
(5) A payment made in contravention of subsection (4) is void
from the outset, and a person to whom the money is paid does
not obtain any title to it.
Insurance 80. Every licensee, other than an accredited principal and
requirement. representative, shall, to the satisfaction of or on terms prescribed
by the Commission, effect and maintain appropriate policies of
insurance on such terms and conditions as may be determined
by the Commission for the purpose of indemnifying such licensee
against any liability that may be incurred as a result of any act or
omission by the licensee or any of its officers or employees in the
conduct of the licensee's securities business or its business as a
custodian or management company of a collective investment
scheme.
Auditor to be 81. (1) Within one month after becoming licensed under this
appointed. Act a licensee, other than an accredited principal and
representative, shall appoint an auditor who is acceptable to the
Commission.
(2) No person shall be qualified for appointment as an auditor
under subsection (1) unless he is an accountant.
(3) An auditor shall not be eligible for appointment under
subsection (1) if he is -
(a) a director, officer, employee, sharebolder or partner
of the licensee; or
(b) a partner or employee of such person.
(4) A licensee shall, within seven days of the appointment of
an auditor, notify the Commission in writing of the name and
address of the auditor.
(5) A licensee shall within seven days of the removal or
resignation of an auditor, notify the Commission in writing.
82. (1) A licensee shall -
(a) for the financial year beginning on the day on which
it commences to cany on securities business; and
(b) for each subsequent year,
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submit to the Commission, within ninety days after the end of the
financial year, audited financial statements prepared in accordance
with international accounting standards, and which contain such
additional information as may be prescribed.
(2) A licensee who contravenes subsection (1) commits an
offence.
83. If, during the
licensee, an auditor -
performance of his duties as auditor for a Auditor to report
to Commission in
certain cases.
(a) becomes aware of any matter which in his opinion
adversely affects the financial position of the licensee
to a material extent; or
(b) discovers evidence of a contravention of section 75,
76 or 79
he shall as soon as is practicable, and in any event within seven
days, report it in writing to the Commission and to the licensee.
84. Where the Commission is satisfied that - Power of
Commission to
appoint auditor.
(a) the licensee has failed to file an auditor's report under
section 82;
(b) the Commission has received a report under section
83; or
(c) discovers evidence of a contravention of section 75,
76 or 79
it may appoint in writing an auditor to examine, au&t, and report,
either generally or in relation to any matter, on the books, accounts
and records of the licensee, and on money, securities or other
property held on account of any other person by the licensee or
by a nominee appointed by the licensee.
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No. 14 of2001.
PART VI
REGISTERS OF INTERESTS IN SECURTIlES
Application of 85. (1) This Part applies to -
this Part.
(a) a broker dealer;
(b) a broker dealer's principal and representative;
(c) a limited service broker;
(d) a limited service broker's principal and
representative;
(e) an investment adviser;
fjl an investment adviser's principal and representative;
and
(g) a financial journalist.
(2) In this Part, "financial journalist" means a person who
regularly contributes advice concerning securities or prepares
analyses or reports concerning securities for publication in a
newspaper or periodical.
(3) In this Part, a reference to securities is a reference to
securities which are listed on a securities exchange licensed by
the Commission.
Register of 86. (1) A person to whom this Part applies shall maintain a
securities. register, in the prescribed form, of the securities in which that
person has an interest.
(2) Particulars of the securities in whlch a person to whom this
Part applies has an interest and particulars of the person's interest
in those securities shall be entered in the register within seven
days of the acquisition of the interest.
(3) Where there is a change in the interest in securities of a
person to whom this Part applies that person shall, within seven
days after the day of the change, enter in the register full particulars
of the change including the date of the change and the
circumstances by reason of which that change has occurred.
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(4) For the purposes of subsection (3) where a person acquires
or disposes of securities, there shall be deemed to be a change in
the interest of that person.
87. (1) A person to whom this Part applies shall give notice to Notice of
the Commission in the prescribed form containing such particulars '0
particulars as are prescribed by the Commission including the Commission.
place at which he will keep the register of his interests in securities.
(2) The notice shall be given -
(a) in the case of a person who is required by this Act to
hold a licence, as part of h s application for the license;
or
(b) in the case of any other person, if the person becomes
a person to whom this Part applies within seven days
after becoming such a person.
(3) A person who ceases to be a person to whom this Part
applies shall, within seven days of his so ceasing, give notice of
the fact to the Commission.
(4) A person who fails or neglects to give notice as required
by this section commits an offence.
88. (1) The Commission or any person authorised by it in that Production of
behalf may require any person to whom this Part applies to register.
produce for inspection the register required to be kept pursuant
to section 86 and the Commission or any person so authorised
may make extracts from the register.
(2) Any person who fails to produce a register for inspection
or fails to allow any person authorised under subsection (I) to
make a copy of or make extracts from the register commits an
offence.
89. (1) The Commission or any person authorised by it in that particulars of
behalf may, where the Commission is satisfied that it is necessary financial
for the protection of investors or in the public interest, by notice Joumalists.
in writing require the proprietor or publisher of a newspaper or
periodical to supply hun with the name and address of the financial
journalist who has regularly contributed any advice or prepared
any analysis or report that has been published in a newspaper or
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periodical owned or published by that proprietor or publisher or
with the names and addresses of all the financial journalists who
have regularly contributed any such advice or prepared any such
analysis or report within a period specified in the notice.
(2) A proprietor or publisher of a newspaper or periodical
who, without reasonable excuse, fails to comply with a notice
under subsection (1) commits an offence.
Extract of 90. The Commission may supply a copy of the extract of a
register. register obtained pursuant to section 88 to any person who in
the opinion of the Commission, should, in the public interest, be
' informed of the dealing in securities disclosed in the register.
Interest in 91. (1) A person shall be deemed to have an interest in a
securities. security where a body corporate has an interest-in a security and
(a) the body corporate is, or its directors are, accustomed
or under an obligation, whether formal or informal, to
act in accordance with the directions, instructions or
wishes of that person in relation to that security;
(b) that person has a controlling interest in the body
corporate; or -
(c) that person is, or the associates of .that person or
that person and his associates are, entitled to exercise
or control the exercise of not less than 15% of the
votes attached to the voting shares in the body
corporate.
(2) For the purposes of subsection (1) (c), a person is an
associate of another person if the first- mentioned person is -
(a) a company which, by virtue of section 143, is deemed
to be related to that other person;
(b) a person in accordance with whose directions,
instructions or wishes that other person is
accustomed or is under an obligation, whether formal
or informal, to act in relation to the security referred
to in subsection (1);
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(c) a person who is accustomed or is under an obligation,
whether formal or informal, to act in accordance with
the directions, instructions or wishes of that other
person in relation to that security;
(d) a body corporate which is, or the directors of which
are, accustomed or under an obligation, whether
formal or informal, to act in accordance with the
directions, instructions or wishes of that other person
in relation to that security; or
(e) a body corporate in accordance with the directions,
instructions or wishes of which, or of the directors
of which, that other peison is accustomed or under
an obligation, whether formal or informal, to act in
relation to that security.
(3) A person shall be deemed to have an interest in a security
in any one or more of the following circumstances where that
person -
(a) has entered into a contract to purchase a security;
(b) has a right, otherwise than by reason of having an
interest under a trust, to have a security transferred
to himself or to his order, whether the right is
exercisable presently or in the future and whether on
the fulfillment of a condition or not;
(c) has the right to acquire a security or an interest in a
security, under an option, whether the right is
exercisable presently or in the future and whether on
the fulfillment of a condition or not; or
(d) is entitled, otherwise than by reason of his having
been appointed a proxy or representative to vote at a
meeting of members of a body corporate or of a class
of its mernErs, to exercise or control the exercise of
a right attached to a security, not being a security of
which he is the registered holder.
(4) A person shall be deemed to have an interest in a security
if that security is held jointly with another person.
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(5) Where any property held in trust consists of or includes
securities in which a person knows, or has reasonable grounds
for believing, that he has an interest, he shall be deemed to have
interest in those securities.
(6) The following shall not constitute an interest in a security
for the purpose of this Part -
(a) an interest in a security if the interest is that of a
person who holds the security as bare trustee;
(ti) an interest in a security of a person whose ordinary
business includes the lending of money if he holds
the interest only by way of security for the purposes
of a transaction entered into in the ordinary course
of business in connection with the lending of money;
(c) an interest of a person in a security being an interest
held by him by reason of his holding a prescribed
office; and
(d) a prescribed interest in a security being an interest
of such person, or of the persons included in such
class of persons, as is prescribed.
PART W
OFFERS OF CORPORATE S E m
Offers of 92. (1) This Part shall not apply to -
securities.
(a) securities which are offered by the Eastern Caribbean
Central Bank,
(b) an offer of securities that are made or guaranteed by
a participating Government; and
(c) an offer of securities determined by the Commission
to be a private placement.
(2) For the purposes of this Part, a person offers securities if
that person invites another to enter into an agreement for or with
a view to subscribing for or otherwise acquiring or underwriting
any securities, or that person invites another perso-
such an offer.
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(3) Subject to the provisions of this Part, no person shall make
a public offer of securities unless the issuer or offeror of the
securities has submitted for approval to the Commission a
prospectus which complies with this Act, and the Commission
has approved the prospectus.
(4) The Commission shall not be liable to any action in damages
suffered as a result of any prospectus approved by the
Commission.
(5) A prospectus approved by the Commission shall be valid
only for a period of up to twelve months from the date of such
approval.
(6) The Minister may, on the recommendation of the
Commission, exempt issuers or offerors from the prospectus
requirement in particular cases or class of cases.
(7) The Minister may, on the recommendation of the
Commission, make regulations allowing a draft prospectus to be
published in advance of its approval by the Commission.
(8) A person who contravenes subsection (3) commits an
offence and is liable on summary conviction -
(a) in the case of an individual, to a fine of two hundred
thousand dollars or to imprisonment for three years
or to both;
(b) in the case of a company, to a fine of four hundred
thousand dollars; and
if the offence is a continuing offence, the individual or company
is liable to a further fine not exceeding one thousand dollars for
every day that the offence continues after conviction.
93. (1) Where a public offer of securities is to be made in Contents of
Antigua and Barbuda the offeror shall publish a prospectus by ProSPeCtUS.
making it available to the public, free of charge, at an address in
Antigua and Barbuda, fromthe time the securities are first offered
until the end of the period during which the offer remains open.
(2) The offeror shall, not less than thirty days before the
proposed date of publication of the prospectus, submit a copy to
the Commission for approval.
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(3) No person shall publish a prospectus until it has been
approved by the Commission.
(4) No person shall issue an advertisement (other than a
prospectus) announcing a public offer of securities for which a
prospectus is required under this Part unless a prospectus has
been published and the advertisement gives an address in
Antigua and Barbuda fiom which it can be obtained.
(5) A person who contravenes subsection (3) or (4) commits
an offence and is liable on sumpary conviction -
(a) in the case of an individual, to a fine of one hundred
thousand dollars or to imprisonment for two years or
to both,
(b) in the case of company, to a fine of two hundred
thousand dollars; and
if the offence is a continuing offence, the individual or company
is liable to a further f i e not exceeding one thousand dollars for
every day that the offence continues after conviction.
94. The Commission may approve n prospectus only if -
(a) it contains all such inforrnation as investors and their
professional advisers would reasonably require, and
reasonably expect to find there, for the purpose of
making an informed assessment of
(3 the assets and liabilities, financial
position, profits and losses, and
prospects of the issuer of the securities;
and
(ii) the rights attaching to. those securities;
(b) it contains in addition such other information and
particulars, and complies with such other
requirements, as may be prescribed.
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95. Every offeror, issuer, director of an offeror or issuer shall Compensation for
be liable to pay compensation to any person who acquires any of Or
misleading the securities, in reliance upon the prospectus, to which the prospectus.
prospectus relates and suffers loss in respect of them as a result
of any untrue or misleading statement in the prospectus or the
omission fiom it of any matter required to be included by or
under section 94.
96. (1) Every issuer of securities that are the subject of a Continuing
public offer, or which are publicly traded, shall keep the
obligations of
Commission, members of the issuer, other holders of its securities issuers,
and the general public informed as soon as rezsonably practicable
of any information relating to the issuer and its subsidiaries, if
any, that -
(a) is necessary to enable them and the public to appraise
the financial position of the issuer and of its
subsidiaries;
(b) is necessary to avoid the establishment of a false
market in its securities; or
(c) might reasonably be expected materially to affect the
price of its securities.
(2) For the purposes of this section, securities are publicly
traded if, irrespective of when issued -
(a) they are traded on a licensed securities exchange; or
(b) the Commission so determines, having regard to the
volume or frequency of trading in such securities.
(3) Without limiting the general effect of subsection (I), the
issuer shall also comply with such further obligations and
requirements as may be prescribed.
PART WI
REGKIIUTIION OF CORPORATE ISSUERS
97. (1) In this Part, "public company" has the same meaning Registration
as in the Companies Act. statement.
ANTIGUA
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70 Securities Act, 2001. No. 14 of2001.
Annual reports.
(2) From the commencement of this Act, all public companies
will become reporting issuers and shall, within ninety days from
that date, or within such other period as the Commission may
specify, file with the Conmission a registration statement in the
form specified by the Commission.
(3) A company which proposes to issue securities to the public
shall register with the Commission as a reporting issuer and file a
registration statement in the form and within the period specified
by the Commission.
(4) A reporting issuer shall amend its registration statement
annually so that the information contained is current as at the
end of its most recent f m c i a l year.
(5) Where a reporting issuer ceases to be a public company, it
shall forthwith automatically cease to be a reporting issuer.
98. (1) A reporting issuer shall, within one hundred and twenty
days after the end of its financial year -
(a) file with the Commission a copy of its annual report
containing such information as the Commission may
specify; and
(b) forward to each holder of its securities such financial
statements as the Commission may specify.
(2) A reporting issuer shall file with the Commission such
other reports in such form as the Commission may specify.
(3) Unless specifically authorised by the Commission to the
contrary, where a material change occurs in the affairs of a
reporting issuer it shall, as soon as practicable but in any event
no later than seven days after the change occurs, issue a press
release (to be filed with the Commission) authorised by a director
of the issuer that discloses the nature and substance of the
change.
PART M.
Interpretation. 99. (1) In this Part -
"collective investment scheme" means -
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(a) a unit trust;
(b) an investment conlpany;
(c) investment contracts, investment progrmxnes
or any other arrangements with respect to
proyerty of any description, including money,
the purpose or effect of which is to enable
persons taking part in the arrangements
(whether by becoming owners of the property
or any part of it or otherwise) to participate in
or receive profits or income arising from the
acquisition, holding, management or disposal
of the property or sums paid out of such profits
or income; and
(d) any scheme that the Commission may deem to
be a collective investment scheme for the
purpose of this Act;
"custodian" means any person to whom the property of
the scheme is entrusted for safekeeping;
"investment company9' means a scheme under which -
(a) the property of the scheme belongs
beneficially to, and is managed by or on behalf
of, the company having as its purpose the
investment of its funds with the aim of
spreading investment risk and giving its
members the benefit of the results of the
management of those funds by or on behalf of
that company; and
(b) the rights of the participants are represented
by shares in or securities of that company
which -
(i) the participants are entitled to have
redeemed or repurchased by or out of
funds provided by that company; or '
(ii) can be sold by the participants on a
recognised securities exchange at a price
ANTIGUA 72 Securities Act, 2001. No. 14 of2001.
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related to the value of the property to
which they relate;
"participants" means the persons who participate in a col-
lective investment scheme, and includes members of an
investment company;
"trustee", in relation to a unit trust means the person holding
the property of the scheme on trust for the participants;
"unit trust" means a scheme under which the property of
the scheme is held on trust for the participants and where
(a) the property of the scheme belongs
beneficially to the participants and is managed
on their behalf by a management company;
and
(b) the rights of the participants are represented
by units in the scheme which the participants
are entitled to have redeemed or repurchased
from them by, or out of moneys provided by,
the management company;
"units" means the rights or interests (however described)
of the participants in a collective investment scheme.
(2) The arrangements referred to in under the defintion of
collective investment scheme in subsection (1) (c) must be such
that the participants do not have day to day control of the
management of the property of the scheme and the arrangements
must satisfy at least one of the following conditions -
(a) the contributions of the participants and the profits
or income out of which payments are to be made to
them are pooled;
(b) the property in question is managed as a whole by or
on behalf of the operator of the scheme;
(3) The following are not collective investment schemes -
(a) arrangements operated by a person otherwise than
by way of business;
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(b) arrangements the purpose of u-?ich is the provision
of clearing services and which are operated by a
person licensed for that purpose by the Commission;
(c) contracts of insurance;
(d) pension schemes; and
(e) such other arrangements as may be determined by
the Commission.
100. Subject to the provisions of this Part, no person shall Custodian
carry on business, or hold himself out as carrying on business, management
company of as - collective
investment
(a) a custodian; or scheme.
(b) a management company;
of a collective investment scheme unless that person is licensed
to do so by the Commission under this Part.
101. (1) No person shall cany on business in Antigua and Custodian of
Barbuda of taking property or assets into custody for safe keeping collective
on behalf of participants of a collective investment scheme, or ~ ~ ~ ~ ~ n t
hold himself out as carrying on that business unless that person
is a licensed custodian of a collective investment scheme.
(2) No custodian of a collective investment scheme shall
operate other than in accordance with a licence granted under
these regulations made under this Act.
102. (1) The Commission may grant a custodian of a collective Grant of
investment scheme licence to a company which applies in the custodian of
prescribed manner and pays the prescribed fee. collective investment
scheme licence.
(2) A licence granted under this section may be granted subject
to such terms and cdhditions as the Commission considers
necessary for the protection of participants.
(3) The Commission shall refuse to grant a custodian of a
collective investment scheme licence d s s the applicant is a
company and -
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Securities Act, 2001. No. 14 of 2001.
(a) is a bank or financial institution licensed under the
Banking Act;
(b) is a trust company which is a subsidiary of such
bank or financial institution; or
(c) is a company other than a company referred to in
paragraph (b) that has the prescribed minimum paid
up capital and the Commission is satisfied that the
applicant has the experience necessary to enable it
to conduct its business and to carry out its
obligations as a custodian of a collective investment
scheme.
(d) Complies with the insurance requirement under
section 80;
(e) Satisfies the Commission that it is a fit and proper
person to be licensed as a custodian of a collective
investment scheme;
@ will be able, if licensed to comply with the financial
resources regulations made under section 76 that
may apply to the applicant;
(g) has specified premises under section 103 (1) (b) that
are suitable for keeping records or other documents.
(4) In considering whether an applicant is a fit and proper
person to be licensed as a custodian of a collective investment
scheme the Commission -
(a) shall have regard to, in respect of each of its directors
and officers
(i) his financial status;
(ii) his educational or other qualifications
or experience having regard to the nature
of his application;
(iii) his ability to perform his proposed
function efficiently, honestly and fairly;
and
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(iv) his reputation, character, financial
integrity and reliability;
(b) may take into account any matter relating to -
(i) any person who is or is to be employed
by, or associated with, the applicant for
the purposes of the business to which
the application relates;
(ii) any person who will be acting as a
representative in relation to such
business; and
(iii) any substantial shareholder, director or
officer of the company, any other
company in the same group of conlpanies
or to any director or officer of any such
company.
(5) For the purposes of this section, the Commission may
have regard to any information in its possession whether
furnished by the applicant or not.
(6 ) In subsection (4) (b) (iii), "substantial shareholder", in
relation to a company, means a person who has an interest in
shares in the company
(a) the stated value of which is equal to or more than 5%
of the issued share capital of the company; or
(b) which entitles the person to exercise or control the
exercise of 5% or more of the voting power at a
general meeting of .the company.
(7) The Commission -
(a) shall not refuse an application for a licence without
first giving the applicant an opportunity of being
heard; and
(b) if it refuses an application for a licence, shall notify
the applicant in writing of the refusal and the reasons
for it.
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No. 14 of 2001.
Application for 103. ( 1 ) An application for a custodian of a collective
custodian of investment scheme licence shall be made in the prescribed form
collective
investment and accompanied by the prescribed fee; and shall
scheme licence.
(a) give the Commission information it reasonably
requires
(i) about the services which the applicant
will hold himself out as being able to
provide if the application is approved;
(ii) about .the business which the applicant
proposes to carry on and to which the
application relates, and about any person
whom the applicant proposes to employ
or with whom the applicant intends to
be associated in the course of carrying
on the business; and
(iii) to enable the Commission to consider
the matters referred to in subsections
(3) and (4) of section 102; and
(b) specify the location of all premises at which the
records or other documents of the business for whch
the application is made arc to be kept.
(2) The Commission may require an applicant to provide it
with such further information as the Commission W s necessary.
104. (1) No person shall carry on business in Antigua and
Managing
property of a Barbuda of managing the property or assets of a collective
collective investment scheme, or hold itself out as carrying on that business,
investment unless that person is a licensed management company of a
scheme. collective investment scheme.
(2) No management company shall operate other than in accor-
dance with a licence granted under these regulations made
under this Act.
Grant of manage- 105. (1) The Commission may grant a management company
ment company of of a collective investment scheme licence to a company which
a collective invest-
ment scheme l i - applies in the prescribed manner and pays the prescribed fee.
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(2) A licence granted under this section may be granted on
such terms and conditions as the Commission considers
necessary for the protection of participants.
(3) The Commission shall refuse to grant a management
company of a collective investment scheme licence unless the
applicant is a company which -
(a) has the prescribed minimum paid up capital and the
Commission is satisfied that the applicant has the
experience necessary to enable it to conduct its
business and to cany out its duties as a management
company of a collective investment scheme;
(b) complies with the insurance requirement under
section 80:
(c) satisfies the Commission that it is a fit and proper
person to be licensed as a management company of
a collective investment scheme;
(d) will be able, if licensed to comply with the financial
resources regulations made under section 76 that
may apply to it;
(e) has specified premises under section 106 (1) (b) that
are suitable for keeping records or other documents.
(4) In considering whether an applicant is a fit and proper
person to be licensed as a management company of a collective
investment scheme, the Commission
(a) shall have regard to, in respect of each of its directors
and officers -
(i) his financial status;
(ii) his educational or other qualifications
or experience having regard to the nature
of his application;
(iii) his ability to perform his proposed
function efficiently, honestly and fairly;
and
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No. 14 of2001.
(iv) his reputation, character, financial
integrity and reliability;
(b) may take into account any matter relating to -
(i) any person who is or is to be employed
by, or associated with, the applicant for
the purposes of the business to which
the application relates;
(ii) any person who will be acting as a
representative in relation to such
business; and
(iii) any substantial shareholder, director or
officer of the company, any other
company in the same group of companies
or to any director or officer of any such
company.
(5) For the purposes of this section, the Commission may
have regard to any information in its possession whether furmshed
by the applicant or not.
(6) In subsection (4) (b) (iii), "substantial shareholder", in
relation to a company, means a person who has an interest in
shares in the conlpany -
(a) the stated value of which is equal to or more than 5%
of the issued share capital of the company; or
(b) which entitles the person to exercise or control the
exercise of 5% or more of the voting power at a
general meeting of the company.
(7) The Commission -
(a) shall not refuse an application for a licence without
first giving the applicant an opportunity of being
heard; and
(b) if it refuses an application for a licence, shall notify
the applicant in writing of the refusal and the reasons
for it.
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106. (1) An application for a management company of a Application for
collective investment scheme licence shall be made in the management
company of a prescribed form and accompanied by the prescribed fee, and collective
shall - investment
scheme licence.
(a) give the Commission information it reasonably
requires -
(i) about the services which the applicant
will hold itself out as being able to
provide if the application is approved;
(ii) about the business which the applicant
proposes to cany on and to which the
application relates, and about any person
whom the applicant proposes to employ
or with whom the applicant intends to
be associated in the course of carrying
on the business; and
(iii) to enable the Commission to consider
the matters referred to in subsections
(3) and (4) of section 105; and
(b) specify the location of all premises at which the
records or other documents of the business for which
the application is made are to be kept.
(2) The Commission may require an applicant to provide it
with such further information as the Commission thinks necessary.
107. (1) NO person shall - Restrictions on
promotion.
(a) issue or cause to be issued any advertisement inviting
persons to become or to offer to become participants
in a collective investment scheme, or containing
information calculated to lead directly or indirectly
to persons becoming or offering to become,
participants in a scheme; or
(b) advise or procure any person to become or to offer
to become a participant in a scheme, unless the
collective investment scheme is authorised by the
Commission under this Act and in accordance with
regulations made under this Act.
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Authorisation of
schemes by
Commission.
Recollection of
collective
investment
schemes.
80 Securities Act, 2001. No. 14of2001.
(2) A person who contravenes subsection (1) commits an
offence and is liable on summary conviction -
(a) in the case an individual, to a fine of one hundred
thousand dollars or to imprisonment of two years or
to both;
(b) in the case of company, to a f i e of two hundred
thousand dollars; and
if the offence is a continuing offence, the individual or company
is liable to a further fine not exceeding one thousand dollars for
every day that the offence continues after the conviction.
108. (1) If the scheme complies with regulations made under
section 109, the Commission may, on an application being made
in the prescribed form and manner and after being furnished with
all such information as it may require and the prescribed fee,
authorise a collective investment scheme for the purposes of
this Act.
(2) An authorisation under subsection (I) may be granted
subject to such terms and conditions as the Commission
considers to be necessary for the protection of investors.
(3) The Commission shall inform the applicant of its decision
on the application not later than ninety days after the date on
which the application was received or, if within that period the
Commission has required the applicant to furnish further
information in connection with the application, from the date on
which that information is furnished.
109. (1) The Minister may, on the recommendation of the
Commission, make regulations with regard to
(a) the criteria for and conditions of the authorisation of
collective investment schemes;
(b) the constitution and management of collective
investment schemes, the powers and duties of the
manager and custodian of a scheme and the rights
and obligations of the participants in a scheme;
(c) the promotion, marketing and distribution of units;
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(d) the issue and redemption of units;
(e) the provision of management or custodial services,
or any other services for or in connection with a
scheme;
fl restricting or regulating the investment and
borrowing powers exercisable in relation to the
scheme;
(g) requiring the keeping of records with respect to the
transactions and financial position of the scheme
and for the inspection of those records;
(h) requiring the preparation of periodical reports with
respect to the scheme and the submission of those
reports to the participants and to the Commission;
(i) any fee, remuneration or reward payable or receivable
for any services referred to in paragraph (e).
(2) Regulations made under this section may make provisions
as to different classes of collective investment schemes and may
make different provisions in relation to schemes falling within
each class so specified.
110. (1) The Commission may revoke its authorisation of a Revocation of
collective investment scheme if it determines - authorisation.
(a) that any of the requirements for the granting of
authorisation is no longer satisfied;
(b) that it is undesirable in the interests of the
participants or potential participants that the scheme
should continue to be authorised; or
(c) without prejudice to paragraph (b), that the manager
or custodian of the scheme has contravened any
provision of this Act or, in purported compliance
with any such provision, has furnished the
Commission with false, inaccurate or misleading
information or has contravened any prohibition or
requirement imposed under this Act.
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(2) For the purposes of subsection (1) (b), the Commission
may take into account any matter relating to the scheme, the
manager or custodian, a director or controller of the manager or
custodian or any person employed by or associated with the
manager or custodian in connection with the scheme.
Winding up. 11 1. (1) Where the Commission revokes its authorisation of a
collective scheme under section 11 0, the Commission may apply
to the High Court to appoint a person to wind up the scheme.
(2) On the application under this section the High Court may
make such order as it sees fit.
(3) The Commission shall give written notice of the making of
an application under this section to the manager and custodian
and shall take such steps as it considers appropriate for bringing
the making of the application to the attention of the participants.
PART X
INSIDER DEALING AND OTHER MARKET ABUSES
Insiders. 112. (1) For the purposes of this Part, an individual has
information as an insider if
(a) it is inside information, and that individual knows
that it is inside information; and
(b) that individual has the information, and knows that
he or she has the information, from an inside source.
(2) For the purposes of subsection (I), an individual has
information from an inside source if -
(a) the individual has it through -
(i) being a director, employee or shareholder
of an issuer of securities; or
(ii) having access to the information by
virtue of that individual's employment,
office or profession; or
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(b) the direct or indirect source of the individual's
information is a person referred to in paragraph (a).
113. (1) For the purposes of this Part - Inside
information.
(a) "inside information" means information which -
(i) relates to particular securities or to a
particular issuer of securities and not to
securities generally or to issuers of
securities generally;
(ii) is specific or precise;
(iii) has not been made public; and
(iv) if it were made public would be lkely to
have a significant effect on the price of
any securities;
(b) securities are "price-affected securities" in relation
to inside mformation, if the mformation would, if made
public, be lkely to have a significant effect on the
price of the securities.
114. (1) For the purposes of section 113, "made public", in Information
relation to information, shall be construed in accordance with the "made public".
following provisions of this section, but these provisions shall
not be exhaustive as to the meaning of that expression.
(2) Information is made public if -
(a) it is published in accordance with the rules of a . securities exchange for the purpose of informing
investors and their professional advisers;
(b) it is contained in records which by virtue of any
enactment are open to inspection by the public;
(c) it can be readily acquired by those likely to deal in
any securities -
(i) to which the information relates; or
ANTIGUA 84
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Securities Act, 2001. No. 14of2001.
(ii) of an issuer to which the information
relates; or
(d) it is derived from information which has been made
public.
Offence of insider 115. (1) A person who has information as an insider commits
dealing. the offence of insider dealing if that person -
(a) deals in securities that are price-affected in relation
to that information;
(b) encourages another person to deal in securities that
are (whether or not that other person knows it) price-
affected securities in relation to the information,
knowing or having reasonable cause to believe that
the dealing would take place; or
(c) discloses the information, otherwise than in the
proper performance of the functions of that
individual's employment, office or profession, to
another person.
(2) A person who commits an offence under subsection (1) is
liable on summary conviction -
(a) to a fine of five hundred thousand dollars or to
imprisonment for five years or to both; and
(b) the court may make an order imposing on the
convicted person a penalty, payable to the
Commission, of an amount not exceeding three times
the amount of any profit gained or loss avoided by
any person as a result of the insider dealing.
(3) In addition to the penalty stated in subsection (2) a person
who is convicted of an offence under this section shall be:
(a) Liable to compensate any person for any direct loss
incurred by that person as a result of the insider
dealing unless that other person was a party to the
insider dealing;
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I
(b) Accountable to the company for any direct benefit
or advantage received or receivable as a result of the
insider dealing.
(4) No contract shall be void or unenforceable by reason
only of an offence under this section.
116. (1) k person commits an offence if that person, in Antigua False trading.
and Barbuda or elsewhere, creates, or does anything that is
intended or knows that it is likely to create, a false or misleading
appearance -
(a) of active trading in securities on a licensed securities
exchange; or
(b) in the price of securities traded on a licensed
securities exchange.
(2) Without limiting the general nature of what constitutes a
false or misleading appearance of active trading under subsection
(I), a false or misleading appearance of active trading in securities
is created for the purpose of this section if a person
(a) carries out, either directly or indirectly, a sale or
purchase of securities that does not involve a change
in the beneficial ownership of them, or offers to do
so;
(b) offers to sell securities at a price that is substantially
the same as the price at which that person has made
or proposes to make, or knows that an associate of
his has made or proposes to make, an offer to buy
the same or substantially the same, number of them;
or
(c) offers to buy the securities at a price that is
substantially the same as the price at which that
person has made or proposes to make, or knows that
an associate ofbis has made or proposes to make, an
offerto sell the same or substantially the same,
number of them.
117. A person commits an offence if that person maintains, Price rigging.
increases, reduces, or causes fluctuations in, the market price of
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securities by means of purchases or sales that do not involve a
change in the beneficial ownership of those securities or by
fictitious transactions or devices.
Market 118. A person commits an offence if that person enters into or
manipulation. carries out, whether in Antigua and Barbuda or elsewhere, either
directly or indirectly, a transaction in securities that by itself or in
conjunction with another transaction -
(a) increases, or is likely to increase, their market price
with the intention of inducing other persons to sell
or to purchase, or to refrain from selling or
purchasing, securities issued by the same company
or a related company;
(b) reduces, or is likely to reduce, their market price with
the intention of inducing other persons to sell or
purchase, or to refrain from selling or purchasing,
securities issued by the same company or a related
company;
(c) stabilises, or is ldcely to stabilise, their market price
with the intention of inducing other persons to sell
or purchase, or refrain from selling or purchasing,
securities issued by the same company or by a related
company.
Use of deceptive 119. A person commits an offence if .that person induces or
statements as
inducements.
attempts to induce another person to deal in securities
(a) by making or publishing any statement, promise or
forecast that that person knows to be misleading,
false or deceptive;
(b) by any dishonest concealment of material facts; or
(c) by recklessly making or publishing any statement,
promise or forecast that is false or misleading.
Fraudulent 120. A person commits an offence if that person, directly or
transactions. indirectly, in connection with any transaction with any other
person involving the purchase, sale or exchange of securities
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(a) en~ploys any device, scheme or artifice to defraud
that other person; or
(b) engages in any act, practice or course of business
whlch operates as a fraud or deception, or is llkely to
operate as a fraud or deception, on that other person.
121. A person commits an offence if that person, directly or False or
indirectly, for the purpose of inducing the sale or purchase of the
statement securities by any other person of any company, or to raise, lower inducing securities
or stabilise the market price of that company's securities, makes transactions.
with respect to those securities, or with respect to the operations
or the past or future performance of the company -
(a) any statement which is, at the time and in light of the
circumstances in whlch it is made, false or misleadmg
with respect to any material fact and which that
person knows or has reasonable grounds to believe
to be false or misleading; or
(b) any statement which is, by reason of the omission of
a material fact, rendered false or misleading and which
that person knows or has reasonable grounds to
believe is rendered false or misleading by reason of
omission of that fact.
122. A person who commits an offence under section 116. Penalties for
117,118,119,120 or 121 is liable on summary conviction- under
sections 11 6 to
121.
(a) in the case of an individual, to a fine of two hundred
thousand dollars or to imprisonment for three years
or to both;
(b) in the case of a company, to a fine of four hundred
thousand dollars.
123. (1) A person who is convicted of an offence under section Liability to pay
1 16,117,118,119,120 or 12 1 shall, in addition to criminal liabdity
for the offence, be liable, at the suit of any person who has
sustained pecuniary loss as a result of having purchased or sold
securities at a price affected by the act or transaction which
comprises or is the subject of the offence, to an action for
damages in respect of the loss concerned.
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No. 14of2001.
(2) Nothing in subsection (1) limits or diminishes any civil
liability which any person may incur under any other law.
PART XI
DISCLOSURE OF SHAREHOLDINGS OF DIRECIORS
AND m A N T L 4 L SHARJmoLDERS
Interpretation. 124. In this Part -
"associated person" shall be construed in accordance
with section 9 l(2);
"director" includes -
(a) a person occupying the position of a director
(by whatever name called); and
(b) a person in accordance with whose directions
or instructions (not being advice given in a
professional capacity) the directors are
accustomed to act;
"interest in securities" shall be construed in accordance
with section 91;
"securities" means securities which are listed on a securi-
ties exchange licensed by the Commission;
"substantial shareholder", in relation to an issuer, means a
person who has an interest in shares of the issuer -
(a) the stated value of which is more than 5% of
the issued share capital of the issuer; or
(b) which entitles the person to exercise or control
the exercise of more than 5% of the voting
power at a general meeting of the issuer.
Notification of 125. Where, on the commencement of this Act, a director or
interests of
directors and
substantial shareholder of an issuer is interested in securities of
substantial that issuer or another issuer that is an associated person, he
shareholders. shall n o w the issuer within fourteen days in writing of hw interest
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in such securities giving particulars of the number of securities
of every class.
126. (1) A director shall notify the issuer of which he is a Change to
director within fourteen days of the occurrence of - director's interest
in securities.
(a) any event in consequence of which he becomes or
ceases to be interested in securities of the issuer or
of an associated person;
(b) the entering into by him of a contract to buy or sell
any such securities;
(c) the assignment by him of a right granted to hun or to
any member of his family by the issuer to subscribe
for securities of the issuer;
(d) the grant to him by an associated company of the
issuer to subscribe for securities of that associated
person, the exercise or the assignment of such a right,
stating the number or amount and class of securities
involved.
(2) Where a director is granted the right to subscribe for the
securities of a company under subsection (1) (d), the director
shall notify the issuer of
(a) the date on which the right is granted;
(b) the period during which or the time at which the right
is exercisable;
(c) the consideration for the grant; and
(d) in the case of the exercise of the right, the number of
securities in respect of which it is exercised, and the
name in which such securities are registered.
8
827. (1) Any person who - Obligation to
notify acquisition
or change in
(a) not previously being a shareholder of an issuer, substantial
acquires an interest ia shares so as to become a shareholding.
substantial shareholder of that issuer;
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Securities Act, 2001. No. 14 0f2001.
(b) being a shareholder of an issuer, acquires an interest
in further shares so as to become a substantial
shareholder;
(c) being a substantial shareholder of an issuer -
(i) acquires an interest in additional shares
of the issuer;
(ii) reduces his number of shares of the
issuer but remains a substantial
shareholder; or
(iii) ceases to be a substantial shareholder
of the issuer,
shall notify the issuer in writing of the occurrence of the event
resulting in his change of interest within fourteen days of the
date on which it occurred, and the number of shares in which he
has become interested or ceased to be interested.
Extension to
spouses and
children.
Register of
interests of
directors and
substantial
shareholders.
128. (1) For the purposes of sections 125, 126 and 127, an
interest in securities of the spouse and minor child (such child
not being a director) of a hector or substantial shareholder of an
issuer shall be treated as being the substantial shareholder's
interest, as the case may be.
(2) In this section "child includes a step-child, an adopted
child and a child born out of wedlock.
129. (1) An issuer shall keep, in the form and manner specified
by the Commission, a register of directors' and substantial
shareholders' interests.
(2) The register shall be held at the issuer's registered office
and shall, during usual office hours, be open to inspection free of
charge to members of the public.
(3) The register shall be produced at the commencement of
the issuer's annual general meeting and be kept open and
available throughout the meeting to any person attending.
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130. (1) Where an issuer is notifiedby a director or substantial Notification to
shareholder of any matter relating to securities of which the issuer : ~ ~ ~ ~ , "
is required to give notice under this Part, or enters in its register Commission,
any matter relating to securities required to be entered under this
Part, the issuer shall inform the securities exchange on whch the
securities of the issuer are listed, and the Commission, before the
end of the day following the day of the notification or entry, as
the case may be.
(2) The securities exchange or the Commission may publish,
in such manner as it may determine, any information it receives
under this section.
131. A person who contravenes any provision of this Part, or Offences.
who -
(a) makes a statement which that person knows to be
false;
(b) recklessly makes a statement which is false; or
(c) fails to supply any particulars which that person is
required to supply,
commits an offence.
PART XU
INFORMATION, INSPECTION AND INVESTIGATION
132. (1) The Commission may, by notice in writing, require a Power of
licensee to famish it with such information as it may reasonably to
call for
require for the exercise of its functions within such reasonable information,
time and verified in such manner as it may specify.
(2) The duty to supply information under this section applies
notwithstanding any other enactment or rule of law in Antigua
and Barbuda.
ANTIGUA 92 Securities Act, 2001. No. 14of2001.
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Right to exchange 133. (1) The Conmission, a securities exchange, a clearing
agency and other regulatory bodies shall have the right to supply
each other with information about their securities business and
(a) in the case of a securities exchange, information on
the securities business of any of its members; and
(b) in the case of a clearing agency, information on the
securities business of any of its participants.
(2) The Commission may by written notice require a securities
exchange or clearing agency to supply it with the information the
Commission reasonably requires for the performance of its
functions under this Act, including information in the possession,
or under the control, of a securities exchange or clearing agency
relating to -
(a) in the case of a securities exchange, the securities
business of any of its members; and
(b) in the case of a clearing agency, the securities
business of any of its participants.
(3) The right to exchange, and the duty to supply, information
under this section apply notwithstanding any other enactment
or rule of law in Antigua and Barbuda.
Information 134. (1) The Commission or a person authorised in writing by
relating to the Commission for the purpose of this section may require -
transactions.
(a) a person registered as the holder of securities;
(b) a person whom the Commission or the person
authorised has reasonable grounds to believe holds
securities;
(c) a person whom the Commission or the person
authorised has reasonable grounds to believe has a
beneficial interest in securities;
(d) a person whom the Commission has reasonable
grounds to believe has acquired or disposed of
% securities directly or through a nominee, trustee or
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agent, and whether as beneficial owner, nominee,
trustee, agent or otherwise;
(e) a licensee,
to disclose to the Commission or the person authorised by the
Commission the information referred to in subsection (2) in relation
to an acquisition, disposal or holding of securities.
(2) The information that may be required under subsection (1)
is -
(a) the name, address, telephone number and occupation
of the person, or other particulars that are capable of
establishing the identity of the person, from, to or
through whom, or on whose behalf, the securities
were acquired, disposed of or were or are held;
(b) the quantity of securities so acquire , disposed of
or held; and d
(c) the instructions given to or by the perdon referred to
in (a) in relation to the securities.
(3) A person commits an offence if that person -
(a) without reasonable excuse fails to disclose to the
Commission or the authorised person information
required to be disclosed under this section and which
is in his possession or under his conqol; or
(b) furnishes to the Commission or the au orised person
in purported compliance with the r quirement of
disclosure under this section informa 'on whlch the
person knows to be false or misleadin in a material
particular, where the Commission or an authorised
person requires information under su section (1). I
135. (1) For the purpose of ascertaining whether a person Power of
who is, or at any time has been, a licensee is complying or has Commission to
complied with any provision of or requirement under this Act,
regulations made under t h~s Act or the terms and conditions of
his licence, the Commission may from time to time inspect any
document relating to the business to which the licence applies.
ANTIGUA 94 Securities Act, 2001. No. 14of2001.
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(2) The Commission may appoint any person (the "authorised
person") to exercise the powers of the Commission under this
section.
(3) In the exercise of his powers under this section, an
authorised person may -
(a) enter the licensee's premises notified to the
Commission under section 49 (1) (c), 52 (1) (c), 55 (1)
(c), 58 (1) (b), 103 (1) (b) or 106 (1) (b) as the case may
be;
(b) require the licensee, or any other person whom he
reasonably believes is in possession of or has under
his control any record or other document referred to
in subsection (I), to produce it to him;
(c) inspect and make copies, or take extracts from, and
where necessary in an appropriate case to take
possession of, such records or other documents.
(4) For the purpose of an inspection under this section, the
licensee or other person mentioned in subsection (3) shall afford
an authorised person access to the records or other documents
as may be reasonably required for the inspection, and shall
produce to the authorised person such records or other documents
as he may reasonably require.
(5) Any person who, without reasonable excuse, contravenes
subsection (4) commits an offence.
Power of 136. (1) Where the Commission has reasonable grounds to
Commission to believe that -
investigate.
(a) an offence under this Act or regulations made under
this Act has been committed;
(b) a personmay have committed a breach of trust, fraud
or misconduct
(i) in dealing in securities;
(ii) in the management of investment in
securities; or
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(iii) in giving advice as regards the
acquisition, disposal, purchase! or sale,
or otherivise investing in, any security;
or
(c) the manner in which a person has engaged or is
engaging in any of the activities referred to in
paragraph (b) is not in the interest of the investing
public or the public interest,
the Commission may in writing appoint a person ("the
investigator") to investigate any matter referred to in paragraphs
(a) to (c) and to report the results of the investigation to the
Commission.
(2) Any person who is reasonably believed or suspected by
the investigator to have in his possession or under his control
any record or other document which contains, or which is likely
to contain, information relevant to an investigation under this
section, or who is so believed or suspected of otherwise having
such information in his possession or under his control, shall -
(a) produce to the investigator, within such time and at
such place as he may reasonably require, any
document specified by the investigator which is, or
may be, relevant to the investigation, and which is in
his possession or under his control;
(b) if so required by the investigator, give to him such
explanation or further particulars in respect of a
document produced in compliance with a requirement
under paragraph (a) as the investigator shall spec@;
and
(c) attend before the investigator at such time and place
as the investigator may reasonably require in writing,
and answer truthfully and to the best of his ability
under oath (which oath the investigator is hereby
empowered to administer) such questions r~lating
to the matters under investigation as the investigator
may put to him.
(3) A person commits an offence if, without reasonable excuse,
that person -
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(a) fails to produce a record or other document which
that person is required to produce under subsection
(2) (a);
(b) fails to give an explanation or particulars required
under subsection (2) (b);
(c) fails to comply with a requirement under subsection
(2) (c) to attend before the investigator; or
(d) fails to answer a question put to him by the
investigator under subsection (2) (c), or in answering
the question says anythmg which that person knows
to be false or misleading in a material particular or
who in so answering recklessly makes a false
statement.
Power of 137. (1) Where it appears to the Commission that there are
Commission to circumstances suggesting that -
require production
of records and
documents (a) the business of a company, which is or was at the
concerning listed relevant time listed, has been or is being con-
companies. ducted -
(i) with intent to defraud its creditors, or
the creditors of another person;
(iii for a fraudulent or unlawful purpose; 01
(iii) in a manner oppressive to any of its
members;
(b) a company was formed for a fraudulent or unlawful
purpose;
(c) the persons concerned with the formation of a
company or the management of its affairs have in
relation to the formation or management been guilty
of h u d , misfeasance or other ~ s c o n d u c t towards it
or its members; or
(d) the menlbers of a company have not been given a31
the information with respect to its affairs that they
might reasonably expect,
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the Commission may give directions to -
(i) the company;
(ii) a subsidiary of the conlpany;
(iii) a company that is substantially under
the control of the same person as is the
company,
requiring it, at the time and place specified in the directions to
produce the records and documents specified in the directions.
(2) The Conmission may, when acting under subsection (1),
authorise a person, on producing (if required to do so) evidence
of his authority, to require a company referred to in subsection
(1) to produce to him records and documents specified by him.
(3) Where the Commission or authorised person require
production of records and documents from a company under
this section, the Commission or authorised person may also
require production of those records and documents fiom aperson
who appears to the Commission or authorised person to be in
possession of them.
(4) A power under this section to require a company or other
person to produce records and documents includes the power
(a) if the records and documents are produced -
(i) to take copies of them or extracts from
them; and
(ii) to require that person, or any other
person who is a present or past officer
of the company, or is or was at any time
employed by the company, to provide
9 explanation of any of the records or
* documents; or
(b) if the records and documents are not produced, to
require the person who was required to produce them
to state, to the best of his knowledge and belief,
where they are.
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(5) If a requirement to produce records or documents or
provide an explanation or make a statement which is imposed
under this section is not complied with, the company or other
person on whom the requirement was so imposed commits an
offence.
Remedy in cases 138. (1) If it appears to the Commission from any information,
Of unfair prejudice record or other document obtained under this Part, that the affairs
by listed
companies. of a listed company are being or have been conducted in a manner
unfairly prejudicial to the interests of its members generally or of
some part of the members, the Commission may make an
application to the High Court for an order under this section.
(2) If on an application under this section the High Court is of
the opinion that the company's affairs are being or have been
conducted in a manner unfairly prejudicial to the interests of its
members generally or of some part of the members, whether or
not the conduct consists of an isolated act or a series of acts, the
High Court may, with a view to bringing to an end the matters
complained of -
(a) make an order restraining the carrying out of the act
or conduct;
(b) order that the company shall bring in its name the
proceedings the High Cqurt thinks fit against the
persons, on the terms, the High Court orders;
(c) appoint a receiver or manager of the whole or a part
of the company's property or business and may
specify the powers and duties of the receiver or
manager and fix his remuneration;
(d) make any other order it thinks fit, whether for
regulating the conduct of the company's affairs in
future, or for the purchase of the shares of any
members of the company by other members of the
company or by the company and, in the case of a
purchase by the company, for the reduction
accordingly of the company's capital, or otherwise.
(3) Where an order under this section makes an alteration in or
an addition to the constitution of a company, the company shall
not have power without the leave of the High ,Court to make any
No. 14 of2001. Securities Act, 2001. 99 ANTIGUA
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further alteration in or addition to the constitution inconsistent
with the order.
139. A person who destroys, falsifies, conceals or disposes Destruction of
of, or causes or permits the destruction, falsification, concealment
or disposal of, any docunient, which he knows or ought to know
is relevant to an inspection under section 135 or an investigation
under section 136, commits an offence and is liable on summary
conviction:
(a) in the case of any individual, to a fine of fifty
thousand dollars or to imprisonment for one year or
to both;
(b) in the case of a company, to a fine of one hundred
thousand dollars.
140. (1) The Commission may establish a disciplinary Establishment of
committee and the composition of that committee -shall be as Disciplinary
prescribed. Committee.
(2) The Disciplinary Committee may, where it is satisfied after
due enquiry that a licensee is in contravention of the provisions
of this Act or any regulations made under this Act, exercise in
relation to that licensee any one or more of the following
sanctions as it deems appropriate in the circumstances:
(a) issue a private warning or reprimand;
(b) issue notice of public censure;
(c) issue an order requiring the licensee to cease and
desist from the activity or non activity causing the
licensee to be in contravention;
(d) issue an order debarring the licensee from carrying
on securities business whilst the contravention
subsists;
(e) impose a fine in such amount as may be prescribed.
141. A licensee who contravenes any provision of this Act, Disciplinary
or any regulation made under this Act, is liable to disciplinary offences.
proceedings irrespective of any other action, whether criminal or
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civil, that may be taken against him by any person in respect of
the same conduct.
PART XIll
TAKEOVERS
Takeover offers. 142. (1) In this Part, a "takeover offer" means an offer to
acquire by or on behalf of a company or individual ("the offeror")
(a) all the shares, or all the shares of any class, in a
company ("the offeree company") other than shares
which at the date of the offer are already held by the
offeror; or
(b) such shares in the offeree company which will result
in the offeror acquiring effective control of the offeree
company.
(2) For the purposes of subsection (I), "acquiring effective
control" means the acquiring of shares in an offeree company
which (together with shares, if any, already held by the offeror or
by any other person that is deemed by virtue of section 143 to be
related to the offeror) carry the right to exercise, or control the
exercise of, more than 50% of the rights attached to the voting
shares of the offeree company.
When companies 143. Where a company -
deemed to be
related.
(a) is the holding company of another company;
(b) is the subsidiary of another company; or
(c) is a subsidiary of the holding company of another
company,
that first-mentioned company and that other company shall for
the purposes of this Part be deemed to be related to each other.
Conduct of 144. (1) The Minister may, on the recommendation of the
takeovers. Commission, make regulations with respect to the making and
conduct of takeover offers.
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(2) Where the Minister has made regulations under subsection
(I), no person shall make or pursue a takeover offer except under
and in accordance with such regulations.
PART XIV
145. (1) No person shall carry on business as a securities Licensing
exchange or clearing agency, or carry on activities as an requirement.
association of securities companies or investment advisers,
except under and in accordance with a self regulatory organisation
licence granted by the Commission under this Part.
(2) An application under subsection (1) shall be made in the
form prescribed by the Commission.
(3) The Eastern Caribbean Securities Exchange Limited and
the Eastern Caribbean Central Securities Depository Limited are
deemed to be licensed under this Part as self-regulatory
organisations.
146. Upon receipt of an application duly made under section Grant of self
- -
145, the commission may grant a licence if it is satisfied that the r e g u l a t o ~
applicant organisation
licence.
(a) proposes to engage in the securities business;
(b) is a company;
(c) is incorporated in Antigua and Barbuda or
incorporated in any other State and registered in
Antigua and Barbuda;
(d) has a body of rules for the governance of its members
which rules comply with the requirements of this
Part of the Act and are in all respects acceptable to
the Commission.
147. (1) The rules of an applicant for a self regulatory Requiredrules.
organisation licence shall contain provisions -
(a) for the protection of investors and the public interest;
ANTIGUA 102 Securities Act, 2001. No. 14of2001.
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(b) relating to the discipline of a member or employee of
a member who contravenes its rules or this Act or
regulations made under this Act and, without limiting
the general effect of the foregoing, may provide for
censure, fine, suspension, expulsion, limitation of
activities, functions or operations, suspension of or
exclusion fiom employment;
(c) specifying the procedure for disciplinary
proceedings; and
(d) for such other matters as may be prescribed.
(2) The rules of an app!icant for licensing as a self-regulatory
organisation shall contain provisions designed to prevent
deceptive and manipul'ative acts and practices and to promote
fair trading practices and to facilitate an efficient market.
(3) The rules of an applicant for licensing a clearing agency as
a self regulatory organisation shall contain provisions designed
(a) to develop and operate a prompt and accurate
clearance and settlement system; and
(b) to safeguard money and securities in its custody or
under its control or for which it is responsible.
(4) The rules of an applicant -
(a) shall not permit unfair discrimination among persons
who use its facilities;
(b) shall not restrain competition to an extent not
necessary to achieve the objectives specified in
subsections (I), (2) and (3).
Application of 148. Sections 14 and 17 shall apply niutatis mutandis to this
other sections to part.
this Part.
Appointment of 149. (1) A self-regulatory organisation shall, with the approval
auditor. of the Commission, appoint auditors.
(2) A self regulatory organisation shall require each of its
members to appoint an auditor who shall -
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(a) examine the member's financial affairs in accorhce
with the rules of the organisation;
(b) report the results of the examination to the auditor of
the organisation.
(3) A person shall not be qualified for appointment under
subsection jl) or (2) rmless he is an accountant.
. (4) The auditor of a self-regulatory organisation shall provide
to the Commission on request a copy of a report received by him
under subsection (2).
150. (1) A self regulatory organisation shall - Keeping and
inspec"ion of
(a) make and keep such records in such form and for records,
such periods as the Commission may determine; .
(b) file with the Commission prescribed reports in the
prescribed form.
(2) The Commission may at any time authorise a person in
writing to -
(a) inspect the records of a self regulatory organisation
and to examine the financial affairs of that
organisation or any of its members;
(b) prepare such financial or other reports as the
Commission requires.
(3) A self regulatory organisation shall -
(a) produce and provide a person authorised by the
Commission under subsection (2) with a copy of any
record referred to in subsection (1) or any other
record that he reasonably requests; and
(b) answer any question he asks concerning those
records.
151. (1) Where a self regulatory organisation - Sanctions.
(a) contravenes its rules, this Act or regulations made
under this Act;
ANTIGUA
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(b) is unable to comply with its rules, this Act or
regulations made under this Act; or
(c) fails or is unable to enforce its rules, any provision
of this Act or of regulations made under this Act
that it is required to administer or enforce, or fails to
comply with an order or direction of the Commission,
the Commission may make an order -
(i) censuring the organisation;
(ii) limiting its activities, functions or
operations; or
(iiii suspending or revoking its licence.
(2) Where a director or officer of a self-regulatory organisation
contravenes the rules of the organisation or of this Act or a
regulation made under this Act, the Commission may direct the
organisation to censure him or suspend or remove him from office
or employment with the organisation.
Disputes between
member
companies.
152. (1) Where a dispute involving a transaction in securities
arises between members of a self regulatory organisation, such
dispute shall be referred to the board of the organisation and the
board shall investigate the dispute and shall make such order for
the resolution of the dispute as it thinks fit.
(2) It shall be the duty of each of the parties to the dispute
forthwith to inform the Commission in writing of the existence of
the dispute and to deliver or cause to be delivered to the other
party to the hspute, w i t . twenty four hours of such notice to
the Commission, a copy of the notice given to the Commission of
the dispute.
(3) Where a member is aggrieved by the decision of the board
under subsection (1) the member may, within fourteen days of
the receipt of such decision, appeal to the Commission.
(4) Where the Commission adjudicates in a matter referred to
it under subsection (3), the decision of the Commission shall be
final.
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(5) The Commission may, by any adjudication under this
section, order the payment by any party to the dispute of any
sum of money, including a sum to cover costs, as the justice of
the case may in the opinion of the Commission require.
PART XV
153. (1) Notwithstanding the provisions of the Companies Transfer of .- Act, the ownership of coIporateseambes which are listed or unce*ificated
proposed to be listed may, subject to the provisions of this Part, securities.
be evidenced and transferred without a written instrument.
(2) The Minister may, on the recommendation of the
Commission, make regulations -
(a) providing for procedures for recording and
transferring title to securities;
(b) providing for the regulation of those procedures and
the persons responsible for or involved in their
operation;
(c) containing such safeguards as appear to the Minister
appropriate for the protection of investors and for
ensuring that competition is not restricted, distorted
or prevented;
(d) providing for the transmission of title to securities
by operation of law;
(e) including such supplementary, incidental and
transitional provisions as appear to the Minister to
be necessary or expedient.
(3) Regulations may make provision with respect to the persons
responsible for the qperation of the new procedures
(a) as to the consequences of their insolvency or
incapacity;
(b) as to the transfer from them to other persons of their
functions in relation to the new procedures.
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106 Securities Act, 2001. No. 14 of2001.
Immunity.
Offences and
penalties.
Orders of the
High Court
(4) Regulations may make different provisions for different
cases.
PART XVI
MISCELLANEOUS
154. The Conlmission, members, officers and employees of
the Commission shall not be liable to any action in damages for
anythmg done or omitted to be done in the exercise or performance
of any power or duty conferred or imposed by or under this Act.
155. (1) A person who commits an offence under section 21
(3), 40 (3), 67 (5), 69 (2), 77 (5), 82 (2), 87 (4), 88 (2), 89 (2), 13 1,134
(3), 135 (3,136 (3) or 137 (5) is liable on summary conviction -
(a) itl the case of an individual, to a fine of fifty thousand
dollars or to imprisonment for one year or to both;
(b) in the case of a company, to a fine of one hundred
thousand dollars; and
if the offence is a continuing offence, the individual or company
is liable to a further fine not exceeding one thousand dollars for
every day that the offence continues after conviction.
(2) A person who contravenes or fails to comply with any
other provision of this Act, where the provision does not
expressly create an offence or provide for a penalty, commits an
offence and is liable on summary conviction
(a) in the case of an individual, to a fine of one hundred
thousand dollars;
(b) in the case of a company, to a fine of two hundred
thousand dollars.
156. (1) Where, on the application of the Comnlission it appears
to the High Court that a person has contravened this Act or the
conditions of any licence, or is about to do an act with respect to
dealing in securities that, if done, would be such a contravention,
the High Court may, without prejudice to any order it would be
entitled to make otherwise than pursuant to this section, make
one or more of the following orders
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(a) an order restraining a person from acquiring,
disposing of, or otherwise dealing with any securities
specified in the order;
(b) in relation to a broker dealer, limited service broker,
investment adviser or custodian an order appointing
a person to administer its property;
(c) an order declaring the contract, if any, relating to any
securities to be void or voidable;
(d) for the purpose of securing compliance with any
other order under this section, an order directing a
person to do or refrain from doing a specified act; or
(e) any ancillary order which it considers necessary in
consequence of the making of any other order under
this section.
(2) The High Court shall, before making an order under this
section, satisfy itself, so far as it reasonably can, that the order
would not unfairly operate to the detriment of any other person.
(3) The High Court may, before making an order under
subsection ( I ) , direct that notice of the application be given to
such persons as it thinks fit or direct that notice of the application
be published in such manner as it thinks fit, or both.
(4) The High Court may reverse, vary, or discharge an order
made by it under this section or suspend the operation of such
an order.
157. Without prejudice to any other provision of this Act, a civi l action
contravention of this Act or regulation made under this Act shall
be actionable at the suit of a person who suffers pecuniary loss
as a result of the contravention.
158. If, in the case of a company licensed under this Act, it Winding up
appears to the Commission that it is necessary for the protection orders.
of investors that the company should be wound up under the
Companies Act, the Commission may present a petition for it to No. 18 of 1995.
be wound up under that Act on the ground that it is just and
equitable that it should be wound up.
ANTIGUA 108 Securities Act, 2001.
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No. 14 of 2001
Receiving orders. 159. If it appears to the Commission that it is necessary for
the protection of investors to do so, the Commission may present
Cap. 41. a petition for a receiving order in accor&'nce with the Bankruptcy
Act against an individual licensed under this Act if the individual
has committed an act of insolvency within the meaning of that
Act, and that Act shall, with any necessary modifications, apply
in relation to any such petition as it applies in relation to a
petition presented by a creditor.
Regulations. 160. (1) Without limitation to specific provisions in this Act
enabling the Minister to make regulations, the Minister may make
regulations, on the recommendation of the Commission, for or
with respect to -
(a) applications for licenses, the issue of licenses and
incidental matters;
(b) the display of licences and the issue of duplicate
licences;
(c) the qualifications, experience and training required
of licensees, the examinations that applicants for
licences may be required to take, and the
circumstances in which they may be excused from
such requirements;
(d) the making of annual or other regular returns to the
Commission by licensees;
(e) the conditions subject to which securities may be
listed and the circumstances in which dealings in
listed securities shall be suspended;
(fl insider dealings and market manipulation;
(g) the particulars to be recorded in relation to accounts
to be kept for the purposes of this Act, and the
particulars to be recorded in profit and loss accounts
and balance sheets;
(h) the information to be contained in auditors' reports
required to be filed under this Act;
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(i) the remuneration of an auditor appointed, and the
costs of an audit carried out, under this Act;
0;) the form and content of advertisements relating to
securities business, and may restrict who may issue
such advertisements;
(k) the licensing and supervision of clearing agencies
and persons providing securities registration, transfer
or custodian services;
(1) the authorisation and regulation of self regulatory
organisations;
(m) fees, charges or levies to be paid in respect of matters
arising under or provided for or authorised by this
Act;
(n) any matter which this Act provides is to be, or may
be, prescribed;
(0) the better carrying out of the purposes and
provisions of this Act.
(2) The regulations may provide that a contravention of any
specified provision shall be an offence and may provide financial
penalties not exceeding
(a) in the case of an individual, one hundred thousand
dollars;
(b) in the case of a company, three hundred thousand
dollars and;
if the offence is a continuing offence, the individual or company
is liable to a further fine of five hundred dollars for every day that
the offence continues after conviction.
(3) The regulations may be of general or special application
and may make different provision for different cases or classes of
case.
(4) Regulations, whether made under this or any other section,
may provide for the exercise of discretion in particular cases.
ANTIGUA
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Rules.
Forms.
Guidance notes.
International
identification
numbers.
Amendment to
the Schedule of
the Stamp Act
Cap. 410.
110 Securities Act, 2001. No. 14 0f2001.
161. The Commission may make rules for procedural and
implementation matters
(a) where the Act or regulations provide that they are to
be, or may be, prescribed by the Commission;
(b) for the better carrying out of the purposes and
provisions of this Act and any regulations made
under this Act.
162. The Commission may, by notice in the Gazette specify
forms that are required to be used for any purpose under this
Act.
163. The Commission may from time to time issue such
guidance notes, bulletins, advice or other regulatory statements
as it may consider necessary or desirable for the adnunistration
of this Act.
164. The Eastern Caribbean Central Securities Depository
Limited is authorised to issue international identification numbers
for any securities listed on any securities exchange licensed under
this Act.
165. The Schedule to the Stamp Act is amended by inserting
the following Exception as:
"Any transfer of shares of a company listed under the
Securities Act made by or to a citizen of, resident of or
belonger to a member state of the Organisation of
Eastern Caribbean States."
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EASTEFW CARIBBEAN SECWUTES REGULATORY
COMMISSION AGREEMENT, 2000
ARRANGEMENT OF ARTICLES
PART I
Articles
1. Title.
2. Interpretation.
PART I1
ESTABLISHMENT, PURPOSES, BOWERS AND DUTIES
OF THE COMMIS.SION
3. Establishment of Commission.
4. Purposes of the Commission.
5. Powers of the Commission.
6. Duties of the Commission.
7. Place of office and establishment of agencies.
8. Address and service of documents.
9. Protection of persons dealing with the Commission and its agents.
10. Custody and use of Conmon Seal.
11. Official Seal.
PART III
MEMBERS OF THE COMMISSION
12. Composition of Commission
13. Chairperson, Deputy Chairperson and Secretary
14. Appointment of Commissioners to be notified in Official Gazette.
15. Term of office of Chairperson, Deputy Chairperson and other Commissioners.
16. Vacation and removal from office of Commissioners.
17. Meetings of Commission.
18. Adrmnistration.
19. Committees.
20. Delegation.
21. Disclosure of interest.
ANTIGUA 112
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Securities Act, 2001. No. 14 0f2001.
22. Staff.
23. Confidentiality.
PART lv
FINANCIAL MA-
24. Funding.
25. Reserve Fund.
26. Financial year and estimates.
27: Accounts.
28. Auditors and audit.
29. Annual Report.
PART V
MISCELLANEOUS
30. Consultation and co-operation.
31. Rules.
32. Amendments.
33. Disputes.
34. Immunities and privileges.
35. Accession.
36. Signatories.
37. Ratification.
38. Entry into force.
AGREEMENT ESIABLEHDIG THE EXXERN CARIBBEAN SKWWllB
REGULATORY CO-ON
PREAMBLE
An Agreement made on the day of November, 2000 between the Governments
of Anguilla, Antigua and Barbuda, The Commonwealth of Dominica, Grenada,
Montserrat, Saint Christopher and Nevis, Saint Lucia and Saint Vincent and the
Grenadines (hereinafter referred to as "the Participating Governments").
WHEREAS it is desired to promote the development of and to provide for the
regulation of a regional securities market in the territories of the Participating
Governments and to establish the Eastern Caribbean Securities Regulatory
Commission (ECSRC) as an independent and autonomous regional regulatory body.
No. 14 0f2001. Securities Act, 2001. 113 ANTIGUA
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IT IS HEREBY AGREED as follows:
PART1
PRELIMINARY
Article I
Title
This Agreement may be cited as the Eastern Caribbean Securities Regulatory
Commission Agreement, 2000.
Article 2
Interpretation
In this Agreement -
"the Act" means any Act governing securities;
"Central Bank" means the Eastern Caribbean Central Bank established
under the Eastern Caribbean Central Bank Agreement, 1983;
"Eastern Caribbean Central Bank Agreement, 1983" means the Agreement
establishing the Eastern Caribbean Central Bank done at Port-of-Spain on the 5th
day of July 1983;
"Commission" means the Eastern Caribbean Securities Regulatory Commission
(IECSRC) established under Article 1 ;
"Commissioner" means a member of the Commission;
"licensee" means a person licensed under the Act;
"Monetary Council" means the Monetary Council established under Article
7 of the Easterh Caribbean Central Bank Agreement, 1983;
"Member territory" means a territory of a Participating Government;
"Participating Government" means a Government which is a party to this
Agreement.
ANTIGUA 114 Securities Act, 2001.
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No. 14of2001.
Article 3
Establishment of Commission
(1) There is hereby established a body to be known as the Eastern Caribbean
Securities Regulatory Commission (ECSRC) which shall be a body corporate having
perpetual succession.
(2) The establishment of the Commission shall take effect in accordance with the
provisions of Article 38.
Article 4
Purposes of the Commission
The purposes of the Cornnlission are -
(a) to license any person engaged in securities business and to monitor
and supervise the conduct of such business by a licensee;
(b) to promote investor protection .through promotion of the highest
standards of professional and other activities within the securities
market;
(c) to maintain effective compliance and enforcement programmes
supported by adequate statutory powers;
(d) to promote the growth and development of the capital markets.
Article 5
Powers of the Commission
For the attainment of its purposes the Commission may -
(a) acquire and dispose of property of any description,
(b) make contracts or enter into other agreements,
No. 14 of2001. Securities Act, 2001. 115 ANTIGUA
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(c) receive and expend money,
(d) grant licences in accordance with the Act,
(e) require the payment of fees,
Cf) do all such other things as are required or incidental to the attainm'ent
of its purposes.
htic le 6
Duties qf the Commission
The duties of the Commission are to -
(a) take all reasonable steps to ensure that any Act to govern securities
and any rules or regulations made under such an Act are complied
with;
(b) license, supervise and regulate the activities of securities exchanges,
clearing agencies, securities depositories, securities registries and self
regulatory organisations;
(c) license, supervise and regulate collective investment schemes;
(d) license and regulate self-regulatory organisations;
(e) set standards of competence for licensees whether by way of
examination or otherwise;
Cf) approve the rules of securities exchanges, clearing agencies, securities
depositories, securities registries and self-regulatory organisations;
(g) monitor and enforce rules for the conduct of business of licensees
including suspension and revocation of licences in accordance with
the Act;
(h) promote and encourage high standards of investor protection and
integrity among licensees, and to encourage the promulgation by
licensees of balanced and informed advice to their customers and to
the public generally;
(i) support the operation of an orderly, fair and properly Informed securities
market;
ANTIGUA 116 Securities Act, 2001. No. 14of2001.
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) regulate the manner of trading and the range of securities traded on
securities exchanges;
(k) take all reasonable steps to safeguard and protect the interests of
investors in securities and to suppress illegal, dishonourable and
improper practices in dealings in securities and in providing advice or
other services relating to securities;
( I ) co-operate with and assist other regulatory authorities that are
concerned with securities or with operations of companies;
(m) exercise and perform such other duties as may be conferred or imposed
upon it.
Article 7
Place of office and establishment of agencies
(1) The Commission shall have its principal office in one of the Member territories
as the Council may by majority vote determine.
(2) The Commission may establish agencies and may appoint agents in any
Member territory and elsewhere.
Article 8
Address and service of documents
(1) The Commission shall at all times have a fmed address in one of the Member
territories for the service of documents on the Commission.
(2) All documents to be served on the Commission may be served by leaving the
same at or by sending the same by registered post to the Commission at its fixed
address.
(3) The address for service of documents on the Commission shall be published
in the %cia1 Gazette of the Member territories.
Article 9
Protection of persons dealing with the Commission and its agents
(1) A person who deals with the Commission shall not be affected by any
irregularity of procedure in connection with the authorisation of the transaction by
No. 14 of 2001. Securities Act, 2001. 117 ANTIGUA
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a meeting of the Commission or by the non- fulfillment of any condition imposed by
this Agreement in connection with the transactioi~.
(2) A person who deals with another person who is held out by the Commission
as having authority to act on the Commission's behalf in connection with any
transaction may treat the Commission as bound by the acts of that other person
done within the apparent authority of that person even though that person has not
been authorised by the Commission to do those acts on its behalf so long as that
person has no knowledge whether actual or constructive, that that other person
has not been so authorised by the Commission.
Article 10
Custody and use of Common Seal
(1) The Commission shall have a Common Seal.
(2) The Commission shall provide for the safe custody of the Cornmon Seal of
the Commission.
(3) The Common Seal of the Commission shall be affied to instruments pursuant
to a resolution of the Commission and by and in the presence of
(a) the Chairperson or, in the absence of the Chairperson, the Deputy
Chairperson, and
(b) one other Commissioner or the Secretary.
(4) All documents made by the Commission other than those required by law to
be under Seal and all decisions of the Commission may be signified under the hand
of the Chairperson, the Deputy Chairperson or the Secretary.
Article 11
Official Seal
(1)The Commission shall have an Official Seal, which shall be a facsimile of its
Common Seal, for use in any Member temtory other than where the principal office
of the Commission is situated, with the addition on its face of the name of every
Member territory where it is to be used.
(2) The Official Seal when duly aff ied to a document has the same effect as the
Common Seal of the Commission.
ANTIGUA 118 Securities Act, 2001. No. 14of2001.
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(3) The Commission may by wr i tq under its Common Seal, authorise any person
appointed for the purpose in a Member knitory to affix the Official Seal to any deed
or other document to which the Commission is a party in the Member territory.
(4) The person amxing the Official Seal shall cerh@ in writing the date on which
and the place at which it is affixed.
MInmim OF TEE mbNIMISSfON
(1) The Commission shall consiSt of five (5) Commissioners who shall be appointed
by the Monetary Council by majority vote.
(2) The appointments made under this article shall comprise the following:
(a) h o (2) Commissianers fiom persons nominated by the Member
territories.
(b) two (2) Commissioners fiom persons nominated by the Chambers of
Industry and Commerce, the Institutes of Chartered Accountants and
the Bar Associations or from such other relevant professional bodies
of the Member territories; and
(c) one (1) Commissioner nominated by the Central Bank.
(3) Persons nominated as Covmissioners shall be persons of recognised standing
and experience in securities and related matters or in any one of the following areas:
(a) law;
(b) accountancy;
(c) banking;
(d) economics;
(e) commerce and industry; or
@ finance.
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(4) The Commissioners shall be paid such remuneration as may be determined
by the Monetary Council.
Article 13
Chairperson, Deputy Chairperson and Secretary
(1) Two of the members of the Commission shall, in and by the terms of their
respective appointments by the Monetary Council, be appointed as the Chairperson
and Deputy Chairperson of the Commission.
(2) The Commission shall appoint a suitable person to serve as Secretary to the
Comnlission.'
Article 14
Appointment of Commissioners to be notified in the Gazette
The appointment of all Commissioners including the Chairperson, Deputy
Chairperson and the termination of any such appointment shall be published in the
Ofllcial Gazette of the Member territories.
Article 15
Terms of Office of Chairperson, Deputy Chairperson and other Commissioners
(1) The Chairperson of the Commission shall hold office for a period of five years
from the date of appointment as a Commissioner.
(2) The Deputy Chairperson of the Commission shall hold office for the period as
specified in the instrument of appointment.
(3) A Commissioner (other than the Chairperson and the Deputy Chairperson)
shall, subject to this Article, hold office for a period of three years from the date of
appointment as Commissioner: Except that such a Commissioner may be appointed
for a period of less than three years so as to assist in providing continuity of
experience as a Commissioner.
(4) Upon the expiry of the period of appointment a Commissioner shall be eligible
for reappointment.
(5) A Commissioner appointed to fill a vacancy shall hold office for the unexpired
term of the predecessor.
ANTIGUA 120 Securities Act, 2001.
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No. 14 of 2001.
Article 16
Vacation of and removal from office of Commissioners
The oflice of a Commissioner is vacated -
(a) upon the death of the Commissioner;
(b) if the Commissioner is adjudged bankrupt;
(c) if the Commissioner is absent from three consecutive meetings of the
Commission without its permission or reasonable excuse;
(d) if the Commissioner is certified by a Medical Board or Tribunal or
declared by a Court to be mentally or physically incapable of'perforrning
the duties of a Commissioner;
(e) if the Commissioner is convicted of fraud or any other offence involving
dishonesty;
f$ at any time by the Commissioner resigning from office by letter sent to
the Chairperson of the Monetary Council and copied to the Secretary
of the Commission.
(2) The Monetary Council may by notice in writing remove from oflice any
member of the Commission whose removal appears to it to be desirable for the
effective performance of the Commission of its duties or for the preservation of the
integrity of the Commission.
(3) Notice of any removal under paragraph (2) shall be given to the Government
of the Member territory or such other body by which the Commissioner was
nominated and the Government or such other body shall within thlrty days of such
notice submit nominations to the Monetary Council for a replacement.
(4) The Commission may act notwithstanding a vacancy among its members or
any disability affecting any Commissioner.
Article 17
Meetings of Commission
(1) Meetings of the Commission shall be held as often as may be necessary for
the performance of its duties and in any event at least once every quarter, and such
meetings shall be held at such places, times and days as the Commission may
determine.
No. 14of2001. Securities Act, 2001. 121 ANTIGUA
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(2) Notice of all meetings shall be given to each Commissioner.
(3) The Chairperson of the Commission may at any time call a meeting of the
Commission and shall call a special meeting to be held within seven days of the
receipt of a written request for that purpose addressed to the Chairperson by not
less than two Commissioners.
(4) At a meeting of the Commission -
(a) the Chairperson of the Commission shall preside.
(b) if the Chairperson of the Commission is not present, the Deputy
Chairperson shall preside; or
(c) ifneither the Chairperson of the Commission nor the Deputy Chairperson
is present, the members present shall choose one of their number to
preside.
(5) The quorum for a meeting of the Commission is three (3) Commissioners.
(6) Every question for decision at a meeting of the Commission shall be determined
by a majority of votes of the members present and, in the event that voting is
equally divided, the Chairperson of the meeting shall have a casting vote.
(7) A Commissioner shall be deemed to be present at a meeting of the Commission
or of a committee if the Commissioner participates by telephone or other electronic
means and all Commissioners participating in the meeting are able to hear each
other.
(8) A resolution in writing signed by all the Commissioners entitled to receive
notice of a meeting of the Commission or of a committee of.the Commission shall be
valid and effectual as if it had been passed in a meeting of the Commission or (as the
case may be) a committee of the Commission duly convened and held and may
consist of several documents in the like form each signed by one or more
Commissioners.
(9) Minutes of each meeting of the Commission shall be kept and shall be
c o n f i e d by the Co?lrpissioners as soon as practicable at a subsequent meeting.
Article 18
Administration
(1) The Conmission shall organise and regulate its administration, procedure
ANTIGUA 122 Securities Act, 2001
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No. 14of2001.
and business in such manner as it considers will best ensure the performance of its
functions and the proper exercise of its powers.
(2) The Commission may make rules governing its WWL piacedure and such rules
shall be binding on the Commission.
Article 19
(1) The Commission may, in the exercise of its duties establish standing or
special committees and may refer or assign to a committee any matter for
consideration, inquiry or management by the Commission.
(2) The Commission may appoint a person to be a member of a committee whether
that person is a member of the Commission or not, and may appoint a member of the
committee to be the Chairperson.
Provided that where a member of the Commission has been appointed to serve
on a committee that member shall be the Chairperson of the committee.
(3) Any reference or assignment under paragraph (1) and every appointment
under paragraph (2) may be withdrawn or revoked by the Co~mission at any time,
and no such reference or assignment shall prevent the exercise by the Commission
of any of its duties.
(4) Subject to paragraph (2), a committee established under this Article may elect
one of its members to be the Chairperson and, subject to any specific or general
direction of the Commission, may regulate its own procedure and business.
(5) Meetings of a committee shall be held at such times and places as the
Chairperson of that committee may determine or as the Cornmissionmay direct.
(6) Each committee shall keep minutes of its meetings and shall keep the
Commission informed of its activities.
Article 20
Delegation
(1) The Commission may delegate any of its duties, other than its power to
delegate under this Article to -
(a) a committee established under Article 19; or
(b) any body or authority approved by the Monetary Council.
No. 14of2001. Securities Act, 2001. 123 ANTIGUA
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(2) The Commission may revoke a delegation.
(3) A delegation under this Article does not preclude the exercise by the
Commission of any of the duties so delegated.
Article 21
Disclosure of interest
(1) A Commissioner who is in any way interested, whether directly or indirectly,
in any transaction or arrangement with the Commission or in whch the Commission
is interested or whose material, pecuniary or proprietary interest in a company,
partnership, undertaking or other business is llkely to be affected by a decision of
the Commission shall disclose the nature of his interest at the first meeting of the
Commission at which he is present after the relevant facts come to his knowledge.
(2) A disclosure under paragraph (1) shall be recorded in the minutes of the
meeting and after the disclosure the Commissioner making it shall not vote on the
matter and, unless the Commission otherwise directs, shall not be present or take
part in the proceedings of any meeting at which the matter is being discussed or
decided by the Commission.
(3) A Commissioner shall be treated as having an indirect interest in any
transaction or arrangement with the Commission or in which the Commission is
interested if he is a director, shareholder, trustee, agent or employee of the company
or undertaking that is a party to the contract or proposed contract with the
Commission or where his spouse, parent, child, step-child, brother or sister or the
parent, child, step-child, brother or sister of his spouse holds an interest in that
company or undertaking.
(4) For the purpose of this Article, a general notice given to the Commission by
a Commissioner to the effect that he is a member of or otherwise associated with a
specified company or undertaking and is to be regarded as interested in any contract
which may after the date of the notice be made with that company or undertaking
shall be deemed to be a sufficient declaration of interest in relation to any contract
so made.
Article 22
Staff
(1) The Commission may employ, on such terms and conditions as it thlnks fit,
such professional, technical and other officers, and such other staff, as may be
necessary for the exercise and discharge of its duties.
ANTIGUA 124 Securities Act, 2001. No. 14 of 2001.
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(2) The Secretary shall assist the Commission in all respects and in such manner
as the Commission may from time to time require in the discharge of its duties.
Article 23
Confidentiality
Every member, officer and employee of the Commission shall -
(a) at all times preserve and aid in preserving confidentiality with regard to
all matters coming to his knowledge in the performance of his duties,
and
(b) except for the purpose of the performance of his duties or under legal
obligation, not at any time, communicate any confidential matter to any
person nor permit, unless under legal obligation, any person to have
access to any records in the possession, custody or control of the
Commission.
(2) Every member, officer and employee of the Commission shall be required to
take an oath of secrecy.
PART IV
FINANCIAL MATIERS
Article 24
Funding
The Commission shall be fbnded by -
(a) the payment to the Commission of any fees or other charges in relation
to -
( an application to the Commission for any licence,
authorisation, approval, exemption, waiver or modification;
(ii) any duties exercised by the Commission or by a committee
established by the Commission;
(iii) the approval of prospectuses;
(iv) the monitoring of the continuing disclosure obligations of
issuers;
No. 14 0f2001. Securities Act, 2001. 125 ANTIGUA
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(v) anything done in the performance of a function relating to
take overs;
(vi) any other matter for which provision is made under the
Act;
(b) the payment to the Commission of a levy, as may be prescribed, in
respect of every purchase and sale of securities recorded by a securities
exchange or notified under its rules;
(c) such sums of money or such other assets as may accrue to or vest in
the Commission fiom time to time, whether in the course of the exercise
of its duties or otherwise; and
(d) such sums as may be paid to the Commission from time to time by a
Participating Government by way of appropriation or subvention.
Article 25
Reserve Fund
(1) The Commission may establish a Reserve Fund into which may be paid:
(a) fees, levies or any penalties imposed or charged under the Act;
(b) any sums appropriated by a Participating Government for this purpose;
and
(c) any other sums which the Commission with the approval of the
Monetary Council may determine.
(2) The Commission may withdraw any funds from the Reserve Fund for the
purpose of exercising its duties under the Act.
(3) The funds in the Reserve Fund may be invested by the Commission on such
tenns and conditions as may be determined by the Commission. Except that the
Commission shall not invest its funds in securities offered by any person under its
supervision or regulation.
(4) No disbursement fiom the Reserve Fund may be made by the Commission
within the first five years of the establishment of the Reserve Fund.
ANTIGUA 126
AND
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Securities Act, 200 1 No. 14 of 2001.
Article 26
Financial year and estimates
(1) The financial year of the Commission shall begin on I April and end on 3 1
March in each year, or such other period as the Monetary Council may determine
except that the first financial year of the Commission shall begin on the establishment
of the Commission under Article 3 and end on the following 3 1 March or such other
date as the Monetary Council may decide.
(2) The Commission shall not later than 3 1 December in each financial year or at
least three months before the end of its financial year submit to the Monetary
Council for its approval estimates of its income and expenditure for the next financial
year.
(3) The Commission shall discharge its fimctions to ensure that its revenue is
not less than sufficient to meet all sums properly chargeable to its revenue account.
(4) Any exccss of the revenue of the Commission for any financial year over the
sum properly chargeable to its revenue account for that year shall be applied by the
Commission for the purposes of the Commission.
(5) Where any deficit arises on the operations of the Commission or is budgeted
for in the Estinutes of expenditure of the Commission the Participating Governments
shall provide a subvention to the Commission to meet the deficit in such proportion
as may be determined by the Monetary Council.
Article 27
Accounts
The Commission shall keep proper accounts and records of its transactions.
(2) The Commission shall, as soon as practicable after the end of each financial
year, prepare a statement of the accounts of the Commission for the financial year
including an income and expenditure account and balance sheet.
Article 28
Auditors and audit
(1) The Commission shall with the approval of the Monetary Council appoint
auditors.
No. 14of2001. Securities Act, 2001. 127 ANTTGUA
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(2) The Commission shall, as soon as practicable after the end of each financial
year, submit the statement of accounts prepared for the year under Article 28 to the
auditors for audit.
(3) The auditors shall prepare a report on the accounts and send the report to the
Commission who shall, as soon as practicable after its receipt, send a copy of the
report and a copy of the statement of accounts to the Moneta~y Council.
(4) The auditors shall include in the report -
(a) a statement whether, in their opinion, the income and expenditure
account for the financial year to which the report relates give a true
and fair view of the Commission's income and expenditure;
(b) a statement whether, in their opinion, the balance sheet for the financial
year gives a true and fair view of the Commission's financial affairs at
the end of that financial year.
( 5 ) An auditor appointed by the Commission has a right of access at all reasonable
times to the books, accounts, vouchers and other records of the Commission and is
entitled to require from officers of the Commission such lnforrnation and explanations
as he considers necessary for the performance of his duties as auditor.
Article 29
Annual Report
(1) The Commission shall, not later than three months after the end of each
financial year of the Conmission, prepare and submit a report on its activities
during the financial year to the Monetary Council.
(2) 'The Monetary Council may at any time request the Commission to provide it
with information concerning any matter relating to the duties of the Commission
and the Commission shall provide the information requested within fourteen days
of such request.
PART V
-0us
Article 30
Consultation and cooperation
(1) The Commission shall consult and co-operate with the Central Bank or any
other agency that exercises regulatory authority under any enactn~ent over a financial
ANTIGUA 128 Securities Act, 2001
AND
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No. 14 0f2001.
institution, insurance company or other body in order to rninimise duplication of
effort, to maximise the protection of investors and the interest of the public.
(2) The Commission may co-operate with any agency of a foreign government in
connection with the investigation of a contravention of the Act or any similar
written law whether the activities in question occurred within or outside a Member
temtory.
(3) The Commission may co-operate in the work of national, regional or
international organisations dealing with the regulation of securities markets.
Article 31
Rules
(1) The Commission may make rules
(a) respecting the calling of and conduct of business at meetings of the
Commission;
(b) respecting procedures for the initiation and holding of hearings by the
Commission in accordance with the Act;
(c) respecting the procedure for appeals and review of orders of its delegates
and self-regulatory organisations;
(d) with the approval of the Monetary Council, establishing a code of
conduct governing the activities of Conlrnissioners and the officers
and employees of the Commission in order to avoid conflicts of interest
and other practices that the Commission considers undesirable;
(e) respecting any other matter relating to the organisation, procedure,
admnistration or practice of the Commission.
(2) As soon as practicable after the making of any rules, the Commission shall
submit a copy of same to the Monetary Council.
Article 32
Amendments
(1) An amendment to the Agreement may be proposed to the Monetary Council
by the Commission and shall be effective when it is agreed to by all the Participating
Governments.
No. 14of 2001 Seczirities Act. 2001 129 ANTIGUA
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(2) All amendments to the Agreement shall be published in the Oficial Gazette
of Member Territories.
Article 33
Disputes
(1) Any dispute between the Participating Governments concerning this
Agreement or between the Commission and a participating Government, shall be
submitted to arbitration by a tribunal of arbitrators appointed pursuant to paragraph
(2).
(2) (a) If the dispute is between only two parties, each party shall be entitled
to appoint one arbitrator, and the two parties shall together appoint a
third arbitrator, who shall be the Chairperson of the tribunal;
(b) If the dispute is between three or more parties, each party shall be
entitled to appoint one arbitrator and all the parties shall together
appoint an additional arbitrator, who shall be the Chairperson sf the
tribunal.
(3) If, within thvty days of receipt of the request for arbitration, any party has not
appointed an arbitrator or if within thirty days of the appointment of the arbitrators
the parties have not appointed the third arbitrator or, as the case may be, the
additional arbitrator, any party to the dispute may request the Chief Justice of the
Eastern Caribbean States Supreme Court, or such other person of authority as may
be prescribed by the Monetary Council to make the required appointment.
(4) The procedure of the tribunal shall be fixed by the arbitrators, but the
Chairperson of the tribunal shall have full power to settle all questions of procedure
in any case of disagreement with respect thereto.
(5) A majority vote of the arbitrators shall be sufficient to reach a decision which
shall be final and binding upon the parties.
(6 ) The Chairperson of the tribunal shall be entitled to vote, and in the event of
a tie, the Chairperson shall have a casting vote.
Article 34
Immunities and privileges
(1) To enable the Conlmission to fulfil the functions with which it is entrusted,
the status, immunities and privileges set forth in this Article shall be accorded to
the Commission in the temtory of each Participating Government.
ANTIGUA 130 Securities Act, 2001. No. 14 of 2001.
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(2) The Commission, its property and its assets, wherever located and by
whomsoever held, shall enjoy immunity fiom every form ofjudicial process except
to the extent that it expressly waives its immunity for the YnTose of any proceedings
by the terms of any contract.
(3) Property and assets of the Commission shall be immune fiom search,
requisition, confiscation, expropriation or any other form of seizure.
(4) The archives of the Commission shall be inviolable.
(5) To the extent necessary to carry out the provisions of this Agreement, all
property and assets of the Commission shall be free from restrictions, regulations,
control and moratoria of any nature.
( 6 ) The official communications of the Commission shall be accorded by
Participating Governments the same treatment as the official communications of
other Participating Governments.
(7) The Commissioners, officers and employees of the Commission:
(a) shall be immune from legal process with respect to acts performed by
them in their official capacity except when the Commission waives this
immunity;
(b) not being local nationals, shall be granted the same immunities from
immigration restrictions, alien registration requirements and national
service obligations and the same facilities as regards exchanges
restrictions as are accorded by Participating Governments to the
representatives, officials and employees of comparable rank of other
Participating Governments.
(c) shall be granted the same treatment in respect of travelling facilities as
is accorded by Participating Governments to representatives, officials
and employees of comparable rank of other Participating Governments.
(8) (a) The Commission, its assets, property, income and its business, shall be
immune from all taxation and from all customs duties in respect of
goods acquired by, or service rendered to it for its own use. The Com-
mission shall also be immune from liability for the collection or payment
of any tax duty in respect thereof except when it resells a good acquired
by it to a member of the public.
(b) No tax shall be levied on or in respect of salaries or emoluments,
including pensions and gratuities, paid by the Commission to the
Commissioners, officers and employees of the Commission.
No. 14 of 2001. Securities Act, 2001. 131 ANTIGUA
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Article 35
Accession
(1) After the entry into force of thls Agreement, a territory whlch is not a signatory
to this Agreement may in the discretion of the Monetary Council be permitted to
accede to this Agreement on such terms and conditions as the Monetary Council
may determine.
(2) Any such territory shall deposit on or before a date appointed by the
Monetary Council an Instrument of Accession with the Commission which shall
signify such deposit and the date thereof to the parties to this Agreement.
Article 36
Signatories
This Agreement shall be open for signature by any Participating Government.
Article 37
Ratification
This Agreement shall be subject to ratification by the signatory Participating
Governments in accordance with their respective constitutional procedures.
Instruments of Ratification shall be deposited with the Director General of the
Organisation of Eastern Caribbean States who shall transmit certified copies to
each Participating Government.
Article 38
Entry into force
This Agreement shall enter into force upon the deposit of five Instruments of
Ratification and Participating Governments undertake to take all steps necessary
for the implementation of h s Agreement.
IN W I W S S WHEREOF the representatives of the Participating Governments
belng duly authorised in their behalf, have signed this Agreement.
DONE AT Old Town, Montserrat this 24th day of November 2000.
ANTIGUA 132 Securities Act, 2001.
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BARBUDA
No. 14 0f2001.
Signed by
For the Government of Anguilla
Signed by LESTERBIRD
For the Government of Antigua and Barbuda
Signed by PIERRE CHARLES
For the Government of the Commonwealth of Dominica
Signed by KEITH C MITCHELL
For the Government of Grenada
Signed by DAVID S BRANDT
For the Government of Montserrat
Signed by DENZIL DOUGLAS
For the Government of Saint Christopher and Nevis
Signed by KENNY ANTHONY
For the Government of Saint Lucia
Signed by ARNHIM EUSTACE
For the Government of Saint Vincent and the Grenadines
Passed the House of Representatives this Passed in the Senate this 23rd
9th day August, of 2001. day of August, 200 1.
B. Harris,
Speaker.
L. Smith,
Vice President.
S. Walker, S. Walker,
Clerk to the House of Representatives. Clerk to the Senate.
Printed at the Government Printing Office, Antigua and Barbuda,
by Donovan Southwell, Government Printer
-By Authority, 2001.
800- 11.01 [ Price $49. I5 ]
