A combination of factors contributed to the challenging environment for M&A both globally and within the APAC region in the past 12 months. Some of these factors include the following.

• High interest rates – elevated interest rates can increase the cost of borrowing for M&A transactions, making them less attractive for investors. High-interest rates can also affect the valuation of target companies.
• Sticky inflation – persistent inflation can erode the purchasing power of currencies and impact the pricing and financial calculations involved in M&A deals.
• China – the lacklustre post-pandemic economic recovery in China, marked by reduced consumer spending and a record-high youth unemployment rate, has had a notable impact on the APAC region’s M&A activity.
• Capital constraints – access to capital is crucial for M&A activity, and constraints in the availability of financing can limit deal-making opportunities.
• Geopolitical tensions – geopolitical uncertainties and tensions can create a riskier environment for cross-border M&A deals, leading to hesitation among potential investors.
• Regulatory scrutiny – increasing regulatory scrutiny, especially in sectors related to national security and sensitive technologies, can complicate and delay M&A transactions.

All of these factors collectively have created headwinds for M&A activity, leading to a more cautious and subdued environment for deal making in the APAC region and globally.

The challenging environment described in 1.1 Technology M&A Market has particularly affected leveraged buyouts and private equity activity, as higher interest rates and capital constraints can make it more difficult to finance deals and achieve attractive returns.

Despite the slowdown, the M&A market showed some strength in the face of rising interest rates. Mid-sized deals kept the market going as companies sought strategic growth and sector consolidation, adapting to the ongoing trends of digitalisation, decarbonisation, supply-chain optimisation, and the latest developments in generative artificial intelligence.

New start-ups based in Singapore typically incorporate a private company in Singapore. Some South-East Asian start-ups incorporate a Singapore private company to function as the holding company and use the Singapore company to conduct fundraising, while wholly owned subsidiaries are incorporated in the relevant countries to conduct operations. This is due to the ease of access to debt and equity funding in Singapore, given the exponential growth in the number of family offices – as well as private equity and venture capital funds ‒ setting up in Singapore.

Requirements

The process of incorporating a private company can be completed in as quickly as one day, as electronic filings are made with the Accounting and Corporate Regulatory Authority of Singapore (ACRA). However, prior to the incorporation, corporate secretarial providers require the directors and shareholders to prepare certain documents, including KYC checks. Post-completion, in addition to the electronic register of members, companies are also required to privately maintain a Register of Registrable Controllers (RORC). This sets out information about the company’s controllers, including:

• their names and identifying details; and
• information on their citizenship or place of registration (in the case of legal entities).

Since 4 October 2022, companies have also been required to privately maintain a Register of Nominee Shareholders (RONS) containing the prescribed particulars of the nominee shareholders and their nominators. Further, enhanced measures have been introduced where there is no registrable controller or the entity is unable to identify the registrable controller, where they are required to identify individuals with executive control as their registrable controllers.

With effect from 28 June 2023, new exemptions have been introduced for foreign companies from the requirements of keeping a register of their members, the RORC and RONS, if they satisfy certain prescribed requirements.

The minimum paid-up capital required to incorporate a private company is SGD1 (or its equivalent in foreign currency). However, licensing conditions in specific industries may impose a higher paid-up capital requirement.

For start-ups, private companies limited by shares are the most commonly incorporated entities in Singapore owing to the advantage of a separate legal personality. Investors, advisers and service providers are also most familiar with private companies limited by shares, allowing for ease of administration at the early stages of growth. 

Other options available to start-ups include companies limited by guarantee, general partnerships, limited partnerships, limited liability partnerships and variable capital companies. However, these have other specific uses, and are not generally relied upon by entrepreneurs.

The profile of seed investors in early-stage financing varies, as it includes friends and family and angel/seed investors at the seed stage, and family offices and venture capital financing (both foreign and local venture investors) at Series A stage and beyond. There is no particularly dominant source of financing.

Sovereign wealth funds may take stakes in start-ups, even in the early stages, if their business or technology would fulfil a national goal (eg, food security, financial services, or health and technological innovation). Government-sponsored funds may provide early-stage financing through matching investments (either debt or equity) with certain venture capital investors.

Other forms of government support include the enterprise financing scheme and grants to fund operating costs and projects. However, government support and sponsorship are usually conditional on certain requirements being fulfilled, such as:

• nationality requirements for ownership; and
• a focus on certain areas (eg, advanced manufacturing, medical technology and agriculture/food technology).

Investments and government grants are well documented through subscription agreements, debentures and warrants. These investments are private contracts and are usually kept confidential.

Venture capital from both foreign and local venture investors is readily available. Investments by government-linked corporations are also common and available. As regards foreign venture capital funds, there is keen interest from investors globally (including those from Asia, Europe and the USA).

Law firms in Singapore tend to be experienced in handling the various types of documentation typically used for venture investments in start-ups, such as subscription agreements and shareholders’ agreements. Depending on the transaction structure, option agreements and warrant agreements can be entered into to meet the commercial objectives of the investment.

A Typical Investment

A typical investment would involve the investor(s) subscribing to shares using a subscription agreement, and the shareholders of the start-up company entering into a shareholders’ agreement to govern the rights of the investors. Shares subscribed to by investors are typically preference shares, which confer additional rights over ordinary shares ‒ for example, conversion rights and dividend and liquidation preferences.

VIMA Documentation

For early-stage investments, investors and founders may consider using Venture Capital Investment Model Agreements (VIMA), which is a model documentation set first launched in 2018. The VIMA documentation was drafted with input from investors, law firms and other parties – including the Singapore Venture Capital & Private Equity Association ‒ and aims to reduce the transaction costs and time taken in negotiation.

The VIMA documentation is governed by Singapore law and includes templates for non-disclosure agreements, convertible agreements regarding equity, convertible loans, term sheets, subscription agreements and shareholders’ agreements for a Singapore-incorporated private company.

In September 2022, revised versions of the initial model agreements and new documents were made available (known as the “VIMA 2.0”). Revisions include the incorporation of more annotations and alternative provisions, while the new documents include templates for:

• convertible notes;
• employee share option scheme (ESOS) primers;
• model constitutions;
• mutual non-disclosure agreements;
• founders’ agreements;
• employee deeds of assignment of IP;
• a list of key terms for employees;
• share incentive plans; and
• an ESG letter of agreement.

Start-ups typically continue to remain in the same corporate form. One restriction Singapore-incorporated private companies need to be aware of should they wish to remain private is the limit on the number of shareholders, which is 50 (subject to certain exceptions). Singapore-incorporated private companies typically convert to a public company (which has no restrictions on the number of shareholders) prior to an IPO or where they have more than 50 shareholders.

There has also been an uptick in inversions – ie, when start-ups primarily based in other Asian jurisdictions restructure to become a Singapore holding company.

Investors in start-ups are generally open to both options and these are drafted accordingly in the transaction documents for venture capital investments. If a listing is chosen, Singapore-based start-ups have several options for securities exchanges, including Singapore, Hong Kong and New York. If a trade sale occurs, it is not uncommon for Singapore-based start-ups to be acquired by foreign buyers looking to gain quick access to the regional market or to bolster their technology and IP assets.

Depending on the size of the company, both options of an IPO and a trade sale would be considered. Typically, larger companies with growth and expansion plans would opt for an IPO. 

The Singapore Exchange (SGX) is one option for Singapore companies looking to raise capital and list on an exchange. Other common options include the Australian Securities Exchange, the Stock Exchange of Hong Kong, the New York Stock Exchange (NYSE) and Nasdaq.

The SGX tends to attract companies based in traditional sectors such as property and manufacturing. Technology companies, on the other hand, have mostly chosen to list on foreign exchanges, owing to the better valuations available.

With regard to Singapore-incorporated companies, there is presently a squeeze-out under the Companies Act 1967 of Singapore (the “Companies Act”). This applies to all Singapore-incorporated companies by law, irrespective of their choice of listing jurisdiction.

While considerations for the type of sale process differ in each situation, bid processes are increasingly favoured for the sale of relatively large venture capital-financed companies ‒ and this ostensibly helps with price discovery.

There have also been several instances in which the business partners of targets, having worked with the founders and management team for a number of years, have initiated bilateral acquisitions.

In a trade sale (as opposed to an IPO), it is more typical for the existing venture capital investors to make a clean exit. As trade sales are typically entered into by the buyer for strategic reasons, it is not common for other venture capital investors to remain as shareholders in a company that is the target of a trade sale.

Most transactions are done on a cash basis.

However, where the transaction involves the founders or management remaining in the target company to work in a certain capacity, it is possible for these individuals to receive earn-out shares from the buyer as part of the purchase consideration ‒ particularly when the buyer is a public or soon-to-be public company.

Founders are commonly expected to provide representations and warranties – and in certain cases indemnities – to a buyer. Although the use of an escrow holdback depends on the particular risks identified by the buyer during the course of its due diligence, this is not generally seen in Singapore transactions because most venture capital investors would want a clean exit. (Indeed, most would need a clean exit, in order to wind up the fund and provide returns to their limited partners or LPs.)

Warranty and indemnity insurance (more commonly known as “W&I insurance”) is increasingly popular in Singapore, especially for larger transactions involving private equity and venture capital investors who want to ensure a clean exit from their investment with little or no residual liability.

In the current economic climate and where there is a price valuation gap between the buyer and founders looking to exit, earn-out mechanisms are also on the rise in order to bridge the valuation gap.

Spin-Offs

Spin-offs involving the sale of assets or the sale of shares of a subsidiary company are possible. The usual considerations in relation to an asset sale apply, thereby allowing the buyer to choose the assets it acquires and leave the rest of the assets and liabilities with the seller. Tax and regulatory considerations on the part of both the seller and buyer are also relevant when parties are structuring the transaction.

Sale of Shares

Generally, the sale of shares is a more straightforward process, which enables a buyer to take over an entire business with minimal impact on the business operations. As historical liabilities are being transferred, the warranties and indemnities for a share sale should be heavily negotiated. In a share sale, sellers are expected to provide:

• warranties in relation to the company and the business; and
• specific indemnities for known liabilities and for other potential breaches.

It is common to provide an indemnity or tax covenant that specifically covers tax issues ‒ with a different limit on the indemnified amount and the time period in which to make a claim against a seller.

Depending on the structure of the transaction and the profile of the seller and buyer, various forms of tax apply.

Stamp Duty

In the case of the sale of a private company to a third-party buyer, instruments relating to shares in a Singapore-incorporated company and immovable property are subject to stamp duty.

Stamp duty is payable in relation to the transfer of shares in a private company incorporated in Singapore. In practice, the most common instrument (document) attracting stamp duty under the First Schedule to the Stamp Duties Act 1929 of Singapore is the share transfer form. The amount of stamp duty payable in such cases is 0.2% of the higher of:

• the actual consideration paid; or
• the net asset value of the shares.

Unless it is contractually agreed between the parties, the buyer is liable to pay the stamp duty.

Typically, shareholders of the parent company that will receive shares in the spun-off company are liable to pay stamp duty. Stamp duty relief may be applicable in instances where the shares are transferred between associated entities. However, one of the main conditions required for a relief application is the need for valuable consideration for the transfer of shares. Where the shares in the spun-off company are distributed to shareholders of the parent company without valuable consideration, stamp duty relief is unlikely to apply.

In relation to asset transfers, buyer’s stamp duty is payable by the buyer for the transfer of immovable property located in Singapore. The stamp duty is calculated based on either the actual consideration paid or the market value of the property (whichever is higher).

Properties owned by technology companies would primarily be non-residential properties and the current rates for non-residential properties are:

• 1% on the first SGD180,000;
• 2% on the next SGD180,000;
• 3% on the next SGD640,000;
• 4% on the next SGD500,000; and
• 5% on the remainder.

Where the immovable property being transferred is a residential property or has a residential component (ie, the property is approved for residential purposes and/or within an area zoned residential, whether fully or partially), a higher rate of buyer’s stamp duty and additional buyer’s stamp duty may also be payable on the residential component.

In a sale of industrial immovable property, which some relatively mature technology companies may own and occupy, the seller may be subject to seller’s stamp duty if the property is disposed of within three years of purchase. The stamp duty rate can be up to 15% and is calculated based on either the actual consideration paid or the market value of the property, whichever is higher.

As with the stamp duty payable for the transfer of shares, the responsibility to pay the stamp duty in an asset sale can be contractually allocated.

No stamp duty is payable where new shares are issued and allotted to the subscribers. Hence, spin-offs that are structured to involve minimal transfers of shares or assets would reduce the liability to pay stamp duty at the corporate and shareholder level.

Goods and Services Tax (GST)

Generally, GST is charged at the prevailing rate by GST-registered businesses on all sales of goods and services in Singapore. However, in a transfer of a business as a going concern (TOGC), the transfer of the assets can be treated as an excluded transaction and GST is not chargeable ‒ provided certain conditions are met. The seller or the buyer may claim input tax for the GST incurred on certain expenses relating to the TOGC.

The GST rate, which is currently set at 8%, will be further increased to 9% with effect from 1 January 2024.

Tax Considerations of the Buyer and Seller

Depending on the tax residency of the buyer and seller, the asset or share purchase may be treated as revenue or capital. There is no capital gains tax in Singapore. The issue of calculating the balancing allowance or balancing charge may also arise when fixed assets (on which capital allowances have previously been claimed) are involved in an asset purchase. Factors such as allowances and exemptions should be considered by each party, and it is common for tax advisers to be engaged by both the seller and the buyer in a transaction.

A spin-off followed by a business combination is possible in Singapore and, although there is no fixed structure through which it may be effected, one option is to use a scheme of arrangement pursuant to Section 210 of the Companies Act. A scheme of arrangement requires the approval of the majority of the target company’s current shareholders, representing at least 75% of the value of the voting shares, either in person or by proxy.

If the company is listed or regulated, this must be done in line with the relevant legislation and listing rules.

The timing of a spin-off depends on the transaction structure and the time needed to obtain consent and fulfil the required conditions, which are particular to each transaction.

While a tax ruling is not mandatory, parties may apply to the Comptroller of Income Tax (or GST) for an advance ruling in order to ascertain how a proposed arrangement will be treated for tax purposes. An advance ruling only applies to the applicant and the particular arrangement that is the subject of the ruling. The Comptroller is legally bound to apply the tax treatment detailed in the advance ruling to the person and the arrangement stated in the ruling for the duration of the period in which the ruling is valid.

Generally, depending on the complexity of the matter, the Comptroller aims to provide a ruling within eight weeks. Where the ruling request is a complex one, the Comptroller will inform the applicant that additional time is required and provide a general timeframe within which the ruling will be issued. In exceptional circumstances, where the Comptroller agrees to the request for an express ruling, the ruling can be issued within six weeks.

The Singapore Code on Takeovers and Mergers (the “Takeover Code”) is issued by the Monetary Authority of Singapore and applies to takeovers of:

• corporations and business trusts with a primary listing in Singapore;
• Singapore-incorporated companies or Singapore-registered business trusts with a primary listing overseas;
• real estate investment trusts; and
• unlisted public companies and unlisted registered business trusts with:
1. more than 50 shareholders or unit-holders; and
2. net tangible assets (NTAs) of SGD5 million or more.

In the context of an acquisition of a public company to which the Takeover Code applies, a buyer is not prohibited from building a stake in the target company prior to making an offer. However, the buyer would generally be subject to substantial shareholder disclosure obligations, which require the substantial shareholder to disclose to the target company (in a prescribed form) when the following occur:

• the shareholder becomes or ceases to be a substantial shareholder of the company (a “substantial shareholder” is a person who has an interest of at least 5% in the total voting shares in a target company); and
• there is a change in the percentage level of interests in the voting shares of the target company.

The substantial shareholder has to inform the target company within two business days of becoming aware of the change, and the target company will then disseminate the information through an announcement on the SGX. In terms of stakebuilding, the buyer need not state the purpose of the acquisition of its stake.

However, where there are reasonable grounds to suspect that the buyer’s actions have contributed in some way (whether through purchase of the target company’s shares or otherwise), the responsibility for making an announcement will normally rest with the buyer if before the target company’s board is approached:

• the target company is the subject of rumour or speculation about a possible offer; or
• there is undue movement in its share price or a significant increase in the volume of share turnover.

Should the buyer announce its plans or intentions with regard to the target company without a firm intention to make an offer for the target company, the Securities Industry Council (SIC) may require that the buyer clarify its intentions within a specific period of time.

On 7 October 2022, the SIC issued the “Practice Statement on the Waiver of the Application of the Singapore Code on Take-overs and Mergers to Unlisted Public Companies” (the “Practice Statement”), which sets out the procedure for an unlisted public company incorporated in Singapore with more than 50 shareholders and NTAs of SGD5 million or more to obtain a waiver in respect of the Takeover Code (the “Code Waiver”). Unlisted public companies that do not have more than 50 shareholders and NTA of SGD5 million may also apply for a Code Waiver in advance if they are soon to fall within the ambit of the Takeover Code.

This Practice Statement has helped ease the regulatory and compliance requirements of the Takeover Code for start-ups with sizeable investor base (eg, due to previous rounds of successful series fundings) looking to raise additional equity financing, including from the venture capital and private equity space.

Under the Takeover Code, unless a waiver is obtained from the SIC, a mandatory offer must be made to all shareholders of a target company in either of the following situations:

• when a buyer acquires shares (aggregated with the shares held or acquired by persons acting in concert with the buyer) that carry 30% or more of the voting rights of the company; or
• when a buyer (together with persons acting in concert with the buyer) holds between 30% and less than 50% of the voting rights in a company and, within any six-month period, the buyer (or any person acting in concert with the buyer) acquires additional shares carrying more than 1% of the voting rights.

The following transaction structures are typically used for the acquisition of a public company in Singapore.

General Offers

Essentially, takeovers can be either mandatory (ie, when the buyer is obliged to do so under the Takeover Code) or voluntary (ie, when they occur in the absence of such obligation). An offer can or ‒ in the case of a mandatory offer ‒ must be for either:

• all the outstanding voting capital of the target company; or
• only part of the target company’s outstanding voting capital (by way of a partial takeover offer).

Different rules apply to the different types of offers, as detailed elsewhere in this chapter.

Schemes of Arrangement

A scheme of arrangement is a court process that allows a company to agree on matters with shareholders, including an agreement to transfer shares to a bidder in exchange for cash or other forms of consideration. The process is target company-driven ‒ that is, the target company makes the application to the court – and is thus dependent on a co-operative target company.

As mentioned in 5.3 Spin-Off Followed by a Business Combination, a scheme of arrangement requires a majority of the shareholders present and voting (either in person or by proxy) at a meeting, representing at least 75% in value of the shares voted at the meeting to approve it before an application can be made to the court for sanction. Once an order sanctioning the scheme has been issued by the court and lodged with the ACRA, it binds all the target company’s shareholders – irrespective of whether they attended the meeting and how they voted.

Generally (but with some exceptions), a scheme of arrangement involving a public company is also subject to the Takeover Code. However, the SIC may ‒ subject to conditions – exempt the scheme from specific provisions of the Takeover Code.

Acquisitions involving public companies typically involve cash offers, which may not necessarily be unique to the technology industry. Depending on the form of the acquisition structure (as further elaborated on elsewhere in this chapter), different types of consideration may be permitted.

Mandatory General Offer

A mandatory general offer must be made in cash – or be accompanied by a cash alternative ‒ in an amount no less than the highest price paid by the offeror (or any person acting in concert with the offeror) for voting rights in the target company both:

• during the offer period; and
• within the six months prior to its commencement.

Voluntary Offer

In respect of a voluntary offer, the consideration can be in the form of cash or securities (or a combination thereof) in an amount no less than the highest price paid by the offeror ‒ or any person acting in concert with the offeror – for voting rights in the target company both:

• during the offer period; and
• within the three months prior to its commencement.

Rules Under the Takeover Code

Notwithstanding the above, the Takeover Code contains a rule that requires offers to be in cash or accompanied by a cash alternative if:

• the offeror and its concert parties have bought for cash ‒ during the offer period and within the six months prior to its commencement ‒ shares of any class under offer in the target company carrying 10% or more of the voting rights of that class; or
• the SIC is of the view that a cash offer is necessary.

In such cases, the offer price must be no less than the highest price paid by the offeror and its concert parties for shares in the target company during the offer period and within six months prior to its commencement.

Conditions may be imposed regarding antitrust considerations in order to make the offer subject to approval by the Competition and Consumer Commission of Singapore (CCCS) and, where applicable, foreign regulators. Other conditions may be included, subject to the consent of the SIC, but such conditions generally should be objective and reasonable.

Mandatory Offer

Except with the consent of the SIC, a mandatory offer must be conditional upon the buyer receiving acceptances that would result in the buyer (and parties acting in concert with the buyer) holding more than 50% of the voting rights in the target company.

Voluntary Offer

A voluntary offer must be conditional upon the buyer receiving acceptances that would result in the buyer (and parties acting in concert with the buyer) holding more than 50% of the voting rights in the target company.

The buyer must obtain approval from the SIC in order to:

• impose a condition requiring a higher level of voting rights in the target; or
• impose other conditions.

These conditions cannot depend on the subjective interpretation or judgment – nor lie in the hands – of the buyer.

A pre-conditional voluntary offer may be used if a firm intention to make an offer has been announced, subject to the fulfilment of certain pre-conditions. As with the mandatory offer, such conditions must be objective and reasonable.

Partial Offer

All partial offers require the prior consent of the SIC. Consent will normally be given for a partial offer that will not result in the offeror (and parties acting in concert with the offeror) holding 30% or more of the voting rights in the target company. Consent will not be given for offers for between 30% and 50%. Consent will not be given for offers for more than 50% of the voting rights unless a number of conditions are met, including the offer being made conditional upon the approval of the target company’s shareholders.

In typical public takeover scenarios, where a buyer wishes to acquire a target company by way of a general offer (whether mandatory, voluntary or otherwise), there is no requirement for the buyer to enter into a transaction agreement with the target company.

In the context of a scheme of arrangement, an implementation agreement is typically entered into between the buyer and the target company in order to to set out:

• the terms and conditions under which the transaction will be implemented;
• the conditions precedent to the implementation of the scheme;
• representations and warranties, and undertakings; and
• certain prescribed occurrences that would permit either the buyer or the target company to terminate the implementation agreement (subject to the consent of the SIC).

As described in 6.5 Common Conditions for a Takeover Offer/Tender Offer, mandatory general offers are conditional upon the buyer receiving acceptances that would result in the buyer (and the parties acting in concert with the buyer) holding more than 50% of the voting rights in the target company.

For voluntary offers, the offer may be conditional upon receipt of a higher level of acceptance (with the consent of the SIC). A higher threshold of 90% is typically set when the buyer is seeking to privatise the target through the use of the compulsory acquisition mechanisms described in 6.8 Squeeze-Out Mechanisms.

Under the Companies Act, the power of compulsory acquisition arises where a scheme or contract involving the transfer of all the shares (or all the shares in any particular class) in the target company to the offeror has been approved within four months of the offer by the holders of no less than 90% of the total number of shares involved in the transfer.

On 1 July 2023, the criteria for computing the 90% threshold requirement was revised to expand the scope of shareholders whose shares will be excluded from the computation. The scope of exclusion now covers:

• any shares held as treasury shares; and
• those shares already held at the date of the offer by:
1. the offeror (or the offeror’s related corporations);
2. a nominee of the offeror (or its related corporations);
3. 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 the offeror in respect of the target company;
4. the offeror’s spouse, parent, brother, sister, son, adopted son, stepson, daughter, adopted daughter or stepdaughter;
5. a person whose directions, instructions or wishes the offeror is accustomed or is under an obligation whether formal or informal to act in accordance with, in respect of the target company; or
6. a body corporate that is “controlled” by the offeror or a person mentioned in paragraphs (c), (d) or (e) above (“Excluded Persons”). A body corporate is “controlled” by the offeror or Excluded Persons if:

(i) the offeror or Excluded Persons is/are entitled to exercise or control the exercise of not less than 50% of the voting power in the body corporate or such percentage of the voting power in the body corporate as may be prescribed, whichever is lower; or

(ii) the body corporate is, or a majority of its directors are, accustomed or under an obligation whether formal or informal to act in accordance with the directions, instructions or wishes of the offeror or Excluded Persons.

Private Takeovers

For private takeovers, a financing condition is subject to negotiations between the buyer and the seller; however, it is not typically included in transaction documentation.

Public Takeovers

For public takeovers, the firm intention to undertake an offer requires an unconditional confirmation by the buyer’s financial adviser (or by another appropriate third party) that the buyer has sufficient resources available to satisfy full acceptance of the offer. As such, an offer cannot be conditional upon the buyer obtaining financing, and “certain funds” provisions will be included in financing documents entered into in connection with the offer.

Deal protection measures in private takeovers are a matter of negotiation between the buyer and the counterparty.

Where the Takeover Code applies, the target company’s duty under the Takeover Code is to not undertake any deal protection mechanism without the shareholders’ approval if such mechanism could effectively result in any bona fide offer being frustrated or the target’s shareholders being denied an opportunity to decide on the offer’s merits.

That being said, the Takeover Code does allow for deal protection measures such as break fees to be negotiated and paid if certain specified events occur; however, the SIC will need to approve the break-fee provisions. The break fee must comply with the safeguard provisions under the Takeover Code, such as:

• a break fee must be minimal (normally, no more than 1% of the value of the target company, calculated based on the offer price); and
• the board of the target company and its financial adviser must provide the SIC with:
1. an explanation of the basis on and the circumstances in which the break fee becomes payable; and
2. written confirmations that, inter alia:

i)       the break fee arrangements were agreed as a result of normal commercial negotiations;

ii)       all other agreements or understandings in relation to the break-fee arrangements have been fully disclosed; and

iii)       they each believe the fee to be in the best interests of the target company.

Other deal protection mechanism measures (eg, non-solicitation provisions) may be possible and are more commonly seen in public takeovers involving schemes of arrangements where the target company’s board is:

• supportive of the buyer’s offer; and
• prepared to convene a scheme meeting in order to table the buyer’s offer.

In the context of a public takeover offer, no additional rights are granted to a shareholder by reason of a significant shareholding. A bidder may seek to nominate and vote for its preferred directors of the target company’s board, subject to the directors having the appropriate qualifications required under listing rules and other applicable laws and regulations.

In the context of a scheme of arrangement, it is not uncommon to obtain irrevocable commitments from the target company’s significant shareholders to accept (or vote in favour of) the offer in order to enhance deal certainty.

It is possible for such undertakings to specify circumstances that then cease to be binding ‒ for example, where a better offer is made and it is a matter of negotiation between the significant shareholder and the bidder. The irrevocable commitment must be disclosed at the time of the offer announcement and will need to be made available for inspection. 

Whether the offer needs to be approved by the SIC or the SGX will depend on the nature and structure of the takeover offer. Consultation and/or approval must be sought from the SIC prior to the takeover offer’s launch in certain situations specified in the Takeover Code, including:

• where the offer will be carried out by way of a scheme of arrangement;
• where the offer has unusual conditions or is conditional on a high level of acceptances;
• where there are particular special-deal arrangements that benefit certain shareholders but not others; and
• where the review period depends on the nature and complexity of the transaction in question.

Normal conditions ‒ for example, level of acceptance, approval of shareholders for the issue of new shares, and the SGX’s approval for listing ‒ may be attached without reference to the SIC. As mentioned in 6.5 Common Conditions for a Takeover Offer/Tender Offer, conditions that can only be fulfilled based on the subjective interpretation or judgment of the bidder ‒ or that lie in the bidder’s hands – will not be allowed.

The Takeover Code prescribes certain timelines for an offer. The following represents a typical timetable.

• From the date of an announcement of an offer (“T”), the earliest date that the offeror can post the offer document (a requirement under the Takeover Code) is T + 14 days (and no later than T + 21).
• Assuming the offer document was posted on T + 14 days, the offer must be open for at least T + 42 days ‒ given that an offer must be open for at least 28 days following the date on which the offer document is posted.
• An offer would usually be closed on T + 74 days because an offer cannot be kept open for more than 60 days following the date on which the offer document is posted – unless the offer has previously become unconditional as regards acceptance.

In a competitive offer, the competing offeror must either announce a firm intention to make an offer or make a “no intention to bid” statement within 53 days of the date on which the first offeror posted its initial offer document (ie, T + 67 using the above-mentioned timetable). Where the first offeror’s offer is being implemented by way of a scheme of arrangement, a trust scheme or an amalgamation, the aforementioned deadline for the potential competing offeror to clarify its intention would normally be no later than seven days before the shareholders’ meeting to approve the relevant scheme or amalgamation.

Consequently, the timeline of the offer may be extended as well. If a competitive situation still exists at a later stage of the offer process – and if no procedure has been agreed between the competing offerors, the board of the target company, and the SIC – an auction procedure as prescribed in the Takeover Code would typically be announced.

If regulatory approvals are required as part of a takeover offer, they would typically be obtained prior to the firm intention to make the offer – given that there could be uncertainty surrounding whether the regulatory approvals may be obtained within the offer timetable. A bidder can announce a pre-conditional offer if the announcement of a firm intention to make an offer is subject to the fulfilment of certain regulatory pre-conditions. The announcement must specify a reasonable period in which the pre-conditions must be fulfilled or, failing which, the offer will lapse.

The Takeover Code prescribes specific situations in which pre-clearance from the CCCS would be required with regard to competition laws. The offer would lapse in certain situations if approval from the CCCS is not obtained.

There are generally no requirements to incorporate and operate a technology company. However, licensing requirements would be relevant if the company is involved in specified industries.

Some of the more common industries and relevant regulatory bodies that companies in the technology sector typically encounter are:

• financial services (including electronic money (or e-money), account issuance money transfer, digital payment tokens, money-changing and capital markets services) – Monetary Authority of Singapore;
• insurance (including direct insurance, reinsurance, general insurance and insurance broking) – Monetary Authority of Singapore;
• telecommunications (including internet access, mobile networks and web hosting) – Infocomm Media Development Authority;
• broadcasting – Infocomm Media Development Authority;
• food and agriculture – Singapore Food Agency; and
• life sciences and healthcare – Health Sciences Authority.

The length of time needed to obtain a licence varies widely across the various regulatory bodies and depends on the nature of the licence sought.

The SIC is the regulator that supervises takeovers and mergers of public companies, as well as the Takeover Code. The SGX administers the listing rules applicable to public companies.

Competition law concerns relating to the Competition Act 2004 of Singapore are regulated by the CCCS, and the Monetary Authority of Singapore administers the Securities and Futures Act 2001 of Singapore (the “Securities and Futures Act”).

Furthermore, depending on the industry in which the target company operates, it may be necessary to obtain the approval of the relevant government agencies ‒ given that statutes may limit or require prior regulatory approval for share ownership in certain regulated companies (eg, those in the insurance, media, banking and finance industries).

There are generally no restrictions on foreign investment – except in certain regulated sectors (see 7.1 Regulations Applicable to a Technology Company) – that limit or require prior regulatory approval for control or share ownership in regulated companies, especially where these companies are critical to national interests.

There is generally no requirement to register or report:

• the investment of foreign capital;
• foreign loans; or
• foreign technology agreements.

There is no specific national security review process. Such concerns are managed by licensing requirements. Certain licences incorporate a licence review and approval process where there is a change in control or ownership. Apart from general obligations relating to international sanctions laws and other international obligations, there are generally no export control regulations.

The relevant provision under the Competition Act is Section 54, which prohibits mergers that have resulted – or may be expected to result – in a substantial lessening of competition (SLC) within any market in Singapore. As a guide, the CCCS considers that an SLC is unlikely to arise post-merger unless:

• the “merged entity” has a market share of 40% or more; or
• the “merged entity” has a market share of more than 20% and the post-merger combined market share of the three largest firms (CR3) in the market(s) is 70% or more.

Antitrust Filing Requirements

Antitrust filings in takeover offers/business combinations in Singapore are voluntary, as Singapore has adopted a voluntary merger regime. Although Singapore has a voluntary regime, the CCCS takes a strict stance and, where the indicative thresholds are crossed or at borderline, it strongly recommends (mandates even) that a notification is made or else the CCCS may investigate the merger. The CCCS has done so on several occasions in the past.

Guidelines on the Competition Act

On 31 December 2021, the CCCS announced that it had revised and published nine guidelines on the Competition Act; these came into effect on 1 February 2022. The guidelines outline the conceptual, analytical and procedural framework applied by the CCCS when administering and enforcing the Competition Act in Singapore.

Two key sets of changes that are particularly relevant were those made to the CCCS Guidelines on the Substantive Assessment of Mergers and the CCCS Guidelines on Merger Procedures.

The CCCS Guidelines on the Substantive Assessment of Mergers sets out the analytical framework the CCCS applies when assessing M&A and is intended to aid parties in conducting a self-assessment.

The CCCS Guidelines on Merger Procedures sets out a description of the CCCS’ procedures when applying the Competition Act to mergers and includes, inter alia:

• an overview of the procedural framework adopted by the CCCS;
• self-assessment guidance for parties;
• a detailed account of how parties can make an application to CCCS for a decision regarding a merger situation;
• remedies that may be implemented by CCCS; and
• exclusions and exemptions to the Section 54 prohibition.

Parties to a merger or acquisition are encouraged to refer to the guidelines and conduct a self-assessment prior to completion of an M&A transaction.

CCCS Investigation

If an investigation by the CCCS determines that the merger results in an SLC, the CCCS may impose on the parties any direction that it believes will bring this infringement to an end, including orders to:

• divest part of the assets;
• unwind the merger; and/or
• financial penalties of up to 10% of the infringing parties’ turnover in Singapore for the period of the infringement (up to a maximum of three years).

The CCCS may also issue interim measures as it investigates a merger, including a direction preventing the parties from implementing their proposed merger.

The TMS Code

The Infocomm Media Development Authority of Singapore (IMDA) issued the Code of Practice for Competition in the Provision of Telecommunication and Media Services (the “TMS Code”), which took effect on 2 May 2022. The M&A provisions found in Section 10 of the TMS Code require parties seeking to enter into M&A transactions to submit requests or consolidation applications in certain defined situations. Where the IMDA concludes that a proposed request or consolidation is likely to result in an SLC or is against the public interest, the IMDA will:

• reject the request or consolidation application; or
• impose appropriate conditions.

Buyers involved in the acquisition of a business undertaking (as opposed to a share transaction) should note that the Employment Act 1968 of Singapore provides the following.

• All the seller’s rights, powers, duties and liabilities in connection with the affected employees are transferred to the buyer. As a consequence, the buyer will become liable for all acts or omissions in respect of the employee prior to the transfer. Likewise, the employee will become liable to the buyer for any acts and omissions committed by them in respect of the seller prior to the transfer. However, the liability of any person for having committed a criminal offence prior to the transfer is not affected by ‒ and does not transfer as a result of ‒ these provisions.
• There must be no break in employment during the transfer, and the past years of service with the seller need to be recognised by the buyer for the purposes of calculating any compensation or benefits linked to duration of service.
• The terms and conditions of service for the employee will be the same as those enjoyed by them immediately prior to the transfer, but this does not preclude the buyer and the affected employees from negotiating changes to their contracts. If new terms are proposed by the buyer for the purposes of harmonisation with other local employees, then the compensation and benefits offered must – on balance – be no less favourable than the terms of employment prior to the transfer.

Due Diligence

Given the transfer of liability to the buyer, it is imperative that due diligence in respect of employment matters is conducted thoroughly in order to uncover any related liabilities and that appropriate indemnities are extracted from the seller where necessary.

Duties to Employees and Their Union

The affected employees and their union must be informed of the impending transfer of employment within a reasonable time prior to the transfer of the business undertaking – unless the timeframe for the consultation process is otherwise stipulated in the existing collective agreement between the union and the seller.

As a baseline, the buyer must notify the employees and the trade union (if any) of:

• the transfer;
• the approximate date on which it is to take place;
• the reasons for such transfer;
• the implications of the transfer; and
• the measures to be taken by the seller and the buyer (or, if no measures will be taken, this must be stated).

Where the target company has a unionised workforce, it would be prudent to analyse the union agreement in order to assess the impact of the transaction on the union agreement.

In transactions where there are intentions to make employees redundant, the retrenchment process should be carefully managed in line with guidance from the Ministry of Manpower to minimise the impact on the future operations of the target company. It is mandatory for employers with at least ten employees to notify the Ministry of Manpower of the retrenchment of any employee.

Foreign Employees

Post-acquisition, buyers should also be aware of the regulations concerning the hiring of foreign employees. There are specific quotas and levies for the hiring of certain categories of work permit-holders (ie, semi-skilled migrant workers), which vary depending on the industry sector involved.

While the hiring of those who hold employment passes (generally professionals, managers and executives) is not subject to any specific quotas, businesses are expected to implement fair and progressive workplace policies and maintain a healthy balance of both local and foreign hires.

On 29 August 2022, Singapore’s Ministry of Manpower, Ministry of Trade and Industry, and Ministry of Communications and Information announced key enhancements to Singapore’s work pass framework. This includes:

• the introduction of a new Overseas Networks & Expertise Work Pass for those with skills comparable to the top 5% of employment pass-holders from 1 January 2023, thereby enabling holders of such to concurrently start, operate and work for multiple companies in Singapore at any one time;
• the introduction of a new public benchmark for exemption from some existing work pass requirements from 1 September 2025 (pegged at the top 10% of employment pass-holders);
• changes to the previous employment-pass application processes in order to enable companies to be more responsive to business needs (already in effect); and
• the introduction of a five-year employment-pass option for qualified tech professionals, as opposed to the typical previous duration of two to three years (already in effect).

There are no foreign exchange or currency restrictions in Singapore, and no central bank approval is required for M&A transactions.

A number of well-known and highly valued Singapore-based companies have reached the level of maturity required to be listed on public markets in the past few years, including:

• Sea Limited, a global consumer internet company that listed on the NYSE in 2017; and
• Grab, a ride-hailing start-up that listed on Nasdaq in 2021 as a result of the world’s largest SPAC merger with Altimeter Growth Corp.

In September 2021, following a consultation process, the SGX introduced a listing framework for SPACs to list on the SGX. To date, the SGX has welcomed three SPAC listings:

• Vertex Technology Acquisition Corporation Limited;
• Pegasus Asia; and
• Novo Tellus Alpha Acquisition.

Notably, the three SPACs were listed with the intention of acquiring companies with a core technology focus. Each SPAC has a business combination deadline of 24 months (and an additional 12-month extension, subject to approval) from its listing date.

In the 2022 edition of this Guide, the authors noted a rapid growth of SPACs in the USA and that a significant number of SPACs were viewing Singapore-based companies as acquisition targets. This may no longer be the case, as SPAC activity in the USA has fallen considerably in response to:

• increased regulatory scrutiny;
• disappointing performances by newly de-SPAC-ed companies; and
• a worsening economic outlook.

The deceleration in SPAC activity is anticipated to persist throughout 2023 due to several factors. Initially, this phenomenon can be attributed to elevated interest rates and inflation levels, which have led investors to favour low-risk investment opportunities as opposed to higher-risk growth-oriented enterprises. Additionally, a number of SPACs that went public in 2021 are currently approaching the deadlines for their business combination transactions or have already liquidated following expiration. Nonetheless, on 2 October 2023, Vertex Technology Acquisition Corporation Limited became the first SGX SPAC to announce a business combination involving the proposed deal to purchase Taiwanese live-streaming platform 17Live for up to SGD925 million.

New Stablecoin Regulatory Framework

The MAS revealed the details of a new regulatory framework in August 2023, which aims to ensure that stablecoins regulated in Singapore have a high level of value stability. The new framework reflects the feedback that was received after a public consultation in October 2022.

MAS has a stablecoin regulatory framework that covers single-currency stablecoins (SCS) that are linked to the Singapore Dollar or any G10 currency and issued in Singapore. Issuers of such SCS must meet key requirements on the following.

• Value stability – SCS reserve assets must follow rules on their composition, valuation, custody and audit, to ensure a high level of value stability.
• Capital – issuers must have minimum base capital and liquid assets to lower the risk of insolvency and enable a smooth exit of business if needed.
• Redemption at par – issuers must give back the par value of SCS to holders within five business days from a redemption request.
• Disclosure – issuers must provide suitable disclosures to users, including information on how the SCS value is stabilised, the rights of SCS holders, and the audit results of reserve assets.

Only stablecoin issuers that meet all the requirements under the framework can ask MAS for their stablecoins to be recognised and labelled as “MAS-regulated stablecoins”. This label will help users to easily tell apart MAS-regulated stablecoins from other digital payment tokens, including “stablecoins” that are not covered by MAS’ stablecoin regulatory framework.

It is up to the directors of the target company to allow any disclosure regarding the conduct of due diligence, based on their duty to act in the best interests of the target company. The level of information and documents provided will depend on the nature of the transaction and the due diligence process conducted.

Disclosure Restrictions

Furthermore, any disclosure of information during the due diligence process by the target company would be subject to the disclosure restrictions set out in the Listing Manual of the Singapore Exchange Securities Trading Limited (SGX-ST) (the “Listing Manual”) and a target company’s continuing disclosure requirements. The target company would also have to ensure that this did not raise insider dealing concerns under the Securities and Futures Act. However, price-sensitive information (including forward-looking statements or projections) will not typically be produced as part of the due diligence exercise ‒ unless the target company is willing to disclose such information publicly prior to the completion of the transaction in question.

Sharing of Information

If there is a competing bid, the Takeover Code requires that any information given to one bidder must be provided equally and promptly to any other bona fide bidder, if the other bidder requests such information.

The data protection laws of Singapore (comprising the Personal Data Protection Act 2012 (PDPA) and other industry-specific regulatory frameworks such as the Banking Act 1970 of Singapore and the Insurance Act 1966 of Singapore) generally prohibit the disclosure of personal data without consent. However, the PDPA contains an exception that allows for disclosure of personal data solely for purposes related to a business asset transaction. This so-called “business asset transaction” exception is defined widely to include both share and business/asset acquisitions, mergers and amalgamations; nonetheless, it is subject to limitations and imposes certain obligations on both the potential buyer and seller.

It is worth noting that the maximum financial penalties for data breaches by organisations have been increased with effect from 1 October 2022. An organisation whose annual turnover in Singapore exceeds SGD10 million now faces fines of up to 10% of its annual turnover in Singapore ‒ or, in any other case, up to SGD1 million. Given that organisations could face such substantial penalties, it is crucial that they ensure compliance with data protection laws when conducting due diligence.

On 18 July 2022, the Personal Data Protection Commission launched the Guide on Personal Data Protection Considerations for Blockchain Design to help organisations with blockchain adoption, which sets out principles and considerations on complying with the PDPA when deploying blockchain applications that process personal data.

In July 2023, the Personal Data Protection Commission launched a public consultation seeking views on the Proposed Advisory Guidelines on Use of Personal Data in AI Recommendation and Decisions Systems, the purpose of which is to clarify how the PDPA applies to the collection and use of personal data by organisations to develop and deploy systems that embed machine learning models which are used to make decisions autonomously or to assist a human decision-maker through recommendations and predictions.

The Takeover Code requires absolute secrecy before an announcement of a takeover offer is made. Information relating to a bid should only be passed to another person when it is necessary to do so, and that person should be made aware of the need for secrecy. A list containing persons privy to the information will need to be maintained and provided to the SGX on request.

As mentioned in 6.1 Stakebuilding, where there are reasonable grounds to suspect that its actions have contributed in some way, the buyer has an obligation (under the Takeover Code) to report to the SGX if before the target company’s board is approached:

• the target company is the subject of rumour or speculation about a possible offer; or
• there is undue movement in its share price or a significant increase in the volume of share turnover.

Where the offeror makes an acquisition of shares that gives rise to making a mandatory offer under the Takeover Code, the offeror should also make an announcement to the SGX.

Once the potential offeror has approached the board of the target company, the obligation to make the announcement to the SGX lies primarily with the target company. The target company has an obligation to make an announcement under the Takeover Code, including in the following situations:

• when it receives notification of a firm intention to make an offer from a serious source;
• when, following an approach to the target company, it is the subject of rumour and speculation about a possible offer or there is undue movement in its share price or a significant increase in the volume of share turnover (regardless of whether or not there is a firm intention to make an offer);
• when negotiations or discussions between the bidder and the target company are about to be extended to include more than a very restricted number of people; or
• when it is aware of negotiations or discussions between a potential bidder and the shareholders holding 30% or more of the voting rights of the target company – or when the target company’s board is seeking potential bidders – and:
1. the target company is the subject of rumour and speculation about a possible offer, or there is undue movement in its share price or a significant increase in the volume of share turnover; or
2. more than a very restricted number of potential bidders are about to be approached.

Generally, a prospectus is not required for a takeover made in accordance with the Takeover Code.

There is no requirement for the listing of the buyer’s shares on a specified exchange, either local or overseas. The buyer’s shares can also be in an unlisted company. However, under the Takeover Code, certain offers are required to have a cash alternative or to be in cash only. The Listing Manual also requires a cash alternative to be the default alternative, provided that the target is seeking to delist from the SGX.

Under the Takeover Code, the offer document must contain specified information on the offeror ‒ regardless of whether the offer consideration is in cash or stock. This information includes:

• details of turnover;
• exceptional items;
• net profit or loss before and after tax;
• minority interests;
• net earnings per share and net dividends per share; and
• a statement of the assets and liabilities shown in the most recent published audited accounts.

In a stock-for-stock transaction (or securities exchange offer), additional information relating to the offeror’s shareholdings will need to be included in the offer document.

Public companies are required to adopt the Singapore Financial Reporting Standards (International), which are Singapore’s equivalent of the International Financial Reporting Standards.

Copies of all public announcements and all documents that have a bearing on a public takeover transaction must be lodged with the SIC at the same time as they are made or dispatched.

Common Law and Statutory Duties

In a business combination, directors have fiduciary duties under common law and statutory duties under the Companies Act. Generally, under Singapore law, directors’ duties are to act in good faith and in the best interests of the company. In addition, the Companies Act provides that directors should consider:

• the interests of the company’s employees generally;
• the interests of its members; and
• the rulings of the SIC on the interpretation of the Takeover Code’s principles and rules.

Duties Under the Takeover Code

Directors have an obligation under the Takeover Code to ensure compliance with the code. Every director of the target company has an obligation to fulfil their duties under the Takeover Code, even if conducting the offer is delegated to individual directors or a committee of directors.

As mentioned in 6.10 Types of Deal Protection Measures, under the Takeover Code, the board of the target company must not take any action that could result in:

• any offer being frustrated; and
• the shareholders of the target company being denied an opportunity to decide on the merits of the offer.

Furthermore, directors have a duty to obtain competent advice on any offer and make such advice known to their shareholders.

Although it is common for the executive directors of the target company to take a more active role in managing the takeover process, all directors have an obligation to ensure compliance with the Takeover Code during the process. Although it is not necessary for boards to establish special or ad hoc committees in order to address conflict-of-interest issues, it is becoming increasingly common – especially in the case of management buyouts.

Furthermore, the board is allowed to delegate the day-to-day conduct of an offer to a committee; however, it must continue to take responsibility for every document, advertisement or announcement that the target company publishes in relation to an offer. Directors who have an irreconcilable conflict of interests may be exempted by the SIC from making recommendations to shareholders but must still assume responsibility for every document, advertisement or announcement that is published by the target company in relation to an offer.

Depending on the structure of the transaction (and whether the offer is an unsolicited offer), the board of a target company may not necessarily be involved in negotiating a takeover offer. Apart from schemes of arrangement, target companies in Singapore do not typically enter into implementation agreements or conduct bid agreements for takeover offers.

However, as mentioned in 6.10 Types of Deal Protection Measures, the Takeover Code does specifically provide that the board of the target company may solicit for a competing offer or run a sale process – given that a better offer is in the interests of the target company’s shareholders and would still allow shareholders to consider the merits of the first offer.

It is not common for shareholders in a target company to challenge the recommendation of its directors with regard to the advice and recommendations of the independent financial adviser appointed to advise on the offer. However, shareholder activism has been on the rise in recent times when it comes to takeovers of public companies.

The board of a Singapore-incorporated buyer must obtain competent independent advice on any offer and the essence of such must be made known to its shareholders. Furthermore, the Listing Manual provides that ‒ where the target company is seeking to delist from the SGX ‒ the issuer must appoint an independent financial adviser to:

• advise on the exit offer; and
• assess whether the exit offer is fair and reasonable.

The target company must issue a circular for the shareholders’ consideration, in which the following are published:

• the analysis of the independent financial adviser;
• the opinion of the financial adviser on the offer; and
• the recommendations of the directors who are considered independent for the purposes of the offer.

On 3 July 2023, the Singapore Exchange Regulation (SGX RegCo) issued a set of Guidelines on Independent Financial Advisers and an accompanying Regulator’s Column setting out SGX RegCo’s expectations and guidance for independent financial advisers and their opinions, and the role and expectations for directors in procuring an opinion from independent financial advisers, in the context of the SGX Listing Rules.