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CHAPTER 2
ISSUANCE OF SECURITIES
DIVISION 1 APPROVAL FOR THE
OFFERING OF NEWLY ISSUED SECURITIES
 SECTION
32.
- No prometer of a public limited company shall offer newly issued shares
for sale to the public or other persons unless having obltained and approval from the
Office and having complied with Section 65.
- The application for approval under the first paragraph shall be made whtn
such promoter has registered the memorandum of association in accordance with the law
relating to public limited companies.
- SECTION
33.
- No public limited company shall offer for sale newly issued securities in
the categroy of shares, debentures, bills certificates representing the rights to purchase
shares, certificates representing the rights to purchase debentures, and other securities
as specified by the SEC, unless having obtained and approval from the Office and comlied
with Section 65 or unless such offerings are made
entirely to its shareholders in consideration of full payment for value offered.
- SECTION
34.
- No limited company shall offer for salenewly issued securities in the
category of debentures, bills, certificates representing the rights to purchase
debentures, and other securities as specified by the SEC unless:
- having qualifications as specified in the notification of the SEC;
- the securities so offered are not convertible into equity;
- having obtained an approval from the Office; and
- having complied with Section 65.
- SECTION
35.
- The application for the offering of newly issued securities and its
approval under Section 32 Section 33 and Section 34 shall be in accordance with the rules, conditions and
precedures as specified in the notification of the SEC . In such event, the SEC may
specify the details of the following matters:
- debt to equity ratoi;
- period for the offering for sale of securities;
- subcription, underwirting and distribution of securities;
- SECTION
36.
- In considering the application for approval, the Office shall notify the
applicant of the result within forty-five days from the date of receipt of the application
together with the correct and complete documents in accordance with Section
35.
- SECTION
37.
- The provisions of the Civil and Commercial Code prohibiting the issuance
of debentures by a limieted company shall not apply to a limited company which has
beengranted an approval to issue debentures in accordance with Section
34.
- SECTION
38.
- Section 654 of the Civil and Commercial Code shall not apply to
securities in the category of debentures and bills which may be offered for sale in
accordance with Section 33 and Section 34.
 DIVISION 2
DEBENTURES
- SECTION
39.
- The par value of debenture of a company shall not be less than one
hundred baht which shall be paid in money and the purchaser cannot avail himself of a
set-off against the company as to payment of the debenture.
- SECTION
40.
- A debenture certificate shall contain at least the following particulars:
- name of the company;
- registration mumber of the company and the date of registraton by the
company registrar;
- the total amount of debentures issued;
- name of debenture holder of statement that it is a bearer debenture;
- type, value, serial number, number and amount of debentures issued,
interest rate as will as repayment period;
- method, time and place for the payment of interest and redemption;
- right of the debenture holder in case the company incurred a debt before
issuing the debenture;
- procedures for the conversion of rights (if any);
- signature of authorized derector of debenture registrar;
- the date of issue;
- other particulars as specified in the notification of the SEC.
DIVISION 3
ISSUANCE OF SECURED DEBENTURES
- SECTION
41.
- In applying for an approval in accordance with Section
33 or Section 34 to isue secured debentures, the applicant shall
also:
- submit a draft of terms and conditions stating the rights and duties of
the debenture issuer and the debenture holders;
- submit a draft agreement appointing a debenture holder representative;
- obtain approval for a person having qualifications as specified in the
notification of the SEC to be a debenture holder representative;
- undertake any other acts as specified in the notification of the SEC.
- In cases where a public limited company offers newly issued secured
debentures for sale to its sgareholders, which doed not require approval in accordance
with Section 33, that public limited company shall also comply with
the provisions of the first paragraph prior to the making of such offer.
- SECTION
42.
- The terms and conditions stating the rights and duties of the debenture
issuer and debenture holders shall contain at least the following particulars:
- rights and conditions under the debenture;
- return arising from the debenture;
- property used as collateral or other collateral;
- appointment, power and duty of debenture holer representative;
- conditions for the removal of debenture hodler representative;
- consent of debenture holers permitting the debenture issuer to appoint a
debenture holder representative who has received an approval in accordance with Section 41(3);
- representation of the debenture issuer to mortgage pledge of provide
other collateral against the debenture within th especified period of time in accordance
with Section 44;
- procedures for, time and place of payment of debt;
- procedures for the conversion of rights (if any);
- other particulars as specified in the notification of the SEC.
- SECTION
43.
- The agreement appointing a debenture holder representative shall contain
at least the following particulars:
- powers and duties of the debenture holder representative in the
acceptance of mortgage, pledge or other collateral, in the exercise of right to enforce
such collateral, or in causing the debenture issuer to comply with the terms and
conditions made with the debenture holders, including claims for compensation;
- rate and method of remuneration of the debenture holder representative;
- other particulars as specified in the notification of hte SEC.
- SECTION
44.
- When the issuer of secured debentures has offered the secured debentures
for sale to its shareholders or the public or any person, the debenture issuer shall hav
the rights and duties as provided by the teerms and conditons inaccordance with Section 41(1)and the provisions of this Act. The issuer of secured
debentures shall with the consent of debenture holders appoint a debenture holder
representative and put in place a mortgage, pledge of other collateral with the debenture
holder representative within seven days form the closing date of the offer for sale.
- SECTION
45.
- The debenture holder representative shall have the power to act in his
own name for the benefit of all debenture holders in accepting a mortgage, pledge or other
collateral, exercising rights t enforce collateral and causing the issuer of secured
debentures to comply with the terms and conditions made with debenture holders, including
claims for compensation.
- The act of the debenture holder representativ einthe first paragraph
shall be deemed to be the act directly performed by the debenture holders.
- SECTION
46.
- The SEC shall have the power to issue rules, conditions and procedures
for a debenture holder representative to act within his authority and responsibilities.
- SECTION
47.
- In addition to the duties as duties as specified in the appointment
agreement, a debenture holder representative has the duty tolook after the interests of
the debenture holders.
- In cases where the debenture holder representative acts, omits to act, or
neglects or fails to perform his duties and provided in the first paragraph, causing
damage to debenture holders, any debenture holder ofr the Office has the right to file a
claim in court against the debenture holder representative for the benefit of the
debenture holders as a whole.
- In cases whare a claim has been filed in court by the debenture holder,
such debenture holder shall hold not less than ten percent of all secured debentures sold
or be appointed by other debenture holders who collectively hold not less than ten percent
of all the secured debentures sold.
- SECTION
48.
- In case the debenture holer representative commits an offence against
property as stipulated in Chapter 1, Chapter 3, Chapter 4, Chapter 5, or Chapter 7, of
Title 12 of the Criminal code, the Office shall be deemed to be the injured party under
the Criminal Procedure Code.
- In the event under the first paragraph, the public prosecutor, after
having brought the criminal case to court, has the power to claim property or price of
compensation for damages on behalf of the infured person. For this purpose, the provisions
concerning the procedure for filing a civil case in connection with a criminal case under
the Criminal Procedure Code shall apply mutatis mutandis.
- SECTION
49.
- If the debenture issuer intends to arrange for a debenture holder
representative when issuing any type of debentures other than secured debentures, the
debenture issuer shall declare its intention while making an application for the issuance
of debentures and in such case the provisions of Section 41, section 42, Section 43,
Section 44 , Section 45, Section 46, Section 47 and Section 48, including related
penalty provisions, shall apply mutatis mutandis to the application for approval, the
preparation of terms and conditions, and at4eement appointing a debenture holder
representative, the powers and duties of the debenture holder representative, including
the filing of a case in court against the debenture holder representative.
DIVISION 4
REGISTER AND TRANSFERABILITY
- SECTION
50.
- The company which issues debentures, certificates representing the rights
to purchase shares, or certificates representing the rights to purchase debentures in
accordance with Section 33 of Section 34 shall
be required to keep a register of such securities holders in accordance with the rules and
procedures as specified in the notification of the Office.
- SECTION
51.
- The transfer of name debentures, name certificates representing the
rights to purchase shares, or name certificates representing the rights to purchase
debentures issued in accordance with the exdosement of transfer by a person having his
name as the owner or by the last transferee.
- SECTION
52.
- Any person possesing a name debenture certificate, a name certificate
representing the rihgts to purchase shares, or a name certificate representing the rights
to purchase debentures issued in accordance with Section 51, shall
be presumed to be the owner of such securities.
- SECTION
53.
- The transferee of name debentures, or name certificates repressenting the
rights to purchase shares, or name certificates representing the rights to purchase
debentures issued in accodance with Section 33 or
Section 34, who intends to register such transfer, shall submit the application to the
company which he has signed his name as the transferee on the back of the certificates. In
such event, the issuing company or the registrar, as the case may be, shall enter the
transfer in the register and certify such transfer on the securities certificates or issue
new certificates within the time as specified in the notificaton of the Office unless such
transfer is against the law or agains tthe restriction on transfer of the issuing company
which has registered such restrictions with the Office.
- When the issuing company or the registrar has received the application of
transfer in accordance wtih the first paragraph, such transfer shall be binding on the
issuing company but shall only be binding on a third party when the transfer has been
entered into the register.
- SECTION
54.
- No company which issues securiires shall provide any benefit to a person
other than the person whose name is entered in the securities register in accordance with Section 53, except in case of bearer debentures, where thebenefit shall
be provided when the bearer has submitted the bearer certificates to the issuing company.
In such event, the payment shall also be endorsed by the issuing company.
- SECTION
55.
- The transfer of bearer debentures, berarer certificates representing the
rights to purchase shares or bearer certificates representing the rights to purchase
debentures issued in accordance with Section 33 or Section
34 shall be valid upon the delivery of such securities certificates to the transferee.
DIVISION 5
DISCLOSURE OF INFORMATION AND AUDITOR
- SECTION
56.
- A company which issues securities inaccordance with Section
32, Section 33 of section 34 shall prepare
the following financial statements and reprots concerning the financial condition and the
business operation of the company and submit them to the Office:
- quarterly financial statement reviewed by an auditor;
- financial statement for any accounting period examined and for which an
opinion has been given by an auditor;
- annual report;
- any other report concerning the information of the company as specified
in the notification of the SEC.
- The financial statements and reports in accordance with the first
paragraph shall comply with the rules, conditions and procedures as specified in the
notificaiton of the SEC. In specifying such rules, conditions and procedures, the
standards approved by th eBoard of Auditing Practices in accordance with the law relating
to autors shall be take into account.
- SECTION
57.
- A company which issues securities in accordance wtih
Section 32, Section 33 or Sectin 34 shall
subimit a report with reasons to the Office immediately when one of the following
incidents occurs:
- the company suffers derious damage;
- the company ceases operating all or part of its business;
- the company aslters its objects or the natue otits business;
- the company enters into an agreement entrusting other persons with power
in whole or in parr in the management of the company;
- the company takes over another company or is taken over in accordance
with Section 247;
- any incident which affects or is likely to affect the rights and
interests of securities holders or the decision-making on investment or the change in the
securities price of the company as specified in the notification of the SEC.
- SECTION
58.
- In cases where the Office is of the opinion that the documents or reports
furnished by the company which issues securities in accordance with secion
32, secion 33 or Section 34 are incomplete
or ambiguous, or in case of emergency or any other case which is likely to affect the
rights and interests of securities holders or the decision-making on investment or change
in the securities price of the company, the Office shall hav the power to do one or more
of the following:
- instruct the company to submit additional reports or documents;
- instruct the director, manager, or perosn with power of management over
the company to provide additional explanation;
- instruct the company to arrange an audit by an auditor and report the
result of the audit tothe Office and disclose the information to the public.
- SECTION
59.
- The dirctor, manager, person who holds management position as specifies
in the notification of the Office, and auditor of a company which issues securities in
accordance with Section32, Secion 33 or Section 34 shall prepare and disclose reports to the Office on each
person's securities holding ad the holding of securities by his spouse and minor children
of securities in the company including changes insuch holdings under the rules and
procedures as specified in the notification of the Office with the approval of the SEC.
- SECTION
60.
- For the benefit of disclosing information to the public about the
condition and the business operation of a company which issues securities including the
holding of securities in such company, the Office shall have the power to disclose the
reports or the information received in accordance with Section 56, Section 57, Section 58,
Section 59 under the rules and procedures as specified in the notification of the SEC.
- SECTION
61.
- The auditor as referred to in Section 56 shall be
an auditor who has been given an approval by the Office.
- Where an approval has been given in accordance with the first paragraph,
the auditor may audit the accounts of a securities company as referred to in Section 106, a company issuing securities listed in the
Securities Exchange as refered to in Section 199, and a
company whose securities are traded in an over-the-counter eentre as referred to in Section 217.
- SECTION
62.
- In makeing a review or audit, if the auditor finds that a company which
issues securities in accordance with Section 32, Section
33 abd Section 34 has inaccurately prepared a quarterly
financial statement of financial statement for any accounting period., the auditor shall
state his findings and disclose the facts material to the financial statement and notify
such circument in his report on which he is to sign in order to give his opinion as well
as report the matter to the Office.
- The Office shall have the power to withdraw its approval of any auditor
who does not comply with the provisions of the first paragraph ingiving an opinion ona
finacial statement for any accounting period.
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