s 32 Proposals to be submitted to the Commission
(1) In this Division and Schedule 1— “an applicant” means any person referred to in subsection 32(2); “expert” includes engineer, valuer, accountant and any other person whose profession gives authority to a statement made by him; “officer”, in relation to a corporation, includes— (a) a director, a secretary, an executive officer or an employee of the corporation; (b) a receiver and manager, appointed under a power contained in any instrument, of any part of the undertaking or property of the corporation; (c) a liquidator of the corporation appointed in a voluntary winding up of the corporation, but does not include a receiver who is not also a manager, a receiver and manager appointed by a Court and a liquidator appointed by a Court; “private company” and “public company” have the same meanings as in subsection 4(1) of the Companies Act 1965; “proposal” means a proposal referred to in subsection 32(2). (2) This section applies to a person who proposes to do any of the following: (a) make available, offer for subscription or purchase, or issue an invitation to subscribe for or purchase securities in Malaysia; (b) make available, offer for subscription or purchase, or issue an invitation to subscribe for or purchase, outside Malaysia, securities of a public company, or to list such securities on a securities exchange outside Malaysia; (c) make a bonus issue of securities of a public company other than by way of the capitalization of unappropriated profits; (d) by way of issue of securities, effect— (i) a compromise or arrangement whether or not for the purposes of or in connection with a scheme, compromise or arrangement for the amalgamation of any two or more corporations or for reconstruction of any corporation; (ii) an employee share or employee share option scheme; or (iii) an acquisition of securities or assets; (e) apply for the listing of a corporation, or for the quotation of securities, on a stock market of a stock exchange; (f) distribute the assets of a public company to its members other than distribution in cash or distribution of assets to members of the public company on its winding up; or (g) acquire or dispose assets (whether or not by way of issue of securities) which results in a significant change in the business direction or policy of a listed public company. (3) An applicant shall submit to the Commission such documents and such other information in relation to the proposal in such form and manner and at such times as the Commission may require. (4) Subject to section 32 A , no person referred to in subsection (2) shall implement or carry out a proposal unless the Commission has approved the proposal under this section. (5) The Commission may— (a) approve a proposal subject to such terms and conditions as it deems fit; (b) approve a proposal with such revisions and subject to such terms and conditions as it deems fit; or (c) reject a proposal. (6) A person who contravenes or fails to comply with any term or condition in relation to an approval given under paragraph (5)(a) or (b) shall be guilty of an offence. (7) Where the Commission is satisfied that— (a) there is a contravention of subsection 32 B(1); or (b) there is a breach of any term or condition imposed under paragraph (5)(a) or (b); or (c) there is any change or development in the circumstances relating to a proposal occurring subsequent to the Commission giving its approval under subsection (5), and if such change or development, if known to the Commission prior to the approval, would have affected its decision as regards the proposal, the Commission may— (aa) revoke an approval given under subsection (5); (bb) revise an approval; or (cc) impose such further terms or conditions in relation to a proposal approved by it under subsection (5): Provided that the Commission may only revoke or revise such approval or impose such further terms and conditions where such revocation, revision or imposition shall not affect the rights of third parties that may have been created by or arising from the carrying out or implementation of a proposal in accordance with an approval given under subsection (5). (8) The Commission shall give a written notice to an applicant of its intention to take action under subsection (7) and shall give the applicant an opportunity to be heard prior to it taking any action under subsection (7). (9) Where the Commission has granted its approval to a proposal under subsection (5)— (a) if registration of a prospectus is required under this Act in connection with the proposal, the prospectus shall include a statement that the Commission has approved the proposal pursuant to this section and that the Commission’s approval of the proposal shall not be taken to indicate that the Commission recommends the proposal; or (b) if registration of a prospectus is not required under this Act in connection with the proposal, the applicant shall include in any document issued with respect to the proposal, in such form as the Commission may require, a statement that the Commission has approved the proposal pursuant to this section and that the Commission’s approval of the proposal shall not be taken to indicate that the Commission recommends the proposal. (10) Where— (a) a person enters into an agreement in respect of a proposal; and (b) the terms of the agreement are not binding until the fulfillment of any condition as may be set out in the agreement, including that of the approval to be given under subsection (5), the person shall not be taken, for the purposes of subsection (4), to have taken any step to implement or carry out the proposal. (11) In respect of any proposal referred to in subsection 32(2)— (a) the Commission may direct an applicant to make an announcement of a proposal in accordance with the rules of the stock exchange, if applicable; and (b) any person may make an announcement of a proposal before submitting such proposal to the Commission for its approval under this section. (12) For the purpose of subsection (11), an “announcement” includes any publication by press notice or in any other form of a firm intention to make an offer for any securities. (13) Any person who contravenes subsection (3), (4), (9) or (11) shall be guilty of an offence and shall on conviction be punished with a fine not exceeding one million ringgit or imprisonment for a term not exceeding ten years or both. Classes or categories of transactions or securities not subject to subsection 32(4) 32 A. (1) Subsection 32(4) shall not apply to the following: (a) such classes or categories of securities or classes or categories of transactions as specified in Schedule 1; (b) the making available, offering for subscription or purchase, or issuing an invitation to subscribe for or purchase securities as may be prescribed by the Minister on the basis of the manner or total value thereof or the characteristics, types or numbers of investors in relation thereto; (c) such categories or classes of securities as may be prescribed by the Minister. (2) In making any prescription under subsection (1) or in making any order under subsection (4), the Minister shall have regard to the interests of the public. (3) Any prescription made under this section shall be subject to any condition, restriction or limitation as the Minister may impose. (4) The Minister may, from time to time by order published in the Gazette, vary, delete, add to, substitute for, or otherwise amend Schedule 1 and upon such publication, Schedule 1 as varied, deleted, added to, substituted for or otherwise amended, shall come into full force and effect and shall be deemed to be an integral part of this Act as from the date of such publication, or from such later date as may be specified in the order. False or misleading statements, etc. 32B . (1) Where any statement or information is required to be submitted to the Commission under this Division in relation to or in connection with any proposal submitted pursuant to section 32— (a) an applicant, any of its officers or associates; (b) a financial adviser or an expert; or (c) any other person, shall not— (aa) submit or cause to be submitted any statement or information that is false or misleading; (bb) submit or cause to be submitted any statement or information from which there is a material omission; or (cc) engage in or aid or abet conduct that he knows to be misleading or deceptive or is likely to mislead or deceive the Commission. (2) It shall be a defence to a prosecution or any proceeding for a contravention of subsection (1) if it is proved that the defendant, after making enquiries as were reasonable in the circumstances, had reasonable grounds to believe, and did until the time of the making of the statement or provision of the information or engaging in the conduct, was of the belief that— (a) the statement or information was true and not misleading; (b) the omission was not material; (c) there was no material omission; or (d) the conduct in question was not misleading or deceptive. (3) Where— (a) a statement or information referred to in subsection (1) has been submitted or provided to the Commission, or a conduct referred to in subsection (1) has been engaged in; and (b) a person referred to in that subsection becomes aware before the proposal has been fully implemented or carried out— (i) that the statement or information may be false or misleading or materially incomplete; or (ii) that the conduct may tend to mislead or deceive, the person shall forthwith advise the Commission of the facts referred to in subparagraph (b)(i) or (b)(ii), where applicable, and shall take such action as the Commission may require pursuant to subsection 32(7). (4) A person who contravenes subsection (1) or subsection (3) shall be guilty of an offence and shall on conviction be punished with a fine not exceeding three million ringgit or imprisonment for a term not exceeding ten years or both. D IVISION 2 Take-Overs, Mergers and Compulsory Acquisitions