s 33 Definition
(1) In this Division— “acquirer” means— (i) a person who acquires or proposes to acquire control in a company whether the acquisition is effected by the person or by an agent; or (ii) two or more persons who, acting in concert with one another, acquire or propose to acquire control in a company, whether the acquisition is effected by the persons or by an agent; “Code” means the Malaysian Code on Take-Overs and Mergers made in accordance with section 33 A; “company” in relation to a company being taken over, means a public company whether or not it is listed on any stock exchange, and includes such private company as the Commission may determine; “control”, in relation to an acquisition of shares, means the acquisition or holding of, or entitlement to exercise or control the exercise of, voting shares of more than thirty-three per centum in a company; “dissenting shareholder” includes any shareholder who has not accepted a take-over offer and any shareholder who has failed or refused to transfer shares to an acquirer in accordance with a takeover offer; “expert” includes engineer, valuer, accountant and any other person whose profession gives authority to a statement made by him; “offeree” means a company whose voting shares are subject to a take-over offer; “offeror” means a person who makes a take-over offer; “officer”, in relation to a corporation, includes— (i) a director, secretary, executive officer or employee of the corporation; (ii) a receiver and manager, appointed under a power contained in any instrument, of any part of the undertaking or property of the corporation; (iii) 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; “related”, in relation to a corporation, means related within the meaning of section 6 of the Companies Act 1965; “take-over offer”, in relation to a company, means an offer made to acquire all or part of the voting shares, or any class or classes of voting shares, in the company; “voting shares”, in relation to a company, has the same meaning as in subsection 4(1) of the Companies Act 1965. (2) For the purposes of this Division, a reference to “persons acting in concert” shall be construed as a reference to persons who, pursuant to an agreement, arrangement or understanding, co-operate to— (a) acquire jointly or severally voting shares of a company for the purpose of obtaining control of that company; or (b) act jointly or severally for the purpose of exercising control over a company. (3) Without prejudice to the generality of subsection (2), the following persons shall be presumed to be persons acting in concert unless the contrary is established: (a) a corporation and its related and associate corporations; (b) a corporation and any of its directors, or the parent, child, brother or sister of any of its directors, or the spouse of any such director or any such relative, or any related trusts; (c) a corporation and any pension fund established by it; (d) a person and any investment company, unit trust or other fund whose investments such person manages on a discretionary basis; (e) a financial adviser and its client which is a corporation, where the financial adviser manages on a discretionary basis the corporation’s funds and has ten per centum or more of the voting shares in that corporation; and (f) a person who owns or controls twenty per centum or more of the voting shares of a corporation falling within paragraph (a) and any parent, child, brother or sister of such person, or the spouse of such person or any such relative, or any related trusts together with one or more persons falling within paragraph (a). (4) For the purposes of subsection (2), an agreement, arrangement or understanding means an agreement, arrangement or understanding whether formal or informal, whether written or oral, whether express or implied or whether or not having legal or equitable force. (5) For the purposes of paragraph (3)(a), an associated corporation means a corporation in respect of which not less than twenty per centum of the voting shares of that corporation are held by another corporation, the first-mentioned corporation thereby being an associate corporation of the other corporation. Malaysian Code on Take-Overs and Mergers 33 A . (1) The Minister may, on the recommendation of the Commission, prescribe a Code which shall be published in the Gazette. (2) The Minister may, from time to time on the recommendation of the Commission, amend any of the provisions of the Code and any amendment thereto shall be published in the Gazette. (3) The Code shall contain principles and rules governing the conduct of all persons or parties involved in a take-over offer, merger or compulsory acquisition, including an acquirer, offeror, offeree and their officers and associates. (4) The Commission shall administer the Code according to the objectives specified in subsection (5) and may do all such things as may be necessary or expedient to give full effect to the provisions of this Division and the Code; and without limiting the generality of the foregoing, may— (a) issue rulings from time to time, interpreting the Code; (b) issue rulings on the practice and conduct of persons involved in or affected by any take-over offer, merger or compulsory acquisition, or in the course of any take-over, merger or compulsory acquisition; and (c) enquire into any matter relating to any take-over offer, merger or compulsory acquisition whether potential or otherwise, and for this purpose, may issue public statements as the Commission deems fit with respect thereto. (5) In making any recommendation under subsections (1) and (2), and in administering the Code and exercising its powers under this Act, the Commission shall take into account the desirability of ensuring that the acquisition of voting shares or control of companies takes place in an efficient, competitive and informed market and, without limiting the generality of the foregoing, shall have regard to the need to ensure— (a) that the shareholders and directors of an offeree and the market for the shares that are the subject of the take-over offer— (i) are aware of the identity of the acquirer and offeror; (ii) have reasonable time in which to consider a takeover offer; and (iii) are supplied with sufficient information necessary to enable them to assess the merits of any takeover offer; (b) that, so far as practicable, all shareholders of an offeree have equal opportunities to participate in benefits accruing from the take-over offer, including in the premium payable for control; (c) that fair and equal treatment of all shareholders, in particular, minority shareholders, in relation to the takeover offer, merger or compulsory acquisition would be achieved; and (d) in its response to, or making recommendations with respect to any take-over offer, merger or compulsory acquisition, the directors of the offeree and acquirer shall act in good faith to observe the objects, and the manner in which they observe the objects, specified in this subsection, and that minority shareholders are not subject to oppression or disadvantaged by the treatment and conduct of the directors of the offeree or the acquirer. Compliance with Code and rulings 33B . (1) A person who makes a take-over offer shall do so in accordance with the provisions of the Code and any ruling made under subsection 33A (4). (2) Subject to section 33 C, an acquirer who has obtained control in a company shall make a take-over offer, other than in respect of voting shares of the company which at the date of the offer are already held by the acquirer or which the acquirer is entitled to exercise, in accordance with the provisions of the Code and any ruling made under subsection 33A (4). (3) Subject to section 33C , an acquirer who has obtained more than thirty-three per centum of the voting shares in a company but less than fifty per centum of voting shares in that company, shall not acquire any additional voting shares in that company, except in accordance with the provisions of the Code and any ruling made under subsection 33A (4). (4) Any person who contravenes subsection (1), (2) or (3) 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. Exemptions 33C . (1) Subject to subsection 33A(5), the Commission may grant exemption in writing to any particular person or take-over offer or to any particular class, category or description of persons or take-over offers from the provisions of this Division, the Code and any ruling made under subsection 33A (4). (2) Any exemption granted under subsection (1) may be subject to any conditions, restrictions or limitations as may be imposed by the Commission. Action by Commission in cases of non-compliance with Code and rulings 33 D . (1) Where any person who is under an obligation to comply with, observe or give effect to the provisions of the Code or any ruling made under subsection 33 A(4), fails to comply with, observe or give effect to any such provision of the Code or ruling, the Commission may take one or more of the following actions: (a) direct the person in breach to comply with, observe or give effect to any such provision of the Code or ruling; (b) impose a penalty, in proportion to the severity or gravity of the breach on the person in breach, but in any event not exceeding one million ringgit; (c) reprimand the person in breach; (d) direct a stock exchange to deprive the person in breach access to the facilities of the stock exchange; (e) where the person in breach is a listed corporation, direct the stock exchange— (i) to suspend trading in the securities of the corporation; (ii) to suspend the listing of the corporation; or (iii) to remove from the official list the corporation or the class of securities of the corporation; (f) where the person in breach is a corporation that is not listed, direct any stock exchange to prohibit the listing of any of its securities; (g) direct a stock exchange to prohibit the person in breach from engaging in transactions to be executed through the use of the facilities of the stock exchange; or (h) require the person in breach to take such steps as the Commission may direct to remedy the breach or mitigate the effect of such breach, including making restitution to any other person aggrieved by such breach. (2) The Commission shall give a written notice to a person in breach of its intention to take action under subsection (1) and shall give the person in breach an opportunity to be heard prior to it taking any action under subsection (1). (3) The Court may, in a case where the Commission gives a direction under paragraph (1)(a), on an application by the Commission, make an order directing the person in breach to comply with, observe or give effect to those provisions of the Code or rulings. (4) For the purposes of paragraph (1)(h), in determining whether or not restitution is to be made by a person in breach, the Commission shall have regard to— (a) the profits that have accrued to such person in breach; or (b) whether one or more persons have suffered loss or been otherwise adversely affected as a result of the breach. (5) Nothing in this section shall preclude the Commission from taking any of the actions that it is empowered to take under this Act or any of the provisions of the securities laws against the person in breach. (6) For the purposes of this section— “person in breach” means a person who fails to comply with, observe or give effect to the provisions of this Part or the Code or any ruling made under subsection 33 A(4), in circumstances where the person is under an obligation to do so; “breach” means a failure to comply with, observe or give effect to the provisions of this Part or the Code or any ruling made under subsection 33A (4), in circumstances where there is an obligation to do so. False or misleading documents, information, etc. 33E . (1) Where any document or information is required to be submitted to the Commission under this Division or the Code in relation to or in connection with a take-over offer, merger or compulsory acquisition— (a) an acquirer, an offeror or a person making a compulsory acquisition or effecting a merger, its officers or associates; (b) an offeree, its officers or associates; (c) a financial adviser or an expert; or (d) any other person, shall not— (aa) submit or cause to be submitted any document or information that is false or misleading; (bb) provide or cause to be provided any document or information from which there is material omission; or (cc) engage in conduct that he knows to be misleading or deceptive or is likely to mislead or deceive. (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 provision of the document or information or engaging in the conduct was of the belief that— (a) the document 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) A person who contravenes subsection (1) 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.