SECURITIES COMMISSION ACT 1993

MALAYSIAN CODE ON TAKE-OVERS AND MERGERS 1998

ARRANGEMENT OF CODE

PART V
TERMS OF OFFER
50% condition

TERMS OF OFFER 50% condition 17.

(1) An offeror shall include in an offer document a condition that the take-over offer shall be subject to the offeror having received acceptances which would result in the offeror and all persons acting in concert with the offeror holding in aggregate more than 50% of the voting shares to which the take-over offer relates.

(2) For the purposes of computing the level of acceptances in subsection (1), such voting shares that are already acquired, held, or entitled to be acquired or held by the offeror and all persons acting in concert with the offeror, shall be included in computing whether the offeror has received the level of acceptances referred to in subsection (1).

(3) Subsection (1) shall not apply to –

(a) a partial offer; or
(b) circumstances where the offeror and all persons acting in concert with the offeror have already acquired, held, or are entitled to acquire or hold, in aggregate more than 50% of the voting shares to which the take-over offer relates at the time of the posting of the offer document by the offeror in accordance with subsection 13(7).

(4) A take-over offer shall lapse if the condition referred to in subsection (1) is not fulfilled by 5.00 p.m. on the sixtieth day from the date on which the offer document was posted in accordance with subsection 13(7).

(5) A person who has accepted a take-over offer may withdraw his or its acceptance from the date which is twenty-one days after the first closing date of the original take-over offer unless the take-over offer has become or is declared unconditional as to acceptances.

Voluntary take-over offers shall not be subject to certain conditions
TERMS OF OFFER Voluntary take-over offers shall not be subject to certain conditions

18. (1) An offeror shall not include in an offer document in respect of a voluntary offer, a defeating condition, however expressed, the fulfilment of which depends on –

(a) an opinion, belief or other state of mind of the offeror or any person acting in concert with the offeror; or
(b) whether or not a particular event happens, being an event that is within the sole control of or is a direct result of an action by the offeror or any person acting in concert with the offeror.

(2) A condition in an offer document that is made in contravention of subsection (1) shall be void.

(3) Notwithstanding subsections (1) or (2), the offeror shall not be released from the offeror’s other obligations under this Code.

(4) A take-over offer shall lapse if the condition referred to in subsection (1) is not fulfilled by 5.00 p.m. on the sixtieth day from the date on which the offer document was posted in accordance with subsection 13(7).

(5) A person who has accepted a take-over offer may withdraw his or its acceptance from the date which is twenty-one days after the first closing date of the original take-over offer unless the take-over offer has become or is declared unconditional as to acceptances.

Fulfilment of conditions
TERMS OF OFFER Fulfilment of conditions

19. (1) In the case of a voluntary offer, all conditions attached to the take-over offer other than the condition referred to in subsection 17(1) shall be fulfilled within twenty-one days –

(a) after the first closing date of the take-over offer; or
(b) after the condition referred to in subsection 17(1) is fulfilled, whichever is the later.

(2) The date in subsection (1) shall not be later than seven days after the sixtieth day from the date on which the offer document was posted in accordance with subsection 13(7) failing which the take-over offer shall lapse.

(3) Upon the conditions to a voluntary offer being met, the offeror shall announce such fact in a press notice immediately.

Offer price

TERMS OF OFFER Offer price 20.

(1) In the case of a mandatory offer, the offeror in any take-over offer shall offer as consideration that is to be paid or provided for the acceptances of the take-over offer an amount of not less than the highest price (excluding stamp duty and commission) paid or agreed to be paid by the offeror or any person acting in concert with the offeror for any voting shares to which the take-over offer relates within six months prior to the beginning of the offer period.

(2) Where the offeror or any person acting in concert with the offeror has purchased or agreed to purchase any voting shares to which the take-over offer relates during the offer period at a consideration that is higher than the consideration stated in the offer document to be paid or provided for the acceptances of the take-over offer, the offeror shall increase the consideration that is to be paid or provided for the acceptances of the take-over offer to not less than the highest price (excluding stamp duty and commission) paid or agreed to be paid by the offeror or any person acting in concert with the offeror for any voting shares to which the take-over offer relates during the offer period.

(3) Where subsection (2) applies, the offeror shall immediately announce by a press notice –

(a) the revised offer price;
(b) the number of voting shares to which the take-over offer relates that has been purchased or agreed to be purchased; and
(c) the price paid or agreed to be paid for the said purchase or agreement to purchase.

(4) Any revision made under subsection (3) shall be subject to section 23.

(5) The offeror, in any take-over offer, shall post the consideration to all persons accepting the take-over offer within twenty-one days from the date the offer becomes or is declared unconditional as to acceptances.

Nature of the consideration
TERMS OF OFFER Nature of the consideration

21. (1) In the case of a voluntary offer, where –

(a) 10% or more of the voting shares to which the take-over offer relates of the offeree has been purchased for cash by the offeror or any person acting in concert with the offeror during the offer period or within six months prior to the beginning of the offer period ; or
(b) the Commission determines that it is necessary,

the offeror shall offer as consideration that is to be paid or provided for the acceptances of the take-over offer a cash sum or where there is more than one consideration, one consideration shall consist solely of a cash sum at not less than the highest price (excluding stamp duty and commission) paid for such voting shares purchased during the offer period or within six months prior to the beginning of the offer period.

(2) Where the offeror offers unlisted securities as consideration to be paid or provided for the acceptances of a take-over offer, the offeror shall disclose –

(a) the value of the unlisted securities made based on a reasonable estimate by an independent valuer as may be approved by the Commission ; and
(b) relevant particulars of the valuation report made by the independent valuer

in the offer document and any circular or document issued by the offeror in relation to the take-over offer.

(3) Where the offeror offers listed securities as consideration to be paid or provided for the acceptances of a take-over offer the value of the consideration to be paid –

(a) in the case of unissued securities, shall be the price as approved by the Commission;
(b) in the case of issued securities, shall be the weighted average market price for the securities for the past five market days preceding the date of the written notice under subsections 12(2) or 12(3); or
(c) where there is no trading of the securities for a continuous period of five market days immediately preceding the date of the written notice under subsections 12(2) or 12(3), the weighted average market price for the securities for the past five market days immediately preceding the close of trading of the market day when the securities were last traded.

(4) Where the offeror or any person acting in concert with the offeror intends to purchase or agrees to purchase any voting shares to which a take-over offer relates prior to the date on which the offer document is posted in accordance with subsection 13(7), the offeror shall announce the valuation of the securities made under subsections (2) or (3) in a press notice before making any such purchase or agreement to purchase.