Update on Flexibilities in Complying with Take-over Offer Requirements Under Capital Markets and Services Act 2007 and Rules on Take-overs, Mergers and Compulsory Acquisitions

4 October 2021

On 23 April 2020, the Securities Commission Malaysia (SC) accorded flexibilities in complying with the relevant requirements under the Capital Markets and Services Act 2007 (CMSA) and the Rules on Take-overs, Mergers and Compulsory Acquisitions (Rules) to facilitate the implementation of take-over offers during the Movement Control Order (MCO).
In light of the current development and relaxation of government measures, the following are updates relating to the flexibilities granted on 23 April 2020.
A. Service of Notice and Document

Subject matter

Flexibilities granted on 23 April 2020

Updates as at 4 October 2021

1. For the purpose of complying with the requirements relating to the delivery of take-over offer documents under paragraphs 9.10(5)(b), 11.02(1), 11.03(1), 11.04(1) & 12.03(1)(b) of the Rules and sections 222(1) & 223(2) of the CMSA.

The offeror or board of offeree may provide an electronic copy of the required notices and documents under the relevant provisions on a website, as a means of making available such notices and documents, provided that a physical notification was sent to all shareholders to inform them of the publication of the notice or document on the website (Summary Notification).

As a condition to the Summary Notification method, a copy of the Form of Acceptance and Transfer, and Bursa Depository Transfer of Securities Request Form (FTF010) (collectively referred as Forms) must be provided together with the Summary Notification.

The Summary Notification method remains available.

In the case of a publication of offer document, the offeror may:

  1. provide a copy of the Form of Acceptance and Transfer together with the Summary Notification; and
  2. provide in the Summary Notification, the relevant link for the shareholders to download the Bursa Depository Transfer of Securities Request Form (FTF010).
Save for the clarification above, the other requirements under this flexibility as previously announced remain applicable.
B. e-Acceptance and e-Transfer
Subject matter Flexibilities granted on 23 April 2020 Updates as at 4 October 2021
2.

Methods of sending the duly completed Forms to the share registrar and the Authorised Depository Agent (ADA).

Shareholders were provided with two methods, via either post or e-mail, to send the duly completed Forms to the share registrar and the ADA.  

The flexibility remains available.

In addition to the acceptance via e-mail or post, the shareholders may also accept a take-over offer via electronic facility such as the e-GO feature in Bursa Anywhere mobile application. Clear instruction on the process of acceptance via e-GO, must be given to shareholders.

C. Extension for Settlement of Consideration
Subject matter Flexibilities granted on 23 April 2020 Updates as at 4 October 2021
3. The settlement of cash consideration as required under paragraph 14.01(1) of the Rules. The period during which an offeror must pay the cash consideration to all accepting shareholders was extended from 10 days to 12 days.

The flexibility is uplifted.

With the upliftment, an offeror is required to settle the cash consideration within 10 days from-

  1. the date the offer becomes or is declared wholly unconditional, if the valid acceptances are received during the period when the take-over offer is still conditional; or
  2. the date of the valid acceptances, if the valid acceptances are received during the period after the take-over offer is or has become or has been declared wholly unconditional,

as required under paragraph 14.01(1) of the Rules.

D. Declaration for Compulsory Acquisition
Subject matter Flexibilities granted on 23 April 2020 Updates as at 4 October 2021
4. For the purpose of complying with the requirement under section 222(1)(B) of the CMSA pertaining to a copy of statutory declaration that is required to accompany the notice of compulsory acquisition.

Instead of a statutory declaration,  an offeror was allowed to:

  1. submit a declaration to the SC (SC Declaration), confirming that the conditions for the giving of the notice  are satisfied; and
  2. provide a copy of the SC Declaration together with the notice of compulsory acquisition to the dissenting shareholders.

The flexibility is uplifted.

With the upliftment, an offeror is required to provide a copy of statutory declaration to accompany the notice of compulsory acquisition, confirming that the conditions for the giving of the notice are satisfied, as required under section 222(1)(B) of the CMSA.
The SC would also like to remind the relevant persons to ensure all other requirements under the CMSA and the Rules are fully complied with.
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