PART IV - ISSUES OF SECURITIES AND TAKE-OVERS AND MERGERS DIVISION 2 - TAKE-OVERS, MERGERS AND COMPULSORY ACQUISITIONS
Section 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 33A;
"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 take-over 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.