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Corporate Restructuring
Part VII of CA, ss 176-‐181
• “Compromise”
or
“arrangement”
-‐
par9es
of
conflic9ng
interests
agree
to
accommodate
each
side
by
adjustment
or
modifica9on
of
their
interests.
• “Reconstruc3on”
-‐
rearranging
of
a
company’s
structure
-‐
may
involve
transfer
of
assets
of
one
company
to
a
new
company
or
an
altera9on
to
the
capital
structure
of
the
company
-‐
same
persons
as
shareholders
or
membership
is
substan9ally
the
same.
•
scheme
literally
means
a
plan
or
a
system
for
doing
or
organizing
something.
- completeness is not required. It is to be expected that refinements and
modificaGons will be needed before any meeGng is sought.
-‐
It is only necessary that the proposal is detailed enough to allow the
Court to consider its feasibility.
-‐
the parGculars of the scheme gave more than a general layout, so
that the court would be able to determine if the scheme was feasible,
and that the intenGon to invoke the secGon was bona fide.
Law & Procedure
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S. 176 CA :
• The
first
stage
is
to
apply
to
the
court
for
mee9ngs
to
be
called.
• by
the
company
or
any
creditor
or
member
or
the
liquidator
(if
the
company
is
being
wound
up)
• by
origina9ng
summons:
O
88
r
2
Rules
of
Court
2012
Sec. 176(1) calling creditors' & members' meetings
• Per
Rekhraj
J
in
Re
Foursea
Construc9on
(M)
Sdn
Bhd
[1998]:
Separate meetings of members & creditors
Court
may
order
the
scheme
mee3ngs
of
the
creditors/members/class
of
members
to
be
summoned/convened:
s
176(1)
CA
• Separate
mee9ngs
of
members
and
creditors
have
to
be
called.
• Where
there
are
different
classes
of
members
or
creditors,
class
mee9ngs
may
have
to
be
held.
• Classes
will
be
viewed
as
separate
if
their
interests
are
so
different
that
they
will
not
be
able
to
consult
together
with
a
view
to
their
common.
• The
court
will
refuse
to
call
mee9ngs
if
it
considers
that
the
scheme
will
not
be
approved.
• Since
arrangements
are
proposed
between
the
company
and
its
creditors
or
members,
the
company
must
approve
the
arrangement
either
by
resolu9on
of
the
board
or
in
general
mee9ng.
Separate meetings of members & creditors
• In
Sri
Hartamas
Development
Sdn
Bhd
v
MBf
Finance
Bhd
[1990]:
the
court
set
aside
the
ex
parte
order
calling
creditors'
and
members'
mee9ngs
on
the
grounds
that
the
interests
of
the
unsecured
creditors
were
not
adequately
safeguarded
and
that
it
was
against
public
policy
to
sanc9on
a
scheme
of
arrangement
where
the
company
was
hopelessly
insolvent.
• Explanatory
statement
to
be
sent
together
with
the
no9ce
summoning
the
mee9ng:
s
177(1)(a)
CA
• Contents
of
explanatory
statement:
• Re
Rankin
and
Blackmore
1950
SC
218
• Re
Dorman
Long
&
Co
Ltd
[1934]
Ch
653
Adjournment : s. 176(2) CA
• In
the
case
of
members,
the
reference
to
value
is
usually
propor9onal
to
the
nominal
value
of
shares
held:
Re
NFU
Development
Trust
Ltd
[1973]
1
All
ER
135
APPLICATION TO THE COURT FOR APPROVAL
Application to court for approval of the compromise / arrangement
• The
court
may
grant
its
approval
to
the
compromise
or
arrangement
subject
to
such
altera9ons
or
condi9ons
as
it
deems
just:
s
176(4)
CA.
• It
is
not
necessary
for
it
to
be
known
to
all
creditors
or
that
the
scheme
be
in
completed
form
ready
for
considera9on;
but
its
general
principles
at
least
must
have
been
defined
and
it
must
be
at
a
stage
where
a
mee9ng
of
creditors
could
be
ordered:
Re
GAE
Pty
Ltd
[1962]
VR
252
When must the applicaGon be made?
The
court
will
only
grant
this
order
provided:
a) the
applicant
has
sa9sfied
the
condi9ons
set
out
in
s
176(10A)
CA
b) only
if
the
court
thinks
that
it
is
fit
to
grant
such
an
order.
In making a Restraining Order:
a) There
must
be
a
proposal
of
the
scheme
of
compromise
or
arrangement;
and
•
this
court
is
of
the
considered
opinion
that
it
would
only
be
wise
and
fair
to
all
par9es
concerned
including
the
creditors,
based
on
the
facts
of
the
present
case
to
allow
the
applica9on
of
the
RO
at
least
for
one
final
9me.
This
would
allow
an
opportunity
for
the
scheme
to
at
least
be
rightly
considered
for
its
implementa9on.
An
RO
denied
now
would
only
mean
the
applicant
would
be
further
put
in
a
posi9on
of
difficulty
in
trying
to
address
the
interest
of
all
par9es
in
its
present
challenging
financial
posi9on.
In
this
regard
it
would
not
benefit
anyone
if
the
RO
is
not
granted...."
The scheme of arrangement should have
sufficient parGculars to enable the court to
assess that it is feasible and merits due
consideraGon by the creditors when it is
eventually placed before them in detailed
form.
• Re
Kuala
Lumpur
Industries
Berhad
[1990]
• Re
GAE
Ltd
[1962]
VR
252
Sec. 176(1) & 176 (10)
Re Kuala Lumpur Industries Bhd [1990]:
• In
my
view,
what
must
be
available
to
the
court
when
considering
a
s
176(10)
applica3on
must
be
a
proposal
of
a
scheme
of
compromise
or
arrangement
not
necessarily
ready
for
presen9ng
to
the
creditors
to
be
voted
upon
but
with
sufficient
par9culars
to
enable
the
court
to
assess
that
it
is
feasible
and
merits
due
considera9on
by
the
creditors
when
it
is
eventually
placed
before
them
in
detailed
form.
Further,
the
court
has
to
be
sa3sfied
that
there
is
or
that
there
would
be
a
bona
fide
s
176(1)
applica3on.
DuraGon for the restraining order under s 176(10)
Sec.
176
(10A)
:
for
a
period
of
not
more
than
ninety
days
or
such
longer
period
the
Court
may
for
good
reason
allow
if
and
only
if—
(a)
it
is
sa9sfied
that
there
is
a
proposal
for
a
scheme
of
compromise
or
arrangement;
(b)
the
restraining
order
is
necessary
to
enable
the
company
and
its
creditors
to
formalize
the
scheme
of
compromise
or
arrangement;
(c)
a
statement
in
the
prescribed
form
as
to
the
affairs
of
the
company
made
up
to
a
date
not
more
than
three
days
before
the
applica9on
is
lodged
(d)
it
approves
the
person
nominated
by
a
majority
of
the
creditors
in
the
applica9on
Good reason for extension of restraining order :
• In
Metroplex
Bhd
&
Ors
v
Morgan
Stanley
Emerging
Markets
Inc
&
Ors;
RHB
Sakura
Merchant
Bankers
Bhd
&
Ors
(interveners)
[2005]
• there
was
no
good
reason
to
extend
the
same.
• 'good
reason’
:
had
to
be
predicated
upon
the
applicants'
bona
fide
conduct
towards
achieving
a
feasible
detailed
scheme
of
arrangement
Good reason for extension of restraining order :
• An
applica9on
under
this
sec9on
should
be
made
by
origina9ng
summons:
O
88
r
2
;
Rules
of
Court
2012
COMPULSORY ACQUISITION OF SHARES
2 ways of acquiring shares in target company
compulsorily:
b) By
way
of
contract
or
scheme
of
arrangement
–
s
180
CA
Compulsory AcquisiGon of Shares : s. 180 CA
• Sec.
225
of
the
CMSA
specifically
provides
that
Sec.
180
CA
shall
not
apply
in
respect
of
takeover
offers
to
which
s
222(1)
of
CMSA
applies.
Purpose and policy
• The
sec9on
is
essen9ally
concerned
with
the
amalgama9on
or
merger
of
companies.
• Complementary
to
provisions
on
reconstruc9ons
• This
sec9on
cannot
be
invoked
by
a
natural
person.
CalculaGon of required majority
• Sec.
180(1)
is
ouen
thought
to
give
the
right
to
an
acquiror
who
has
obtained
90%
of
the
issued
share
capital
to
compulsorily
acquire
the
remaining
10%.
• s
180(1):
the
required
approval
is
that
of
'the
holders
of
nine-‐tenths
in
nominal
value
of
those
shares
or
of
the
shares
of
that
class
• any
shares
held
by
the
transferee
company
or
its
nominee
are
to
be
excluded
• the
requirement
is
for
the
approval
of
offeree
shareholders
cons9tu9ng
nine-‐tenths
in
value
of
the
shares
sought
to
be
acquired,
not
nine-‐tenths
of
the
en9re
issued
share
capital.
s 180(1) contrasted with s 180(3)
• S.
180(1)
:
covers
the
situa9on
where
nine-‐tenths
of
the
shareholders
of
the
transferor
company
have
approved
and
accepted
the
offer
by
the
transferee
company.
Subsequent
thereto,
the
transferee
company
may,
at
any
9me
within
two
months
auer
the
offer
has
been
so
approved,
give
no9ce
to
the
dissen9ng
shareholders
of
their
desire
to
acquire
his
share.
And
within
one
month
of
such
no9ce
the
dissen9ng
shareholder
may
apply
to
court
to
resist
such
acquisi9on.
• S.
180(3)
covers
the
situa9on
where
the
shares
of
the
consen9ng
majority,
equivalent
to
nine-‐tenths
in
total
value,
had
already
been
transferred
to
the
transferee
company.
In
that
event
it
becomes
incumbent
upon
the
transferee
company
to
give
no9ce
of
that
fact
to
the
dissen9ng
shareholder
within
1
month
from
the
date
of
the
said
transfer.
Shanta Holdings Sdn Bhd v Golden Uni-‐ConsorGum [2008]
Essen3al
Readings
Shan9
Rachagan
et
al,
Concise
Principles
of
Company
Law
in
Malaysia
(2nd
edn
Lexis
Nexis,
Petaling
Jaya
2010),
Chap
21
Companies
Act
1965
Capital
Market
&
Services
Act
• The
court
held
that
the
func9on
of
copyright
is
to
preserve
rights
over
the
ar9s9c
expression
of
the
drawings
and
not
as
a
measure
to
protect
the
func9onality
of
the
ar9cles
drawn.