Common scenario in IPO

IPO

๐—–๐—ผ๐—บ๐—บ๐—ผ๐—ป ๐˜€๐—ฐ๐—ฒ๐—ป๐—ฎ๐—ฟ๐—ถ๐—ผ ๐—ถ๐—ป ๐—œ๐—ฃ๐—ข

X is a director and shareholder of Company A as well as Company B.

Company A intends to undertake an IPO and a listing exercise. Company A enters into an agreement (โ€œ๐—ฆ๐—ฃ๐—”โ€) with X and other shareholders of Company B to acquire all the shares of Company B as part of pre-IPO restructuring prior to Company A being listed.

๐——๐—ถ๐˜€๐—ฐ๐—น๐—ผ๐˜€๐˜‚๐—ฟ๐—ฒ ๐—ผ๐—ณ ๐—ฑ๐—ถ๐—ฟ๐—ฒ๐—ฐ๐˜๐—ผ๐—ฟ๐˜€โ€™ ๐—ถ๐—ป๐˜๐—ฒ๐—ฟ๐—ฒ๐˜€๐˜

Section 221(1) of the Companies Act 2016 (โ€œ๐—–๐—”โ€) requires every director of a company who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the company to, as soon as practicable after the relevant facts have come to the directorโ€™s knowledge, declare the nature of his interest at a meeting of the board of directors.

In the scenario above, X must declare his/her interest in the SPA to the board of directors of Company A pursuant to section 221(1) of the CA. In practice, the declaration is typically set out in the directorsโ€™ circular resolution of Company A passed to approve the acquisition of Company B.

In the event Xโ€™s spouse (who is not a director of Company B) or Xโ€™s child (who is not a director of Company B and child includes adopted child or step child) also has an interest in the shares of Company B, such interest is treated as an interest in the SPA pursuant to section 221(9) of the CA. In such circumstances, Xโ€™s declaration of interest in the SPA must include his/her spouseโ€™s or childโ€™s interest.

#malaysiancorporatelawyer
#companiesact2016
#directorsinterest

This post was first posted on Linkedin on 2 July 2021.

Linkedin Post
Conversation on W&I Insurance in M&A Transactions

As an M&A lawyer with a keen interest in the nuances of the M&A field, Iโ€™ve observed that warranty and indemnity insurance (W&I) is not that common in M&A transactions in Malaysia, as far as I know. Therefore, when I saw Martijn de Lange of BMS Group commenting about W&I …

Company Law
Indirect Substantial Shareholder

A person can be a substantial shareholder in a company without directly holding any shares in that company. One of the challenges that often arises when I work on IPOs or other equity capital market exercises is the assessment of whether an individual holds an indirect substantial shareholding in a …

Company Law
Legal Requirements for Directors’ Fees and Benefits in Malaysia

One common issue I encounter in both M&A deals and IPO exercises relates to compliance with the legal requirements for the payment of directorโ€™s fees and benefits. Additionally, the legal obligations regarding directorโ€™s service contracts should not be overlooked. Here are the key points: Constitution 1.ย If a company, whether public …