Malaysia legislation
Section 99
Section 99
(a)
require the member institution—
(i)
to take any step, or any action, or to do or not to do any act or thing, in relation to itself, its businesses or its officers within such time as the Corporation may consider necessary or expedient;
(ii)
to cease soliciting, taking or repaying deposits or cease issuing or renewing, or making payments under, takaful certificates or insurance policies or carrying on its businesses or such part of it as the
Corporation may direct; or
(iii)
to restructure the whole or part of its business, as may be specified by the Corporation;
(b)
acquire the shares of the member institution from its existing shareholders or subscribe to shares issued by the member institution in accordance with the constituent documents of the member institution;
(c)
assume control of the whole or part of the assets, liabilities, businesses and affairs of the member institution, carry on the whole or part of its businesses and manage the whole or part of its assets, liabilities and affairs including disposal of its assets or businesses or any part thereof, or appoint any person to do so on behalf of the Corporation (in this Part referred to as “the appointed person”) and the terms and conditions of the appointed person including the
Corporation’s directions to the appointed person, shall be determined by the Corporation and shall be binding on the member institution concerned;
(d)
apply to the High Court to appoint a receiver, manager or receiver and manager (any one of such persons being referred to in this Part as “the receiver”) to manage the whole or part of the assets, liabilities, businesses and affairs of the member institution;
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(e)
subject to the approval by the Minister, present a petition to the High Court for the winding up of the member institution;
(f)
with the approval of the Minister, designate a subsidiary of the Corporation as a bridge institution;
(g)
transfer—
(i)
such assets, business and affairs of the member institution as the Corporation determines; and
(ii)
such deposit liabilities or takaful or insurance liabilities and other liabilities of the member institution as the Corporation determines, to a bridge institution, or cause one or more of such transfers, on such terms and conditions as the Corporation determines;
(ga) with the approval of the Minister, by an order in writing, transfer all or any of the following:
(i)
shares and capital instruments issued by the member institution; or
(ii)
warrants or rights under any other instruments issued by the member institution that entitle the holders thereof to acquire shares in the member institution, to any person, other than the Corporation and any of the subsidiaries of the Corporation, pursuant to the provisions relating to compulsory transfer of shares in Chapter 2A; or
(h)
do any combination of the foregoing, provided that Islamic deposit liabilities shall only be transferred to a member institution that is an Islamic bank or a bridge institution the operations of which are conducted consistently with Shariah and takaful liabilities shall only be transferred to a member institution that
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is a takaful operator or a bridge institution the operations of which are conducted consistently with Shariah.
(1A)
Where the Corporation exercises any of the powers under subsection (1), the member institution shall pay the costs, charges and expenses of the Corporation or the appointed person, including remuneration of the appointed person, out of the assets of the member institution in priority to all other claims.
(2)
The Corporation may exercise or continue to exercise any powers under subsection (1), except paragraph (1)(a), in respect of a former member institution the membership of which has been cancelled under section 38 or terminated under section 39 and a reference to a member institution in this Part includes, where applicable, a former member institution the membership of which has been cancelled under section 38 or terminated under section 39.
(3)
The Corporation or the appointed person, in effecting any transaction under this Part—
(a)
shall not be required to notify or obtain the approval of shareholders or creditors of the member institution in a general meeting or otherwise, or any governmental, regulatory or other authority whatsoever except, where applicable, the State authority having jurisdiction over dealings in respect of land, or any other person affected by the transaction notwithstanding any rule of law, contract or anything in any law including the Companies Act 2016 or anything in the constituent documents of the member institution; and
(b)
shall not be required to make a take-over offer or be required to acquire the shares of the other shareholders of any member institution or the shares of borrowers under any borrowing and lending arrangements for shares, notwithstanding any rule of law, contract or anything in any law, and for the avoidance of doubt, a person, other than the Corporation or the appointed person or any subsidiary of the Corporation, shall be
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subject to the requirements, if any, of the relevant governmental, regulatory or other authority having jurisdiction over the acquisition by such person or the disposition to such person of any assets, liabilities or business of the member institution or part thereof.
(4)
Any member institution that fails to comply with any requirement of the Corporation pursuant to this section commits an offence and shall, on conviction, be liable to a fine not exceeding five million ringgit or to imprisonment for a term not exceeding five years or to both, and shall, in addition, be liable to a daily fine not exceeding fifty thousand ringgit for every day the offence continues after conviction.
(5)
The Corporation may transfer any asset or liability of a member institution to a bridge institution under this Part or cause a transfer back to the member institution of any asset or liability as the Corporation may determine—
(a)
by means of one or more transfer instruments; or
(b)
in accordance with general law.
(6)
A transfer instrument issued in accordance with the Second
Schedule shall have the effect set out in the Second Schedule and shall be binding on any person thereby affected.
(7)
Any exercise of the Corporation’s powers under this Part affecting any director, officer or employee of a member institution, including the removal of a director, officer or employee of the member institution or the variation or termination of the contract of service of any director, officer or employee of the member institution, shall be lawful and valid notwithstanding anything contained in any contract of service or other contract or agreement, whether express or implied, whether individual or collective, and whether or not made or provided for under any written law, and a person so removed from office or his contract of service so varied or terminated, shall not be entitled to claim any compensation for the loss or termination of office.
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Notice of assumption of control