Section 54 — MALAYSIAN AVIATION COMMISSION ACT 2015

(2)

For the purposes of this Division, a merger occurs if—

(a)

two or more enterprises, previously independent of one another, merge;

52 Laws of Malaysia ACT 771

(b)

one or more persons or enterprises acquire direct or indirect control of the whole or part of one or more enterprises;

(c)

the result of an acquisition by one enterprise (the first enterprise) of the assets (including goodwill), or a substantial part of the assets, of another enterprise (the second enterprise) is to place the first enterprise in a position to replace or substantially replace the second enterprise in the business or, as appropriate, the part concerned of the business in which that enterprise was engaged immediately before the acquisition; or

(d)

a joint venture is created to perform, on a lasting basis, all the functions of an autonomous economic entity.

(3)

For the purposes of this Division, control, in relation to an enterprise, shall be regarded as existing if, by reason of rights, contracts or any other means, or any combination of rights, contracts or other means, decisive influence is capable of being exercised with regard to the activities of the enterprise and, in particular, by—

(a)

ownership of, or the right to use all or part of, the assets of the enterprise; or

(b)

rights or contracts which enable decisive influence to be exercised with regard to the composition, voting or decisions of the enterprise.

(4)

For the purposes of this Division, control is acquired by any person or other enterprise if he or it—

(a)

becomes a holder of the rights or contracts, or entitled to use the other means, referred to in subsection (3); or

(b)

although not becoming such a holder or entitled to use those other means, acquires the power to exercise the rights derived therefrom.

(5)

In determining whether influence of the kind referred to in subsection (3) is capable of being exercised, regard shall be had to all

Malaysian Aviation Commission 53

the circumstances of the matter and not solely to the legal effect of any instrument, deed, transfer, assignment or other act done or made.

(6)

For the purposes of this Division, a merger shall not be deemed to occur if—

(a)

the person acquiring control is a receiver or liquidator acting as such or is an underwriter acting as such

(b)

all of the enterprises involved in the merger are, directly or indirectly, under the control of the same enterprise;

(c)

control is acquired solely as a result of a testamentary disposition, intestacy or the right of survivorship under a joint tenancy; or

(d)

control is acquired by an enterprise the normal activities of which include the carrying out of transactions and dealings in securities for its own account or for the account of others, in the circumstances specified in subsection (7).

(7)

The circumstances referred to in paragraph (6)(d) are as follows:

(a)

the control concerned is constituted by the enterprise’s holding, on a temporary basis, through the securities acquired in another enterprise; and

(b)

any exercise by the enterprise of voting rights in respect of those securities, whilst that control subsists—

(i)

is for the purpose of arranging for the disposal, within the specified period, of all or part of the other enterprise or its assets or securities; and

(ii)

is not for the purpose of determining the manner in which any activity of the other enterprise, being an activity that could affect competition in an aviation service market, is carried on.

54 Laws of Malaysia ACT 771

(8)

In subsection (7), “specified period” means—

(a)

the period of twelve months from the date on which control of the other enterprise was acquired; or

(b)

if in a particular case the enterprise shows that it is not reasonably possible to effect the disposal concerned within the period referred to in paragraph (a), within such longer period as the Commission determines and specifies with respect to that case.

Notification of anticipated merger