A scheme of arrangement is now included within the definition of a takeover offer under the Malaysian Code on Take-Overs and Mergers 2016. This mechanism is often used to organise corporate exercise, which include a reorganization of its share capital, rights and liabilities of members, and transfer the assets of one company to another. Furthermore this also be used as an alternative to a takeover bid to effect a change of control,or merger or amalgamation, of companies. The use to structure a takeover is one of the most common uses of as an alternative to a takeover offer.A scheme of arrangement is often preferable to a judicial management in various situations which includes; (i) Where the company wishes to avoid publicity of its financial woes; (ii) Where the company directors are unwilling to cede control over the company to the judicial manager; and/or (iii) Where the company and/or the creditors seek to leverage the possible orders that the Court may grant in order to achieve their desired ends. There are a few importance of scheme of arrangement.
Firstly it will not require 100% approval from the creditors. In addition, this will avoid the costs and uncertainty of bankruptcy, as if this failed to reach the requisite majority vote, there will not be an automatic bankruptcy. As mentioned earlier, the management of company will not be restricted while the scheme is undertaken.
As to why it is preferable to judicial management, this scheme avoids the costs of a judicial manager or planner. One of the advantage is that the Court’s power to order compromise or arrangement with creditors and members even though some creditors may not agree with the scheme of arrangement. So long as the said voting of 75% is met, the creditors are forced to accept the arrangement. Lastly there is the advantage of S.368 which allows the Court to restrain proceedings or actions against a company whilst it seeks a compromise with its creditors.
This allows companies to seek protection while undertaking this scheme.