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The head of IMF Kristalina Georgieva warned that the coronavirus pandemic will turn global economic growth “sharply negative” this year.
The coronavirus outbreak is one of the greatest human tragedies affecting millions of people around the globe. It has a far-reaching impact on the global economy affecting businesses around the globe and creating several socio-economic hurdles around the world.
The dramatic effect of COVID-19 on the Malaysian economy has posed serious challenges for the country’s companies and their employees.
It poses a major risk for small businesses and companies going insolvent.
Small and medium-sized enterprises are the worst affected as there is a high risk of insolvency since the business is very limited as per the Movement Control Order imposed by the Malaysian Government.
Major casualties that are expected to arise out of the movement control order are tourism, hospitality and aviation sectors. The oil and gas industry will also take some time to come out of the crisis due to the very low price of crude oil at the moment.
Drastic steps must be undertaken to ensure the survival of SMEs as they play a key role in fuelling the Malaysian economy.
In Malaysia, companies that are in a major risk of insolvency due to COVID-19 crisis could look for debt restructuring which is one of the rescue options for businesses in Malaysia.
What is debt restructuring?
Debt restructuring is a remedy used by companies to avoid the risk of getting into too much debt or bankruptcy. This process includes agreeing or negotiating with the creditors to revise a repayment plan or to reduce the payment.
The restructuring process is often done when a person or company has incurred too much debt and is in grave danger of getting bankrupt.
The debt restructuring is beneficial to the borrower as it often results in a more flexible repayment schedule or a significant discount. The good thing about debt repayment is that this process is cheaper when compared to bankruptcy.
The restructuring of debt can bring about a win-win scenario for both the creditor and the borrower.
What are the types of restructuring?
Various rescue remedies can be found in the Companies Act 2016.
1.Corporate Voluntary Arrangement (“CVA”)
The CVA is a legal solution for the companies to enter into a restructuring agreement with its creditors. Under the CVA, the company appoints a nominee who is a qualified insolvency practitioner who will assist to assess the affairs of the company.
After carefully analyzing the company documents, the nominee will give his opinion on the following details:
- whether the company is likely to have sufficient funds available for continued operations.
- whether the proposed voluntary arrangement has a reasonable prospect of being approved and implemented.
- whether meetings should be held to consider the proposal.
The company then files its proposal to Court and is granted a period of 28 days of the moratorium. This can be further extended to a maximum period of 60 days (including the moratorium period )
To implement the CVA mechanism, following are needed:
- Approval of more than 50% of members is required.
- Approval of 75% in value of creditors present and voting.
2. Judicial Management (JM)
By appointment of a JM, the management of the company’s properties, affairs, and business is vested in the hands of the Judicial manager.
The appointment of the JM will be done by the court.
The Judicial manager is responsible for designing a restructured payment plan for the company that is under debt.
This service is available to companies that are facing insolvency or already insolvent. The judicial management is not applicable to public listed companies, i.e the companies that are subjected to the Capital Markets and Services Act 2007.
Once an application of JM is done in the court, an automatic moratorium will be enforced on all the suits against the company.
When compared to the Corporate Voluntary Arrangement (“CVA”), one benefit of JM is that here the moratorium is six months. This can be further extended for another six months.
The court-appointed JM will carefully study all the legal and financial documents of the company and put forward a statement of proposals regarding a restructured repayment of debt within 60 days, or a longer period if the court allows.
- This proposal requires the consent of 75% of the total creditors who are present through voting.
- If approved, it will be binding to all the creditors of the company, regardless of the fact whether they have voted or not.
- If the proposal is rejected, the court discharges the Judicial Management and the status of the company will remain as such before the JM order.
3. Scheme of Arrangement (SOA)
The Companies Act 2016 also allows companies to propose schemes of arrangement facilitated by a liquidator appointed by Court.
Like all similar mechanisms discussed above, this requires the consent of 75% of the total creditors who are present. The consent is expressed through voting.
Alternatively, SMEs and other companies could opt for a platform for debt restructuring designed by the Bank Negara Malaysia. It is popularly known as the Debt Restructuring Committee.
The committee discusses the details of the debt with the company and assists the company to enter into a debt restructuring agreement with the financier. For Bank Negara restructuring, there is no court intervention.
Corporate Rescue measures during Covid-19 Crisis
As a step to assist companies and small businesses during the Covid-19 crisis, the Malaysian government has requested financial organizations to assist the borrowers by restructuring the debt repayment plan.
The Bank Negara Malaysia has made an official announcement that individuals, as well as small and medium-sized enterprises, will be given a six months moratorium for repayment of loans.
The effect will be starting from 1 April 2020 under the following conditions.
- The loan(s) is not in arrears for a period exceeding 90 days as at 1 April 2020; and
- The loan(s) is denominated in Malaysian Ringgit.
The Bank Negara has also announced that all financial institutions have been directed to consider the requests made by companies to restructure the repayment plan.
The Companies Commission of Malaysia has announced that it will provide seven reliefs to companies to battle with the coronavirus outbreak.
1.Extension of time to hold Annual General Meetings
- The CCM has provided an additional extension of 90 days for the public companies to hold their Annual General Meetings.
- An application requesting for an extension can be made to the CCM through email.
- Payment for RM100 for an extension is waived.
2. A moratorium of 30 days for lodging Statutory Documents
The CCM has agreed to provide a 30-day moratorium from the last day of the MCO for the companies to submit statutory documents. This will be as under the Companies Act 2016 (CA 2016) and Limited Liability Partnerships Act 2012.
Payment of the late fee is not required for this.
3.Extension for lodging financial statements
The deadline for companies to submit their financial statements was from 1 September 2019 to 31 December 2019.
- The CCM has granted an extension of three months from the date the company had to submit their financial statements.
- The application for such an extension should be made via email.
- The late fee of RM 100 will not be levied for the application.
4.Extension of the deadline of 2020 compliance
The Companies Commission of Malaysia initiated the 2020 Compliance Campaign as per the Companies Act 2016 with several agendas. This includes:
- Ensuring that the information uploaded into the CCM database is up to date and readily available upon request
- Making sure that only active companies are registered in the CCM portal.
- Encouraging compliance as per the provisions of both the Companies Act 2016 (CA 1965) and CA 1965
The deadline is extended from 30 April to 30 June 2020. For some common offences (which comes under the companies act of 1965 & 2016), SSM will prove a compound reduction rate of 90% from the original value of the compound.
5. Extension for company secretaries to fulfil Continuing Professional Education (CPE) requirements
The CCM has extended the compliance period for company secretaries to fulfil their Continuing Professional Education (CPE) requirements. The extension is until 31 December 2020 and subject to certain terms and conditions.
6.Temporary protection in winding up of companies
As per the provisions given in the company’s act Malaysia, the winding up of a company can be initiated if the company could not pay back a minimum of RM 10,000. The company is given a period of 21 days to respond to a letter of demand has been served.
The creditor can file a winding-up petition if the company fails to respond.
To give a helping hand to companies that are struggling with COVID-19 crisis:
- The minimum amount of debt owed to issue a notice of demand has been increased to RM50,000.
- Instead of the 21-day period, the companies will be given a period of six months to negotiate or settle the amount owed to the debtor.
The CCM has given a brief FAQ for clarifications.
7.Exemption for companies Limited by Guarantee to accept donation without approval
As per the Malaysian law, Companies Limited by Guarantee (CLBG) need to obtain approval before receiving donations from the public.
For the companies Limited by Guarantee (CLBG) that are suffering from COVID-19 pandemic, CCM introduces an exemption from the need to obtain approval before soliciting donations.
The exemption is until 31 December 2020 and applicable for CLBGs which have been approved by the Inland Revenue Board of Malaysia (IRB).
Check FAQ of CCM website for further details.
With COVID-19 pandemic on the rise, the seven relaxation options given by the Companies Commission of Malaysia will act as a torchlight until this dark tunnel of crisis is crossed.