| 1) |
No person shall either orally or in writing (including any newspaper advertisement or any advertisement in a format) make an offer of shares for sale to the public or issue, distribute or publish any such material which in its form and context is calculated to be understood as an offer as aforesaid unless it is accompanied by a written statement containing the particulars required by this section to be included therein. |
| 2) |
The provisions of subsection (1) shall not apply- |
| a) |
if the shares to which the offer or material relates are shares which are listed by, or in respect of which permission to deal therein has been granted by, any stock exchange in the Republic recognized by the Minister by notice in the Gazette for the purposes of this section, and the person making the offer or publishing the material so states in writing, specifying the stock exchange: or |
| b) |
if the offer is made or the material is published only to persons- |
| i) |
whose ordinary business or part of whose ordinary business it is to deal in shares, whether as principals or agents; or |
| ii) |
who are at the time of the offer the holders of shares of the same company; or |
| c) |
in the case of an offer in his capacity as such, by an executor or administrator of a deceased estate or a trustee of an insolvent estate or a liquidator or trustee referred to in the Agricultural Credit Act, 1966 (Act No. 28 of 1966); or |
| d) |
if the offer is made or the material is published for the purpose of a sale in execution or by public auction or by public tender; or |
| e) |
if the said offer is accompanied by a prospectus registered under Chapter VI of this Act. |
| 3) |
The said written statement shall be dated and signed by the person or persons making the offer or issuing, distributing or publishing the said material, and if such person is a company, by every director thereof. |
| 4) |
The written statement aforesaid shall not contain any matter other than the particulars required by this section to be included therein, and shall not be in characters less large or less legible than any characters used in the offer (if in writing) or in any document accompanying such statement. |
| 5) |
The said written statement shall contain particulars with respect to the following matters : |
| a) |
Whether the person making the offer is acting as principal or agent and, if as agent, the name of his principal and an address in the Republic where that principal can be served with process, and the nature and extent of the remuneration received or receivable by the agent for his services; |
| b) |
the date on which and the country in which the company was incorporated and the address of its registered office in the Republic or, if there is no such address, the address of its principal office abroad; |
| c) |
the share capital of the company and the number of shares which have been issued, the classes into which it is divided and the rights of each class of shareholders in respect of capital, dividends and voting and the number and amount of shares issued for cash and the number and amount thereof issued for a consideration other than cash, and the dates on which and the prices at which or the consideration for which such shares were issued; |
| d) |
the dividends, if any, paid by the company on each class of shares during each of the five financial years immediately preceding the offer, and if no dividend has been paid in respect of shares of any particular class during any of those years, a statement to that effect; |
| e) |
the total amount of any debentures issued by the company and outstanding at the date of the statement, together with the rate of interest payable thereon; |
| f) |
the names and addresses of the directors of the company; |
| g) |
whether or not the shares are listed or permission to deal therein has been granted by any stock exchange other than that referred to in subsection (2) (a), and, if so, which, and, if not, a statement that they are not so listed or that no such permission has been granted; |
| h) |
if the offer relates to units, particulars of the names and addresses of the persons in whom the shares represented by the units are vested, the date of and the parties to any document defining the terms on which those shares are held, and an address in the Republic where that document or a copy thereof can be inspected; |
| i) |
the dates on which and the prices at which the shares offered were originally issued by the company, and were acquired by the person making the offer or by his principal, giving the reasons for any difference between such prices and the prices at which the shares are being offered; |
| j) |
if the shares were issued as partly paid-up shares under the repealed Act, to what extent they are paid-up; |
| k) |
the date of registration of the written statement by the Registrar. |
In this subsection the expression "company" means the company by which the shares to which the statement relates were issued.
| 6) |
There shall be annexed to the said statement a copy of the last annual financial statements of the company and subsequent interim report and provisional annual financial statements, if any. |
| 7) |
Where the offer referred to in subsection (1) is in respect of shares of a public company, a copy of the written statement shall be lodged with the Registrar for registration before it is issued, distributed or published, and no such statement shall be issued, distributed or published more than three months after the date of such registration. |
| 8) |
If any person acts in contravention of any provision of this section, he shall be guilty of an offence, and if such person is a body corporate, every director and officer of that body corporate shall be guilty of the like offence unless he proves that the act constituting the offence took place without his knowledge or consent. |
| 9) |
If any person is convicted of having made an offer in contravention of any of the provisions of this section, the Court by which he is convicted, may order that any contract made as a result of the offer shall be void, and where it makes any such order, may give such consequential directions as it thinks proper for the repayment of any money or the retransfer of any shares. |
| 10) |
In this section, unless the context otherwise indicates, the expression "offer" includes an invitation to make an offer to purchase, the expression "shares" means the shares of a company, whether a company within the meaning of this Act or not, and includes debentures and units, and the expression "unit" means any right or interest (by whatever name called) in a share, and for the purposes of this section a person shall not, in relation to a company, be regarded as not being a member of the public by reason only that he is a holder of shares of the company or a purchaser of goods from the company. |
Implementation of Geneva Conventions Act, 2012
