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Companies Act, 2008 (Act No. 71 of 2008)

Chapter 4 : Public Offerings of Company Securities

100. Requirements concerning prospectus

 

 

1) This section does not apply in respect of listed securities, except listed securities that are the subject of an initial public offering.

 

2) Every prospectus is subject to the requirements and provisions of sections 102 to 111 and, in addition, must—
a) contain all the information that an investor may reasonably require to assess—
i) the assets and liabilities, financial position, profits and losses, cash flow and prospects of the company in which a right or interest is to be acquired; and
ii) the securities being offered and rights attached to them; and
b) adhere to the prescribed specifications.

 

3) The date of registration of a prospectus is the date of the issue of the prospectus unless the contrary is proven.

 

4) A prospectus must not be registered unless there is attached to it—
a) a copy of any material agreement as prescribed; or
b) in the case of an unwritten agreement, a memorandum giving full particulars of the agreement.

 

5) If any part of an agreement contemplated in subsection (4) is in a language that is not an official language, a certified translation, in an official language, of that part must be attached to the agreement.

 

6) A prospectus containing a statement to the effect that the whole or any portion of the issue of the securities offered to the public has been or is being underwritten may not be registered until a copy of the underwriting agreement has been filed, together with a sworn declaration stating that to the best of the deponent’s knowledge and belief the underwriter is and will be in a position to carry out the obligations contemplated in the agreement even if no shares are being applied for.

 

7) A declaration contemplated in subsection (6) must be sworn by the person named as underwriter or, if the underwriter is a company, by each of two directors of that company, or if it has only one director, by that director.

 

8) If an offer is made in respect of which no prospectus is required by this Act, the copy of the agreement and sworn declaration referred to in subsection (6) must be filed not later than the date of the proposed offer of shares.

 

9) The Commission, or an exchange in the case of listed securities, on application may allow required information to be omitted from a prospectus, if the Commission or exchange is satisfied—
a) that publication of the information would be unnecessarily burdensome for the applicant, seriously detrimental to the company whose securities are the subject of the prospectus, or against public interest; and
b) that users will not be unduly prejudiced by the omission.

 

10) An application under subsection (9) must be in writing and accompanied by the prescribed fee.

 

11) As long as an initial public offering or other primary offering to the public of unlisted securities remains open, any person responsible for information in the prospectus must, when that person becomes aware of it—
a) correct any error;
b) report on any new matter; and
c) report on any change of a matter included in the prospectus, provided these are relevant or material in terms of this Chapter.

 

12) A correction or report under subsection (11) must be registered as a supplement to the prospectus, simultaneously published to known recipients of the prospectus and included in future distributions of the prospectus.

 

13) If a correction or report has been published, as contemplated in subsections (11) and (12)—
a) any person who subscribed for the issue of shares as a result of the offer, before the date of that publication, may withdraw the subscription by written notice within 20 business days after the date of publication;
b) the offer or, upon receipt of a notice in terms of paragraph (a), may either—
i) accept the withdrawal, and restore to the person any consideration already paid in respect of the subscription; or
ii) apply to the court for an order in terms of paragraph (c); and
c) the court, on an application in terms of paragraph (b)(ii), may make any order that is just and equitable in the circumstances including, but not limited to, an order—
i) negating the right of the subscriber to withdraw the offer; or
ii) to reverse any transaction, or restore any consideration paid or benefit received by any person in terms of the offer and subscription.