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

Chapter 5 : Fundamental Transactions, Takeovers and Offers

Part C : Regulation of affected transactions and offers

125. Comparable and partial offers

 

 

1) In this section—
a) ‘‘independent holder of voting rights’’ mean a person who—
i) holds any securities of a company that entitle that person to exercise general voting rights; and
ii) is independent of an offeror or any related or inter-related person, or person acting in concert with any of them; and
b) ‘‘prescribed percentage’’ means the percentage prescribed in terms of section 123(5).

 

2) If—
a) a regulated company that has more than one class of issued securities re-acquires any of its voting securities of a particular class or one or more particular classes, as contemplated in section 48 or in terms of a scheme of arrangement contemplated in section 114 and, as a result, a person or a number of related persons hold securities of the company entitling the person or persons to exercise more than the prescribed percentage of the general voting rights associated with all the issued securities of the company; or
b) a person acting alone, or two or more persons acting in concert, make an offer for any securities of a regulated company that has more than one class of issued securities, which, if accepted, could result in a person, or a number of related or inter-related persons holding securities of the company entitling the person or persons to exercise more than the prescribed percentage of the general voting rights associated with all issued securities of the company,

that person or those persons acting in concert must make a comparable offer to acquire securities of each class of issued securities of that company.

 

3) A person making a partial offer for any class of issued securities of a company must—
a) make the offer to all of the holders of that class of securities;
b) if the offer could result in the person, together with any related or inter-related person or person acting in concert with any of them, holding securities of the company entitling the person or persons to exercise more than the prescribed percentage of the general voting rights of all issued securities of the company, make the offer conditional on—
i) a specified number of acceptances being received; and
ii) the offer being approved by the independent holders of issued securities of that class, if all such independent holders, in aggregate, control more than 50% of the general voting rights of all issued securities of that class;
c) state in the offer the precise number of shares offered for, if the offer could result in the person, together with any related or inter-related person or person acting in concert with any of them, holding securities of the company entitling the persons or persons to exercise more than the prescribed percentage, but less than 50%, of the general voting rights of all issued securities of the company; and
d) if the offer could result in the person, together with any related or inter-related person or person acting in concert with any of them, holding securities of the company entitling the person or persons to exercise more than the prescribed percentage of the general voting rights of all issued securities of the company, include a specific and prominent notice that the offer could result in such circumstances.

 

4) An offer that is conditional, as contemplated in subsection (3)(b), may not be declared to be unconditional as to acceptances unless it has been accepted to the extent specified in terms of subsection (3)(b)(i).

 

5) If a partial offer has been made for a class of securities—
a) any holder of those securities is entitled to accept the offer in full for the relevant percentage of that person’s holding; and
b) any securities tendered in excess of the relevant percentage must be accepted by the offeror from each holder of securities in the same proportion to the number tendered as will enable the offeror to obtain the total number of shares for which it has offered.