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

Chapter 4 : Public Offerings of Company Securities

96. Offers that are not offers to public

 

 

1) An offer is not an offer to the public—
a) if the offer is made only to—
i) persons whose ordinary business, or part of whose ordinary business, is to deal in securities, whether as principals or agents;
ii) the Public Investment Corporation as defined in the Public Investment Corporation Act, 2004 (Act No. 23 of 2004);
iii) a person or entity regulated by the Reserve Bank of South Africa;
iv) an authorised financial services provider, as defined in the Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002);
v) a financial institution, as defined in the Financial Services Board Act, 1990 (Act No. 97 of 1990);
vi) a wholly-owned subsidiary of a person contemplated in subparagraph (iii), (iv) or (v), acting as agent in the capacity of an authorised portfolio manager for a pension fund registered in terms of the Pension Funds Act, 1956 (Act No. 24 of 1956), or as manager for a collective investment scheme registered in terms of the Collective Investment Schemes Control Act, 2002 (Act No. 45 of 2002); or
vii) any combination of persons contemplated in paragraphs (i) to (vi);
b) if the total contemplated acquisition cost of the securities, for any single addressee acting as principal, is equal to or greater than the amount prescribed in terms of subsection (2)(a);
c) if it is a non-renounceable offer made only to—
i) existing holders of the company’s securities; or
ii) persons related to existing holders of the company’s securities; or
d) if it is a rights offer that satisfies the prescribed requirements, and—
i) an exchange has granted or has agreed to grant a listing for the securities that are the subject of the offer; and
ii) the rights offer complies with any relevant requirements of that exchange at the time the offer is made;
e) if the offer is made only to a director or prescribed officer of the company, or a person related to a director or prescribed officer, unless the offer is renounceable in favour of a person who is not a director or prescribed officer of the company or a person related to a director or prescribed officer;
f) if it pertains to an employee share scheme that satisfies the requirements of section 97; or
g) if it is an offer, or one of a series of offers, for subscription, made in writing, and—
i) no offer in the series is accompanied by or made by means of an advertisement and no selling expenses are incurred in connection with any offer in the series;
ii) the issue of securities under any one offer in the series is finalised within six months after the date that the offer was first made;
iii) the offer, or series of offers in aggregate, is or are accepted by a maximum of fifty persons acting as principals;
iv) the subscription price, including any premium, of the securities issued in respect of the series of offers, does not exceed, in aggregate, the amount prescribed in terms of subsection (2)(a); and
v) no similar offer, or offer in a series of offers, has been made by the company within the period prescribed in terms of subsection (2)(b) immediately before the offer, or first of a series of offers, as the case may be.

 

2) The Minister, by notice in the Gazette, may prescribe—
a) a value of not less than R100 000, to be the minimum value for the purposes of subsection (1)(b) and the maximum value for the purposes of subsection (1)(g)(iv); and
b) a minimum period for the purposes of subsection (1)(g)(v), which must not be less than six months.