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

Chapter 4 : Public Offerings of Company Securities

99. General restrictions on offers to public

 

 

1) A person must not offer to the public any securities of any person unless that second person—
a) is a company; and
b) in the case of a foreign company, a copy of its Memorandum of Incorporation or comparable governing document, and a list of the names and addresses of its directors, has been filed within 90 business days before the offer to the public is made.

 

2) A person must not make an initial public offering unless that offer is accompanied by a registered prospectus.

 

3) Except with respect to securities that are the subject of a company’s initial public offering, a person must not make a—
a) primary offer to the public of any—
i) listed securities of a company, otherwise than in accordance with the requirements of the relevant exchange; or
ii) unlisted securities of a company, unless the offer is accompanied by a registered prospectus that satisfies the requirements of section 100; or
b) secondary offer to the public of any securities of a company, unless the offer satisfies the requirements of section 101.

 

4) A person must not issue, distribute, deliver or cause to be issued, distributed or delivered a letter of allocation unless it is accompanied by all documents that are required, and have been—
a) filed, in the case of unlisted securities; or
b) approved by the relevant exchange, in the case of listed securities.

 

5) Subject to subsection (6), a person must not issue, distribute or deliver or cause to be issued, distributed or delivered, any form of application in respect of securities of a company, unless the form—
a) is accompanied by—
i) a registered prospectus in the case of a primary offering; or
ii) a written statement that satisfies the requirements of section 101, in the case of a secondary offering; and
b) bears on the face of it the date on which the prospectus in respect of those securities was filed.

 

6) Subsection (5) does not apply if the form of application was issued either—
a) in connection with a genuine invitation to enter into an underwriting agreement with respect to the securities; or
b) in relation to securities that were not offered to the public.

 

7) Despite anything contained in a company’s Memorandum of Incorporation, the company may exclude from any rights offer any category of holders of the company’s securities who are not resident within the Republic—
a) if the Commission has approved that exclusion in advance, on application by the company in the prescribed manner and form on the grounds that the number of those persons is insignificant relative to—
i) the number of existing holders of the company’s securities who are resident within the Republic; and
ii) the administrative cost and inconvenience of extending the rights offer to them; and
b) subject to any conditions attached to the approval contemplated in paragraph (a).

 

8) A person must not issue a prospectus or a document that purports to be a prospectus, or a document that may reasonably be misapprehended to be intended as a prospectus, unless it is a registered prospectus.

 

9) A prospectus may not be registered unless the requirements of this Act have been complied with and it has been filed for registration, together with any prescribed documents, within 10 business days after the date of that prospectus.

 

10) As soon as the Commission has registered a prospectus, it must send notice of the registration to the person who filed the prospectus for registration.

 

11) A prospectus may not be issued more than three months after the date of its registration, and if a prospectus is so issued, it is regarded to be unregistered.