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

Companies Regulations, 2011

Chapter 5 : Fundamental Transactions and Takeover Regulations

Part C : Announcements and Offers

106. Circulars

 

 

(1) An offeror offer circular relating to a general offer, mandatory offer or partial offer is the responsibility of the offeror.

 

(2) A combined offer circular relating to a general offer, mandatory offer or partial offer is the responsibility of both the offeror and the independent board.

 

(3) An offer circular relating to a Section 117 (1)(c)(i) disposal, Section 117 (1)(c)(ii) amalgamation or merger, or section 117 (1)(c)(iii) scheme of arrangement, is the—
(a) responsibility of the independent board, if the proposed affected transaction is for acquisition of 100% of the beneficial interest in, or 100% of the assets or undertaking of, the offeree company, by an offeror payable in cash or cash equivalents;
(b) responsibility of the independent board and the offeror, if the proposed affected transaction is for acquisition of 100% of the beneficial interest in, or 100% of the assets or undertaking of, the offeree company, by an offeror payable in offeror securities; or
(c) responsibility of the independent board and the offeror, if the proposed affected transaction is for acquisition of less than 100% of the beneficial interest in, or less than 100% of the assets or undertaking of, the offeree company, by an offeror payable in offeror securities.

 

(4) An offeror offer circular must contain—
(a) the same disclosure contents as required in—
(i) regulation 101(7)(a); and
(ii) regulation 101(7)(b ), excluding pro forma per security disclosure;
(b) the reasons for the offer and the offeror's intentions regarding the continuation of the business of the offeree regulated company and the continuation in office of the directors of the offeree regulated company;
(c) statements of direct and indirect beneficial interests in or holdings of securities, or actions to be effected, or a negative statement if there are no such interests or holdings—
(i) by the offeror, including separate disclosure of concert party holdings, in the offeree regulated company;
(ii) by directors or equivalent of the offeror in the offeror's securities and in any of the offeree regulated company's securities;
(iii) in the offeror and in the offeree regulated company by any person who, before the offeror offer circular was posted, was irrevocably committed—
(aa) to accept or to reject the offer; or
(bb) to vote in favour of or against the offer,

together with the name of each such person;

(d) whether and in what manner the remuneration of the offeree regulated company's directors will be affected by the offer or by any other associated transaction, or a statement that there will be no such effect, if that is the case;
(e) a statement indicating whether or not any agreement exists between the offeror, or any person acting in concert with the offeror, and—
(i) the offeree regulated company;
(ii) any of the directors of the offeree regulated company, or persons who were directors within the preceding 12 months of the offeree regulated company; or
(iii) holders of offeree regulated company securities, or persons who were holders thereof within the preceding 12 months, if the agreement is considerd to be material to a decision regarding the offer to be taken by the holders or offeror holders;

and material terms of any such agreement;

(f) all pertinent dates and times having relevance to a full understanding of the offer;
(g) the fair and reasonable opinion provided in conformity with the applicable disclosure requirements in regulation 90;
(h) a statement to the effect that settlement of the offer consideration to which any holder is entitled under the offer will be implemented in full in accordance with the terms of the offer without regard to any lien, right of set-off, counterclaim or other analogous right to which the offeror may otherwise be, or claim to be, entitled against such holder; and
(i) a statement—
(i) that the offeror accepts responsibility for the information contained in the offeror offer circular; and
(ii) that to the best of the offeror's knowledge and belief, the information contained in the offeror offer circular is true; and
(iii) where appropriate, that the circular does not omit anything likely to affect the importance of the information.

 

(5) If any director or equivalent of the offeror is excluded from the statement required by sub-regulation (4)(i), the circular must note that omission and the reasons for it.

 

(6) In addition to the requirements of sub-regulations (4) and (5), a circular must also include—
(a) the details, including volumes, dates and prices, of any dealings in the securities in question, if any party whose holdings of securities are required to be disclosed by this regulation has dealt for value in the securities in question during the period beginning six months before the offer period and ending with the latest practicable date before the posting of the offeror offer circular;
(b) the offeror board opinion after taking account thereof, if the offer consideration comprises wholly or partly offeror securities as contemplated in regulation 110(10);
(c) a description of the financing arrangements entered into by the offeror, including capital amount, interest rate, security given, period and repayment terms, if the offer is highly-leveraged, such that, as a result of the offer, the offeror will incur a high level of debt and the payment of interest, repayments or security for the debt will substantially depend on the business of the offeree regulated company; and
(d) if the offer consideration consists wholly or partly of offeror securities—
(i) the annual frnancial statements of the offeror for the last three financial periods; and
(ii) an audit reviewed pro forma balance sheet and pro forma income statement, and pro forma earnings and assets per security, as at the last financial year end, assuming a 100% successful offer result.

 

(7) An offeree response circular must contain the following disclosures and information by the independent board—
(a) The independent board's views on the offer and offer consideration, and its views of any other offers received during the offer period or within six months before the offer period;
(b) a comment on the statements contained in the offeror offer circular, insofar as is relevant;
(c) the following financial information:
(i) the annual financial statements of the offeree regulated company for the last three financial years and, if completed, the latest interim results, in IFRS interim reporting format without audit review; and
(ii) an auditor reviewed pro forma income statement and balance sheet, as at the last financial year end of the offeree regulated company, and the pro forma effects per offeree regulated company security, if the offeree regulated company holders will continue to hold some form of security after the offer;
(d) statements of direct and indirect beneficial interests in, or holdings of, securities, or actions to be effected—
(i) by the offeree regulated company in the offeror;
(ii) by directors of the offeree regulated company in the offeror and in any of the offeree regulated company's securities;
(iii) in the offeror and in the offeree regulated company by any person who, before the posting of the offeree response circular, was irrevocably committed—
(aa) to accept or to reject the offer; or
(bb) to vote in favour of or against the offer,

together with the name of each such person;

(iv) the details, including volumes, dates and prices of any dealings by any party whose holdings of securities are required to be disclosed by this regulation, if that person has dealt for value in the securities in question during the period beginning six months before the offer period and ending with the latest practicable date before the posting of the offeree response circular;

or a negative statement if there are no such holdings;

(e) material particulars of any service contract of any director or proposed director of the offeree regulated company with the offeree regulated company, or with any of its subsidiaries, or a statement that there are no such contracts, if that is the case;
(f) particulars of service contracts entered into or amended within six months before the date of the offer period, or a statement that there are no such contracts, if that is the case;
(g) a statement indicating whether or not any agreement exists between the offeree regulated company and—
(i) the offeror or any of its concert parties;
(ii) any of the directors or equivalent of the offeror, or persons who were directors or equivalent within the preceding 12 months; or
(iii) holders of offeror securities or a beneficial interest in the offeror, or persons who were holders thereof or interested therein within the preceding 12 months if the agreement is considered to be material to a decision regarding the offer to be taken by the holders or offeror holders;

and material terms of any such agreement;

(h) the fair and reasonable opinion provided, in conformity with the applicable disclosure requirements in regulation 90 and the independent board opinion after taking account thereof in compliance with regulation 110;
(i) a statement indicating whether the directors of the offeree regulated company intend, in respect of their own beneficial holdings of relevant securities, to accept or to reject the offer, or to vote in favour of or against the offer; and
(j) a statement—
(i) that the independent board accepts responsibility for the information contained in the offeree response circular;
(ii) that to the best of its knowledge and belief, the information contained in the offeree response circular is true; and
(iii) that the report does not omit anything likely to affect the importance of such information.

 

(8) If any director of the independent board is excluded from a statement required by sub-regulation (7)(j), the omission and the reasons for it must be stated in the offeree response circular.

 

(9) A combined offer circular must contain the information required by sub-regulations (4) to (8).

 

(10) Circulars subsequently sent to holders by an offeror or offeree regulated company must contain details of any material changes to previously published information contained in an earlier circular, or a statement that there has been no material change.

 

(11) The following documents must lie for inspection at the offeror or offeree regulated company's registered office, or both, as applicable, from the date of posting of a circular until the end of the offer period—
(a) the auditor's report and consent letter, if a forecast has been made;
(b) the audit review opinion and consent letter, if pro forma information has been disclosed;
(c) any document evidencing an irrevocable commitment to accept or to reject or vote in favour of or against an offer;
(d) the respective memorandum of incorporation of the offeree regulated company and of the offeror, if the offer consideration includes offeror securities; and
(e) the issued annual financial statements for the last three completed financial years of-
(i) the offeree regulated company; and
(ii) the offeror company, if the offer consideration includes offeror securities.
(f) Any document which is required to assist shareholders to make an informed decision on the merits or demerits of an affected transaction or offer and without limiting the generality of the aforegoing, such documents includes property valuation reports, Competent Persons Reports compiled in accordance with SAMVAL code and Share Incentive Scheme Trust Deeds.