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

Companies Regulations, 2011

Chapter 5 : Fundamental Transactions and Takeover Regulations

Part D : Duties and Conduct of Offeree and Directors

111. Securities dealings, pricing, confirmations and general requirements

 

 

(1) Except for prohibited acquisitions in terms of Section 127 (2)(b), an acquisition of securities in an offeree regulated company, that is or may be the subject of an offer, may be made before or during an offer period without Panel consent.

 

(2) If an offer is made and the offeror, or any person acting in concert with the offeror, has acquired relevant securities in the offeree regulated company within the six month period before the commencement of the offer period, the offer consideration, per security, to the offeree regulated company's holders of securities of the same class must be—
(a) identical to, or where appropriate, similar to, the highest consideration paid, excluding commission, tax and duty, for those acquisitions; and
(b) accompanied by a cash consideration, at not less than the highest cash consideration paid per security, excluding commission, tax and duty, if securities that carry 5% or more of the voting rights currently exercisable at a class meeting of that class were acquired for cash.

 

(3) If the offeror considers that the highest consideration per relevant security paid ought not to apply in a particular case, the offeror may consult the Panel, which in its discretion may agree to an adjusted offer consideration.

 

(4) When an offer consideration is wholly or partly in cash, the offeror offer circular must include a statement, a copy of which must have been provided to the Panel, including—
(a) an irrevocable unconditional guarantee issued by a South African registered bank; or
(b) an irrevocable unconditional confirmation from a third party that sufficient cash is held in escrow;

in favour of the holders of relevant securities for the sole purpose of fully satisfying the cash offer commitments.

 

(5) A guarantee or confirmation contemplated in sub-regulation (4) must be written in a form that empowers the Panel to exercise the guarantee or confirmation, in whatever manner is required, on behalf of all holders of relevant securities once all conditions have been satisfied, if the offeror and its concert parties have failed to pay the cash consideration owing to holders of relevant securities entitled thereto by the due date.

 

(6) If, after the firm intention announcement and before the offer closes, an offeror or any person acting in concert with it acquires relevant securities in the offeree regulated company at above the offer consideration per relevant security, the offeror must—
(a) increase the offer consideration per security to not less than the highest consideration paid for the securities so acquired; and
(b) immediately announce the revised offer consideration per relevant security and relevant dates, which announcement must be posted to the offeree regulated company's relevant securities holders.

 

(7) An offeror may require a holder of relevant securities of an offeree regulated company, to give the offeror a proxy to vote in respect of those securities, as a stated term of acceptance, until the acceptance is withdrawn in terms of Regulation 105, and such a proxy may be exerciseable—
(a) on all matters in order to satisfy any announced conditions of the offer, if the offer is conditional; or
(b) on all matters, if the offer is unconditional.

 

(8) Parties to an offer must take care not to issue statements that, while not factually inaccurate, may mislead holders of relevant securities and the market or may create uncertainty.

 

(9) If a profit forecast or estimate is made on or after the date of publication of a firm intention announcement—
(a) by an offeree regulated company, involved in an offer, on itself or on the offeror; or
(b) by an offeror, involved in an offer, on itself or on the offeree regulated company;

any such forecast must be prepared in accordance with the Forecast Guide and reported upon by an auditor, or a similar professional registered with regulatory or professional body for auditors in another jurisdiction.

 

(10) For the purpose of sub-regulation (9), "forecast(s)"—
(a) has the meaning defined in the Revised Guide on Forecasts issued by the South African Institute of Chartered Accountants ("SAICA"), as amended from time to time ("the Forecast Guide")); and
(b) includes trading statements, general forecasts and specific forecasts as defined in the JSE Listings Requirements, as amended from time to time.