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

Companies Regulations, 2011

Chapter 5 : Fundamental Transactions and Takeover Regulations

Part A : Interpretation and Application

81. Definitions

 

 

In this Chapter, and in applying Part B and Part C of Chapter 5 of the Act, unless the context indicates otherwise—

 

(a) "acquisition" includes any act or transaction as a result of which a person acquires or has an increased voting power in a company, irrespective of whether that person acquired any securities of the company in or as a result of that act or transaction;

 

(b) "announce",
(i) in the case of a company listed on an exchange, means disclosure in the manner required by that exchange for immediate public release after receiving Panel approval; or
(ii) in any other case, means disclosure in the manner determined by the Panel;

 

(c) "circular" means a document issued by a company, to holders of its securities, for the purpose of compliance with Part B and Part C of Chapter 5 of the Act and this Chapter;

 

(d) "condition as to acceptance" means a condition of an offer, announced in a firm intention announcement, relating to the minimum percentage of securities required to be tendered by holders of the securities of the offeree regulated company before the offeror will be obliged to accept all tendered securities, but does not include a condition relating to the ability of an offeror to meet its cash consideration commitment;

 

(e) "control" means the holding of a beneficial interest in a regulated company equal to or exceeding the specified percentage of voting rights in that regulated company;

 

(f) "controlled company" means a regulated company that is controlled, directly or indirectly, by its pyramid;

 

(g) "dealings" includes acquisitions, disposals, subscriptions, grants and issues of securities, however effected;

 

(h) "fair and reasonable opinion" means an opinion, expressed by an independent expert on the fairness and reasonableness of the consideration for an offer taking account of value and price, given to either—
(i) the independent board; or
(ii) an independent board of an offeror company, if required;

 

(i) "independent" or "acts independently", when used in relation to a particular person and a particular offer, means a person who—
(i) has no conflict of interest in relation to that offer; and
(ii) is able to make impartial decisions in relation to that offer without fear or favour;

 

(j) "independent board'' means those directors of an offeree regulated company whom that company has indicated are independent directors;

 

(k) "independent board of an offeror company" means those directors of an offeror company whom that company has indicated are independent directors;

 

(l) "independent director" means a director who acts independently;

 

(m) "independent expert" means an independent expert as described in Section 114 (2) of the Act;

 

(n) "material" means an amount equal to or greater than 10% of the value of any subject matter in relation to an offer;

 

(o) "offeree regulated company" means either—
(i) each amalgamating or merging company that is party to an amalgamation or merger agreement; or
(ii) a regulated company—
(aa) that is itself the subject of an offer; or
(bb) the securities of which are entirely or partially the subject of an offer;

 

(p) "offeror" means a person who, alone or in concert with another person, enters into or proposes any affected transaction, including, but not limited to—
(i) a person offering to acquire the assets or undertaking of a company, as contemplated in section 117 (1)(c)(i);
(ii) an amalgamating or merging company or any new company to be formed by the amalgamating or merging companies that is proposed to survive as an amalgamated or merged company, in terms of an amalgamation or merger agreement contemplated in section 117 (1)(c)(ii);
(iii) a person other than the offeree regulated company concerned who, with the co-operation of that company, proposes to acquire securities of that company in terms of a scheme of arrangement contemplated in Section 117 (1)(c)(iii); and
(iv) a person offering to acquire securities in accordance with Sections 117 (1)(c)(v),(vi) or (vii);

 

(q) "option" includes any right similar to an option, given or granted by a regulated company, irrespective of—
(i) whether that right is vested or not; or
(ii) whether that right is granted or given in terms of any formalised—
(aa) share incentive scheme;
(bb) phantom scheme;
(cc) share participation rights scheme that has rights that could be equity settled; or
(dd) agreement with any person that has rights that could be equity settled;

or otherwise;

 

(r) "other condition" means any condition of an offer other than—
(i) a condition as to acceptance; or
(ii) a condition relating to the ability of an offeror to meet its cash consideration commitment;

 

(s) "phantom scheme" means a company plan or scheme in terms of which employees are granted a right to receive an amount of cash at a certain time, based on the performance of the share price of the company;

 

(t) "prescribed percentage" means the percentage contemplated in section 123 (5), and prescribed in regulation 86 (1);

 

(u) "price sensitive information" means any information that satisfies the definition of—
(i) 'price sensitive information' as set out in the JSE Listings Requirements as amended from time to time; or
(ii) 'inside information' as set out in the Securities Services Act, 2004.

 

(v) "publish" means announce, despite the meaning set out in regulation 1;

 

(w) "pyramid" means the ultimate controlling juristic person, or any intermediate juristic person that, directly or indirectly, holds at least the specified percentage of a controlled company and after applying consolidation accounting principles (irrespective of whether consolidation principles should be applied or not) either—
(i) derives more than 75% of its total attributable income from that controlled company; or
(ii) the attributable net assets in that controlled company represent more than 75% of the total attributable net group assets of the pyramid;

 

(x) "reporting accountant"—
(i) in the case of listed securities, has the meaning set out in the JSE listing requirements, as amended from time to time; or
(ii) in any other case, means an auditor;

 

(y) "ruling" means a written decision issued by the Executive Director with respect to a possible affected transaction, proposed affected transaction or affected transaction;

 

(z) "SAMVAL code" means the South African Code for Reporting of Mineral Asset Valuation.