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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

84. Acting in concert

 

 

(1) In addition to the presumption set out in section 118 (5), the following persons are presumed to be acting in concert with one another:
(a) a company, with:
(i) any of its directors;
(ii) any company controlled by one or more of its directors;
(iii) any trust of which any one or more of its directors is a beneficiary or a trustee; and
(b) any of the company's pension, provident or benefit funds and share incentive schemes with one another.

 

(2) If the Panel is aware of persons coming into concert or coming out of concert, and those persons have not declared themselves as having come into concert or coming out of concert in accordance with this regulation, the Panel may presume those persons came into concert or came out of concert from a date determined by the Panel as being the date of coming into concert or coming out of concert.

 

(3) A presumption that two or more persons are acting in concert, coming into concert or coming out of concert in terms of section 118 (5), or this regulation, is rebuttable in a hearing before the Executive Director on application by any such person.

 

(4) After a hearing in terms of sub-regulation (3)—
(a) the Executive Director must issue a Ruling, which will be binding on all persons concerned; and
(b) if any person concerned does not comply with the Ruling, the Panel may reissue it immediately as a compliance notice.

 

(5) Within five business days after coming into concert, or coming out of concert, each person involved must make a declaration, in Form TRP 84, and deliver it to the regulated company concerned, and to the Executive Director.

 

(6) Any compliance obligation applicable to an offeror applies equally to any person acting in concert with the offeror.

 

(7) Persons who are acting in concert are not, for that reason alone, required to make a mandatory offer, if—
(a) at the time of corning into concert, each of them was entitled to exercise voting rights which were less than the prescribed percentage; and
(b) as a result of coming into concert they are entitled, in aggregate, to exercise voting rights exceeding the prescribed percentage; and
(c) none of them has acquired any further securities as defined in Section 117 (1)(i).

 

(8) A presumption that two persons have "acted in concert", as a result of one of them granting an option to the other, as contemplated in Section 118 (5), even though not rebutted in terms of Section 118 (6), does not give rise to an obligation to make a mandatory offer—
(a) for the duration of the option if—
(i) at the date the option was granted, each of them was entitled to exercise voting rights that were less than the prescribed percentage;
(ii) as a result of coming into concert they are entitled, in aggregate, to exercise voting rights equal to or exceeding the prescribed percentage; and
(iii) neither of them acquires any further securities as defined in Section 117 (1)(i);
(b) for the duration of the option if, at the date of grant of the option, the grantee was already entitled to exercise voting rights that were equal to or exceeded the prescribed percentage; or
(c) until the grantee exercises the option, or otherwise acquires securities, that results in the grantee being able to exercise voting rights equal to or exceeding the prescribed percentage, if—
(i) at the date the option was granted, the grantee was not entitled to exercise voting rights that were equal to or exceeded the prescribed percentage; and
(ii) the grantor was entitled to exercise voting rights that were equal to or exceeded the prescribed percentage.