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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

86. Mandatory offers

 

 

(1) The percentage to be prescribed in terms of Section 123 (5) is 35% of the issued voting securities of the company.

 

(2) The acquisition of a beneficial interest as contemplated in the definition of "affected transaction" in Section 117 (1)(c)(iv) will give rise to a mandatory offer as contemplated in the definition of "affected transaction" in Section 117 (1)(c)(vi) only if the acquisition falls within the circumstances contemplated in Section 123 (2).

 

(3) The obligations contemplated in section 123 (3) and (4) do not arise if—
(a) a person, alone or in concert with other parties, becomes entitled to exercise voting rights that exceed the prescribed percentage; and
(b) the entitlement contemplated in paragraph (a) comprises voting rights that accrue to the person as a result of a beneficial interest in preference shares; and
(c) the preference shares contemplated in paragraph (b)—
(i) are not voting securities as defined in Section 1;
(ii) were acquired before the entitlement arose; and
(iii) give the person voting rights in accordance with the rights of the preference shares (e.g. arrear dividends),

unless the person, or any of the concert parties, acquires any further securities as defined in section 117(1 )(i).

 

(4) A transaction is exempt from the obligation to make a mandatory offer following publication by a regulated company of a transaction requiring the issue of securities as consideration for an acquisition, a cash subscription or a rights offer, if the independent holders of more than 50% of the general voting rights of all issued securities of the regulated company have agreed to waive the benefit of such a mandatory offer in accordance with the principles detailed in Section 125 (3)(b)(ii).

 

(5) Irrespective of whether an issue of securities is made conditional upon a waiver, a waiver by the independent holders of more than 50% of the general voting rights of all issued securities of the regulated company is a nullity if any acquisitions are made by an acquirer or a subscriber or underwriter, or by any of their respective concert parties, in the period between the transaction announcement and date of the waiver.

 

(6) At the date of obtaining a waiver, the acquirer, the subscriber or an underwriter concerned must declare to the Panel in writing that it has not acquired any securities in the circumstances contemplated in sub-regulation (5).

 

(7) A waiver requires a fair and reasonable opinion to be included in the circular in all instances other than a rights offer at a discount to the prevailing market price at the date of announcement.