Companies Act, 2008 (Act No. 71 of 2008)Chapter 4 : Public Offerings of Company Securities101. Secondary offers to public |
| (1) | This section does not apply in respect of securities that are— |
| (a) | listed on an exchange; or |
| (b) | in respect of which an exchange has granted permission to deal. |
| (2) | Subject only to subsection (3), a person making a secondary offering of the securities of a company must ensure that the offer is accompanied by either— |
| (a) | the registered prospectus that accompanied the primary offering of those securities, together with any revisions required to address changes in any material matter since the date the prospectus was registered; or |
| (b) | a written statement that satisfies the requirements of subsections (4) to (6). |
| (3) | Subsection (2) does not apply— |
| (a) | if the offer is made or the material is published— |
| (i) | by a person acting in the capacity of an executor or administrator of a deceased estate or a trustee of an insolvent estate or a liquidator or trustee referred to in the Administration of Estates Act, 1965 (Act No. 66 of 1965); or |
| (ii) | for the purpose of a sale in execution or by public auction or by public tender. |
| (4) | If an offer contemplated in this section is in respect of securities of a public company, a person publishing or making the offer must— |
| (a) | file a copy of the written statement for registration before it is issued, distributed or published; and |
| (b) | not issue, distribute or publish the statement more than three months after the date on which it is registered. |
| (5) | The written statement referred to in subsection (3) must be dated and signed by— |
| (a) | the person making the offer or issuing, distributing or publishing the material; and |
| (b) | if that person is a company, by every director of the company. |
| (6) | The written statement referred to in subsection (3) must— |
| (a) | not contain any matter other than the particulars required by this section; |
| (b) | not be in characters smaller or less legible than any characters used in— |
| (i) | the written offer, if any; or |
| (ii) | any document that accompanies the statement; |
| (c) | be accompanied by a copy of the last annual financial statements of the company, together with any subsequent interim report or provisional annual financial statements of that company; and |
| (d) | contain particulars with respect to the following matters: |
| (i) | Whether the person making the offer is acting as principal or agent and, if as agent— |
| (aa) | the name of the principal; |
| (bb) | an address in the Republic where that principal can be served with process; and |
| (cc) | the nature and extent of the remuneration received or receivable by the agent for the services provided; |
| (ii) | the date on which and the country in which the company was incorporated and the address of its registered office in the Republic or, if there is no such address, the address of its principal office outside the Republic; |
| (iii) | the classes and number of securities in each class that have been authorised, and with respect to each class of securities— |
| (aa) | the preferences, rights, limitations and other terms associated with the class, with respect to capital, dividends and voting; |
| (bb) | the number of securities that have been issued for cash, and the total cash consideration received by the company for those issued securities of that class; and |
| (cc) | the number of securities that have been issued for consideration other than cash, and the value of the consideration received by the company for those issued securities of that class; |
| (iv) | the dividends, if any, paid by the company on each class of securities during each of the five financial years immediately preceding the offer, and if no dividend has been paid in respect of securities of any particular class during any of those years, a statement to that effect; |
| (v) | the total amount of any securities other than shares issued by the company and outstanding at the date of the statement, together with the rate of interest payable thereon; |
| (vi) | the names and addresses of the directors of the company; |
| (vii) | whether or not the securities are listed on an exchange, or permission to deal in those securities has been granted by an exchange, other than that referred to in subsection (1), and— |
| (aa) | if so, a statement naming that exchange; or |
| (bb) | if not, a statement that they are not so listed or that no such permission has been granted; |
| (viii) | if the offer relates to units, particulars of the names and addresses of the persons in whom the securities represented by the units are vested, the date and the parties to any document defining the terms on which those securities are held, and an address in the Republic where that document or a copy of it can be inspected; |
| (ix) | the dates on which and the prices at which the securities offered were originally issued by the company, and were acquired by the person making the offer or by that person’s principal, giving the reasons for any difference between those prices and the prices at which the securities are being offered; |
| (x) | if any securities were issued by the company as partly paid-up shares under the Companies Act, 1973 (Act No. 61 of 1973), to what extent they are paid up; and |
| (xi) | the date of registration of the written statement by the Commission. |
| (7) | In subsection (6), the expression ‘company’ refers to the company that issued the relevant securities. |