Companies Act, 2008 (Act No. 71 of 2008)Chapter 4 : Public Offerings of Company Securities95. Application and interpretation of Chapter |
| (1) | In this Chapter, unless the context indicates otherwise — |
| (a) | "company", in addition to the meaning set out in section 1, also includes a foreign company; |
| (b) | "compliance officer" means a compliance officer appointed by a company in respect of its employee share scheme; |
| (c) | "employee share scheme" means a scheme established by a company, whether by means of a trust or otherwise, for the purpose of offering participation therein solely to employees, officers and other persons closely involved in the business of the company or a subsidiary of the company, either— |
| (i) | by means of the issue of shares in the company; or |
| (ii) | by the grant of options for shares in the company; |
| (d) | "expert" means— |
| (i) | a geologist, engineer, architect, quantity surveyor, valuer, accountant or auditor; or |
| (ii) | any person who professes— |
| (aa) | to be a person referred to in subparagraph (i); or |
| (bb) | to have extensive knowledge or experience, or to exercise special skill which gives or implies authority to a statement made by that person; |
| (e) | "initial public offering" means an offer to the public of any securities of a company, if— |
| (i) | no securities of that company have previously been the subject of an offer to the public; or |
| (ii) | all of the securities of that company that had previously been the subject of an offer to the public have subsequently been re-acquired by the company; |
| (f) | "letter of allocation" means any document conferring a right to subscribe for shares in terms of a rights offer; |
| (g) | "offer", in relation to securities, means an offer made in any way by any person with respect to the acquisition, for consideration, of any securities in a company; |
| (h) | "offer to the public"— |
| (i) | includes an offer of securities to be issued by a company to any section of the public, whether selected— |
| (aa) | as holders of that company’s securities; |
| (bb) | as clients of the person issuing the prospectus; |
| (cc) | as the holders of any particular class of property; or |
| (dd) | in any other manner; but |
| (ii) | does not include— |
| (aa) | an offer made in any of the circumstances contemplated in section 96; or |
| (bb) | a secondary offer effected through an exchange; |
| (i) | "primary offering" means an offer to the public, made by or on behalf of a company, of securities to be issued by that company, or by another company— |
| (i) | within a group of companies of which the first company is a member; or |
| (ii) | with which the first company proposes to be amalgamated or to merge. |
| (j) | "promoter", in relation to civil and criminal liability in respect of an untrue statement in a prospectus, means— |
| (i) | a person who was a party to the preparation of the prospectus, or of the portion of it that contains the untrue statement; but |
| (ii) | does not include any person acting in a professional capacity for persons engaged in procuring the formation of the company or preparing the prospectus; |
| (k) | "registered prospectus" means a prospectus that complies with this Act and— |
| (i) | in the case of listed securities, has been approved by the relevant exchange; or |
| (ii) | otherwise, has been filed; |
| (l) | "rights offer" means an offer, with or without a right to renounce in favour of other persons, made to any holders of a company’s securities for subscription of any securities of that company, or any other company within the same group of companies; |
| (m) | "secondary offering" means an offer for sale to the public of any securities f a company or its subsidiary, made by or on behalf of a person other than that company or its subsidiary; |
| (n) | "specified shares" means shares, including options on shares, offered to employees of a company in terms of an employee share scheme; |
| (o) | "unit" means any right or interest in any securities; and |
| (p) | "untrue statement" includes a statement that is misleading in the form and context in which it is made, subject to subsections (3) and (4). |
| (2) | For the purposes of this Chapter, a person is to be regarded, by or in respect of a company, as being a member of the public, despite that person being a shareholder of the company or a purchaser of goods from the company. |
| (3) | An untrue statement is regarded to have been included in a prospectus, written statement, or summary directing a person to either a prospectus or written statement, if it is contained in any report or memorandum— |
| (a) | that appears on the face of the prospectus, written statement, or summary; or |
| (b) | that is incorporated by reference within, or is attached to or accompanies, the prospectus, written statement or summary. |
| (4) | An omission from a prospectus or written statement of any matter that, in the context, is calculated to mislead by omission constitutes the making of an untrue statement in that prospectus or written statement, irrespective of whether this Act requires that matter to be included in the prospectus or written statement. |
| (5) | A provision of an agreement is void to the extent that it— |
| (a) | requires an applicant for securities to waive compliance with a requirement of this Chapter; or |
| (b) | purports to affect an applicant for securities with any notice of any agreement, document or matter not specifically referred to in a prospectus or written statement. |
| (6) | Nothing in this Chapter limits any liability that a person may incur under this Act apart from this Chapter, or under any other public regulation, or under the common law. |
| (7) | The Minister may make regulations- |
| (a) | establishing general or specific requirements respecting the form and content of rights offers, letters of allocation and prospectuses; |
| (b) | prescribing the manner and form to be followed in filing and publishing of rights offers, letters of allocation and prospectuses; and |
| (c) | in respect of related or ancillary matters concerning the offering of company securities. |