Companies Act, 2008 (Act No. 71 of 2008)Chapter 4 : Public Offerings of Company Securities96. Offers that are not offers to public |
| (1) | An offer is not an offer to the public— |
| (a) | if the offer is made only to— |
| (i) | persons whose ordinary business, or part of whose ordinary business, is to deal in securities, whether as principals or agents; |
| (ii) | the Public Investment Corporation as defined in the Public Investment Corporation Act, 2004 (Act No. 23 of 2004); |
| (iii) | a person or entity regulated by the Reserve Bank of South Africa; |
| (iv) | an authorised financial services provider, as defined in the Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002); |
| (v) | a financial institution, as defined in the Financial Services Board Act, 1990 (Act No. 97 of 1990); |
| (vi) | a wholly-owned subsidiary of a person contemplated in subparagraph (iii), (iv) or (v), acting as agent in the capacity of an authorised portfolio manager for a pension fund registered in terms of the Pension Funds Act, 1956 (Act No. 24 of 1956), or as manager for a collective investment scheme registered in terms of the Collective Investment Schemes Control Act, 2002 (Act No. 45 of 2002); or |
| (vii) | any combination of persons contemplated in paragraphs (i) to (vi); |
| (b) | if the total contemplated acquisition cost of the securities, for any single addressee acting as principal, is equal to or greater than the amount prescribed in terms of subsection (2)(a); |
| (c) | if it is a non-renounceable offer made only to— |
| (i) | existing holders of the company’s securities; or |
| (ii) | persons related to existing holders of the company’s securities; or |
| (d) | if it is a rights offer that satisfies the prescribed requirements, and— |
| (i) | an exchange has granted or has agreed to grant a listing for the securities that are the subject of the offer; and |
| (ii) | the rights offer complies with any relevant requirements of that exchange at the time the offer is made; |
| (e) | if the offer is made only to a director or prescribed officer of the company, or a person related to a director or prescribed officer, unless the offer is renounceable in favour of a person who is not a director or prescribed officer of the company or a person related to a director or prescribed officer; |
| (f) | if it pertains to an employee share scheme that satisfies the requirements of section 97; or |
| (g) | if it is an offer, or one of a series of offers, for subscription, made in writing, and— |
| (i) | no offer in the series is accompanied by or made by means of an advertisement and no selling expenses are incurred in connection with any offer in the series; |
| (ii) | the issue of securities under any one offer in the series is finalised within six months after the date that the offer was first made; |
| (iii) | the offer, or series of offers in aggregate, is or are accepted by a maximum of fifty persons acting as principals; |
| (iv) | the subscription price, including any premium, of the securities issued in respect of the series of offers, does not exceed, in aggregate, the amount prescribed in terms of subsection (2)(a); and |
| (v) | no similar offer, or offer in a series of offers, has been made by the company within the period prescribed in terms of subsection (2)(b) immediately before the offer, or first of a series of offers, as the case may be. |
| (2) | The Minister, by notice in the Gazette, may prescribe— |
| (a) | a value of not less than R100 000, to be the minimum value for the purposes of subsection (1)(b) and the maximum value for the purposes of subsection (1)(g)(iv); and |
| (b) | a minimum period for the purposes of subsection (1)(g)(v), which must not be less than six months. |