Public M&A - Bowmans Law...Anda Rojanschi, Alexandru Vlăsceanu and Alexandra Vaida D&B David şi...

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Public M&AContributing editorAlan M Klein

2018© Law Business Research 2018

Public M&A 2018Contributing editor

Alan M Klein Simpson Thacher & Bartlett LLP

PublisherTom [email protected]

SubscriptionsJames [email protected]

Senior business development managers Adam [email protected]

Dan [email protected]

Published by Law Business Research Ltd87 Lancaster Road London, W11 1QQ, UKTel: +44 20 3780 4147Fax: +44 20 7229 6910

© Law Business Research Ltd 2018No photocopying without a CLA licence. First published 2018First editionISBN 978-1-78915-059-9

The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer–client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. The information provided was verified between February and May 2018. Be advised that this is a developing area.

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CONTENTS

2 Getting the Deal Through – Public M&A 2018

Global overview 6Alan M Klein Simpson Thacher & Bartlett LLP

Cross-Border Mergers & Acquisitions: The View from Canada 7Ian MichaelBennett Jones LLP

Belgium 9Michel Bonne, Mattias Verbeeck, Hannelore Matthys and Sarah ArensVan Bael & Bellis

Bermuda 15Stephanie P Sanderson BeesMont Law Limited

Brazil 19Fernando Loeser, Enrique Tello Hadad, Lilian C Lang and Daniel VargaLoeser e Portela Advogados

Bulgaria 25Ivan Gergov and Dimitar ZwiatkowPavlov and Partners Law Firm in cooperation with CMS Reich-Rohrwig Hainz Rechtsanwälte GmbH

Canada 29Linda Misetich Dann, Brent Kraus, John Piasta, Ian Michael, Chris Simard and Andrew DisipioBennett Jones LLP

China 36Caroline Berube and Ralf HoHJM Asia Law & Co LLC

Colombia 42Santiago Gutiérrez, Andrés Hidalgo, Juan Sebastián Peredo and Darío CadenaLloreda Camacho & Co

Denmark 49Thomas Weisbjerg, Anders Carstensen and Julie Høi-NielsenMazanti-Andersen Korsø Jensen Law Firm LLP

Dominican Republic 55Mariángela PelleranoPellerano & Herrera

England & Wales 58Michael Corbett Slaughter and May

France 68Yves Ardaillou and David FaravelonBersay & Associés

Germany 75Gerhard Wegen and Christian CascanteGleiss Lutz

Ghana 83Kimathi Kuenyehia Sr, Sarpong Odame and Phoebe Arde-Acquah Kimathi & Partners, Corporate Attorneys

India 88Rabindra Jhunjhunwala and Bharat AnandKhaitan & Co

Ireland 96Madeline McDonnell and Susan CarrollMatheson

Italy 106Fiorella Federica AlvinoUghi e Nunziante – Studio Legale

Japan 113Sho Awaya and Yushi HegawaNagashima Ohno & Tsunematsu

Korea 120Jong Koo Park and Joon KimKim & Chang

Latvia 126Gints Vilgerts and Vairis DmitrijevsVilgerts

Luxembourg 131Frédéric Lemoine and Chantal KeeremanBonn & Schmitt

Macedonia 136Emilija Kelesoska Sholjakovska and Ljupco CvetkovskiDebarliev, Dameski & Kelesoska Attorneys at Law

Malaysia 142Addy Herg and Quay Chew SoonSkrine

Mexico 148Julián J Garza C and Luciano Pérez GNader, Hayaux y Goebel, SC

Netherlands 152Allard Metzelaar and Willem BeekStibbe

Norway 158Ole Kristian Aabø-EvensenAabø-Evensen & Co Advokatfirma

Poland 169Dariusz Harbaty, Joanna Wajdzik and Anna NowodworskaWolf Theiss

Romania 176Anda Rojanschi, Alexandru Vlăsceanu and Alexandra VaidaD&B David şi Baias

Russia 184Vasilisa Strizh, Dina Kzylkhodjaeva, Philip Korotin, Valentina Semenikhina, Alexey Chertov and Dmitry DmitrievMorgan, Lewis & Bockius LLP

Singapore 190Mark Choy and Chan Sing YeeWongPartnership LLP


www.gettingthedealthrough.com 3

CONTENTS

South Africa 198Ian KirkmanBowmans

Spain 206Mireia BlanchBuigas

Switzerland 211Claude Lambert, Reto Heuberger and Andreas MüllerHomburger AG

Taiwan 218Yvonne Hsieh and Susan LoLee and Li, Attorneys-at-Law

Turkey 222Noyan Turunç and Kerem TurunçTURUNÇ

Ukraine 228Volodymyr Yakubovskyy and Tatiana Iurkovska Nobles

United States 234Alan M Klein Simpson Thacher & Bartlett LLP

Vietnam 239Tuan Nguyen, Phong Le, Quoc Tran and Sang Huynhbizconsult Law Firm

Zambia 246Sharon SakuwahaCorpus Legal Practitioners



PREFACE

Getting the Deal Through is delighted to publish the first edition of Public M&A, which is available in print, as an e-book and online at www.gettingthedealthrough.com.

Getting the Deal Through provides international expert analysis in key areas of law, practice and regulation for corporate counsel, cross-border legal practitioners, and company directors and officers.

Throughout this edition, and following the unique Getting the Deal Through format, the same key questions are answered by leading practitioners in each of the jurisdictions featured.

Getting the Deal Through titles are published annually in print. Please ensure you are referring to the latest edition or to the online version at www.gettingthedealthrough.com.

Every effort has been made to cover all matters of concern to readers. However, specific legal advice should always be sought from experienced local advisers.

Getting the Deal Through gratefully acknowledges the efforts of all the contributors to this volume, who were chosen for their recognised expertise. We also extend special thanks to the contributing editor, Alan M Klein of Simpson Thacher & Bartlett LLP, for his assistance in devising and editing this volume.

LondonMay 2018

PrefacePublic M&A 2018First edition


SOUTH AFRICA Bowmans


South AfricaIan KirkmanBowmans

1 Types of transaction

How may publicly listed businesses combine?

The principal methods for combinations of publicly listed businesses are:• merger or amalgamation;• scheme of arrangement;• a public offer for shares in the target company (a tender offer); and• a sale of all or a greater part of the assets or undertaking of the

target.

A merger or amalgamation is a new method of implementing a business combination that was introduced in South Africa by the Companies Act, 2008 (Companies Act). It allows two or more companies to merge or amalgamate into a combined company or companies. A merger or amalgamation will result in the combination of all of the assets and liabilities of the merging companies into one or more companies.

A scheme of arrangement is a statutory mechanism that allows a company and its shareholders to enter into an arrangement for a number of purposes, including a takeover. A scheme of arrangement is the preferred mechanism for implementing a friendly takeover of a publicly listed business in South Africa. A tender offer is generally the preferred mechanism for implementing a hostile takeover because the cooperation of the target’s board is not required in the same way that it is for a scheme of arrangement or a merger or amalgamation.

Where the purchaser would like to avoid acquiring a target com-pany in its entirety (with all of its disclosed and undisclosed liabilities), the purchaser may opt for an acquisition of the business or assets of the target company. The transaction structure is more complex than a share sale transaction because the acquisition agreement will need to list all of the assets that are being acquired, and all of the liabilities that are being assumed, by the purchaser. However, it offers the advan-tage of allowing the purchaser to cherry-pick the assets and liabilities it acquires, instead of acquiring the entire company with all of its assets and liabilities.

2 Statutes and regulations

What are the main laws and regulations governing business combinations and acquisitions of publicly listed companies?

The key legislation governing business combinations and acquisi-tions of publicly listed companies in South Africa are the Companies Act and the takeover regulations prescribed by the Minister of Trade and Industry in terms of section 120 of the Companies Act (Takeover Regulations).

There are a number of other statutes and regulations that may also be relevant, including:• the Financial Markets Act, 2012, which regulates the financial mar-

kets and insider trading;• the Exchange Control Regulations, which are enforced by the

Financial Surveillance Department of the South African Reserve Bank;

• the Competition Act, 1998, which requires M&A of a certain size to be approved by the relevant competition authorities; and

• certain industry specific laws and regulations, for example in the banking, mining and communications sectors.

For companies listed on the securities exchange operated by the JSE Limited (JSE), the Listings Requirements of the JSE (JSE Listings Requirements) are an additional key source of regulation.

3 Transaction agreements

Are transaction agreements typically concluded when publicly listed companies are acquired? What law typically governs the agreements?

For a merger or amalgamation, the parties are required by the Companies Act to enter into a merger agreement setting out the terms and means of effecting the merger or amalgamation and, in particular, setting out, among other things: (i) the manner in which the securities of each amalgamating or merging company are to be converted into securities of any proposed amalgamated or merged company; (ii) if any securities of any of the amalgamating or merging companies are not to be converted into securities of any proposed amalgamated or merged company, the consideration that the holders of those securities are to receive in addition to or instead of securities of any proposed amalga-mated or merged company; and (iii) details of the proposed allocation of the assets and liabilities of the amalgamating or merging companies among the companies that will be formed or continue to exist when the merger agreement has been implemented.

Although not required under the Companies Act, transaction agreements are typically concluded when publicly listed companies are acquired by way of a scheme of arrangement or a tender offer (except in the context of a hostile transaction). The transaction agreement gener-ally takes the form of an ‘Implementation Agreement’ between the tar-get and the acquirer and sets out the procedure to be followed in order to implement the transaction.

In the context of a sale of assets or business, the parties would enter into a sale agreement for the purposes of describing the assets that will be acquired, and the liabilities that will be assumed, by the purchaser (among other things).

In addition to the main transaction agreement, the parties will often enter into term sheets, irrevocable undertakings, exclusivity agreements and confidentiality agreements.

Transaction agreements are generally governed by South African law. However, subject to compliance with applicable laws and regula-tions, the parties are free to choose the laws of any other jurisdiction as the governing law of the transaction agreements.

4 Filings and fees

Which government or stock exchange filings are necessary in connection with a business combination or acquisition of a public company? Are there stamp taxes or other government fees in connection with completing these transactions?

Depending on the nature of the transaction, one or more of the follow-ing filings will be necessary:

If a transaction constitutes a merger (which occurs when one or more firms directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another firm), then competition/antitrust approval will be required if the thresholds for an intermediate or large merger are met. In the case of an intermediate merger, the approval of the Competition Commission is required. In


Bowmans SOUTH AFRICA


the case of a large merger, the approval of the Competition Tribunal is required. Before the Competition Tribunal makes its decision, the Competition Commission will investigate the merger and make a rec-ommendation to the Competition Tribunal. The Competition Tribunal will also hold a public hearing in relation to the merger. The filing fees are 350,000 rand for an intermediate merger and 500,000 rand for a large merger.

The Takeover Regulation Panel (TRP) regulates takeovers and affected transactions (which include a disposal of all or the greater part of the assets or undertaking, an amalgamation or merger, a tender offer and a scheme of arrangement) relating to regulated companies (which include public companies, state-owned companies and, in certain circumstances, private companies). An affected transaction may not be implemented by a regulated company unless the TRP has issued a compliance certificate or granted an exemption. The TRP will charge fees for services provided by it (which fees are set out in the Takeover Regulations).

If a company involved in the transaction is listed on the securities exchange operated by the JSE, then the JSE Listings Requirements will need to be complied with and the approval of the JSE may be required. The fees charged by the JSE for services provided by it are published on the JSE’s website: www.jse.co.za.

The Companies and Intellectual Property Commission (CIPC) is the primary regulatory body established by the Companies Act. If a prospectus is required to be published as part of the transaction, then the prospectus will need to be registered with the CIPC. The CIPC’s fee for reviewing and registering a prospectus are set out in the Companies Regulations.

The Financial Surveillance Department of the South African Reserve Bank may be called upon if required under South Africa’s exchange control regulations (see question 11). No fee will be payable.

Approval may also be required from the relevant sector-specific regulator (for example, in the banking, insurance, mining and commu-nications sectors). Fees may be payable to the relevant regulator in con-nection with such approval.

Stamp duty is not payable in South Africa.

5 Information to be disclosed

What information needs to be made public in a business combination or an acquisition of a public company? Does this depend on what type of structure is used?

Negotiations relating to a business combination or acquisition of a public company are generally conducted in confidence. However, a cautionary announcement must be released if there is any concern regarding maintaining the confidentiality of any price-sensitive infor-mation or if the company suspects that confidentiality has or may have been breached.

A firm intention announcement must be made when the offeror has communicated a firm intention to make an offer and is ready, able and willing to proceed with the offer, or as soon as a mandatory offer is required. The firm intention announcement must contain material details relating to the offer, including:• the identity of the offeror and any of its concert parties;• the terms of the offer (including details of the type of offer pro-

posed and the mechanics of implementation, the consideration, any conditions as to acceptance or other conditions of the offer, and details of the cash guarantee or cash confirmation provided to the TRP); and

• if known, the details of any beneficial interest in the offeree regu-lated company that is held or controlled, directly or indirectly, by the offeror and any of its concert parties or any person from whom the offeror has received an irrevocable undertaking to accept or vote in favour of the offer.

In addition, the firm intention announcement must state that:• the offeror, and where appropriate, the independent board, accepts

responsibility for the information contained in the announcement;• to the best of their respective knowledge and belief, the informa-

tion is true; and• where appropriate, the announcement does not omit anything

likely to affect the importance of the information.

A circular in relation to the transaction will then need to be published and must contain all the information prescribed by the Takeover Regulations (which includes details of the offeror and its concert par-ties, details of the terms of the offer, reasons for the offer and the offeror’s intentions, statements regarding beneficial interests, director remuneration, agreements with concert parties, a fair and reasonable opinion, a statement as to responsibility in relation to the offer, dealings in securities and a description of financial arrangements).

If the offer consideration consists wholly or partially of offeror securities, then the circular must include:• the annual financial statements of the offeror for the last three

financial periods; and• an audit reviewed pro forma balance sheet and pro forma income

statement, and pro forma earnings and assets per security, as at the last financial year end, assuming a 100 per cent successful offer result.

If the transaction involves an issue of shares, and that issue would amount to an ‘offer to the public’ for the purposes of the Companies Act, then the provisions of the Companies Act relating to ‘offers to the public’, including the prospectus requirements, will need to be com-plied with. A prospectus must contain the information prescribed by the Companies Act (including all the information that an investor may reasonably require to assess the assets and liabilities, financial position, profits and losses, cash flow and prospects of the company in which a right or interest is to be acquired).

The transaction may also require the publication of revised listings particulars in terms of the JSE Listings Requirements. This includes dis-closure requirements similar to those relating to a prospectus.

Generally, only material terms of the agreements are disclosed. Where agreements must be disclosed, companies will make them avail-able for public inspection.

6 Disclosure of substantial shareholdings

What are the disclosure requirements for owners of large shareholdings in a public company? Are the requirements affected if the company is a party to a business combination?

In terms of the Companies Act, a person who acquires a beneficial interest in securities of a regulated company, such that the person holds 5, 10, 15 per cent or any further multiple of 5 per cent of that particular class of securities, is required to notify the company concerned within three business days of such acquisition. Similarly, a person must notify the company concerned within three days of a disposal of securities that results in the person dropping below a threshold that is a multiple of 5 per cent.

These requirements apply to a person irrespective of whether:• the person acquires or disposes of any securities directly or indi-

rectly or individually or in concert with any other person; or• the stipulated percentage of issued securities is held by that person

alone, or in aggregate by that person together with any related or interrelated person, and any person who has acted in concert with any other person.

The listed company must notify the TRP and shareholders of such dis-closures unless less than 1 per cent of the class was disposed of.

In addition, a listed company must disclose shareholdings of 5 per cent or more in its annual report and its circulars. Also, nominee share-holders of a listed company must disclose to the company the iden-tity of the beneficial shareholder every month. The company can also oblige the nominee shareholder to disclose the identity of the beneficial holder at any time.

Any dealings by the offeror and target in their respective shares or in each other’s shares during the offer period must be disclosed.

7 Duties of directors and controlling shareholders

What duties do the directors or managers of a publicly traded company owe to the company’s shareholders, creditors and other stakeholders in connection with a business combination or sale? Do controlling shareholders have similar duties?

South African law characterises the relationship between a company and its directors as being of a fiduciary nature, and accordingly imposes




certain duties on directors when carrying out their functions as fidu-ciaries in relation to the companies they serve. The fiduciary duties of directors are derived from two sources, namely the Companies Act and the common law. These two sources coexist and apply parallel to one another.

The Companies Act prescribes the standards of directors’ conduct, which apply to all directors, including alternate directors, prescribed officers (as defined in the Companies Act) and members of board com-mittees, irrespective of whether or not such persons are also members of the company’s board. A director of a company, when acting in that capacity, must exercise the powers and perform the functions of direc-tor in good faith and for proper purpose; and in the best interests of the company.

At common law, the duty to act in good faith and in the best inter-ests of the company is the paramount and overarching fiduciary duty of directors from which all the other fiduciary duties flow. These duties are:• the duty to act with care, skill and diligence;• the duty to avoid conflicts of interest;• the duty to act within powers; and• the duty to maintain and exercise an unfettered discretion and to

exercise independent judgement.

In the context of a business combination or sale, once the target has received a firm intention to make an offer, it must constitute an inde-pendent board, which is a statutory board that must comprise of at least three independent directors. If there are less than three independent directors, other persons may be appointed to the independent board by the existing board. The board of the target must publish its views on any offer, together with appropriate independent expert advice.

The directors of an offeree regulated company may not resign from the date of the firm intention announcement until the offer is declared unconditional, lapses or is withdrawn.

During the course of an offer, a director of the offeree regulated company must disclose any conflict of interest or potential conflict of interest in relation to such transaction immediately after the director becomes aware of the conflict and must assume a non-independent status and inform the board to that effect, if the director considers that the conflict or potential conflict may affect the director’s independence.

South Africa has a rule against frustrating action and, if the board of a regulated company believes that a bona fide offer might be imminent, or has received such an offer, it may not, without the prior approval of the TRP, and the approval of holders of relevant securities:• take any action in relation to the affairs of the company that could

result in a bona fide offer being frustrated, or the holders of relevant securities being denied an opportunity to decide on the merits;

• issue securities;• issue or grant options in respect of unissued securities;• authorise or issue any securities carrying rights of conversion into

or subscription for other securities;• sell, dispose of or acquire assets of a material amount except in the

ordinary course of business;• enter into contracts otherwise than in the ordinary course of busi-

ness; or• make an abnormal distribution.

Controlling shareholders do not have fiduciary or statutory duties to the company or other shareholders. That said, minority shareholders may seek relief under the Companies Act from oppressive or prejudicial conduct or from abuse of the separate juristic personality of a company.

8 Approval and appraisal rights

What approval rights do shareholders have over business combinations or sales of a public company? Do shareholders have appraisal or similar rights in these transactions?

A merger or amalgamation, scheme of arrangement and a disposal of all or the greater part of the assets or undertaking of a company may not be implemented unless it has been approved by a special resolu-tion adopted by the shareholders of each amalgamating or merging company, the target company or the selling company (as applicable). A special resolution is a resolution adopted with the support of at least 75 per cent of the voting rights exercised on the resolution.

A special resolution approving a merger or amalgamation, scheme of arrangement or disposal of all or the greater part of the assets or undertaking of a company must be passed at a meeting at which suf-ficient persons are present to exercise at least 25 per cent of all of the voting rights that are entitled to be exercised on that matter. Any voting rights controlled by an acquiring party, a person related to an acquiring party, or a person acting in concert with either of them, must not be included in calculating the percentage of voting rights required to be present in determining whether or not the meeting is quorate, or voted in support of a resolution or actually voted in support of the resolution.

If shareholders holding 15 per cent or more of the voting rights vote against the proposed transaction, any dissenting shareholder may require the company to first seek court approval for the transac-tion before implementing it. If the 15 per cent threshold is not met, any shareholder who voted against the resolution may apply to the court for a review of the transaction. The court may only set aside the resolution if it determines that: (i) the resolution is manifestly unfair to any class of holders of the company’s securities; or (ii) the vote was tainted by conflict of interest, inadequate disclosure, failure to comply with the Companies Act, the company’s memorandum of incorporation, or other significant and material procedural irregularity.

The Companies Act also contains appraisal rights that can arise as a result of a merger or amalgamation, scheme of arrangement or dis-posal of all or the greater part of the assets or undertaking of a company. In terms of these rights, shareholders who vote against the resolution may, subject to certain requirements, require the company to buy their shares at fair value. The fair value will be determined by the court if the parties fail to agree.

In addition, in terms of the JSE Listings Requirements, a com-pany may not enter into a Category 1 transaction without shareholder approval. A Category 1 transaction is a ‘transaction’ (principally acqui-sitions and disposals) entered into by a listed company or any of its sub-sidiaries where any of the percentage ratios set out in the JSE Listings Requirements are 30 per cent or more. Percentage ratios are the fig-ures, expressed as a percentage, resulting from each of the following calculations:• the consideration divided by the aggregate market value of all

the listed equity securities, excluding treasury shares of the listed company;

• the number of listed equity securities issued by a listed company as consideration for an acquisition compared to those in issue, exclud-ing treasury shares prior to the transaction; and

• a tender offer does not, generally speaking, require the approval of the offeror’s shareholders and does not give rise to any appraisal rights. The shareholders of the offeror would only need to approve the offer if it is listed on the securities exchange operated by the JSE and the offer would constitute a Category 1 transaction under the JSE Listings Requirements, or (in some instances) if shares are issued as consideration.

9 Hostile transactions

What are the special considerations for unsolicited transactions for public companies?

As mentioned above, a tender offer is typically the acquiring company’s method of choice in the context of hostile takeovers, given that the co-operation of the target’s board is not required in the same way that it is for a merger or amalgamation, or a scheme of arrangement. In the con-text of a recommended bid, a joint circular will usually be issued, but in the context of a hostile transaction, both the offeree and the offeror will issue their own circulars (the offeree’s board sends a defence document to its shareholders explaining why it thinks the offer should be rejected).

A number of provisions of the Takeover Regulations (although applying to all offers) often need to be considered carefully in the con-text of a hostile transaction. These include the following:• An approach with a view to an offer being made, or an offer, must

be made only to the board of the offeree company. The board of any offeree company that has been approached with a view to an offer being made may require reasonable evidence that the offeror is, or will be, in a position to implement the offer in full. The board of an offeree company that has received an offer must be provided with evidence, acceptable to the board, that the offeror is in a position to implement the offer in full.




• As mentioned above, South Africa has a general rule against frus-trating action. However, there are a number of measures that a target can use in an attempt to prevent the successful comple-tion of a hostile transaction that would not fall foul of the legal requirements.

• There are strict requirements on dealing in securities before, dur-ing and after an offer period.

• The offeree company shareholders (of the same class) should be treated equally.

• Any information given to one offeror or potential offeror must, on request, be given equally and promptly to any other offeror or bona fide potential offeror.

Hostile takeovers or transactions are often fought over technical mat-ters, particularly related to regulatory approvals or procedures, result-ing in cost implications and time delays.

10 Break-up fees – frustration of additional bidders

Which types of break-up and reverse break-up fees are allowed? What are the limitations on a public company’s ability to protect deals from third-party bidders?

It is not uncommon in South Africa for parties to a potential transac-tion to seek break-up fees, match rights, exclusivity arrangements and non-solicitation provisions in the transaction documents. The breach of an exclusivity arrangement is typically coupled with a break-up fee, in respect of which the TRP has developed a market practice of permit-ting 1 per cent of the offer consideration as a cap. No such cap exists in relation to reverse break-up fees, but these are not common in the South African market.

As mentioned above, South Africa has a rule against frustrating action, and there are restrictions on what the board of an offeree com-pany can do if it receives a bona fide offer or believes that one may be imminent. In addition, the directors must act in accordance with their fiduciary duty to act in the best interests of the company.

Where break-up fees or reverse break-up fees are contemplated, the parties need to consider whether or not such break-up fee or reverse break-up fee, as structured, would constitute financial assistance under section 44 of the Companies Act and thus require shareholder approval and confirmation by the company’s board that after paying such fee, the company will remain solvent and liquid (see question 13 for more information on section 44).

11 Government influence

Other than through relevant competition (antitrust) regulations, or in specific industries in which business combinations or acquisitions are regulated, may government agencies influence or restrict the completion of such transactions, including for reasons of national security?

As a general rule, government agencies cannot influence or restrict the completion of business combinations or acquisitions, other than through relevant competition regulations, or in specific regulated industries (such as mining, banking, insurance and broadcasting). There is no national security review.

Having said that, South Africa has strict exchange control regula-tions in place, and a South African resident may not transfer capital or any right to capital out of South Africa except in accordance with those regulations. South African residents cannot enter into certain transac-tions that involve the transfer of capital without the approval of the Financial Surveillance Department of the South African Reserve Bank or, in some cases, an ‘authorised dealer’ (authorised dealers are typi-cally the large commercial banks in South Africa that have delegated authority in relation to certain exchange control matters).

In addition, the South African government has put in place a regulatory framework for broad-based black economic empower-ment (B-BBEE), which is a central part of its economic transformation strategy. A multifaceted approach to B-BBEE has been adopted with a number of components that aim to increase the number of black peo-ple (being South African citizens who have been racially classified as African, Indian or Coloured) that manage, own and control the coun-try’s economy, and to decrease racially based income inequalities.

The Broad-Based Black Economic Empowerment Act, 2003 (BEE Act) is the principal piece of legislation through which B-BBEE is meas-ured. The Minister of Trade and Industry published the revised Codes of Good Practice (general Codes) under the BEE Act, which set out the details of the measurement process, in October 2013. The general Codes, which replaced the previous Codes of Good Practice published in 2007, came into effect on 1 May 2015. The Minister of Trade and Industry has also published various sector-specific codes that detail the manner in which B-BBEE must be measured for businesses operat-ing in particular sectors. Where a sector-specific code has been issued, businesses in that sector are required to apply the relevant sector code rather than the general Codes. The general Codes apply only where there is no sector-specific code although the general Codes and the sector-specific codes should generally apply the same broad principles. Sector-specific codes are currently in place for the tourism, forestry, information communication and technology, marketing, advertising and communications, finance, construction, property, and agriculture sectors. The sector code for the transport sector is still in the process of being aligned with the general Codes, although a draft sector code for this sector has been published for public comment. Businesses in the transport sector must continue to use the current sector code, until that sector code is replaced with an aligned sector code. A new draft sector code for the defence sector has also been published.

Other than in certain state licensing, permitting and authorisa-tion processes, there is no ‘hard law’ requiring that any private entity in South Africa must meet specific B-BBEE targets or must implement a B-BBEE policy. The BEE Act does not provide for offences or pen-alties relating to B-BBEE performance but rather seeks, through the economic measures discussed below, to facilitate a uniform approach to B-BBEE in the South African economy. In other words, neither the BEE Act nor the codes impose any requirement that a certain level of B-BBEE must be achieved or that a certain percentage of equity in a business must be held by black people and there are no sanctions for non-compliance. In certain sectors, such as mining and telecommuni-cations, minimum equity requirements are or may be imposed in terms of the sector-specific legislation governing those sectors.

From a practical perspective, although there are no absolute requirements in relation to B-BBEE, any company wishing to do busi-ness in the South African environment must consider and develop its B-BBEE position as, in addition to the pressures from government dis-cussed below, an entity that does not have a good B-BBEE rating, or does not strive to improve its B-BBEE rating, may be hampered in the conduct of its day-to-day business with government, organs of state and private sector customers. Most private sector businesses to which services are rendered or goods are sold will themselves have B-BBEE procurement targets to meet and so the B-BBEE rating of entities from which goods and services are procured will be a factor in determining with whom to do business.

In terms of the BEE Act, government bodies and state-owned enterprises are required to take private sector parties’ relative B-BBEE levels into account when they procure any goods or services, when they issue any licence or other authorisation, or enter into partnerships with the private sector. As such, businesses that interact with govern-ment by, for example, selling to government or that require licences to perform their particular activities are incentivised to increase their levels of B-BBEE. The Preferential Procurement Policy Framework Act, 2000 also provides that B-BBEE must be considered by any public sector body in the context of its procurement practices and details the manner in which B-BBEE must be taken into account by government departments and agencies and state-owned entities.

A private sector company could also have its own B-BBEE require-ments. For example, a business may adopt a policy that it will not purchase goods or services from suppliers that do not meet certain minimum B-BBEE requirements. These requirements could go beyond that which is provided for in the Codes. Where customers impose such requirements, a prospective supplier’s B-BBEE measurement is a competitive assessment of its B-BBEE status relative to that of its competitors.

In assessing B-BBEE, a ‘scorecard’ approach is used whereby the different aspects of B-BBEE are accorded points. A general scorecard is included in the general Codes. Sector-specific scorecards are included in the sector codes that are applicable to particular sectors. The score-cards detail the various elements and sub-elements of B-BBEE on




which enterprises are measured and stipulate targets to be achieved for each element and sub-element. For example, under the general Codes, the elements of B-BBEE on which an enterprise’s B-BBEE score is measured and the respective weighting of each element (exclud-ing bonus points) are: ownership (25 points); management control (15 points); skills development (20 points), enterprise and supplier devel-opment (40 points); and socio-economic development (corporate social investment) (5 points). The total possible score on the entire scorecard under the general Codes, with bonus points, is 118 points.

The closer an enterprise is to reaching a particular target, the more points it will achieve for that element of B-BBEE. The more points a business achieves in total across each of the individual elements, the higher its B-BBEE status level will be. Under the general Codes, Level 1 is the highest status level, where a business achieves 105 points or more on the scorecard, and level 8 is the lowest level, where a business achieves between 40 and 55 points. Less than 40 points is considered to be ‘non-compliant’.

The general Codes provide that, when measuring B-BBEE levels, substance applies over legal form. This is an attempt to limit instances of ‘fronting’ by enterprises that make representations that they have adopted particular B-BBEE initiatives in order to score points when, in substance, the initiatives have not been adopted. In terms of the BEE Act, it is a criminal offence to engage in fronting or to make deliberate misrepresentations in relation to an enterprise’s true B-BBEE status. The BEE Act also establishes a B-BBEE Commission, which is respon-sible for investigating alleged ‘fronting’ practices and referring them for prosecution. Fines for fronting may be up to 10 per cent of a com-pany’s annual turnover.

In terms of the BEE Act, listed companies are required to report annually on their levels of B-BBEE. Major B-BBEE ownership transac-tions that are aimed at increasing a measured entity’s score for owner-ship where the transaction value is 25 million rand or more have to be reported to the B-BBEE Commission.

12 Conditional offers

What conditions to a tender offer, exchange offer, mergers, plans or schemes of arrangements or other form of business combination are allowed? In a cash transaction, may the financing be conditional? Can the commencement of a tender offer or exchange offer for a public company be subject to conditions?

An offer may not be subject to any condition:• that depends solely on the subjective judgment of the directors, or

equivalent, of the offeror; or• if the directors, or equivalent, of the offeror are able to control

whether or not the condition will be fulfilled.

Conditions that are allowed include the obtaining of regulatory approv-als (such as, competition approval, exchange control approval or indus-try-specific approvals), the obtaining of any approvals that may be required from shareholders, the non-occurrence of a material adverse change (provided that it is objectively determinable), and conditions as to acceptance.

Financing conditions are not typically permitted. This is because where an offer consideration is wholly or partly in cash, the offer cir-cular must include a statement with an irrevocable unconditional guarantee issued by a South African registered bank or an irrevocable unconditional confirmation from a third party to the effect that suf-ficient cash is held in escrow in favour of the holders of the relevant securities for the sole purpose of fully satisfying the cash offer commit-ments. Transaction specific conditions relating to financing can, how-ever, be included (for example, approval from the exchange control authorities as may be necessary for the financing to be provided).

13 Financing

If a buyer needs to obtain financing for a transaction involving a public company, how is this dealt with in the transaction documents? What are the typical obligations of the seller to assist in the buyer’s financing?

Please see question 12 in relation to financing conditions.

In terms of section 44 of the Companies Act, the board of a com-pany may not authorise the company to provide financial assistance by way of a loan, guarantee, the provision of security or otherwise to any person for the purpose of, or in connection with, the subscription of any option, or any securities, issued or to be issued by the company or a related or interrelated company, or for the purchase of any securities of the company or a related or interrelated company, unless:• the particular provision of financial assistance is pursuant to a spe-

cial resolution of the shareholders, adopted within the previous two years, which approved such assistance either for the specific recipient, or generally for a category of potential recipients, and the specific recipient falls within that category; and

• the board is satisfied that (i) immediately after providing the finan-cial assistance, the company would satisfy the solvency and liquid-ity test; and (ii) the terms under which the financial assistance is proposed to be given are fair and reasonable to the company.

14 Minority squeeze-out

May minority stockholders of a public company be squeezed out? If so, what steps must be taken and what is the time frame for the process?

If an offer has been accepted by 90 per cent of the target’s shareholders (other than the offeror, a related or interrelated person or persons act-ing in concert) within four months after the date of the offer, the offeror may at any time within two months thereafter, on notice, compulso-rily purchase the shares of the non-accepting shareholders. A non-accepting shareholder can apply to court within 30 business days for an order prohibiting the compulsory acquisition or imposing conditions thereon. If there has been no application to the court or if the applica-tion is dismissed, the offeror will acquire the outstanding shares after payment of the consideration to the relevant shareholder.

In addition to the offeror’s squeeze-out rights, once the 90 per cent threshold has been met, the remaining minority shareholders can require the offeror to purchase their shares.

In the context of a scheme of arrangement, once the requisite approvals have been obtained, the scheme binds all shareholders, bear-ing in mind that minority shareholders might seek recourse through their appraisal rights (see question 8).

15 Cross-border transactions

How are cross-border transactions structured? Do specific laws and regulations apply to cross-border transactions?

Subject to the implications of South Africa’s exchange control regula-tions (see question 11), cross-border transactions are generally imple-mented in the same way as domestic transactions.

16 Waiting or notification periods

Other than as set forth in the competition laws, what are the relevant waiting or notification periods for completing business combinations or acquisitions involving public companies?

Other than as set forth in the Competition Act, and aside from the requirements relating to shareholder approval and appraisal rights (see question 8) and minority squeeze-outs (see question 14), there are generally no waiting or notification periods applicable. That said, it is worth noting the following:• In the context of a tender offer, the offeror’s offer circular, or com-

bined offer circular, must be posted within 20 business days after the publication of a firm intention announcement and the offer must remain open for at least 30 business days after the opening date (being the date of posting of the offeror’s offer circular or the combined offer circular, as the case may be).

• If a meeting of shareholders is required to be held in order to obtain any shareholder approvals in relation to the transaction, then at least 15 business days’ notice of the meeting must be given.

• If required under South Africa’s exchange control regulations, it generally takes at least three weeks to obtain approval from the Financial Surveillance Department of the South African Reserve Bank. Where an authorised dealer is able to give approval, such approval is usually obtained within a couple of days.




• The approval of the JSE may be required in relation to certain doc-uments that may be published in connection with the transaction and the time periods set out in the JSE Listings Requirements in connection with such approval will apply.

• To the extent that any other regulatory approvals are required, then the periods relating to such approvals will also apply.

17 Sector-specific rules

Are companies in specific industries subject to additional regulations and statutes?

There are various regulatory bodies in South Africa that may govern a certain sector (for example, mining, banking, insurance and broadcast-ing). Companies must be fully advised on which bodies are applicable to their industry to ensure compliance with any mandatory regulatory bodies.

18 Tax issues

What are the basic tax issues involved in business combinations or acquisitions involving public companies?South Africa applies a residence-based (or worldwide) system of taxa-tion, meaning that residents of South Africa are subject to income tax on their worldwide income. For non-residents, only receipts and accru-als of income derived from sources in or deemed to be within South Africa are subject to tax, subject to certain exceptions.

Income tax is levied on companies at a flat rate of 28 per cent, and on individuals at progressively higher marginal rates depending on their taxable income, up to 45 per cent. Trusts are generally taxed sub-ject to a ‘conduit-pipe’ or ‘see-through’ principle but, where that princi-ple does not apply, income tax is levied on trusts at a flat rate of 45 per cent. The applicable capital gains tax rate is in turn calculated by apply-ing an inclusion rate (80 per cent for companies and trusts, and 40 per cent for individuals) to the applicable income tax rate.

Tax relief is available for various business combinations or acquisi-tions, in terms of specific ‘corporate rollover relief provisions’ under the Income Tax Act, 1962. These include tax relief for certain types of intra-group, asset-for-share, unbundling and amalgamation transactions.

Non-resident shareholders will not be subject to capital gains tax on the disposal of assets in South Africa, unless those assets constitute immovable property in South Africa (including an interest in immov-able property in South Africa where more than 80 per cent of the value thereof is attributable to that immovable property), or assets effectively connected with a permanent establishment of that non-resident in South Africa.

Non-residents will also be subject to a withholding tax of 10 per cent, 7.5 per cent or 15 per cent (for non-resident companies, individu-als or trusts, as the case may be) on the sale proceeds on the disposal of any South African immovable property.

Generally, interest expenditure is deductible if incurred in the pro-duction of taxable income. The deductibility of interest on cross-bor-der loans may be restricted in various circumstances, including where the loan is from a creditor that is in a ‘controlling relationship’ with the local subsidiary (or the loan is funded from such a person), and the interest is not subject to South African tax. A limited interest deduction may also be available for domestic loans used to acquire a controlling shareholding in an operating company.

Transfer pricing and ‘thin capitalisation’ rules apply in South Africa, with tax treatment of cross-border transactions being subject to the ‘arm’s length’ standard.

Securities transfer tax (STT) is payable at a rate of 0.25 per cent on any transfer of a security. For listed securities, STT is payable by the intermediary that processes the transfer, who may then claim that STT from the purchaser of the securities in question.

Dividends tax is levied at a rate of 20 per cent on dividends paid by a South African resident company, or foreign dividends paid by a non-resident company in respect of foreign shares listed in South Africa. Certain exemptions are available for dividends tax, including in respect of dividends paid to South African resident companies.

Withholding tax on interest is levied at a rate of 15 per cent on any interest derived from a South African source to or for the benefit of a foreign resident. Certain exemptions are available for withholding tax on interest.

The withholding taxes on interest and dividends may also be pay-able at reduced rates in terms of an applicable double taxation agree-ment, if particular formalities are complied with.

South Africa has a general anti-avoidance rule, and also specific anti-avoidance rules that need to be considered in relation to the following:• employee share schemes;• preference share funding;• transfer pricing (which requires cross-border transactions between

South African and non-resident related parties to be entered into on an arm’s-length basis) and ‘thin capitalisation’ (which broadly requires a ‘reasonable’ debt to equity ratio for the local subsidiary of a foreign holding company);

• new provisions targeting ‘dividend stripping’, which apply to dis-posals of shares including certain share buybacks; and

• debt reductions or compromises.

Update and trends

South Africa was the most active M&A country in Africa in Q1 of 2018, according to Mergermarket statistics. This aligns with the trend we have seen on the ground, and our outlook for M&A, including public M&A, for the remainder of 2018, and moving into 2019, is cautiously optimistic. In our view, the increased public M&A activity in South Africa stems from both a global uptick in M&A activity, which has affected our market, as well as from a change of leadership in South Africa. Boosting investor confidence into the region significantly, Cyril Ramaphosa became president of the country in mid-February 2018 after Jacob Zuma’s resignation, following the demands of the African National Congress party.

From a sector perspective, energy, mining and utilities was the most targeted sector by deal value and count in Q1 2018 (according to Mergermarket statistics). As one of the biggest sectors in South Africa, affecting many publicly listed companies and their M&A activity, mining and the regulation of this sector continues to be a key focus for developments. Regulation of this sector continues to develop. In June 2017, the South African Ministry of Mineral Resources published the much-awaited third edition of the B-BBEE Charter for the South African Mining and Minerals Industry (Revised Charter). The Revised Charter, among other things, sets a minimum 30 per cent black owner-ship requirement for existing mining rights holders and prospecting rights holders (up from 26 per cent). It also requires all new prospecting rights holders to be majority black-owned. The Revised Charter has been met with severe criticism from the South African Chamber of Mines, which has launched a court application to review and set aside

the Revised Charter. Following the criticism and legal challenge to the Revised Charter, the Ministry of Mineral Resources suspended the implementation of the Revised Charter pending finalisation of the legal challenge brought by the Chamber of Mines. Talks are in the pipeline regarding a new Mining Charter aimed at giving the industry greater policy confidence. All indications are, at this stage, that a new docu-ment guiding transformation of the South African mining sector will be ready and gazetted in May 2018.

Most recently, on 4 April 2018, the full bench of the Gauteng High Court delivered the long-awaited judgment in the Chamber of Mines’ application on the empowerment requirements applicable to the min-erals industry, especially the interpretation of the ‘once empowered, always empowered principle’. Unfortunately, the court decision does not resolve the bigger question of the empowerment requirements that apply to the minerals industry. The Court was not unanimous and delivered two full judgments (majority and minority). This outcome adds another layer of complexity to an already complex matter.

South Africa has three new stock exchanges, which have blos-somed in the last year, namely the ZAR X, the 4AX and the A2X (the latter which is the latest to have debuted in October 2017). These are in addition to the securities exchange operated by the JSE, which previ-ously was the only platform for public listings in South Africa. The new exchanges are disrupting the JSE’s multi-year monopoly, and are likely to provide useful benefits to publicly listed companies, including lower costs and improved liquidity for public M&A activity.




19 Labour and employee benefits

What is the basic regulatory framework governing labour and employee benefits in a business combination or acquisition involving a public company?

Employment in South Africa is regulated by statute, common law and contract. In general, South African employment law applies to all employees working in South Africa. Although choice of law clauses are recognised, these are only enforced where the chosen law is also the law to which the contract is most closely connected. In most instances, if the employee performs the work in South Africa and is paid there, South African law will apply. In certain circumstances, it may also apply to South African employees working abroad.

In the context of an M&A transaction, in terms of section 197 of the Labour Relations Act, 1995 (the LRA), where a business (or part of any business, trade, undertaking or service) is transferred as a going concern (which includes an outsourcing), the employees of the target entity are automatically, by operation of law, transferred to the acquir-ing entity on the same terms and conditions of employment (or on at least terms and conditions that are on the whole not less favourable than the terms and conditions they enjoyed with the old employer), and the acquiring entity is automatically substituted as the new employer in place of the old employer. The LRA does permit the contracting-out of this position, provided that an agreement to that effect is concluded between the old and new employer on the one hand and the affected employees (or their representatives or trade union) on the other, in terms of section 197(6) of the LRA. The test for whether a business is sold as a going concern is an objective one and regard must be had to the substance of the transaction rather than the form. All the relevant factors in the particular circumstances of the case must be taken into account to determine whether the business after the transaction is essentially the same business but in different hands. Section 197 does not apply in the event of a sale of shares. In these circumstances owner-ship changes at shareholder level and thus the legal entity or employer remains the same. All the employment contracts thus continue in force with the same employer.

20 Restructuring, bankruptcy or receivership

What are the special considerations for business combinations or acquisitions involving a target company that is in bankruptcy or receivership or engaged in a similar restructuring?

Under South African law, a distinction must be drawn between liquida-tion and business rescue.

Liquidation occurs when a company is placed under a winding-up order or the shareholders pass a resolution for the winding-up of the company, the assets and business of the company are sold, the proceeds distributed to creditors in relation to their claims and the corporate shell is then dissolved.

Business rescue, on the other hand, is a concept similar to adminis-tration (under UK law) or Chapter 11 bankruptcy (under US law). Under

South African law, it is intended to be of short-term duration, during which time the board of directors is supervised by the business rescue practitioner who runs the company with a view to returning it to profit-ability or to sell assets to give creditors a better return than liquidation. The company is in effect still trading.

Liquidators can only sell the assets or business of a company. The assets can be sold either piecemeal or as part of the business as a going concern. The liquidator does not need consent of the courts or credi-tors to sell the assets, but will need the consent of any secured credi-tors holding security over the assets. Liquidators cannot sell the shares in the company itself. That said, if a purchaser particularly wants the shares in the company, this could be achieved by means of a scheme of arrangement (sometimes termed an ‘offer of compromise’). Under such a scheme, the acquirer offers to buy all of the claims of the credi-tors of the company (for a price that is usually less than the face value of the claims, but slightly more than the insolvency dividend the credi-tors would get), so the company is then left without creditors but still vested with its assets, whereupon the liquidation order is discharged. The consent of the shareholders will be required. In any sale of business or assets of a company in liquidation, because liquidators have only recently stepped into control of the company and know very little about the past management of the company, the sale documents will almost always contain no warranties about the business or its assets, which would ordinarily be insisted upon by a purchaser. However, the risk is not substantial, as the effect of the liquidation is that the business or assets are sold free of liabilities – in fact, the Insolvency Act specifically provides that liquidators cannot transfer liabilities out of the insolvent estate as part of the purchase price. Unpaid creditors have no claim on the assets or business once sold by the liquidators. Moreover, even if the liquidation is subsequently set aside (for example, on an appeal), South African courts are reluctant to overturn a sale made by liquidators bona fide in the course of their duties – the purchase price will be paid over to the company once the liquidation order is discharged.

In a business rescue, a business rescue practitioner can in the ordi-nary course of business dispose of property (typically this is items such as stock), without the consent of creditors or the court. The business rescue practitioner may sell other assets either with creditor consent or in his or her own discretion provided the sale is at an arm’s-length basis and on reasonable terms.

21 Anti-corruption and sanctions

What are the anti-corruption, anti-bribery and economic sanctions considerations in connection with business combinations with, or acquisitions of, a public company?

South Africa’s principal piece of corruption legislation is the Prevention and Combating of Corrupt Activities Act, 2004 (PRECCA), which cre-ates the general offence of corruption, along with a number of other spe-cific corruption offences. PRECCA is similar in form to the UK Bribery Act in that it contemplates corruption in both the private and public sector. In addition to individuals, corporate entities may be prosecuted under PRECCA and if convicted of corruption, may be subject to a fine

Ian Kirkman [email protected]

11 Alice LaneSandton, Johannesburg, 2146South Africa

Tel: +27 11 669 9447Fax: +27 11 669 9001www.bowmanslaw.com




of an unlimited amount. Individuals may receive a fine or a term of imprisonment if convicted of a corruption. PRECCA must also be read with Regulation 43 of the Companies Act, which requires companies that meet a certain threshold to appoint a Social and Ethics Committee. The Social and Ethics Committee has obligations in respect of oversee-ing corruption compliance, including actively monitoring and taking steps to reduce corruption and ensuring compliance with the OECD recommendations regarding corruption.

PRECCA contains a unique reporting obligation that requires a per-son in a position of authority (including within a private corporation) to report acts of corruption about which the person knew or reasonably should have known or suspected, involving an amount of 100,000 rand and or more, to a specialised unit within the South African police services. Failure to make such a report may result in a fine or a term of imprisonment for up to 10 years.

Although there are no specific requirements or guidance notes addressing the specific obligations of a business when acquiring a pub-lic company, a purchaser should consider potential liabilities arising from non-compliance with South African anti-corruption laws.


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Acquisition Finance Advertising & Marketing AgribusinessAir Transport Anti-Corruption Regulation Anti-Money Laundering AppealsArbitration Art LawAsset RecoveryAutomotiveAviation Finance & Leasing Aviation Liability Banking Regulation Cartel Regulation Class ActionsCloud Computing Commercial ContractsCompetition ComplianceComplex Commercial LitigationConstruction Copyright Corporate Governance Corporate Immigration Corporate Reorganisations CybersecurityData Protection & PrivacyDebt Capital MarketsDispute ResolutionDistribution & AgencyDomains & Domain Names Dominance e-CommerceElectricity RegulationEnergy Disputes

Enforcement of Foreign Judgments Environment & Climate RegulationEquity DerivativesExecutive Compensation & Employee BenefitsFinancial Services ComplianceFinancial Services LitigationFintechForeign Investment Review Franchise Fund ManagementGas Regulation Government InvestigationsGovernment RelationsHealthcare Enforcement & LitigationHigh-Yield DebtInitial Public OfferingsInsurance & Reinsurance Insurance LitigationIntellectual Property & Antitrust Investment Treaty Arbitration Islamic Finance & Markets Joint VenturesLabour & EmploymentLegal Privilege & Professional SecrecyLicensing Life Sciences Loans & Secured FinancingMediation Merger Control MiningOil Regulation Outsourcing Patents Pensions & Retirement Plans Pharmaceutical Antitrust

Ports & TerminalsPrivate Antitrust LitigationPrivate Banking & Wealth Management Private Client Private Equity Private M&AProduct Liability Product Recall Project Finance Public M&APublic-Private Partnerships Public Procurement Real Estate Real Estate M&ARenewable EnergyRestructuring & Insolvency Right of Publicity Risk & Compliance ManagementSecurities Finance Securities LitigationShareholder Activism & EngagementShip FinanceShipbuilding Shipping State Aid Structured Finance & SecuritisationTax Controversy Tax on Inbound Investment Telecoms & Media Trade & Customs Trademarks Transfer PricingVertical Agreements

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