JSE-listed Royal Bafokeng Platinum (RBPlat) says that, following engagements with the Takeover Regulation Panel (TRP), the “frustrating action complaints” against the company have been resolved to the satisfaction of the TRP.

This is with regard to the mandatory offer by Impala Platinum (Implats) to RBPlat shareholders, as set out in an offer circular in January 2022.

Northam Platinum had submitted complaints that the automatic pro-rated aggregate accelerated vesting and issue of 560 176 RBPlat shares to the then CEO and COO following their retirement on April 7, 2022, in terms of the rules of the RBPlat full share plan, and the conclusion of fixed-term contracts with the CEO and COO to ensure their retention until such time as the corporate action was finalised, contravened Section 126(1) of the Companies Act.

The complaints regarding the share issuance and the fixed-term contracts are collectively referred to as the “frustrating action complaints”.

RBPlat reiterates that it has always strongly been of the view that the share issuance and fixed-terms contracts were implemented lawfully and did not contravene Section 126 of the Companies Act.

Implats on June 30 announced that the JSE had approved the listing of the offer consideration shares, thereby fulfilling the last condition precedent and, accordingly, Implats’ mandatory offer to RBPlat shareholders is unconditional.

A day earlier, the TRP had granted Implats a Compliance Certificate in terms of Section 121(b) of the Companies Act, 2008 read with regulation 102(13) of the Companies Regulations, 2011.

BACKGROUND

In April 2022, RBPlat announced the retirement of its then CEO and the COO with effect from April 7, as well as the conclusion of fixed-term contracts with these two executives to ensure their retention until such time as the corporate activity – the proposed buyout of its shares by Implats or Northam – was finalised.

Their retirement resulted in the automatic pro-rated aggregate accelerated vesting and issue of 560 176 RBPlat shares to the CEO and the COO in terms of the rules of the RBPlat full share plan.

The share issuance was approved by the TRP prior to being implemented, and Implats, as the offeror, confirmed that it had no objection thereto, RBPlat said in the April announcement.

Subsequently, Northam lodged a complaint with the TRP, alleging that the share issuance, and the contractual arrangements entered into with the CEO and COO, contravened Section 126 of the Companies Act, which prohibits action by an offeree company which could frustrate an offer.

RBPlat disputed this complaint, which was dismissed by the TRP. Northam appealed the TRP’s decision to the Takeover Special Committee (TSC), which overturned the TRP’s decision and found that the share issuance contravened Section 126(1)(b) of the Companies Act and that RBPlat must correct the contravention “in a manner provided for in the Companies Act and regulations”.

The TSC further ordered the TRP to investigate Northam’s complaint in relation to the fixed-term contracts and the deferred awards thereunder.

On December 2, RBPlat advised its shareholders that Northam had made various complaints to the TRP relating to the response circular. The complaint by Northam further alleged that the members of the independent board of RBPlat were not independent as required by the regulations.

RBPlat disputed the various complaints raised by Northam.

Northam’s complaints regarding the response circular and the independence of the independent board members were subsequently dismissed by the TRP.

Northam appealed this ruling on March 19, and its appeal was dismissed by the TSC on March 31, meaning that the original TRP ruling on these matters stands.