n South African Journal of Economic and Management Sciences - The battle for truth : control and non-voting preference shares




If a financial institution (A) advances funding to another company (B) in return for non-voting preference shares in company B at par value, does that constitute a merger for the purposes of s 12 of the Competition Act, 89 of 1998 (the Act), if those preference shares comprise more than 50 per cent of the issued shares (ordinary and preference) of company B? And what if company B's articles of association provide that the holder of the preference shares may obtain a right to vote at shareholders' meetings if any preference dividend is not paid timeously, or if the preference shares are not redeemed within the agreed time? Would a provision to that effect play any role in an assessment as to whether the initial transaction constituted a merger and / or requires a further merger notification upon the triggering of company A's right to vote?


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