| (i) |
any amalgamation or merger referred to in Chapter 5 of the Companies Act that involves a market infrastructure as one of the principal parties to the amalgamation or merger; and |
| (ii) |
any transfer or disposal of more than 25 per cent of the assets, liabilities or assets and liabilities of a market infrastructure to another person. |
| (b) |
A market infrastructure must— |
| (i) |
prior to the making of any compulsory disclosures under any rules or national legislation in respect of any transaction referred to in paragraph (a), inform the Authority of the proposed transaction; |
| (ii) |
clearly state in any compulsory disclosures under any rules or national legislation, or any announcement or press release in respect of a transaction referred to in paragraph (a), that the transaction is subject to the approval of the Authority; and |
| (iii) |
on conclusion of the transaction, seek the approval of the Authority in accordance with this subsection and the conditions prescribed by the Authority. |
| (2) |
The 25 per cent referred to in subsection (1)(a)(ii) must be calculated by aggregating the amount of the transferred assets, liabilities or assets and liabilities together with any previous transfer of assets, liabilities or assets and liabilities within the same financial year of the market infrastructure concerned. |
| (a) |
Subsection (1) does not apply if only assets are transferred and the amount of the transferred assets, together with any previous transfer of assets within the same financial year, aggregates to an amount that is more than 10 per cent but less than 25 per cent of the total on-balance-sheet assets of the transferring market infrastructure. |
| (b) |
A market infrastructure must notify the Authority of a transfer referred to in paragraph (a). |
| (4) |
The Authority may give approval referred to in subsection (1), if the Authority is satisfied that the transaction in question will not be detrimental to the objects of this Act. |
| (5) |
Upon the coming into effect of a transaction effecting an amalgamation, merger or the transfer of such part of the assets, liabilities or assets and liabilities as approved in terms of subsection (1)— |
| (a) |
all the assets and liabilities of the amalgamating entities (or in the case of a transfer of assets and liabilities, of the entity by which the transfer is effected), including any insurance, guarantee, compensation fund or other warranty owned or maintained by any of them to cover any liabilities of clearing members of independent clearing houses or central counterparties, authorised users or participants, as the case may be, to clients, vest in and become binding upon the amalgamated entity or, as the case may be, the entity taking over such assets and liabilities or such other entity acceptable to the Authority as the parties to the amalgamation may designate; |
[Section 64(5)(a) substituted by section 290, item 46 of Schedule 4, of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), Notice No. 853, GG 41060, dated 22 August 2017 - effective 9 February 2018 (Notice R. 99, GG 41433, dated 9 February 2018)]
| (b) |
the amalgamated entity, or in the case of a transfer of assets and liabilities, the entity taking over such assets and liabilities, has the same rights and is subject to the same obligations as were, immediately before the amalgamation or transfer, applicable to or binding upon the amalgamating entities or, as the case may be, the entity by which the transfer has been effected; |
| (c) |
all agreements, appointments, transactions and documents entered into, made, executed or drawn up by, with or in favour of the amalgamated entities or, as the case may be, the entity by which the transfer has been effected, and in force immediately before the amalgamation or transfer, remain in force and are construed for all purposes as if they had been entered into, made, executed or drawn up by, with or in favour of the amalgamated entity or, as the case may be, the entity taking over the assets and liabilities in question; |
| (d) |
any bond, pledge, guarantee or other instrument to secure future advances, facilities or services by any of the amalgamating entities or, as the case may be, the entity transferring such assets and liabilities, which was in force immediately prior to the amalgamation or transfer, remains in force and is construed as a bond, pledge, guarantee or instrument given to or in favour of the amalgamated entity or, as the case may be, the entity taking over such assets and liabilities; and |
| (e) |
any claim, right, debt, obligation or duty accruing to any person against any of the amalgamating entities or owing by any person to any of such entities, is enforceable against or owing to the amalgamated entity or, as the case may be, the entity taking over such assets and liabilities. |
| (6) |
Upon the coming into effect of a transaction effecting an amalgamation or merger, the licences of the individual market infrastructure that were parties to the amalgamation or merger are deemed to be cancelled, and the Authority must license the market infrastructure created by the amalgamation or merger. |
| (7) |
This section does not apply to a designated institution in resolution as defined in section 1(1) of the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017). |
[Section 64(7) inserted by section 34 of the Financial Sector Laws Amendment Act, 2021 (Act No. 23 of 2021), Notice No. 789, GG45825, dated 28 January 2022- effective 1 June 2023 per (b)(i) of Commencement Notice No. 3202, GG48294, dated 24 March 2023]
Statistics Act, 1999
