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SAL
SAL
SAL - Sallies - Amendment to the terms and conditions of the
unsubordinated unsecured convertible debentures of sallies limited with a
nominal value of r0.50 each
Sallies Limited
(Incorporated in the Republic of South Africa)
(Registration number 1903/001879/06)
Share code: SAL ISIN: ZAE000022588
("Sallies" or "the Company")
AMENDMENT TO THE TERMS AND CONDITIONS OF THE UNSUBORDINATED UNSECURED
CONVERTIBLE DEBENTURES OF SALLIES LIMITED WITH A NOMINAL VALUE OF R0.50 EACH
("CONVERTIBLE DEBENTURES")
Shareholders are referred to the loose insert of the Annual Report of Sallies of
30 January 2008 in respect of the terms and conditions of the convertible
debentures.
The terms and conditions in respect of the conversion of the convertible
debentures in an event of default, if so elected by the debenture holder, have
been amended to reflect that conversion will take place, in an event of default,
through the allotment and issue, credited as fully paid, of the maximum whole
number of Sallies shares at a subscription price per Sallies share equal to
R0.50 per Sallies share and not the lower of R0.50 per Sallies share or the
value weighted average price of the Sallies shares on the JSE, for the 30 day
period immediately preceding the conversion date.
Accordingly, below are the amended terms and conditions of the convertible
debentures:
Terms and conditions attaching to the unsubordinated unsecured convertible
debentures of Sallies Limited with a nominal value of R0.50 each
The terms and conditions attaching to the 151,483,358 unsubordinated unsecured
convertible debentures with a nominal value of R0.50 each, to be issued by
Sallies Limited are as follows:
Interpretation
In these Terms and Conditions, unless clearly inconsistent with or otherwise
indicated by the context :
1.1 "Applicable Procedures"- the rules and operating procedure for the time
being of the Central Depository, Settlement Agent and the JSE, as the case
may
be;
1.2 "Beneficial Interest"- the undivided share of a co-owner of the Debentures
represented by the Global Certificate, as provided in the Securities Services
Act, 2004;
1.3 "Business Day"- a day (other than a Saturday or Sunday or public holiday in
South Africa), which is a day on which commercial banks settle Rand payments in
Johannesburg;
1.4 "Central Depository" STRATE Limited (Reg No. 1998/022242/06, or its
nominee, operating pursuant to the Securities Services Act, 2004, or any
successor Act thereto;
1.5 "Certificate"-a Global Certificate or Individual Certificate;
1.6 Conversion"- in relation to any Debenture Holder, means any one or more of
:"
1.6.1 Maturity Conversion; or
1.6.2 Early Non-Default Conversion, in which event, the Principal Amount of some
and/or all of the Debentures then outstanding (rounded to the nearest whole
number) as specified in a Holder`s Conversion Notice, will be repaid by the
Issuer on the Conversion Date through the allotment and issue, credited as
fully paid, of the maximum whole number of Shares at a subscription price
per Share equal to R0,50, which is equal to the aggregate Principal Amount
of one Debenture being repaid; or
1.6.3 Default Conversion, in which event, the Principal Amount of all the
Debentures then outstanding (rounded to the nearest whole number) as
specified in a Holder`s Conversion Notice will be repaid by the Issuer on
the Conversion Date through the allotment and issue, credited as fully paid,
of the maximum whole number of Shares at a subscription price per Share
equal to R0,50 per Share ;
1.7 "Conversion Date" means in relation to :
1.7.1 Maturity Conversion, 31 December 2012; or
1.7.2 Early Non-Default Conversion, any Business Day after the Issue Date but
prior to 31 December 2012, selected by the Debenture Holder in a Holder`s
Conversion Notice given to the Issuer, if no Event of Default has occurred;
or
1.7.3 Default Conversion, any Business Day after the Issue Date but prior to 31
December 2012, selected by the Debenture holder in a Holder`s Conversion
Notice given to the Issuer, but only if an Event of Default has occurred;
1.8 "Conversion Ratio" -1 fully paid up Share for every 1 Debenture held on the
Conversion Date;
1.9 "Debenture Holder" -the holder of a Debenture as recorded in the Register;
1.10 "Debenture" -the unsubordinated unsecured convertible debentures having a
nominal value equal to the Principal Amount, allotted and issued or to be
allotted and issued by the Issuer on the Terms and Conditions pursuant to the
Rights Offer;
1.11 "Default Cash Repayment"- the repayment by the Issuer to the Debenture
Holders who so elect by giving the Issuer a Holder`s Repayment Notice, in
respect of such or all of the Debentures, on the happening of an Event of
Default, of the Principal Amount of all the Debentures then outstanding
(rounded
to the nearest whole number) and in respect of which a Holder`s Repayment
Notice
has been given to the Issuer, at their nominal value of R0,50 for each
Debenture, together with all accrued but unpaid interest thereon;
1.12 "Default Conversion"- a Conversion of the Debentures of the nature
described in 1.6.3 but only if an Event of Default has occurred and the
Debenture Holder has given a Holder`s Conversion Notice to the Issuer in
prescribed form;
1.13 "Early Non-Default Conversion" an early Conversion of the Debentures of
the nature described in 1.6.2 if no Event of Default has occurred;
1.14 "Event of Default" -any event of default by the Issuer set out in Condition
10;
1.15 "Extraordinary Resolution" a resolution passed at a meeting, duly
convened, of the Debenture Holders by a majority consisting of not less than
75%
of the persons voting thereat upon a show of hands or, if a poll be duly
demanded, then by a majority consisting of not less than 75% of the votes
eligible to vote on such poll;
1.16 "Global Certificate"- the single certificate registered in the name of the
Central Depository and representing those Debentures allotted and issued in
terms of the Terms and Conditions which are lodged and immobilised in the
Central Depository, other than those Debentures represented by the individual
Certificates;
1.17 "Holder`s Conversion Notice" means in relation to :
1.17.1 Early Non-Default Conversion, a notice given by any Debenture
Holder to the Issuer in accordance with these Terms and Conditions at any
time
after the Issue Date but prior to 30 November 2012, being a date not less
than
30 clear days prior to the date selected in terms of such notice as the
Conversion Date, specifying whether all or part (and if so, which part) of
his
Debentures are to be converted and which will, if he is a certificated
Debenture
Holder, include a Form of Surrender for his Individual Certificates; or
1.17.2 Maturity Conversion, a notice given by any Debenture Holder to
the Issuer in prescribed form, in accordance with these Terms and Conditions,
whether and to what extent (in whole or in part) such Debenture Holder
requires
his Debentures to be converted in terms of Maturity Conversion, and which
will
include a Form of Surrender for use by certificated Debenture Holders to
surrender any individual certificates;
1.17.3 Default Conversion, a notice given by any Debenture Holder to the
Issuer in prescribed form, in accordance with these Terms and Conditions on
the
happening of an Event of Default, being a date not less than 30 clear days
prior
to the date selected by the Debenture Holder in terms of such notice as the
Conversion Date, specifying whether and to what extent (in whole or in part)
the
Debenture Holder has elected Default Conversion in respect of some or all of
his
Debentures, in which event such conversion shall take place at a subscription
price equal to R0,50 per Share;
1.18 "Holder`s Repayment Notice" means in relation to :
1.18.1 Maturity Cash Repayment, a notice of election given to the Issuer in
prescribed form by any Debenture Holder who elects after receipt of an
Issuer`s
Notice, that some or all the Debentures registered in the name of such
Debenture
Holder should be repaid in cash on the relevant Repayment Date in 1.36.1;
1.18.2 Default Cash Repayment, a notice of election given to the Issuer in
prescribed form by any Debenture Holder who elects, if an Event of Default
has
occurred, that some or all the Debentures registered in the name of such
Debenture Holder should be repaid at the Principal Amount of such Debentures
then outstanding, in cash on the relevant Repayment Date in 1.36.2;
1.19 "Individual Certificates"-a Debenture in the definitive registered form of
a single Certificate exchanged for a Beneficial Interest in the Debentures
represented by the Global Certificate in accordance with Condition 11 and
any
further Certificate issued in consequence thereof;
1.20 "Interest Due Date"- the date on which interest is due in respect of the
Debentures by the Issuer, being 31 December and 30 June of each year, commencing
on 30 June 2008, provided that the last due date shall be on 31 December 2012;
1.21 "Interest Payment Date"- the first Business Day following a Record Date;
1.22 "Interest Period" -each six-month period commencing on and including any
Interest Due Date and ending on but excluding the following Interest Due Date,
during the period from and including the Issue Date but excluding 31 December
2007, provided that the first Interest Period shall be from and including the
Issue Date but excluding the first Interest Due Date thereafter and the last
Interest Period shall be from and including 30 June 2012 but excluding 31
December 2012;
1.23 "Interest Rate"- a fixed interest rate of 10%, nominal annual compounded
semi-annually, which interest rate will remain fixed for the term of the
Debentures;
1.24 "Issue Date"- the day when the Issuer issues the Debentures;
1.25 "Issue Price"- the price at which the Issuer has or will allot and issue
the Debentures, being an amount equal to the Principal Amount per Debenture;
1.26 "Issuer"-Sallies Limited, Reg No. 1903/001879/06, a public company with
limited liability incorporated under the laws of the RSA, which is listed on
the
JSE;
1.27 "Issuer`s Notice"- means a notice given by the Issuer to all the Debenture
Holders in accordance with these Terms and Conditions, not later than 30
November 2012, inviting each Debenture Holder to elect:
1.27.1 in terms of a Holder`s Conversion Notice, whether such Debenture
Holder elects that all or part of his Debentures be converted in terms of
Maturity Conversion, or
1.27.2 in terms of a Holder`s Repayment Notice, whether such Debenture Holder
requires all or part of his Debentures to be repaid in terms of a Maturity Cash
Repayment,
together with a Form of Surrender for use by certificated Debenture
Holders to surrender any Individual Certificates;
1.28 "JSE"-the JSE Limited;
1.29 "Last Day to Trade"-the last date or dates to trade on the JSE, being 5
Business Days before a Record Date;
1.30 "Maturity Cash Repayment" a repayment on 31 December 2012 in respect of
some and/or all the Debentures registered in the names of all the Debenture
Holders who elect, in terms of a Holder`s Repayment Notice given to the Issuer
in prescribed form, following receipt of an Issuer`s Notice, that some and/or
all of the Debentures registered in their respective names are to be repaid in
cash at a repayment price per Debenture of R0,50, which will be equal to the
Principal Amount of one Debenture being repaid;
1.31 "Maturity Conversion" a conversion on 31 December 2012 of some and/or
all the Debentures registered in the names of all the Debenture Holders who
elect, in terms of a Holder`s Conversion Notice given to the Issuer in
prescribed form, following receipt of an Issuer`s Notice, that some and/or all
the Debentures registered in their respective names are to be repaid by the
allotment and issue on the Conversion Date, credited as fully paid, of the
maximum whole number of Shares at a subscription price per Share of R0,50, which
is equal to the Principal Amount of the Debentures being converted;
1.32 "Participant"- a custodial member of the Central Depository;
1.33 "Principal Amount"- means in relation to :
1.33.1 Conversion or Repayment, R0,50 in respect of each Debenture, together
with all accrued but unpaid interest thereon;
1.33.2 all other instances, R0,50 in respect of each Debenture;
1.34 "Record Date" the last date immediately preceding an Interest Payment Date
in respect of an Interest Period :
1.34.1 on which the Transfer Secretaries will accept Transfer Forms and
record the transfer of Debentures in the Register; and
1.34.2 after which date the Register is closed in accordance with the
provisions of Condition 13.2 for further transfer or entries until such
Interest
Payment Date or Repayment Date or Conversion Date;
1.35 "Repayment" in relation to any Debenture Holder, means
1.35.1 Maturity Cash Repayment; and/or
1.35.2 Default Cash Repayment;
1.36 "Repayment Date"- means in relation to :
1.36.1Maturity Cash Repayment, 31 December 2012; or
1.36.2 Default Cash Repayment, any Business Day after the Issue Date but prior
to 31 December 2012, selected by the Debenture Holder in a Holder`s
Repayment Notice in prescribed form, given to the Issuer, but only if an
Event of Default has occurred;
1.37 "Register" the register of Debenture Holders maintained by the Transfer
Secretaries in terms of Condition 13;
1.38 "Rights Offer"- the rights offer to be made by the Issuer to its
Shareholders during, or about, February 2008, for a total of 151 483 358
Debentures in the ratio of 24 Debentures for each 100 Shares held on the
Record
Date, pro rata to their holdings of Shares and subject to the JSE`s Listings
Requirements;
1.39 "SENS" the Securities Exchange News Service of the JSE:
1.40 "Settlement Agent"- a Participant, approved by the JSE in terms of the
Rules of the JSE, to perform electronic net settlement of both funds and
scrip
on behalf of market participants;
1.41 "Shares"- ordinary par value shares of 0.1 cent each in the issued share
capital of the Issuer, ranking pari passu with all the remaining ordinary par
value shares of 0.1 cent each in the issued share capital of the Issuer;
1.42 "Terms and Conditions"- the terms and conditions set out in this document
and in accordance with which the Debentures will be allotted and issued;
1.43 "Transfer Form"- the written form for the transfer of any Debenture, in
the form approved by the Issuer, and signed by the transferor and transferee;
1.44 "Transfer Secretaries"- Computershare Investor Services 2004 (Proprietary)
Limited, Reg No 2004/003647/07, or any successor transfer secretaries
appointed
by the Issuer;
1.45 "Rand" or "R"- the lawful currency of South Africa, being South African
Rand or any successor currency; and
1.46 "Underwriting Agreements"- the individual underwriting agreements to be
entered into contemporaneously between the Issuer and :
1.46.1 Dale Capital Partners Limited, Reg No. 1443428, a BVI company with
limited liability incorporated under the laws of the British Virgin Islands,
for
the underwriting of 90 890 015 Debentures;
1.46.2 Titan Financial Services (Proprietary) Limited, Reg No
1996/006040/07, a private company with limited liability incorporated under the
laws of the Republic of South Africa, for the underwriting of 22 722 504
Debentures;
1.46.3 Trinity Asset Management (Proprietary) Limited, Reg No
1996/010864/07, a private company with limited liability incorporated under the
laws of the Republic of South Africa, for the underwriting of 37 870 839
Debentures.
2 Issue
2.1 A total number of 151 483 358 Debentures will be allotted and issued by
the Issuer after closing of the Rights Offer, at the Issue Price per
Debenture
pursuant to the provisions of the Underwriting Agreements.
2.2 The Debentures will remain in existence until all the Debentures have been:
2.2.1 converted; or
2.2.2 repaid; or
2.2.3 purchased or cancelled pursuant to 8.6 or 8.7.
2.3 A Debenture Holder will have the following five options available to him:
2.3.1 In the absence of an Event of Default:
2.3.1.1 at any time, to elect Early Non-Default Conversion (option 1) by the
giving of a Holder`s Conversion Notice to the Issuer in
prescribed form in
respect of some or all of the Debentures held by him; and/or
2.3.1.2 if and to the extent to which, the Early Non-Default Conversion has
not been elected by him, and following receipt of an Issuer`s Notice, to elect:
2.3.1.2.1 by way of a Holder`s Repayment Notice, the number of Debentures to be
repaid on 31 December 2012 as a Maturity Cash Repayment
(option 2); and/or
2.3.1.2.2 by way of a Holder`s Conversion Notice, the number of Debentures to be
converted on 31 December 2012 as a Maturity Conversion (option 3).
2.3.2 If an Event of Default has occurred:
The Debenture Holder shall have the right to elect:
2.3.2.1 by way of a Holder`s Repayment Notice, the number of Debentures to be
repaid as a Default Cash Repayment (option 4); and/or
2.3.2.2 by way of a Holder`s Conversion Notice, the number of Debentures to be
converted as a Default Conversion (option 5).
2.4 Any Debentures held at 31 December 2012 in respect of which the Debenture
Holder has failed to make an election in terms of 2.3.1.2, will:
2.4.1 if the value weighted average price of the Shares on the JSE for the
30 day period preceding 31 December 2012 exceeds R0.50 per Share,
be converted
into Shares on the basis of 1 fully paid up Share for every
Debenture held; or
2.4.2 if the value weighted average price of the Shares on the JSE for the
30 day period preceding 31 December 2012 is equal or less than R0.50 per Share,
be repaid at R0.50 per Debenture on 31 December 2012.
3 Form and denomination
3.1 The Debentures are as defined in Condition 1.10, being unsubordinated
unsecured convertible Debentures having a nominal value per Debenture
equal to
the Principal Amount.
3.2 The Debentures will be allotted and issued in the form of the Global
Certificate which will be deposited with and registered in the name
of, and for
the account of the Central Depository. An owner of a Beneficial
Interest in the
Debentures represented by the Global Certificate shall be entitled to
exchange
such Beneficial Interest for an Individual Certificate in accordance
with
Condition 11.
4 Title
4.1 Title to the Debentures will pass upon registration of transfer in the
Register in accordance with Condition 12. Subject to these Terms and
Conditions, the Issuer and the Transfer Secretaries shall recognise a
Debenture
Holder as the sole and absolute owner of the Debentures registered in
that
Debenture Holder`s name in the Register, notwithstanding any notice of
change of
ownership or otherwise, or writing thereon, or notice of any previous
loss or
theft thereof, and shall not be bound to enter any trust in the
Register or to
take notice of or to accede to the execution of any trust, express,
implied or
constructive, to which any Debenture may be subject.
4.2 Beneficial Interests in Debentures lodged in the Central Depository in the
form of the Global Certificate may, in terms of existing law and practice, be
transferred through the Central Depository by way of book entry in the
securities accounts of the Participants. Such transfers will not be recorded in
the Register and the Central Depository will continue to be reflected in the
Register as the Debenture Holder in respect of the Global Certificate,
notwithstanding such transfers.
5 Status of debentures
5.1 The Debentures are direct, unsubordinated and unsecured obligations of the
Issuer and rank pari passu among themselves and, save for certain
debts required
to be preferred by law, rank equally with all other present and future
unsecured
and unsubordinated obligations of the Issuer from time to time
outstanding.
5.2 The Issuer shall be at liberty from time to time without the consent of the
Debenture Holders to create, allot and issue further debentures and to
raise
further borrowings without limit, provided that the Issuer shall not
create,
allot and issue further debentures or raise further borrowings,
ranking prior to
the Debentures without the prior consent of the Debenture Holders by
way of an
Extraordinary Resolution.
6 Interest
6.1 The Debentures shall bear interest at the Interest Rate from and including
the Issue Date up to but excluding any Conversion Date or Repayment
Date.
6.2 Interest in respect of the Interest Period shall be payable in arrears on
the Interest Payment Date. If any Interest Payment Date falls upon a
day which
is not a Business Day, the interest payable upon such Interest Payment
Date
shall be payable upon the first following day that is a Business Day,
provided
that no adjustment shall be made to the interest due on such Interest
Payment
Date.
6.3 Each Debenture will cease to bear interest from the Conversion Date or the
Repayment Date, as the case may be, unless, upon due presentation thereof,
payment of the Principal Amount is improperly withheld or refused.
6.4 In the event that the Issuer fails to punctually make payment of any
amounts owing in accordance with these Terms and Conditions, the amounts so
owing shall continue to bear interest at the Interest Rate in accordance with
these Terms and Conditions.
6.5 The amount of interest payable per Debenture in respect of each Interest
Period shall be calculated by multiplying the Interest Rate by the Principal
Amount of such Debenture and then dividing such product by 365 and multiplying
the resultant product by the number of days in the relevant Interest Period.
7 Payments
7.1 The Principal Amount together with all payments of interest on the
Debentures pursuant to 6 or otherwise, shall be paid by the Issuer in
Rand.
7.2 All monies payable on or in respect of each Debenture shall be paid by
electronic funds transfer to the account of the relevant Debenture
Holder as set
forth in the Register on the first Business Day following the Record
Date or
Repayment Date or the Conversion Date, as the case may be, or in the
case of
joint Debenture Holders, the account of that one of them who is first
named in
the Register in respect of that Debenture, provided that no payment in
respect
of the cancellation, conversion or repayment of such Debenture shall
be made by
the Issuer until 7 days after the date on which the Global Certificate
or
Individual Certificate, as the case may be, in respect of the
Debenture to be
repaid has been surrendered to the Transfer Secretaries.
7.3 Any Debenture Holder entitled to receive payment in accordance with
Condition 7.2 may, if he is the holder of an Individual Certificate and subject
to the then banking regulations and practice, upon written notice to the
Transfer Secretaries, request that all payments to that Debenture Holder be made
by cheque instead of electronic funds transfer. All such written requests for
payment by cheque by a Debenture Holder shall reach the Transfer Secretaries on
or before the relevant Record Date to Register. All monies so payable by cheque
shall, unless the Debenture Holder requests that the cheque be made available
for collection as set out below, be sent by post to :
7.3.1 the address of that Debenture Holder as set forth in the Register on
the Record Date; or
7.3.2 in the case of joint Debenture Holders, the address et forth in the
Register of that one of them who is first named in the Register in respect of
that Debenture; or
7.3.3 such other address as may be designated to the Transfer Secretaries in
writing by that Debenture Holder; or
7.3.4 if the amount in question is legally payable to anyone else, the
address designated by that person for that purpose.
7.4 Each such cheque shall be made payable to the relevant Debenture Holder or,
in the case of joint Debenture Holders, the first one of them named in
the
Register and each such cheque shall be dated at the Interest Payment
Date or the
Conversion Date or the Repayment Date, as the case may be.
7.5 Payment of a cheque sent in terms of Condition 7.3 or 7.4 shall be a
complete discharge by the Issuer of the amount of the cheque.
7.6 If several persons are entered into the Register as joint Debenture Holders
then, without affecting the provisions of Condition 7.5, payment to any one of
them of any monies payable on or in respect of the Debenture shall be an
effective and complete discharge by the Issuer of the amount so paid,
notwithstanding any notice (express or otherwise) which the Issuer may have of
the right, title and interest or claim of any other person to or in any
Debenture of interest therein.
7.7 Subject to these Terms and Conditions, cheques shall be posted to the
registered address set forth in the Register of the Debenture Holder entitled
thereto :
7.7.1 in the case of interest, on the first Business Day after the Record
Date; or
7.7.2 in the case of Conversion or Repayment, as the case may be, the first
Business Day after the Conversion Date or the Repayment Date, as the case may
be, or 7 days after the date on which the Global Certificate or Individual
Certificate, as the case may be, in respect of the Debenture to be redeemed or
cancelled has been surrendered to the Transfer Secretaries (whichever is the
later date).
7.8 If written notice of the intention to collect a cheque is given to and
received by the Transfer Secretaries at least 10 days prior to the
relevant
Interest Payment Date or Conversion Date or Repayment Date, as the
case may be,
the cheque shall be made available for collection during business
hours by the
Debenture Holder or such other person entitled thereto in terms of
Condition
7.4, as the case may be, or their duly authorised representatives at
the office
of the Transfer Secretaries :
7.8.1 in the case of interest, on the first Business Day after the Record
Date; or
7.8.2 in the case of Conversion or Repayment, as the case may be, on the
first Business Day after the Conversion Date or the Repayment Date, as the case
may be, or 7 days after the date on which the Global Certificate or Individual
Certificate, as the case may be, in respect of the Debenture to be converted or
repaid, as the case may be, has been surrendered to the Transfer Secretaries
(whichever is the later date),
provided that, if a cheque is not collected on the day on which it
becomes available for collection in terms of this condition 7.8, or
within 2 Business Days after that day, the cheque shall be posted to
the address of the Debenture Holder set forth in the Register.
7.9 Subject to these Terms and Conditions, cheques may be posted by ordinary
post, provided that neither the Issuer nor its agent shall be
responsible for
any loss in transmission and the postal authorities shall be deemed to
be the
agent of the Debenture Holders for the purposes of all cheques posted
in terms
of this Condition 7.
8 Conversion, Repayment, purchase and cancellation
8.1 Conversion
The Issuer shall be obliged to carry out, on any relevant Conversion
Date, a Conversion in respect of which a Holder`s Conversion Notice in
prescribed form, in relation to the Debentures specified in such
Conversion Notice, shall have been given:
8.1.1 in the case of Maturity Conversion, by the relevant Debenture Holders,
electing that the Debentures specified therein be converted into
fully paid
Shares pursuant to 1.6.1;
8.1.2 in the case of Early Non-Default Conversion, by the relevant Debenture
Holders, electing that the Debentures specified therein be converted into fully
paid Shares pursuant to 1.6.2; and
8.1.3 in the case of Default Conversion, by the relevant Debenture Holders,
electing that the Debentures specified therein be converted into fully paid
Shares pursuant to 1.6.3.
8.2 Default Cash Repayment
8.2.1 Unless previously converted, purchased or cancelled as specified in
terms of this Condition 8, all Debentures then in issue as held
by each
Debenture Holder who shall have elected a Default Cash Repayment
if an Event of
Default has occurred, by furnishing the Issuer with a Holder`s
Repayment Notice
in prescribed form, indicating which number of Debentures are
required to be
repaid in cash by the Issuer, shall be repaid by the Issuer on
the relevant
Repayment Date referred to in 1.36.2 at their Principal Amount.
Interest will
for purposes of calculating the Principal Amount, be accrued from
the last
Interest Due Date to such Repayment Date.
8.3 Maturity Cash Repayment
8.3.1 Unless previously converted, repaid, purchased or cancelled as
specified in terms of this Condition 8, all Debentures then in
issue as held by
each Debenture Holder shall be repaid on 31 December 2012 at
their Principal
Amount. Interest will for purposes of calculating the Principal
Amount, be
accrued from the last Interest Due Date to such Repayment Date.
8.3.2 The Issuer shall not less than 42 clear days prior to any repayment on
31 December 2012 send a notice in terms of these Terms and Conditions to each
Debenture Holder advising of such Repayment Date and reminding Debenture Holders
to surrender their Certificates (if any).
8.4 Procedure for Repayment
8.4.1 Payments in respect of the repayment or conversion of Debentures shall
be made in accordance with Condition 7 and, in relation to
Debentures
represented by the Global Certificate and Individual Certificates
held in the
Central Depository, the Applicable Procedures relating to the
repayment of debt
securities.
8.4.2 Debenture Holders shall surrender their Certificates in respect of
Debentures held by them to the Transfer Secretaries at least 10
days prior to
the Repayment Date.
8.4.3 Any repayment of Debentures in terms of this Condition 8 shall take
place in units and not in the reduction of the nominal value of the Debentures.
8.5 Procedure for Conversion
8.5.1 Subject to compliance with Condition 8.4.2, on the Conversion Date the
Issuer shall carry out the Conversion relevant to that Conversion
Date.
8.5.2 Affected Debenture Holders shall surrender their Certificates in
respect of Debentures held by them to the Transfer Secretaries at
least 10 days
prior to the Conversion Date, failing which any certificate to be
issued by the
Issuer for the Shares issued by it in terms of a Conversion, and
any benefits
accruing in respect of such Shares, shall be retained and held by
the Issuer
until such surrender.
8.6 Purchases
The Issuer may at any time purchase Debentures in the open market or
otherwise, provided that the purchase price shall not be higher than
the market price as quoted on the JSE. If the Issuer purchases
Debentures before the Conversion Date or the Repayment Date, such
Debentures shall be cancelled and the Issuer`s liability to repay the
Principal Amount shall be simultaneously cancelled. .
8.7 Cancellation
All Debentures which are repaid or converted will forthwith be
cancelled. Where only a portion of Debentures represented by a
Certificate are cancelled, the Issuer shall deliver a Certificate to
such Debenture Holder in respect of the balance of the Debentures.
9 Prescription
The Debentures will become void unless presented for payment of the
Principal Amount within a period of 5 years after 31 December 2012.
10 Events of Default
10.1 An Event of Default in relation to the Debentures shall arise if any one or
more of the following events shall have occurred and be continuing :
10.1.1 the Issuer fails to pay any interest or principal in respect of any of
the Debentures on due date for payment and the failure to pay has
continued for
more than 10 days following the service on the Issuer, by any one
Debenture
Holder of a written notice requiring that breach to be remedied;
or
10.1.2 the Issuer fails to perform or observe any of its other obligations
under the Debentures and such failure has continued for the period of 10 days
following the service on the Issuer of a written notice requiring that breach to
be remedied; or
10.1.3 the Issuer is placed in liquidation, dissolved or is wound-up, whether
provisionally or finally and whether voluntarily or otherwise, or is placed
under judicial management, whether provisionally or finally or any process
similar thereto, or an order is made or an effective resolution of the Issuer`s
members is passed for the winding-up, dissolution or liquidation of the Issuer
or the Issuer initiates or consents to judicial proceedings relating to itself
under any applicable compromise with creditors, liquidation, winding-up or
insolvency or other similar laws or compromises or attempts to compromise with
its creditors generally (or any significant class of creditors), save for the
purposes of a merger, amalgamation, consolidated, reconstruction or
reorganisation, in solvent circumstances;
10.1.4 if proceedings are initiated against the Issuer such that a person
takes possession of the whole or a material part of the undertaking or assets of
the Issuer, or an execution or attachment or other process is levied, enforced
upon, sued out or put in force against the whole or a material part of the
undertaking or assets of the Issuer and such is not discharged within 30 days;
or
10.1.5 if the listing of the Debentures or any shares of the Issuer is
suspended or terminated by the JSE or a resolution is adopted at a general
meeting of the shareholders of the Issuer proposing the deletion of such
securities from the list.
10.2 Upon the happening of such an Event of Default, then any Debenture Holder
may :
10.2.1 by giving a Holder`s Conversion Notice to the Issuer in prescribed
form, at its registered office, effective upon the date of
receipt thereof by
the Issuer, elect that some or all of the Debentures held by such
Debenture
Holder be converted forthwith in terms of a Default Conversion
whereupon those
Debentures shall become forthwith convertible at their Principal
Amount.
Interest will for purposes of calculating the Principal Amount,
be accrued from
the last Interest Due Date to such Conversion Date; or
10.2.2 by giving a Holder`s Repayment Notice to the Issuer in prescribed
form, at its registered office, effective upon the date of receipt thereof by
the Issuer, elect that some or all of the Debentures held by such Debenture
Holder be repaid forthwith in terms of a Default Cash Repayment, whereupon those
Debentures shall become forthwith repayable in cash pursuant to 1.11, provided
that no such action may be taken by a Debenture Holder if the Issuer withholds
or refuses to make any such payment in order to comply with any law or
regulation of South Africa or to comply with any order of a court of competent
jurisdiction.
11 Delivery, exchange and replacement of debentures
11.1 The Debentures will initially be allotted and issued in the form of the
Global Certificate and will be lodged and immobilised in the Central
Depository.
11.2 A person holding a Beneficial Interest in the Debentures represented by the
Global Certificate may, in terms of the Applicable Procedures and through its
nominated Participant, direct a written request to the Transfer Secretaries for
an Individual Certificate representing the number of Debentures to be delivered
by the Transfer Secretaries in exchange for such Beneficial Interest. The
aggregate of the Principal Amounts of the Debentures represented by such
Individual Certificate shall be equivalent to the amount of such Beneficial
Interest. The Transfer Secretaries shall deliver such Individual Certificate
upon written request no late than 14 days after receiving the written request of
the holder of such Beneficial Interest in accordance with the Applicable
Procedures, provided that joint holders of a Beneficial Interest shall be
entitled to receive only 1 Individual Certificate in respect of that joint
holding and delivery to 1 of those joint holders shall be delivered to all of
them.
11.3 Upon the receipt of a written request for delivery of an Individual
Certificate in terms of Condition 11.2, the Global Certificate shall, in terms
of the Applicable Procedures, be presented to the Transfer Secretaries for
splitting and a new Global Certificate for the balance of the Debentures still
held by the Central Depository shall be delivered to the Central Depository.
The old Global Certificate will be cancelled and retained by the Transfer
Secretaries.
11.4 Certificates shall be provided, whether by way of issue, delivery or
exchange by the Issuer without charge, save as otherwise provided in these Terms
and Conditions. Separate costs and expenses relating to the provision of
Certificates and/or the transfer of Debentures may be levied by other persons,
such as a Settlement Agent, under the Applicable Procedures and such costs and
expenses shall not be borne by the Issuer. The costs and expenses of delivery
of Certificates by other than ordinary post, if any, and if the Issuer shall so
require, taxes or governmental charges or insurance charges that may be imposed
in relation to such mode of delivery shall be borne by the Debenture Holder.
11.5 If any Certificate is mutilated, defaced, stolen, destroyed or lost it may
be replaced at the office of the Transfer Secretaries on payment by the claimant
of such costs and expenses as may be incurred in connection therewith and
against the furnishing of such indemnity as the Transfer Secretaries may
reasonably require. Mutilated or defaced Certificates must be surrendered
before replacements will be issued.
11.6 Any person becoming entitled to Debentures in consequence of the death or
insolvency of the relevant Debenture Holder may, upon producing evidence to the
satisfaction of the Issuer that he holds the position in respect of which he
proposes to act under this paragraph or of his title, require the Issuer and the
Transfer Secretaries to register such person as the holder of such Debentures
or, subject to the requirements of this Condition 11, to transfer such
Debentures to such person.
12 Transfer of Debentures
12.1 Beneficial Interests in the Debentures may be transferred in terms of the
Applicable Procedures in the Central Depository.
12.2 In order for any transfer of Debentures to be effected through the Register
and for the transfer to be recognised by the Issuer, each transfer of a
Debenture :
12.2.1 must be embodied in the usual Transfer Form;
12.2.2 must be signed by the relevant Debenture Holder and the transferee, or
any authorised representatives of that registered Debenture Holder and/or
transferee;
12.2.3 must be made by way of the delivery of the Transfer Form to the
Transfer Secretaries together with the Certificate in question for cancellation
or, if only part of the Debentures represented by a Certificate is transferred,
a new Certificate for the balance will be delivered to the transferor and the
cancelled Certificate will be retained by the Transfer Secretaries.
12.3 The transferor of any Debentures represented by a Certificate shall be
deemed to remain the owner thereof until the transferee is registered
in the
Register as the holder thereof.
12.4 Before any transfer is registered, all relevant transfer taxes (if any)
must have been paid and such evidence must be furnished as the Transfer
Secretaries reasonably require as to the identity and title of the transferor
and the late transferee.
12.5 The Debentures may not be dematerialised or rematerialised between 5
Business Days prior to either the Last Day to Trade or the Record Date and no
transfer will be registered while the Register is closed.
12.6 If a transfer is registered then the Transfer Form and cancelled
Certificate will be retained by the Transfer Secretaries.
12.7 All authorities to sign Transfer Forms granted by Debenture Holders for the
purposes of transferring Debentures, which may be lodged, produced or exhibited
with or to the Issuer at its registered office shall, as between the Issuer and
the grantor of such authorises, be taken and deemed to continue and remain in
force and effect, and the Issuer may allow the same to be acted upon until such
time as expressed by notice in writing of the revocation of the same shall have
been given and lodged with each of the Transfer Secretaries and the Issuer.
Even after the giving and lodging of such a notice of revocation, the Issuer
shall be entitled to give effect to any instrument signed under any such
authorised where any officer of the Issuer has certified the authority as being
an order before the giving and lodging of such notice of revocation.
13 Register
13.1 The Register shall be kept at the offices of the Transfer Secretaries. The
Register shall contain the name, address and bank account details of
the
registered Debenture Holders. The Register shall set out the
Principal Amount
and number of the Debenture allotted and issued to any Debenture
Holder and
shall show the date of such allotment and issue and the date upon
which the
Debenture Holder became registered as such. The Register shall show
the serial
numbers of Certificates issued. The Register shall be open for
inspection
during the normal business hours of the Transfer Secretaries to any
Debenture
Holder or any person authorised in writing by any Debenture Holder.
The
Transfer Secretaries shall not record any transfer while the Register
is closed.
13.2 During the period from and including the Issue Date but excluding 31
December 2012 , the Register shall be closed :
13.2.1 from and including 20 June to, but excluding, 30 June each year; and
13.2.2 from and including 20 December to, but excluding, 31 December each
year; and
13.2.3 for the period of 10 days preceding a Repayment Date or Conversion
Date, if such Repayment Date or Conversion Date does not fall on an Interest Due
Date.
All periods referred to in this Condition 13.2 may be shortened by the
Issuer from time to time, upon notice to the Debenture Holders.
13.3 The Transfer Secretaries shall alter the Register in respect of any change
of name, address or bank account number of any of the Debenture
Holders of which
it is notified in accordance with these Terms and Conditions.
14 Notices
14.1 All notices, including all demands or requests under these Terms and
Conditions, to the Debenture Holders, including the holders of
Beneficial
Interests, will be valid if :
14.1.1 mailed by registered post or hand delivered to their addresses
appearing in the Register or published in a leading English
language daily
newspaper of general circulation in South Africa; and
14.1.2 for so long as the Debentures are listed on the JSE, published on
SENS.
Any such notice shall be deemed to have been given on the earlier of
the day of first publication and hand delivery or on the seventh day
after the day on which it is mailed, as the case may be.
14.2 For so long as the Debentures are held in their entirety by the Central
Depository, there may be substituted for publication as contemplated in
Condition 14.1, the delivery of the relevant notice to the Central
Depository,
the Settlement Agents and the JSE for communication by them to the
holders of
Beneficial Interests in the Debentures represented by the Global
Certificates.
14.3 Notices, including all demands or requests under these Terms and
Conditions, to be given by any Debenture Holder shall be in writing and given by
delivering the notice, together with a certified copy of the relevant
Certificate to the Issuer. While any of the Debentures are represented by the
Global Certificate, notice may be given by any holder of a Beneficial Interest
to the Issuer only through the holder`s relevant Settlement Agent in accordance
with the Applicable Procedures and in such manner as the Issuer and the relevant
Settlement Agent may approve for this purpose.
14.4 Any notice to the Issuer shall be deemed to have been received by the
Issuer, on the second Business Day after being hand delivered to the registered
office of the Issuer or on the seventh Business Day after the day on which it is
mailed by registered post to the registered office of the Issuer, as the case
may be.
15 Amendment of these Terms and Conditions
These Terms and Conditions set out all the rights and obligations relating
to the Debentures. No addition, variation or consensual cancellation shall
be of any force or effect unless reduced to writing and:
15.1 signed by or on behalf of Debenture Holders holding not less than 75% in
number of the Debentures outstanding from time to time; or
15.2 authorised by an Extraordinary Resolution of a meeting of Debenture
Holders; or
15.3 authorised by a simple majority at a general meeting of the ordinary
shareholders of the Issuer, save that any change to any provisions regarding
Repayment or Conversion shall require an Extraordinary Resolution,
provided that no such amendment shall be of any force or effect unless
notice of the intention to make such amendment shall have been given to the
Debenture Holders.
16 Meetings of Debenture Holders
16.1 The Issuer may at any time convene a meeting of Debenture Holders upon at
least 21 days` prior written notice to such Debenture Holders. Such
notice
shall specify the date, place and time of the meeting to be held,
which place
shall be in South Africa.
16.2 Every director or duly appointed representative of the Issuer may attend
and speak at a meeting of Debenture Holders, but shall not be entitled to vote
in respect of Debentures (if any) held by the Issuer. The Issuer shall have no
entitlement to vote as a Debenture Holder in respect of any Debentures held by
it.
16.3 Debenture Holders holding not less than 10% in nominal amount of the
outstanding Debentures shall be able to request the Issuer to convene a meeting
of Debenture Holders. Should the Issuer fail to requisition such a meeting
within 10 Business Days of such a request being received by the Issuer, the
Debenture Holders requesting such a meeting may convene such meeting upon at
least 21 days` prior written notice to the Issuer and the Debenture Holders.
Such notice shall specify the date, place and time of the meeting to be held,
which place shall be in South Africa.
16.4 At any meeting of Debenture Holders, each Debenture Holder shall on a show
of hands have 1 vote and on a poll have 1 vote for each Debenture held by such
Debenture Holder. The Debenture Holder in respect of the Debentures represented
by the Global Certificate shall vote at any such meeting on behalf of the
holders of Beneficial Interests in such Debentures in accordance with the
Applicable Procedures.
16.5 The chairman of any meeting of Debenture Holders shall be appointed by the
Issuer. In the event of an equality of votes, the chairman shall have a casting
vote. The procedures to be followed at the meeting shall be as determined by
the chairman subject to the remaining provisions of this Condition 16. Should a
Debenture Holder request a meeting, and the Issuer fails to call such a meeting
within 10 Business Days of the request, then the chairman of the meeting held at
the instance of the Debenture Holders shall be selected by a majority of
Debenture Holders present in person or duly represented.
16.6 At any such meeting, one or more Debenture Holders present in person or
duly represented holding in aggregate not less than one-third of the Principal
Amount of the Debentures for the time being outstanding, shall form a quorum for
the transaction of business. The quorum at a meeting for the passing of an
Extraordinary Resolution shall be one or more Debenture Holders present in
person or duly represented and holding in aggregate not less than a clear
majority of the Principal Amount of Debentures outstanding for the time being.
If such quorum should not be obtained, the meeting of Debenture Holders shall be
adjourned for not less than 14 days, in which event, notice of the adjourned
meeting shall state that, if a quorum as required is not present at the
adjourned meeting, the Debenture Holders then present will form a quorum.
17 Entire Terms and Conditions
These Terms and Conditions constitute all the Terms and Conditions of the
Convertible Debentures as to the subject matter thereof and no terms and
conditions, representations or warranties, other than those set out herein,
are binding and/or valid.
18 Governing law
The provisions of the Debentures are governed by, and shall be construed in
accordance with, the laws of South Africa.
Accordingly the company hereby notifies the shareholders that ordinary
resolution 11 of the Notice of the Annual General Meeting of 30 January 2008 in
respect of the Annual General Meeting of the company to be held at 12:00 on
Wednesday, 27 February 2008 should be voted on the basis of the amendment
referred to above.
Shareholders who have already lodged their forms of proxy will have the
opportunity of re-submitting their proxy forms if they so wish or vote in person
at the annual general meeting. A form of proxy will be e-mailed to shareholders
on request.
For any queries please contact Richard O`Callaghan (Company Secretary):
Email: richardo@proactive-integ.co.za)
Tel: +27 11 442 9592
Johannesburg
25 February 2008
Sponsor: Bridge Capital Advisors (Pty) Limited
Date: 25/02/2008 17:27:17 Produced by the JSE SENS Department.
The SENS service is an information dissemination service administered by the
JSE Limited (`JSE`). The JSE does not, whether expressly, tacitly or
implicitly, represent, warrant or in any way guarantee the truth, accuracy or
completeness of the information published on SENS. The JSE, their officers,
employees and agents accept no liability for (or in respect of) any direct,
indirect, incidental or consequential loss or damage of any kind or nature,
howsoever arising, from the use of SENS or the use of, or reliance on,
information disseminated through SENS.
