| Tue 28 Jul 2009, 8:00 | | INP - Investec Plc - Proposed Equity Placing |
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INP
INP
INP - Investec Plc - Proposed Equity Placing
Investec plc
Incorporated in England and Wales
Registration number 3633621
JSE share code: INP
ISIN: GB00B17BBQ50
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO
THE UNITED STATES, CANADA, JAPAN AND JERSEY
Proposed Equity Placing of up to 22,000,000 new Ordinary Shares of Investec plc
providing funds to allow the repurchase of debt at a discount to par
Details of the Placing and Use of Proceeds
Investec plc ("Investec" or the "Company") announces today its intention to
issue up to 22,000,000 new Ordinary Shares (the "Placing") of 0.02 pence each
(the "Ordinary Shares") representing 4.92 per cent of the number of the existing
Ordinary Shares of the Company and 3.07 per cent of the number of the combined
existing Ordinary Shares of the Company and Investec Limited to fund the
repurchase of existing debt at a discount to par.
The equity placement and subsequent repurchase of the debt is expected to
improve Investec`s tier 1 capital without reducing the total capital adequacy
ratio, which is consistent with management`s objective of maintaining capital
levels significantly above regulatory requirements.
Stephen Koseff, Chief Executive Officer of Investec, said: "This offering gives
Investec the flexibility to prudently repurchase debt at a discount to par and
subsequently the opportunity to deliver long term shareholder value, while
preserving a strong tier 1 capital position."
The Placing is being conducted, subject to the satisfaction of certain
conditions, through an accelerated book-building process to be carried out by
Merrill Lynch International ("Merrill Lynch") who are acting as sole bookrunner
in relation to the Placing. The identity of Placees and the basis of the
allocations are at the discretion of Investec and Merrill Lynch. The number of
Placing Shares and the price at which the Placing Shares are to be placed (the
"Placing Price") will be agreed by Investec with Merrill Lynch at the close of
the book-building process. Details of the number of Placing Shares and the
Placing Price will be announced as soon as practicable after the close of the
book-building process.
The Placing Shares will be issued credited as fully paid and will rank pari
passu with the existing Ordinary Shares, including the right to receive all
dividends and other distributions declared in respect of such shares after the
date of issue of the Placing Shares.
The Company will apply for admission of the Placing Shares to trading on the
main market of the London Stock Exchange ("London Admission") and the
Johannesburg Stock Exchange ("South African Admission"). It is expected that the
London Admission will take place and that trading will commence on 31 July 2009,
with the South African Admission to occur shortly thereafter.
The Placing is conditional, inter alia, upon London Admission becoming effective
and the placing agreement made between the Company and Merrill Lynch not being
terminated. It is anticipated that the settlement date will be 31 July 2009.
The Appendix to this announcement (which forms part of this announcement) sets
out the terms and conditions of the Placing.
Additional information providing background to the Placing
Since 30 June 2009 the group has via a tender offer acquired GBP36.7 million in
aggregate principal amount of its GBP350 million Fixed/Floating Undated
Subordinated Callable Step-Up Notes issued under its Euro Medium Term Note
Programme (RNS announcement made on 7 July 2009) plus a further GBP12.5 million
in the open market. In addition, the group has acquired GBP18.4 million
principal amount of the 9.00 per cent. Kensington Group plc Callable
Subordinated Notes due 2015 (RNS announcement made on 13 July 2009).
Johannesburg, 28 July 2009
Investment Bank and Sponsor in South Africa
Investec Bank Limited
Contacts
Investec plc +44 20 7597 5546
Stephen Koseff, Chief Executive Officer
Bernard Kantor, Managing Director
Ursula Nobrega, Investor Relations
BofA Merrill Lynch +44 20 7996 1000
Henrietta Baldock
Paul Frankfurt
Michael Larbie
Oliver Holbourn
Citigate Dewe Rogerson +44 20 7638 9571
Jonathan Clare
This announcement contains (or may contain) certain forward-looking statements
with respect to certain of Investec`s plans and its current goals and
expectations relating to its future core tier 1 capital position, financial
condition and performance and which involve a number of risks and uncertainties.
Investec cautions readers that no forward-looking statement is a guarantee of
future performance and that actual results could differ materially from those
contained in the forward-looking statements. These forward-looking statements
can be identified by the fact that they do not relate only to historical or
current facts. Forward-looking statements sometimes use words such as "aim",
"anticipate", "target", "expect", "estimate", "intend", "plan", "goal",
"believe", or other words of similar meaning. By their nature, forward-looking
statements involve risk and uncertainty because they relate to future events and
circumstances, including, but not limited to, economic and business conditions,
the effects of continued volatility in credit markets, market-related risks such
as changes in interest rates and foreign exchange rates, the policies and
actions of governmental and regulatory authorities, changes in legislation, the
further development of standards and interpretations under International
Financial Reporting Standards ("IFRS") applicable to past, current and future
periods, evolving practices with regard to the interpretation and application of
standards under IFRS, the outcome of pending and future litigation or regulatory
investigations, acquisitions and other strategic transactions and the impact of
competition. A number of these factors are beyond Investec`s control. As a
result, Investec`s actual future results may differ materially from the plans,
goals, and expectations set forth in Investec`s forward-looking statements. Any
forward-looking statements made in this announcement by or on behalf of Investec
speak only as of the date they are made. Except as required by the FSA, the
London Stock Exchange or applicable law, Investec expressly disclaims any
obligation or undertaking to release publicly any updates or revisions to any
forward-looking statements contained in this announcement to reflect any changes
in Investec`s expectations with regard thereto or any changes in events,
conditions or circumstances on which any such statement is based.
This announcement is for information purposes only and shall not constitute an
offer to buy, sell, issue, or acquire, or the solicitation of an offer to buy,
sell, issue, or acquire any securities, nor shall there be any sale of
securities in any jurisdiction in which such offer, solicitation or sale would
be unlawful prior to registration or qualification under the securities laws of
any such jurisdiction. This announcement has been issued by and is the sole
responsibility of Investec.
No representation or warranty, express or implied, is or will be made as to, or
in relation to, and no responsibility or liability is or will be accepted by
Merrill Lynch or by any of its affiliates or agents as to, or in relation to,
the accuracy or completeness of this announcement or any other written or oral
information made available to or publicly available to any interested party or
its advisers, and any liability therefore is expressly disclaimed.
Merrill Lynch International, which is authorised and regulated in the United
Kingdom by the FSA, is acting for Investec and for no-one else in connection
with the Placing, and will not be responsible to anyone other than Investec for
providing the protections afforded to customers of Merrill Lynch International
or for providing advice to any other person in relation to the Placing or any
other matter referred to herein.
The distribution of this announcement and the offering of the Placing Shares in
certain jurisdictions may be restricted by law. No action has been taken by
Investec or Merrill Lynch that would permit an offering of such shares or
possession or distribution of this announcement or any other offering or
publicity material relating to such shares in any jurisdiction where action for
that purpose is required. Persons into whose possession this announcement comes
are required by Investec and Merrill Lynch to inform themselves about, and to
observe such restrictions.
The price of shares and the income from them may go down as well as up and
investors may not get back the full amount invested on disposal of the shares.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS
ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT
HEREIN ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT PERSONS WHO
ARE: (A) (I) INVESTMENT PROFESSIONALS FALLING WITHIN ARTICLE 19(5) OF THE
FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE
"ORDER"), OR (II) PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET
WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER, OR (III)
PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED; AND (B) (I) PERSONS
IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA WHO ARE QUALIFIED INVESTORS (AS
DEFINED IN ARTICLE 2(1)(E) OF EU DIRECTIVE 2003/71/EC (THE "PROSPECTUS
DIRECTIVE")), AND/OR (II) PERSONS IN THE UNITED KINGDOM WHO ARE QUALIFIED
INVESTORS (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS").
THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT
IN THIS ANNOUNCEMENT MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT
RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS
ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT IN
THIS ANNOUNCEMENT RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE
ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT (INCLUDING THE
APPENDIX) DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY
SECURITIES IN INVESTEC PLC.
Persons (including individuals, funds or otherwise) by whom or on whose behalf a
commitment to acquire Placing Shares has been given ("Placees") will be deemed
to have read and understood this announcement, including the Appendix, in its
entirety and to be making such offer on the terms and conditions, and to be
providing the representations, warranties, acknowledgements, and undertakings
contained in the Appendix. In particular, each such Placee represents, warrants
and acknowledges that it is: (i) a Relevant Person (as defined above) and
undertakes that it will acquire, hold, manage or dispose of any Placing Shares
that are allocated to it for the purposes of its business; and (ii) acquiring
the Placing Shares for its own account or is acquiring the Placing Shares for an
account with respect to which it exercises sole investment discretion and that
it (and any such account) is outside the United States (unless otherwise agreed
with Investec and Merrill Lynch) and is acquiring the Placing Shares in an
"offshore transaction" (within the meaning of Regulation S under the Securities
Act).
This announcement, including the Appendix, is not for distribution, directly or
indirectly, in or into the United States, Canada, Japan or Jersey or any
jurisdiction into which the same would be unlawful. This announcement does not
constitute or form part of an offer or solicitation to acquire shares in the
capital of Investec in the United States, Canada, Japan or Jersey or any
jurisdiction in which such an offer or solicitation is unlawful. In particular,
the Placing Shares referred to in this announcement have not been, and will not
be, registered under the Securities Act or under the securities legislation of
any state of the United States, and may not be offered or sold, directly or
indirectly, in or into the United States absent registration or pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements under the Securities Act. Subject to exceptions, the Placing Shares
referred to in this announcement are being offered and sold only outside the
United States in accordance with Regulation S under the Securities Act. No
public offering of securities of Investec will be made in connection with the
Placing in the United Kingdom, the United States, Australia, Canada, Japan,
Jersey, South Africa or elsewhere.
The relevant clearances have not been, and nor will they be, obtained from the
securities commission of any province or territory of Canada; no prospectus has
been lodged with, or registered by, the Australian Securities and Investments
Commission or the Japanese Ministry of Finance; and the Placing Shares have not
been, and nor will they be, registered under the securities laws of any state,
province or territory of Australia, Canada, Japan, Jersey or South Africa.
Accordingly, the Placing Shares may not (unless an exemption under the relevant
securities laws is applicable) be offered, sold, resold or delivered, directly
or indirectly, in or into the United States, Australia, Canada, Japan or Jersey
or any other jurisdiction outside the United Kingdom.
The Placing Shares have not been approved or disapproved by the US Securities
and Exchange Commission, any State securities commission or any other regulatory
authority in the United States, nor have any of the foregoing authorities passed
upon or endorsed the merits of the Placing or the accuracy or adequacy of this
announcement. Any representation to the contrary is unlawful.
Persons (including, without limitation, nominees and trustees) who have a
contractual or other legal obligation to forward a copy of the Appendix or this
announcement should seek appropriate advice before taking any action.
Residents of South Africa are subject to exchange control regulations as issued
from time to time by the Exchange Control Division of the SARB and are advised
to seek independent advice regarding any permissions that may be required of the
Exchange Control Division of the SARB with regard to the acquisition of Placing
Shares by any resident of South Africa. To the extent that Placing Shares are
offered for acquisition or sale in South Africa, such offer is being effected in
terms of section 144 of the South African Companies Act and does not constitute
an offer to the public or any sector of the public within the meaning of the
South African Companies Act.
This announcement relates to an Exempt Offer in accordance with the Offered
Securities Rules of the DFSA. This announcement is intended for distribution
only to persons of a type specified in the Offered Securities Rules of the DFSA.
It must not be delivered to, or relied on by, any other person. The DFSA has no
responsibility for reviewing or verifying any documents in connection with
Exempt Offers. The DFSA has not approved this announcement nor taken steps to
verify the information set forth herein and has no responsibility for this
announcement. The Placing Shares to which this announcement relates may be
illiquid and / or subject to restrictions on their resale. Prospective
acquirers of the Placing Shares offered should conduct their own due diligence
on the Placing Shares. If you do not understand the contents of this
announcement you should consult an authorised financial advisor.
The Placing Shares to be issued pursuant to the Placing will not be admitted to
trading on any stock exchange other than the London Stock Exchange and the JSE.
Neither the content of Investec`s website nor any website accessible by
hyperlinks on Investec`s website is incorporated in, or forms part of, this
announcement.
APPENDIX
TERMS AND CONDITIONS
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
Details of the Placing
Merrill Lynch has entered into an agreement with Investec (the "Placing
Agreement") under which, subject to the conditions set out in that agreement,
Merrill Lynch has agreed to use reasonable endeavours to procure placees for the
Placing Shares at a price determined following completion of the bookbuilding
process in respect of the Placing (the "Bookbuild"), described in this
announcement and set out in the Placing Agreement. In accordance with the terms
of a subscription and transfer agreement between the Company, Investec Finance
(Jersey) Limited and Merrill Lynch (the "Subscription and Transfer Agreement"),
Merrill Lynch has agreed to underwrite the settlement risk in the event that any
Placees fail to take up their allocation of Placing Shares.
The Placing Shares will, when issued, be credited as fully paid and will rank
pari passu in all respects with the existing ordinary shares of Investec
including the right to receive all dividends and other distributions declared in
respect of such ordinary shares after the date of issue of the Placing Shares.
As part of the Placing, Investec has agreed that it will not issue or sell any
ordinary shares for a period of 90 days after Admission, without the prior
consent of Merrill Lynch. This agreement does not however prevent Investec from
granting or satisfying exercises of options granted pursuant to existing
employee share schemes of Investec as disclosed in publicly available
information.
Application for listing and admission to trading
Application will be made to the FSA for admission of the Placing Shares to the
Official List of the FSA (the "Official List") and to the London Stock Exchange
for admission to trading of the Placing Shares on its main market for listed
securities. It is expected that Admission will become effective on or around 31
July 2009 and that dealings in the Placing Shares will commence at that time.
Application will also be made to the JSE for admission of the Placing Shares to
trading on the JSE. It is expected that such admission will become effective on
or around 31 July 2009 and that dealings in the Placing Shares on the JSE will
commence at that time.
Bookbuild
Merrill Lynch will today commence the Bookbuild to determine demand for
participation in the Placing by Placees. This Appendix gives details of the
terms and conditions of, and the mechanics of participation in, the Placing. No
commissions will be paid to Placees or by Placees in respect of any Placing
Shares.
Merrill Lynch and Investec shall be entitled to effect the Placing by such
alternative method to the Bookbuild as they may, in their sole discretion,
determine.
Participation in, and principal terms of, the Placing
1. Merrill Lynch is acting as sole bookrunner and as agent of Investec.
2. Participation in the Placing will only be available to persons who may
lawfully be, and are, invited to participate by Merrill Lynch. Merrill
Lynch and its affiliates are each entitled to enter bids in the Bookbuild
as principal.
3. The Bookbuild will establish a single price payable to Merrill Lynch by all
Placees whose bids are successful (the "Placing Price"). The Placing Price
and the number of Placing Shares to be issued will be agreed between
Merrill Lynch and Investec following completion of the Bookbuild. Any
discount to the market price of the ordinary shares will be determined in
accordance with the Listing Rules. The Placing Price and the number of
Placing Shares will be announced on a Regulatory Information Service
following the completion of the Bookbuild.
4. To bid in the Bookbuild, Placees should communicate their bid by telephone
to their usual sales or equity capital markets contact at Merrill Lynch.
Each bid should state the number of Placing Shares which the prospective
Placee wishes to acquire at either the Placing Price, which is ultimately
established by Investec and Merrill Lynch, or at prices up to a price limit
specified in its bid. Bids may be scaled down by Merrill Lynch on the basis
referred to in paragraph 9 below.
5. The Bookbuild is expected to close no later than 4.30 p.m. (London time) on
28 July 2009 but may be closed earlier or later at the discretion of
Merrill Lynch. Merrill Lynch may, in agreement with Investec, accept bids
that are received after the Bookbuild has closed. Investec reserves the
right (upon the agreement of Merrill Lynch) to reduce or seek to increase
the amount to be raised pursuant to the Placing, in its absolute
discretion.
6. Each prospective Placee`s allocation will be agreed between Merrill Lynch
and Investec and will be confirmed orally by Merrill Lynch as agent of
Investec following the close of the Bookbuild. That oral confirmation will
constitute an irrevocable legally binding commitment upon that person (who
will at that point become a Placee) to acquire the number of Placing Shares
allocated to it at the Placing Price on the terms and conditions set out in
this Appendix and in accordance with Investec`s memorandum and articles of
association.
7. Each prospective Placee`s allocation and commitment will be evidenced by a
contract note issued to such Placee by Merrill Lynch. The terms of this
Appendix will be deemed incorporated in that contract note.
8. Each Placee will have an immediate, separate, irrevocable and binding
obligation, owed to Merrill Lynch, to pay in cleared funds, an amount equal
to the product of the Placing Price and the number of Placing Shares such
Placee has agreed to acquire and Investec has agreed to allot and issue to
that Placee.
9. Merrill Lynch may choose to accept bids, either in whole or in part, on the
basis of allocations determined in agreement with Investec and may scale
down any bids for this purpose on such basis as they may determine. Merrill
Lynch may also, notwithstanding paragraphs 4 and 5 above, subject to the
prior consent of Investec (i) allocate Placing Shares after the time of any
initial allocation to any person submitting a bid after that time and (ii)
allocate Placing Shares after the Bookbuild has closed to any person
submitting a bid after that time.
10. A bid in the Bookbuild will be made on the terms and subject to the
conditions in this announcement and will be legally binding on the Placee
on behalf of which it is made and, except with the consent of Merrill
Lynch, will not be capable of variation or revocation after the time at
which it is submitted.
11. Irrespective of the time at which a Placee`s allocation pursuant to the
Placing is confirmed, settlement for all Placing Shares to be acquired
pursuant to the Placing will be required to be made at the same time, on
the basis explained below under "Registration and Settlement".
12. All obligations under the Bookbuild and Placing will be subject to
fulfilment of the conditions referred to below under "Conditions of the
Placing" and to the Placing not being terminated on the basis referred to
below under "Termination of the Placing Agreement".
13. By participating in the Bookbuild, each Placee will agree that its rights
and obligations in respect of the Placing will terminate only in the
circumstances described below and will not be capable of rescission or
termination by the Placee.
14. To the fullest extent permissible by law, neither Merrill Lynch nor any of
its affiliates shall have any liability to Placees (or to any other person
whether acting on behalf of a Placee or otherwise). In particular, neither
Merrill Lynch nor any of its affiliates shall have any liability (including
to the fullest extent permissible by law, any fiduciary duties) in respect
of Merrill Lynch`s conduct of the Bookbuild or of such alternative method
of effecting the Placing as Merrill Lynch and Investec may agree.
Conditions of the Placing
The obligations of Merrill Lynch under the Placing Agreement are conditional on,
amongst other things:
(a) there not having been, or there not having been made public, a material
adverse change in, or any development involving a prospective material
adverse change in or affecting the condition, financial, operational or
otherwise, or in the earnings, management, business affairs, business
prospects or financial prospects of Investec or the Investec Group as a
whole, whether or not arising in the ordinary course of business since the
date of the Placing Agreement;
(b) agreement being reached between Investec and Merrill Lynch on the Placing
Price and the number of Placing Shares, and the publication by Investec of
a pricing announcement;
(c) the representations and warranties contained in the Placing Agreement being
true and accurate on the date of the Placing Agreement, on the date of
release of the pricing announcement and on Admission;
(d) Investec complying with its obligations under the Placing Agreement to the
extent the same fall to be performed or satisfied prior to Admission and
Merrill Lynch receiving a certificate from the Company confirming such is
the case;
(e) Investec allotting, subject only to Admission, the Placing Shares in
accordance with the Placing Agreement and the Subscription and Transfer
Agreement; and
(f) Admission taking place by 8.00 a.m. (London time) on 31 July 2009 (or such
later date as Investec and Merrill Lynch may otherwise agree).
If any of the conditions contained in the Placing Agreement in relation to the
Placing Shares are not fulfilled or waived by Merrill Lynch, by the respective
time or date where specified (or such later time and/or date as Investec and
Merrill Lynch may agree), the Placing will not proceed and the Placee`s rights
and obligations hereunder in relation to the Placing Shares shall cease and
terminate at such time and each Placee agrees that no claim can be made by the
Placee in respect thereof.
Merrill Lynch may, at its discretion and upon such terms as it thinks fit, waive
compliance by Investec with the whole or any part of any of Investec`s
obligations in relation to the conditions in the Placing Agreement save that the
condition in the Placing Agreement relating to Admission taking place may not be
waived. Any such extension or waiver will not affect Placees` commitments as set
out in this announcement.
None of Merrill Lynch, Investec or any other person shall have any liability to
any Placee (or to any other person whether acting on behalf of a Placee or
otherwise) in respect of any decision made as to whether or not to waive or to
extend the time and /or the date for the satisfaction of any condition to the
Placing nor for any decision made as to the satisfaction of any condition or in
respect of the Placing generally, and by participating in the Placing each
Placee agrees that any such decision is within the absolute discretion of
Merrill Lynch.
Termination of the Placing Agreement
Merrill Lynch is entitled, at any time before Admission, to terminate the
Placing Agreement in relation to its obligations in respect of the Placing
Shares by giving notice to Investec if, amongst other things:
(a) there has been a breach of any of the warranties and representations
contained in the Placing Agreement or any failure to perform any of the
undertakings or agreements in the Placing Agreement which, in either case,
(i) in the good faith opinion of Merrill Lynch is material in the context
of Investec, the Investec Group as a whole or the Placing (including
Merrill Lynch`s underwriting commitment); or (ii) makes it, in Merrill
Lynch`s good faith opinion, impracticable or inadvisable to proceed with
the offer of the Placing Shares; or
(b) it shall come to the notice of Merrill Lynch that any statement contained
in this announcement, or any other document or announcement issued or
published by or on behalf of Investec in connection with the Placing
(together the "Placing Documents") is or has become untrue, incorrect or
misleading in any respect, or any matter has arisen, which would, if the
Placing were made at that time, constitute a material omission from the
Placing Documents, or any of them, and which Merrill Lynch considers to be
material in the context of the Placing or the underwriting of the Placing
Shares, Admission or any of the transactions contemplated by the Placing
Agreement; or
(c) in the opinion of Merrill Lynch, there has been, or Merrill Lynch has
become aware of, or there has been made public, a material adverse change,
or any development reasonably likely to involve a material adverse change
in the condition (financial, operational, legal or otherwise), or in the
earnings, business affairs, solvency or prospects of Investec, whether or
not arising in the ordinary course of business since the date of the
Placing Agreement; or
(d) there has occurred (i) any material adverse change in the financial markets
in the United States, the United Kingdom, member states of the European
Union or in the international financial markets, (ii) any outbreak or
escalation of hostilities, act of terrorism or other calamity or crisis or
(iii) any change or development involving a prospective change in national
or international political, financial or economic conditions, or currency
exchange rates, in each case the effect of which is such as to make it, in
the judgement of Merrill Lynch, impracticable or inadvisable to market the
Placing Shares or to enforce contracts for the sale of the Placing Shares;
or
(e) listing of the Ordinary Shares on the London Stock Exchange or the JSE has
been withdrawn, or trading in any shares in the Company has been suspended
or limited by the FSA or any South African regulatory body, or if trading
generally on the JSE, the London Stock Exchange or the New York Stock
Exchange has been suspended or limited, or there are certain other
disruptions, limitations or suspensions in respect of the operations of
certain stock exchanges or a banking moratorium is declared by certain
authorities.
Upon such termination, the parties to the Placing Agreement shall be released
and discharged (except for any liability arising before or in relation to such
termination) from their respective obligations under or pursuant to the Placing
Agreement subject to certain exceptions.
By participating in the Placing, Placees agree that the exercise by Merrill
Lynch of any right of termination or other discretion under the Placing
Agreement shall be within the absolute discretion of Merrill Lynch and that it
need not make any reference to Placees and that Merrill Lynch shall have no
liability to Placees whatsoever in connection with any such exercise or failure
so to exercise.
No prospectus
No offering document or prospectus has been or will be submitted to be approved
by the FSA, the JSE or the South African Registrar of Companies in relation to
the Placing, and Placees` commitments will be made solely on the basis of
publicly available information taken together with the information contained in
this announcement (including this Appendix) released by Investec today, and
subject to the further terms set forth in the contract note to be provided to
individual prospective Placees.
Each Placee, by accepting a participation in the Placing, agrees that the
content of this Announcement (including this Appendix) and the publicly
available information released by or on behalf of Investec is exclusively the
responsibility of Investec and confirms that it has neither received nor relied
on any other information, representation, warranty, or statement made by or on
behalf of Investec (other than publicly available information) or Merrill Lynch
or any other person and none of Merrill Lynch or Investec nor any other person
will be liable for any Placee`s decision to participate in the Placing based on
any other information, representation, warranty or statement which the Placees
may have obtained or received. Each Placee acknowledges and agrees that it has
relied on its own investigation of the business, financial or other position of
Investec in accepting a participation in the Placing. Nothing in this paragraph
shall exclude the liability of any person for fraudulent misrepresentation.
Registration and settlement
Settlement of transactions in the Placing Shares following Admission will take
place within the system administered by Euroclear UK & Ireland Limited
("CREST"), subject to certain exceptions. Investec reserves the right to require
settlement for and delivery of the Placing Shares (or a portion thereof) to
Placees in certificated form if, in Merrill Lynch`s opinion, delivery or
settlement is not possible or practicable within the CREST system or would not
be consistent with the regulatory requirements in the Placee`s jurisdiction.
Following the close of the Bookbuild for the Placing, each Placee allocated
Placing Shares in the Placing will be sent a contract note stating the number of
Placing Shares to be allocated to it at the Placing Price and settlement
instructions.
Each Placee agrees that it will do all things necessary to ensure that delivery
and payment is completed in accordance with the standing CREST or certificated
settlement instructions that it has in place with Merrill Lynch.
Investec will deliver the Placing Shares to a CREST account operated by Merrill
Lynch as agent for Investec and Merrill Lynch will enter its delivery (DEL)
instruction into the CREST system. Merrill Lynch will hold any Placing Shares
delivered to this account as nominee for the Placees. The input to CREST by a
Placee of a matching or acceptance instruction will then allow delivery of the
relevant Placing Shares to that Placee against payment.
It is expected that settlement will be on 31 July 2009 on a T + 3 basis in
accordance with the instructions given to Merrill Lynch.
Interest is chargeable daily on payments not received from Placees on the due
date in accordance with the arrangements set out above at the rate of two
percentage points above LIBOR as determined by Merrill Lynch.
Each Placee is deemed to agree that, if it does not comply with these
obligations, Merrill Lynch may sell any or all of the Placing Shares allocated
to that Placee on such Placee`s behalf and retain from the proceeds, for Merrill
Lynch`s account and benefit, an amount equal to the aggregate amount owed by the
Placee plus any interest due. The relevant Placee will, however, remain liable
for any shortfall below the aggregate amount owed by it and may be required to
bear any stamp duty or stamp duty reserve tax (together with any interest or
penalties) which may arise upon the sale of such Placing Shares on such Placee`s
behalf.
If Placing Shares are to be delivered to a custodian or settlement agent,
Placees should ensure that the trade confirmation is copied and delivered
immediately to the relevant person within that organisation. Insofar as Placing
Shares are registered in a Placee`s name or that of its nominee or in the name
of any person for whom a Placee is contracting as agent or that of a nominee for
such person, such Placing Shares should, subject as provided below, be so
registered free from any liability to UK stamp duty or stamp duty reserve tax.
Placees will not be entitled to receive any fee or commission in connection with
the Placing.
Representations and warranties
By participating in the Placing each Placee (and any person acting on such
Placee`s behalf) acknowledges, undertakes, represents, warrants and agrees (as
the case may be) the following. It:
1. represents and warrants that it has read this announcement, including the
Appendix, in its entirety;
2. acknowledges and agrees that no offering document, listing particulars or
prospectus has been or will be prepared in connection with the Placing and
represents and warrants that it has not received a prospectus or other
offering document in connection with the Bookbuild, the Placing or the
Placing Shares;
3. acknowledges that the ordinary shares in the capital of Investec are listed
on the Official List of the FSA, and Investec is therefore required to
publish certain business and financial information in accordance with the
rules and practices of the FSA, which includes a description of the nature
of Investec`s business and Investec`s most recent balance sheet and profit
and loss account and that it is able to obtain or access such information
without undue difficulty, and is able to obtain access to such information
or comparable information concerning any other publicly traded company,
without undue difficulty;
4. acknowledges that none of Merrill Lynch or Investec nor any of their
affiliates nor any person acting on behalf of any of them has provided, and
will not provide, it with any material regarding the Placing Shares or
Investec or any other person other than this announcement; nor has it
requested any of Merrill Lynch, Investec, any of their affiliates or any
person acting on behalf of any of them to provide it with any such
information;
5. acknowledges that (i) unless otherwise agreed with Investec and Merrill
Lynch, it and, if different, the beneficial owner of the Placing Shares is
not, and at the time the Placing Shares are acquired will not be in the
United States or residents of Canada, Japan or Jersey, and (ii) the Placing
Shares have not been and will not be registered under the securities
legislation of the United States, Australia, Canada, Japan, Jersey or South
Africa and, subject to certain exceptions, may not be offered, sold, taken
up, renounced or delivered or transferred, directly or indirectly, in or
into those jurisdictions;
6. represents and warrants that, if a resident of South Africa, it has sought
independent advice regarding any permissions that may be required of the
Exchange Control Division of the SARB with regard to the acquisition of
Placing Shares by it and acknowledges that, to the extent that Placing
Shares are offered for acquisition or sale in South Africa, such offer is
being effected in terms of section 144 of the South African Companies Act
and does not constitute an offer to the public or any sector of the public
within the meaning of the South African Companies Act;
7. represents and warrants that, if resident in Australia it is a professional
investor, as defined in section 9 and for the purposes of section 708(11)
of the Corporations Act 2001 (Cth) of Australia, or the minimum amount to
be paid by it for the Placing Shares to be acquired by it will be not less
than AUD500,000;
8. represents and warrants that, if resident in Australia it is not acquiring
the Placing Shares for the purpose of resale and will not will not offer
any Placing Shares for resale in Australia within 12 months of any such
Placing Shares being issued to it unless the resale offer is exempt from
the requirement to issue a disclosure document under section 708 of the
Corporations Act 2001 (Cth) of Australia;
9. acknowledges that the content of this announcement is exclusively the
responsibility of Investec and that neither Merrill Lynch nor any person
acting on its behalf has or shall have any liability for any information,
representation or statement contained in this announcement or any
information previously published by or on behalf of Investec and will not
be liable for any Placee`s decision to participate in the Placing based on
any information, representation or statement contained in this announcement
or otherwise. Each Placee further represents, warrants and agrees that the
only information on which it is entitled to rely and on which such Placee
has relied in committing itself to acquire the Placing Shares is contained
in this announcement and any information previously published by or on
behalf of Investec by notification to a Regulatory Information Service,
such information being all that it deems necessary to make an investment
decision in respect of the Placing Shares and that it has neither received
nor relied on any other information given or representations, warranties or
statements made by Merrill Lynch or Investec and neither Merrill Lynch nor
Investec will be liable for any Placee`s decision to accept an invitation
to participate in the Placing based on any other information,
representation, warranty or statement. Each Placee further acknowledges and
agrees that it has relied on its own investigation of the business,
financial or other position of Investec in deciding to participate in the
Placing;
10. acknowledges that neither of Merrill Lynch nor any person acting on behalf
of it nor any of its affiliates has or shall have any liability for any
publicly available or filed information, or any representation relating to
Investec, provided that nothing in this paragraph excludes the liability of
any person for fraudulent misrepresentation made by that person;
11. represents and warrants that neither it, nor the person specified by it for
registration as a holder of Placing Shares is, or is acting as nominee or
agent for, and that the Placing Shares will not be allotted to, a person
whose business either is or includes issuing depositary receipts or the
provision of clearance services ;
12. represents and warrants that it has complied with its obligations in
connection with money laundering and terrorist financing under the Proceeds
of Crime Act 2002, the Terrorism Act 2000, the Terrorism Act 2006 and the
Money Laundering Regulations 2007 (the "Regulations") and, if making
payment on behalf of a third party, that satisfactory evidence has been
obtained and recorded by it to verify the identity of the third party as
required by the Regulations;
13. if a financial intermediary, as that term is used in Article 3(2) of EU
Directive 2003/71/EC (the "Prospectus Directive") (including any relevant
implementing measure in any member state), represents and warrants that the
Placing Shares acquired by it in the Placing will not be acquired on a non-
discretionary basis on behalf of, nor will they be acquired with a view to
their offer or resale to, persons in a member state of the European
Economic Area which has implemented the Prospectus Directive other than to
qualified investors, or in circumstances in which the prior consent of
Merrill Lynch has been given to the proposed offer or resale;
14. represents and warrants that it has not offered or sold and, prior to the
expiry of a period of six months from Admission, will not offer or sell any
Placing Shares to persons in the United Kingdom, except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
business or otherwise in circumstances which have not resulted and which
will not result in an offer to the public in the United Kingdom within the
meaning of section 85(1) of the Financial Services and Markets Act 2000
("FSMA");
15. represents and warrants that it has not offered or sold and will not offer
or sell any Placing Shares to persons in the European Economic Area prior
to Admission except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their business or otherwise in circumstances
which have not resulted in and which will not result in an offer to the
public in any member state of the European Economic Area within the meaning
of the Prospectus Directive (including any relevant implementing measure in
any member state);
16. represents and warrants that it has only communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the
meaning of section 21 of FSMA) relating to the Placing Shares in
circumstances in which section 21(1) of FSMA does not require approval of
the communication by an authorised person;
17. represents and warrants that it has complied and will comply with all
applicable provisions of FSMA with respect to anything done by it in
relation to the Placing Shares in, from or otherwise involving, the United
Kingdom;
18. (A) represents and warrants that it is a person falling within Article
19(5) and / or Article 49(2)(a) to (d) of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2005 or is a person to whom
this Announcement may otherwise be lawfully communicated; and
(B) acknowledges that any offer of Placing Shares may only be directed at
persons to the extent in member states of the European Economic Area
who are "qualified investors" within the meaning of Article 2(1)(e) of
the Prospectus Directive (Directive 2003/71/EC) and represents and
agrees that it is such a qualified investor;
19. represents and warrants that it is entitled to acquire the Placing Shares
under the laws of all relevant jurisdictions which apply to it, and that
its acquisition of the Placing Shares will be in compliance with applicable
laws and regulations in the jurisdiction of its residence, the residence of
the Company, or otherwise;
20. undertakes that it (and any person acting on its behalf) will make payment
for the Placing Shares allocated to it in accordance with this announcement
on the due time and date set out herein, failing which the relevant Placing
Shares may be placed with other Placees or sold as Merrill Lynch may in its
discretion determine and without liability to such Placee;
21. acknowledges that its allocation (if any) of Placing Shares will represent
a maximum number of Placing Shares which it will be entitled, and required,
to acquire, and that Investec may call upon it to acquire a lower number of
Placing Shares (if any), but in no event in aggregate more than the
aforementioned maximum;
22. acknowledges that none of Merrill Lynch or any of its affiliates, nor any
person acting on behalf of them, is making any recommendations to it,
advising it regarding the suitability of any transactions it may enter into
in connection with the Placing and that participation in the Placing is on
the basis that it is not and will not be a client of Merrill Lynch and that
Merrill Lynch has no duties or responsibilities to any Placee for providing
the protections afforded to its clients or customers or for providing
advice in relation to the Placing nor in respect of any representations,
warranties, undertakings or indemnities contained in the Placing Agreement
nor for the exercise or performance of any of its rights and obligations
thereunder including any rights to waive or vary any conditions or exercise
any termination right;
23. undertakes that the person whom it specifies for registration as holder of
the Placing Shares will be (i) itself or (ii) its nominee, as the case may
be. Neither of Merrill Lynch or Investec will be responsible for any
liability to stamp duty or stamp duty reserve tax resulting from a failure
to observe this requirement. Each Placee and any person acting on behalf of
such Placee agrees to participate in the Placing and it agrees to indemnify
Investec and Merrill Lynch in respect of the same on the basis that the
Placing Shares will be allotted to the CREST stock account of Merrill Lynch
who will hold them as nominee on behalf of such Placee until settlement in
accordance with its standing settlement instructions;
24. acknowledges that these terms and conditions and any agreements entered
into by it pursuant to these terms and conditions and any non-contractual
obligations arising out of or in connection with such agreements shall be
governed by and construed in accordance with the laws of England and Wales
and it submits (on behalf of itself and on behalf of any person on whose
behalf it is acting) to the exclusive jurisdiction of the English courts as
regards any claim, dispute or matter arising out of any such contract,
except that enforcement proceedings in respect of the obligation to make
payment for the Placing Shares (together with any interest chargeable
thereon) may be taken by Investec or Merrill Lynch in any jurisdiction in
which the relevant Placee is incorporated or in which any of its securities
have a quotation on a recognised stock exchange;
25. acknowledges that Merrill Lynch will rely upon the truth and accuracy of
the representations, warranties and acknowledgements set forth herein and
which are irrevocable and it irrevocably authorises Merrill Lynch to
produce this announcement, pursuant to, in connection with, or as may be
required by any applicable law or regulation, administrative or legal
proceeding or official inquiry with respect to the matters set forth
herein;
26. agrees to indemnify and hold Investec, Merrill Lynch and their respective
affiliates harmless from any and all costs, claims, liabilities and
expenses (including legal fees and expenses) arising out of or in
connection with any breach of the representations, warranties,
acknowledgements, agreements and undertakings in this Appendix and further
agrees that the provisions of this Appendix shall survive after completion
of the Placing;
27. represents and warrants that it will acquire any Placing Shares acquired by
it for its account or for one or more accounts as to each of which it
exercises sole investment discretion and it has full power to make the
acknowledgements, representations and agreements herein on behalf of each
such account;
28. acknowledges that its commitment to acquire Placing Shares on the terms set
out herein and in the contract note will continue notwithstanding any
amendment that may in future be made to the terms of the Placing and that
Placees will have no right to be consulted or require that their consent be
obtained with respect to Investec`s conduct of the Placing. The foregoing
representations, warranties and confirmations are given for the benefit of
Investec as well as Merrill Lynch. The agreement to settle a Placee`s
allocation (and/or the allocation of a person for whom such Placee is
contracting as agent) free of stamp duty and stamp duty reserve tax depends
on the settlement relating only to the acquisition by it and/or such person
direct from Investec for the Placing Shares in question. Such agreement
assumes, and is based on a warranty from each Placee, that neither it, nor
the person specified by it for registration as holder, of Placing Shares
is, or is acting as nominee or agent for, and that the Placing Shares will
not be allotted to, a person whose business either is or includes issuing
depositary receipts or the provision of clearance services. If there are
any such arrangements, or the settlement relates to any other dealing in
the Placing Shares, stamp duty or stamp duty reserve tax may be payable. In
that event the Placee agrees that it shall be responsible for such stamp
duty or stamp duty reserve tax, and neither Investec nor Merrill Lynch
shall be responsible for such stamp duty or stamp duty reserve tax. If this
is the case, each Placee should seek its own advice and notify Merrill
Lynch accordingly;
29. understands that no action has been or will be taken by any of the Company,
Merrill Lynch or any person acting on behalf of Investec or Merrill Lynch
that would, or is intended to, permit a public offer of the Placing Shares
in any country or jurisdiction where any such action for that purpose is
required;
30. in making any decision to acquire the Placing Shares, confirms that it has
knowledge and experience in financial, business and international
investment matters as is required to evaluate the merits and risks of
acquiring the Placing Shares. It further confirms that it is experienced
in investing in securities of this nature in this sector and is aware that
it may be required to bear, and is able to bear, the economic risk of, and
is able to sustain a complete loss in connection with the Placing. It
further confirms that it relied on its own examination and due diligence of
the Company and its associates taken as a whole, and the terms of the
Placing, including the merits and risks involved;
31. warrants and represents that it has (a) made its own assessment and
satisfied itself concerning legal, regulatory, tax, business and financial
considerations in connection herewith to the extent it deems necessary; (b)
had access to review publicly available information concerning the Investec
group that it considers necessary or appropriate and sufficient in making
an investment decision; (c) reviewed such information as it believes is
necessary or appropriate in connection with its acquisition of the Placing
Shares; and (d) made its investment decision based upon its own judgement,
due diligence and analysis and not upon any view expressed or information
provided by or on behalf of Merrill Lynch;
32. understands and agrees that it may not rely on any investigation that
Merrill Lynch or any person acting on its behalf may or may not have
conducted with respect to the Company, its group, or the Placing and
Merrill Lynch has not made any representation to it, express or implied,
with respect to the merits of the Placing, the acquisition of the Placing
Shares, or as to the condition, financial or otherwise, of the Company, its
group, or as to any other matter relating thereto, and nothing herein shall
be construed as a recommendation to it to acquire the Placing Shares. It
acknowledges and agrees that no information has been prepared by Merrill
Lynch or the Company for the purposes of this Placing;
33. accordingly it acknowledges and agrees that it will not hold Merrill Lynch
or any of its associates or any person acting on its behalf responsible or
liable for any misstatements in or omission from any publicly available
information relating to the Company`s group or information made available
(whether in written or oral form) relating to the Company`s group (the
"Information") and that none of Merrill Lynch or any person acting on
behalf of Merrill Lynch, makes any representation or warranty, express or
implied, as to the truth, accuracy or completeness of such Information or
accepts any responsibility for any of such Information;
34. will directly acquire the Placing Shares and the placing price payable by
it will be more than Rand 100,000 (approximately ?6,600); and
35. if in South Africa, it warrants and represents that it is (a) a bank
registered or provisionally registered in terms of the Banks Act, 1990 (Act
No 94 of 1990); or (b) a mutual bank registered or provisionally registered
in terms of the Mutual Banks Act, 1993 (Act No 124 of 1993);or (c) a
long-term insurer as defined in the Long-term Insurance Act, 1998 (Act
No 52 of 1998); or (d) a short-term insurer as defined in the Short-term
Insurance Act, 1998 (Act No 53 of 1998) and in each case is acting as
principal and the wholly-owned subsidiaries of such entities will also fall
within the exemption when they act as agent in the capacity of authorised
portfolio manager for a pension fund registered in terms of the Pension
Funds Act, 1956 (Act No 24 of 1956), or as manager for a collective
investment scheme registered in terms of the Collective Investment Schemes
Control Act, 2002 (Act No 45 of 2002).
By participating in the Placing, each Placee (and any person acting on Placee`s
behalf) acknowledges that: (i) the Placing Shares are being offered and sold
only pursuant to Regulation S under the Securities Act in a transaction not
involving a public offering of securities in the United States and the Placing
Shares have not been and will not be registered under the Securities Act; and
(ii) the offer and sale of the Placing Shares to it has been made outside of the
United States (unless otherwise agreed with Investec and Merrill Lynch) in an
"offshore transaction" (as such term is defined in Regulation S under the
Securities Act) and it is outside the United States (unless otherwise agreed
with Investec and Merrill Lynch) during any offer or sale of Placing Shares to
it.
In addition, Placees should note that they will be liable for any stamp duty and
all other stamp, issue, securities, transfer, registration, documentary or other
duties or taxes (including any interest, fines or penalties relating thereto)
payable outside the United Kingdom by them or any other person on the
acquisition by them of any Placing Shares or the agreement by them to acquire
any Placing Shares.
Each Placee and any person acting on behalf of each Placee acknowledges and
agrees that Merrill Lynch or any of its affiliates may, at their absolute
discretion, agree to become a Placee in respect of some or all of the Placing
Shares.
When a Placee or person acting on behalf of the Placee is dealing with Merrill
Lynch, any money held in an account with any of Merrill Lynch on behalf of the
Placee and/or any person acting on behalf of the Placee will not be treated as
client money within the meaning of the rules and regulations of the FSA made
under FSMA. The Placee acknowledges that the money will not be subject to the
protections conferred by the client money rules; as a consequence, this money
will not be segregated from Merrill Lynch`s money in accordance with the client
money rules and will be used by Merrill Lynch in the course of its own business;
and the Placee will rank only as a general creditor of Merrill Lynch.
All times and dates in this announcement may be subject to amendment. Merrill
Lynch shall notify the Placees and any person acting on behalf of the Placees of
any changes.
Past performance is no guide to future performance and persons needing advice
should consult an independent financial adviser.
DEFINITIONS
In this Announcement:
"Admission" means the admission of the Placing Shares to listing on the Official
List of the Financial Services Authority and to trading on the main market of
the London Stock Exchange;
"Announcement" means this announcement (including the appendix to this
announcement);
"CREST" means the relevant system, as defined in the Uncertificated Securities
Regulations 2001 (SI 2001/3755) (in respect of which Euroclear UK & Ireland
Limited is the operator);
"DFSA" means the Dubai Financial Services Authority;
"FSA" means the Financial Services Authority;
"Investec" or the "Company" means Investec plc;
"Investec Group" means the Company and Investec Limited, together with their
respective subsidiary undertakings;
"JSE" means JSE Limited, licensed as an exchange under the South African
Securities Services Act, No. 36 of 2004, as amended;
"London Stock Exchange" means the London Stock Exchange plc;
"Merrill Lynch" means Merrill Lynch International;
"Ordinary Share" means an ordinary share of ?0.0002 each in the capital of the
Company;
"Placee" means any person (including individuals, funds or otherwise) by whom or
on whose behalf a commitment to acquire Placing Shares has been given;
"Placing" means the placing of the Placing Shares by Merrill Lynch, on behalf of
the Company, with both institutional investors;
"Placing Agreement" means the placing agreement dated 27 July 2009 among the
Company and Merrill Lynch in respect of the Placing;
"Placing Price" means the price per Ordinary Share at which the Placing Shares
are placed;
"Placing Shares" means the up to 22,000,000 Ordinary Shares to be issued
pursuant to the Placing, such number to be determined at the close of the
Bookbuild;
"Prospectus Directive" means the Directive of the European Parliament and of the
Council of the European Union 2003/71/EC;
"SARB" means the South African Reserve Bank;
"Securities Act" means the US Securities Act of 1933, as amended;
"South Africa" means the Republic of South Africa;
"South African Companies Act" means the Companies Act No. 61 of 1973, as
amended;
"United Kingdom" or "UK" means the United Kingdom of Great Britain and Northern
Ireland; and
"United States" or "US" means the United States of America, its territories and
possessions, any state of the United States and the District of Columbia.
Date: 28/07/2009 08:00:06 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.
