| Tue 3 Aug 2010, 8:27 | | INL / INP - Investec Limited / Investec plc - Deta |
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INL INP
INL INP
INL / INP - Investec Limited / Investec plc - Details of the Placing and Use of
Proceeds
Investec Limited
Incorporated in the Republic of South Africa
Registration number 1925/002833/06
JSE share code: INL
ISIN: ZAE000081949
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 OR ANY JURISDICTION IN WHICH IT WOULD BE
UNLAWFUL TO DO SO
Proposed Placing of up to 22,000,000 new Ordinary Shares of Investec plc
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 GBP0.0002 each
(the `Placing Shares`) representing approximately 4.27 per cent of the number of
the existing Ordinary Shares of the Company and approximately 2.79 per cent of
the number of the combined existing Ordinary Shares of the Company and Investec
Limited to take advantage of opportunities in credit and other markets. The
placing is also expected to have a consequential effect of improving Investec`s
tier 1 capital without reducing the total capital adequacy ratio.
Stephen Koseff, Chief Executive Officer of Investec, said: "This offering gives
Investec the ability to take advantage of opportunities in credit and other
markets and 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 (`BofA 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 BofA 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 BofA 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 of the Company, 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. For the avoidance of doubt, the
Placing Shares will not qualify for the final dividend declared for the year
ended 31 March 2010.
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 6 August
2010, 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 BofA Merrill Lynch not
being terminated. It is anticipated that the settlement date will be 6 August
2010.
The Appendix to this announcement (which forms part of this announcement) sets
out the terms and conditions of the Placing.
Investors will be deemed to have read and understood this announcement in its
entirety (including the Appendix) and to be making an offer on the terms and
conditions and providing the representations, warranties and acknowledgements,
contained in the Appendix.
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
Paul Frankfurt
Michael Larbie
Oliver Holbourn
Citigate Dewe Rogerson +44 20 7638 9571
Jonathan Clare
Tom Baldock
This announcement contains (or may contain) certain forward-looking
statements with respect to certain of Investec`s plans and its current
goals and expectations, 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, the Johannesburg 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 subscribe for, or the solicitation of an offer
to buy, sell, issue, or subscribe for 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
BofA 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.
BofA Merrill Lynch, 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 BofA Merrill Lynch 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 BofA 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 BofA 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(1) OR
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 subscribe for 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 subscribe
for, hold, manage or dispose of any Placing Shares that are allocated to it
for the purposes of its business; and (ii) subscribing for 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 BofA 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 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 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, 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 or Japan.
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 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 subscription, 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
subscribers 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
BofA Merrill Lynch has entered into an agreement with Investec (the `Placing
Agreement`) under which, subject to the conditions set out in that agreement,
BofA Merrill Lynch, as agent for and on behalf of Investec, 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 and, subject to agreement with Investec as to the number and
price of the Placing Shares to be placed with the Placees, to the extent that
such Placees fail to pay for all the Placing Shares, to subscribe for those
Placing Shares for which the Company has not received payment at the agreed
price.
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. For the avoidance of doubt, the Placing Shares will not qualify for the
final dividend declared for the year ended 31 March 2010.
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 BofA 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 6
August 2010 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 6 August 2010 and that dealings in the Placing Shares on the JSE will
commence at that time.
Bookbuild
BofA 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.
BofA 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 BofA 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 BofA Merrill Lynch. BofA
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 BofA 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
BofA 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 UKLA Listing Rules and, to the extent applicable, the
listing requirements of the JSE. 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 BofA Merrill
Lynch. Each bid should state the number of Placing Shares which the
prospective Placee wishes to subscribe for at either the Placing Price,
which is ultimately established by Investec and BofA Merrill Lynch, or at
prices up to a price limit specified in its bid. Bids may be scaled down by
BofA 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
3 August 2010 but may be closed earlier or later at the discretion of BofA
Merrill Lynch. BofA 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 BofA 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 BofA Merrill
Lynch and Investec and will be confirmed orally by BofA 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) in favour of Investec
and BofA Merrill Lynch to subscribe for 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 BofA Merrill Lynch. The terms of
this Appendix will be deemed incorporated in that contract note.
8 Each Placee will also have an immediate, separate, irrevocable and binding
obligation, owed to BofA Merrill Lynch (as an agent of Investec), to pay to
it (or as it may direct) in cleared funds, an amount equal to the product
of the Placing Price and the number of Placing Shares such Placee has
agreed to subscribe for and Investec has agreed to allot and issue to that
Placee. Each Placee`s obligation will be owed to Investec and to BofA
Merrill Lynch.
9 BofA 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.
BofA 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. If the conditions of the
Placing are satisfied, the aggregate number of Placing Shares subscribed
for may be less than 22 million.
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 BofA 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 subscribed
for 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 BofA 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 BofA 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 BofA Merrill Lynch`s conduct of the
Bookbuild or of such alternative method of effecting the Placing as BofA
Merrill Lynch and Investec may agree.
Conditions of the Placing
The obligations of BofA 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 BofA 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
BofA 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
F ) Admission taking place by 8.00 a.m. (London time) on 6 August 2010 (or such
later date as Investec and BofA Merrill Lynch may otherwise agree).
If (i) any of the conditions contained in the Placing Agreement in relation to
the Placing Shares are not fulfilled or waived by BofA Merrill Lynch, by the
respective time or date where specified (or such later time and/or date as
Investec and BofA Merrill Lynch may agree), or (ii) the Placing Agreement is
terminated in the circumstances specified below, 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.
BofA 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 BofA 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 BofA Merrill Lynch.
Termination of the Placing Agreement
BofA 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 BofA Merrill Lynch is material in the
context of Investec, the Investec Group as a whole or the Placing
(including BofA Merrill Lynch`s underwriting commitment), or (ii) makes it,
in BofA 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 BofA 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 BofA 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 BofA Merrill Lynch, there has been, or BofA 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;
d or 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 BofA 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 BofA Merrill
Lynch of any right of termination or other discretion under the Placing
Agreement shall be within the absolute discretion of BofA Merrill Lynch and that
it need not make any reference to Placees and that BofA 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 BofA Merrill
Lynch or any other person and none of BofA 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 BofA 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 BofA Merrill Lynch.
Investec will deliver the Placing Shares to a CREST account operated by
BofA Merrill Lynch as agent for Investec and BofA Merrill Lynch will enter
its delivery (DEL) instruction into the CREST system. BofA 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 6 August 2010 on a T + 3 basis
in accordance with the instructions given to BofA 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 BofA Merrill Lynch.
Each Placee agrees that, if it does not comply with these obligations,
BofA 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
Investec`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 and that its subscription for the Placing Shares
is subject to and based upon all the terms, conditions, warranties,
knowledgements, agreements and undertakings and other information contained
herein;
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 the Main Board of the JSE, and Investec
is therefore required to publish certain business and financial information
in accordance with the rules and practices of the FSA and the listing
requirements of the JSE ("Exchange Information"), which includes a
description of the nature of Investec`s business and Investec`s
most recent balance sheet and profit and loss account, that is has reviewed
such Exchange Information and that it is able to obtain or access such
Exchange 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 BofA 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 BofA 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 BofA
Merrill Lynch, it and, if different, the beneficial owner of the Placing
Shares is not, and at the time the Placing Shares are subscribed for will
not be, in the United States or a resident of Canada or Japan, and (ii) the
Placing Shares have not been and will not be registered under the
securities legislation of the United States, Australia, Canada, Japan 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 subscription for
Placing Shares by it and acknowledges that, to the extent that Placing
Shares are offered for subscription, 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 subscribed for 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 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 BofA 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 subscribe for 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 BofA Merrill Lynch or
Investec and neither BofA 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 none of BofA 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 subscribed for by it in the Placing will not be subscribed
for on a non-discretionary basis on behalf of, nor will they be subscribed
for 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 BofA 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 London 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(1), 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 and any person acting on
its behalf is entitled to subscribe for the Placing Shares under the laws
of all relevant jurisdictions which apply to it, and that the subscription
for the Placing Shares by it or any person acting on its behalf 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 BofA 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 subscribe for, and that Investec may call upon it to subscribe for a
lower number of Placing Shares (if any), but in no event in aggregate more
than the aforementioned maximum;
22 acknowledges that none of BofA 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 BofA Merrill Lynch and
that BofA 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 BofA 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 BofA Merrill Lynch on an after-tax basis in respect of the
same on the basis that the Placing Shares will be allotted to the CREST
stock account of BofA 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 BofA 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 BofA Merrill Lynch and Investec and their respective
affiliates will rely upon the truth and accuracy of the representations,
warranties and acknowledgements set forth herein and which are irrevocable
and it irrevocably authorises BofA 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 on an after-tax basis and hold Investec, BofA 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 subscribe for any Placing Shares for
which it subscribes 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 subscribe for 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 BofA 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 subscription 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 BofA 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 BofA Merrill Lynch accordingly;
29 understands that no action has been or will be taken by the Company, BofA
Merrill Lynch or any person acting on behalf of Investec or BofA 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 subscribe for 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 subscription for 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 BofA Merrill Lynch;
32 understands and agrees that it may not rely on any investigation that BofA
Merrill Lynch or any person acting on its behalf may or may not have
conducted with respect to the Company and its affiliates or the Placing and
BofA Merrill Lynch has not made any representation to it, express or
implied, with respect to the merits of the Placing, the subscription for
the Placing Shares, or as to the c
