| Mon 31 Oct 2011, 8:30 | | CPI/CPIP - Capitec Bank Holdings Limited - Proposed placing of up to 4 644 952 |
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CPI CPIP
CPI
CPI/CPIP - Capitec Bank Holdings Limited - Proposed placing of up to 4,644,952
new Capitec ordinary shares
Capitec Bank Holdings Limited
Registration number: 1999/025903/06
Registered bank controlling company
Incorporated in the Republic of South Africa
JSE ordinary share code: CPI ISIN code: ZAE000035861
JSE preference share code: CPIP ISIN code: ZAE000083838
("Capitec" or the "Company")
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR
INDIRECTLY, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN OR ANY OTHER
STATE OR JURISDICTION IN WHICH IT WOULD BE UNLAWFUL TO DO SO.
PROPOSED PLACING OF UP TO 4,644,952 NEW CAPITEC ORDINARY SHARES
Capitec announces today its intention to issue up to 4,644,952 new Ordinary
Shares (the "Placing") of ZAR 0.01 each (the "Placing Shares") representing
4.91% per cent of the number of the existing Ordinary Shares of the Company
before the Placing and 4.68% per cent of the number of the combined existing
Ordinary Shares of the Company after the Placing. The net proceeds of the
Placing are proposed to be used to facilitate an increased footprint in South
Africa, increase the client base, and grow the loan book while managing capital
requirements.
The Placing is being conducted, subject to the satisfaction of certain
conditions, through a bookbuilding process to be carried out by Merrill Lynch
International ("BofA Merrill Lynch") which is acting as sole lead manager and
bookrunner in relation to the Placing. The identity of Placees and the basis of
the allocations are at the discretion of Capitec 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 Capitec with BofA Merrill Lynch
and will be announced as soon as practicable after the close of the bookbuilding
process.
The book will be open for no longer than two days, and is expected to close on
Tuesday, 1 November 2011 at 4:00 p.m. London time or 6:00 p.m. Johannesburg
time, but may close on an earlier or later date or at an earlier or later time
at the discretion of Capitec and BofA Merrill Lynch, in which case a further
announcement will be made in advance as to the new date and time of the closing
of the book. Details of the number of Placing Shares and the Placing Price will
be announced as soon as practicable after the close of the bookbuilding process.
The Placing Shares will be issued credited as fully paid and will rank pari
passu in all respects 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 qualify for the interim ordinary
dividend of 125 cents per share declared on Tuesday, 27 September 2011 and
payable on Monday, 5 December 2011.
The Company will apply for admission of the Placing Shares to trading on the
Main Board of the JSE Limited ("JSE"). It is expected that the admission and
settlement will take place and that trading will commence on or about Wednesday,
9 November 2011 (subject to the book having closed on 1 November 2011, as
expected).
The Placing is conditional, inter alia, upon admission of the Placing Shares to
trading on the Main Board of the JSE becoming effective and the placing
agreement made between the Company and BofA Merrill Lynch not being terminated.
31 October 2011
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
Capitec
Andre du Plessis Tel: +27 21 809 5905
Riaan Stassen Tel: +27 21 809 5921
BofA Merrill Lynch
Oliver Holbourn Tel: +44 20 7995 3700
Murray Stewart Tel: +27 11 305 5807
Neil Cohen Tel: +27 11 305 5708
Disclaimer
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 Capitec.
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 International 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 therefor is expressly
disclaimed.
This announcement, including the Appendix, is not for distribution, in whole or
in part directly or indirectly, in or into the United States, Australia, Canada,
Japan or any other state or jurisdiction into which the same would be unlawful.
This announcement is for information purposes only and does not contain or
constitute an offer of, or the solicitation of an offer to buy, Placing Shares
in the United States, Australia, Canada, Japan or any other state or
jurisdiction in which such an offer or solicitation is unlawful. Any failure to
comply with these restrictions may constitute a violation of securities laws of
such jurisdictions.
The Placing Shares referred to in this announcement have not been, and will not
be, registered under the United States Securities Act of 1933 ("Securities Act")
or with any securities regulatory authority of any state or other jurisdiction
of the United States, and may not be offered, sold or transferred, directly or
indirectly, into or within the United States except pursuant to an exemption
from, or in a transaction not subject to, the registration requirements under
the Securities Act. There will be no public offer of Placing Shares in the
United Kingdom, the United States, Australia, Canada, Japan, South Africa or
elsewhere.
This announcement contains (or may contain) certain forward-looking statements
with respect to certain of Capitec`s current expectations and projections about
future events and which involve a number of risks and uncertainties. Capitec
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 Capitec`s control. As a
result, Capitec`s actual future results may differ materially from the
expectations and projections set forth in Capitec`s forward-looking statements.
Statements made in this announcement should not be taken as a representation
that such trends or activities will continue in the future. You should not place
undue reliance on forward-looking statements which speak only as of the date
they are made. Except as required by the JSE or applicable law, Capitec
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 Capitec`s expectations with regard
thereto or any changes in events, conditions or circumstances on which any such
statement is based.
Merrill Lynch International, which is authorised and regulated in the United
Kingdom by the Financial Services Authority ("FSA"), is acting for Capitec and
for no-one else in connection with the Placing, and will not be responsible to
anyone other than Capitec 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.
Nothing in this Announcement should be viewed, or construed, as "advice" by
Merrill Lynch International as that term is used in the South African Securities
Services Act, 2004 and/or Financial Advisory and Intermediary Services Act,
2002.
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
Capitec or Merrill Lynch International 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 Capitec and Merrill Lynch International 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.
Past performance is no guide to future performance and persons needing advice
should consult an independent financial adviser.
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: (A) IN THE
UNITED KINGDOM, PERSONS WHO ARE "QUALIFIED INVESTORS" (AS DEFINED IN SECTION
86(7) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000, AS AMENDED, BEING PERSONS
FALLING WITHIN THE MEANING OF ARTICLE 2(1)(E) OF EU DIRECTIVE 2003/71/EC AND
INCLUDING ANY IMPLEMENTING MEASURE BY ANY MEMBER STATE (THE "PROSPECTUS
DIRECTIVE")) AND WHO ARE (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; (B) IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA, PERSONS WHO
ARE QUALIFIED INVESTORS; AND (C) IN SOUTH AFRICA, ENTITIES REFERRED TO IN THE
APPLICABLE PROVISIONS OF SECTION 96(1)(A) TO (G) OF THE SOUTH AFRICAN COMPANIES
ACT BEING, INTER ALIA, BANKS, MUTUAL BANKS, OR INSURERS AND FINANCIAL SERVICES
COMPANIES REGISTERED UNDER APPLICABLE SOUTH AFRICAN LEGISLATION (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 CAPITEC BANK HOLDINGS LIMITED.
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.
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, the Companies and Intellectual Property Commission in South Africa
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 where to do so would be 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.
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 96(1)(a)
to (g) 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 Dubai Financial Services Authority ("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. This announcement has
not been submitted to the DFSA and therefore has not been approved by the DFSA
nor has the DFSA 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 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 JSE. Neither the content of
Capitec`s website nor any website accessible by hyperlinks on Capitec`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 and the Placing Agreement
BofA Merrill Lynch has entered into an agreement with Capitec (the "Placing
Agreement") under which, subject to the conditions set out in the Placing
Agreement, BofA Merrill Lynch, as agent for and on behalf of Capitec, 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.
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 Capitec
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 qualify for the interim
ordinary dividend of 125 cents per share declared on Tuesday, 27 September 2011
and payable on Monday, 5 December 2011.
As part of the Placing, Capitec has agreed that it will not issue or sell any
ordinary shares for a period of 180 days after Admission, without the prior
consent of BofA Merrill Lynch. This agreement does not however prevent Capitec
from granting or satisfying exercises of options granted pursuant to existing
employee share schemes of Capitec as disclosed in publicly available
information.
Application for listing and admission to trading
Application will 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 Wednesday, 9 November 2011 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 Capitec 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 Capitec.
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 per Placing Share payable as
BofA Merrill Lynch directs 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 Capitec following
completion of the Bookbuild. Any discount to the market price of the
ordinary shares will be determined in accordance with the Listing
Requirements of the JSE. The Placing Price and the number of Placing Shares
will be announced via SENS 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 Capitec 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 8 below.
5. The Bookbuild is expected to close no later than 4:00 p.m. (London time)
and 6:00 p.m. (Johannesburg time) on Tuesday, 1 November 2011 but may be
closed at an earlier or later date and time at the discretion of Capitec
and BofA Merrill Lynch. BofA Merrill Lynch may, in agreement with Capitec,
accept bids that are received after the Bookbuild has closed. Capitec
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 Capitec and will be confirmed orally by BofA Merrill Lynch as
agent of Capitec 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 Capitec
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 Capitec`s memorandum of incorporation.
7. Each prospective Placee`s allocation and commitment will be evidenced by a
settlement email sent to such Placee by BofA Merrill Lynch. The terms of
this Appendix will be deemed incorporated in that settlement email.
8. Subject to paragraphs 3 and 5 above, BofA Merrill Lynch may choose to
accept bids, either in whole or in part, on the basis of allocations
determined in agreement with Capitec and may scale down any bids for this
purpose on such basis as they may determine. BofA Merrill Lynch may also,
notwithstanding paragraphs 3 and 5 above, subject to the prior consent of
Capitec (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
4,644,952.
9. 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. Each Placee will also have an immediate, separate,
irrevocable and binding obligation, owed to Capitec to pay to Capitec 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
Capitec has agreed to issue to that Placee. Each Placee`s obligation will
be owed to Capitec and to BofA Merrill Lynch.
10. Except as required by law or regulation, no press release or other
announcement will be made by BofA Merrill Lynch or Capitec using the name
of any Placee (or its agent), in its capacity as Placee (or agent), other
than with such Placee`s prior written consent.
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 Capitec may agree.
15. In connection with the Placing, each of BofA Merrill Lynch and any of its
affiliates acting as an investor for its own account may take up Placing
Shares and in that capacity may retain, purchase or sell for its own
account such Placing Shares and any securities of the Company or related
investments and may offer or sell such securities or other investments
otherwise than in connection with the Placing. Accordingly, references in
this announcement to Placing Shares being issued, offered or placed should
be read as including any issue, offering or placement of such Placing
Shares to any of BofA Merrill Lynch and its affiliates acting in such
capacity. BofA Merrill Lynch does not intend to disclose the extent of any
such investment or transactions otherwise than in accordance with any legal
or regulatory obligation to do so.
Conditions of the Placing
The obligations of BofA Merrill Lynch under the Placing Agreement are
conditional on, amongst other things:
(a) no Material Adverse Effect (as defined in the Placing Agreement) having
occurred or being discovered since the execution of the Placing Agreement;
(b) publication by Capitec of this announcement;
(c) the execution and delivery by Capitec and BofA Merrill Lynch of the Terms
of Placing;
(d) the publication by Capitec of a pricing announcement immediately following
the execution of the Terms of Placing (as defined in the Placing
Agreement);
(e) the representations and warranties of Capitec contained in the Placing
Agreement being true, accurate and complete on the date of the Placing
Agreement, the date of execution of the Terms of Placing, Closing Date and
Admission;
(f) Capitec having complied with all of its agreements and undertakings and
satisfied or performed all of the conditions and obligations on its part to
be performed or satisfied under the Placing Agreement on or before the
Closing Date;
(g) BofA Merrill Lynch receiving a certificate of an authorised representative
of Capitec, dated as at the Closing Date, confirming certain matters;
(h) the Placing Shares having been allotted prior to Admission ; and
(i) Admission taking place by or about 9.00 a.m. (Johannesburg time) on or
about Wednesday, 9 November 2011 (or such earlier or later date as Capitec
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 (where permitted) waived by BofA Merrill
Lynch, by the respective time or date where specified (or such later time and/or
date as Capitec and BofA Merrill Lynch may agree), (ii) any of such conditions
becomes incapable of being fulfilled, or (iii) 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 Capitec with the whole or any part of any of Capitec`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 the Placees` commitments as
set out in this announcement.
None of BofA Merrill Lynch, Capitec 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 Capitec if, amongst other things:
(a) any of the conditions specified above have not been satisfied by the
Company or (to the extent capable of being waived) waived by BofA Merrill
Lynch;
(b) 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; or
(c) 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 Capitec in connection with the
Placing (together the "Placing Documents") is or has become untrue,
incorrect or misleading in any respect which in the good faith opinion of
BofA Merrill Lynch, is material in the context of Capitec, the Group as a
whole, the Placing or the after-market for the Placing Shares; or
(d) any matter has arisen, which would, if the Placing were made at that time,
constitute a material omission from the Placing Documents or a material
omission from or misleading inaccuracy in the Publicly Available
Information (as defined in the Placing Agreement), or any of them, and
which BofA Merrill Lynch considers to be material in the context of
Capitec, the Group, the Placing, Admission or the after-market for the
Placing Shares; or
(e) BofA Merrill Lynch is notified of any event or development making untrue or
any change affecting or reasonably likely to affect any of Capitec`s
representations, warranties, agreements or indemnities contained in the
Placing Agreement at any time on or prior to payment being made in respect
of the Placing Shares on the Closing Date; or
(f) 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 Capitec, whether
or not arising in the ordinary course of business since the date of the
Placing Agreement; or
(g) there has occurred (i) any material adverse change in the financial markets
in the United States, the United Kingdom, the Republic of South Africa,
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
(h) admission to listing of the Ordinary Shares on the JSE has been withdrawn,
or trading in any shares of Capitec has been suspended or limited by the
JSE 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 minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the regulatory authorities of
the Republic of South Africa, the United States, the United Kingdom or any
other governmental or self-regulatory authority, or a material disruption
has occurred in commercial banking or shares settlement or clearance
services in the Republic of South Africa, the United Kingdom, the United
States or in the European Economic Area (the "EEA"); or
(i) any public announcement is made by Capitec that would make it, in the
judgement of BofA Merrill Lynch, impracticable or inadvisable to sell the
Placing Shares or to enforce contracts for the sale of the Placing Shares;
or
(j) a banking moratorium has been declared by the authorities of any of the
United Kingdom, the United States, the Republic of South Africa or the
State of New York or any member state of the EEA.
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, pre-listing statement or prospectus has been or will be
submitted to be approved by the JSE or the South African Companies and
Intellectual Properties Commission 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 Capitec today, and subject to the further terms set
forth in the settlement email 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 Capitec is exclusively the
responsibility of Capitec and confirms that it has neither received nor relied
on any other information, representation, warranty, or statement made by or on
behalf of Capitec (other than publicly available information) or BofA Merrill
Lynch or any other person and none of BofA Merrill Lynch or Capitec 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 Capitec in accepting a participation in the Placing. Nothing
in this paragraph shall exclude the liability of any person for fraud or
fraudulent misrepresentation.
Registration and settlement
If Placees are allocated any Placing Shares in the Placing they will be sent a
settlement email which will confirm the number of Placing Shares allocated to
them and the Placing Price. If Placing Shares are to be delivered to a custodian
or settlement agent, Placees must ensure that, upon receipt, the settlement
email is copied and delivered immediately to the relevant person within that
organisation.
Each Placee will be deemed to agree that it will do all things necessary to
ensure that delivery and payment is completed in accordance with the
requirements of STRATE, the settlement and clearing system used by the JSE,
including ensuring that their Central Securities Depository Participant "CSDP"
accounts are credited with sufficient funds to settle the aggregate amounts owed
by them, and instructing their CSDPs to book off-market transactions (on a
receipt versus payment basis) in respect of the Placing Shares allocated to
them. Payment in full for any Placing Shares so allocated at the Placing Price
must be made by no later than midday (Johannesburg time) (or such other time as
shall be notified to each Placee by BofA Merrill Lynch) on Wednesday, 9 November
2011 (or such other time and/or date as the Company and BofA Merrill Lynch may
agree).
Settlement of transactions in the Placing Shares will take place within the
STRATE system. Settlement through STRATE will be on a T + five Business Day
basis unless otherwise notified by BofA Merrill Lynch and is expected to occur
on Wednesday, 9 November 2011. Capitec and BofA Merrill Lynch reserve 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 STRATE system
or would not be consistent with the regulatory requirements in the Placee`s
jurisdiction.
In the event that Capitec`s application to have the Placing Shares admitted to
trading on the Main Board of the JSE is delayed beyond 9.00 a.m. (Johannesburg
time) on Wednesday, 9 November 2011, settlement shall occur up to three days
later, or at such later time and/or date as the Company may agree with BofA
Merrill Lynch, failing which the Company and BofA Merrill Lynch may agree that
the Placing Shares shall be issued in certificated form. Settlement will be on a
delivery versus payment basis.
If Placees do not comply with their obligations, BofA Merrill Lynch may sell
their Placing Shares on their behalf and retain from the proceeds, for their own
account and benefit, an amount equal to the Placing Price of each share sold
plus any interest due. Placees will, however, remain liable for any shortfall
below the Placing Price plus any interest due and for any securities transfer
tax (together with any interest or penalties in respect thereof) which may arise
upon the sale of their Placing Shares on their behalf.
Interest is chargeable daily on payments not received on the due date in
accordance with the arrangements set out above, in respect of either STRATE or
certificated deliveries, at the rate of seven per cent. per annum.
Representations and warranties
By participating in the Placing each Placee (and any person acting on such
Placee`s behalf) acknowledges, undertakes, represents, warrants, agrees and/or
confirms (as the case may be) the following:
1. 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, acknowledgements, agreements and
undertakings and other information contained herein and undertakes not to
redistribute or duplicate this Announcement;
2. no offering document, listing particulars, pre-listing statement or
prospectus has been or will be prepared in connection with the Placing and
it has not received a prospectus or other offering document in connection
with the Bookbuild, the Placing or the Placing Shares;
3. the ordinary shares in the capital of Capitec are listed on the Main Board
of the JSE, and Capitec is therefore required to publish certain business
and financial information in accordance with the listing requirements of
the JSE ("Publicly Available Information"), which includes a description of
the nature of Capitec`s business and Capitec`s most recent balance sheet
and profit and loss account, that it has reviewed such Publicly Available
Information and that it is able to obtain or access such Publicly Available
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. none of BofA Merrill Lynch or Capitec 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 Capitec or any other
person other than this announcement; nor has it requested any of BofA
Merrill Lynch, Capitec, any of their affiliates or any person acting on
behalf of any of them to provide it with any such information;
5. (i) unless otherwise agreed with Capitec 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, a resident of
Canada or Japan, and (ii) the Placing Shares have not been and will not be
registered under the securities legislation of Canada or Japan 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. the Placing Shares referred to in this announcement have not been and will
not be registered under the Securities Act or under the securities laws of
any state or other jurisdiction of the United States, and may not be
offered or sold, directly or indirectly, in or into the United States
except pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act and in compliance with
the securities laws of any state or other jurisdiction of the United
States. Any offering made in the United States will be made to a limited
number of qualified institutional buyers pursuant to an exemption from
registration under the Securities Act in a transaction not involving a
public offering. The Placing Shares are being offered and sold outside the
United States in accordance with Regulation S under the Securities Act
("Regulation S");
7. an investment in the Placing Shares involves a considerable degree of risk
and that the Placing Shares have not been approved or disapproved by the
U.S. Securities and Exchange Commission, any state`s securities commission
in the United States or any U.S. regulatory authority, nor have any of the
foregoing authorities passed upon or endorsed the merits of the Placing.
Any representation to the contrary is a criminal offence in the United
States;
8. with respect to Placing Shares offered to or purchased by it outside the
United States, it was outside of the United States during any offer or sale
of Placing Shares to it and the offer and sale of the Placing Shares to it
has been made to it in an "offshore transaction" (as such term is defined
in Regulation S) meeting the requirements of Regulation S. Each Placee
further acknowledges and agrees that if it decides to dispose of any of the
Placing Shares, it may only do so in compliance with the Securities Act and
in accordance with any applicable securities laws of any state or other
jurisdiction of the United States and the securities laws of any other
relevant jurisdictions, as then in effect;
9. with respect to any Placing Shares offered to or purchased by it in the
United States, (a) it is a QIB within the meaning of Rule 144A under the
Securities Act ("Rule 144A") and, if it is acquiring the Placing Shares as
a fiduciary or agent for one or more investor accounts, that: (i) each such
account is a QIB; (ii) it has sole investment discretion with respect to
each such account; and (iii) it has the full power and authority to make
and does make the representations, warranties and agreements put forth
herein, and will sign the investor letter, on behalf of each such account;
(b) that (i) the Placing Shares may not be offered, sold, pledged or
otherwise transferred by it except (1) to the Company; (2) in an offshore
transaction in accordance with Rule 903 or Rule 904 of Regulation S; (3) in
the United States to a person whom the seller reasonably believes is a QIB
purchasing for its own account, or for the account of a QIB, in a
transaction meeting the requirements of Rule 144A; (4) pursuant to Rule 144
under the Securities Act (if available) ("Rule 144"); or (5) pursuant to an
effective registration statement under the Securities Act; (iii) the
Placing Shares will be "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act; (iv) for so long as the Placing Shares
are "restricted securities" (within the meaning of Rule 144(a)(3) under the
Securities Act), it will segregate such Placing Shares from any other
shares that it holds that are not restricted securities, shall not deposit
such shares in any depositary facility established or maintained by a
depositary bank and will only transfer such Placing Shares in accordance
with this paragraph; (v) to notify any U.S. transferee to whom it
subsequently reoffers, resells, pledges or otherwise transfers the Placing
Shares of the foregoing restrictions on transfer; and (vi) no
representation has been made as to the availability of the exemption
provided by Rule 144, Rule 144A or any other exemption under the Securities
Act for the offer, sale, pledge or transfer of the Placing Shares; (c) that
it is or, if it is acting for the account of a QIB as to which it has sole
investment discretion, such account is, acquiring the Placing Shares for
investment purposes and (subject to the disposition of our property being
at all times within our control) not with a view to distribution within the
meaning of the U.S. securities law; and (d) that it is not or, if it is
acting for the account of a QIB as to which it has sole investment
discretion, such account is not, acquiring the Placing Shares as a result
of any "general solicitation" or "general advertising" (as defined in
Regulation D under the Securities Act);
10. to the extent that Placing Shares are offered for subscription in South
Africa, such offer is being effected in terms of section 96(1)(a) to (g) 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;
11. if it is resident in Australia, it is a professional investor, as defined
in section 9 of the Corporations Act 2001 (Cth) of Australia "Corporations
Act" and for the purposes of section 708(11) of the Corporations Act , 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;
12. if it is 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;
13. that the content of this announcement is exclusively the responsibility of
Capitec 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 Capitec 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 Capitec by notification via SENS, 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 Capitec and neither BofA Merrill Lynch nor Capitec 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
Capitec in deciding to participate in the Placing;
14. 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 Capitec, provided
that nothing in this paragraph excludes the liability of any person for
fraudulent misrepresentation made by that person;
15. 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 issued to, a person whose business either is or
includes issuing depositary receipts or the provision of clearance
services;
16. it has complied with all applicable obligations in connection with money
laundering and terrorist financing, including 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;
17. if it is 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), 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;
18. 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");
19. it has not offered or sold and will not offer or sell any Placing Shares to
persons in the European Economic Area 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);
20. 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;
21. 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;
22. (A) 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) 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 it
is such a qualified investor;
23. 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;
24. 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;
25. 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 Capitec 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;
26. 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;
27. 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 Capitec will be responsible for any liability to
stamp duty or stamp duty reserve tax or securities transfer 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 Capitec and BofA Merrill Lynch in respect of the same;
28. 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 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
Capitec 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;
29. BofA Merrill Lynch and Capitec 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;
30. it will indemnify and hold Capitec, 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;
31. 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;
32. its commitment to subscribe for Placing Shares on the terms set out herein
and in the settlement email 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 Capitec`s conduct of the Placing. The foregoing
representations, warranties and confirmations are given for the benefit of
Capitec 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, securities transfer tax and stamp
duty reserve tax depends on the settlement relating only to the
subscription by it and/or such person direct from Capitec 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 issued 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,
securities transfer tax or stamp duty reserve tax may be payable. In that
event the Placee agrees that it shall be responsible for such stamp duty,
securities transfer tax or stamp duty reserve tax, and neither Capitec nor
BofA Merrill Lynch shall be responsible for such stamp duty, securities
transfer tax or stamp duty reserve tax. If this is the case, each Placee
should seek its own advice and notify BofA Merrill Lynch accordingly;
33. it understands that no action has been or will be taken by the Company,
BofA Merrill Lynch or any person acting on behalf of Capitec 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;
34. in making any decision to subscribe for the Placing Shares, 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;
35. 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 Capitec 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;
36. 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 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 purchase the Placing Shares. It acknowledges and
agrees that no information has been prepared by BofA Merrill Lynch or the
Company for the purposes of this Placing;
37. accordingly, it will not hold BofA 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 BofA Merrill Lynch or any person acting on behalf of BofA
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;
38. if it is in South Africa, it will directly acquire the Placing Shares and
the placing price payable by it will be more than ZAR 1,000,000
(approximately GBP80,700); and
39. if it is in South Africa, it is: (a) a person whose ordinary business, or
part of whose ordinary business, is to deal in securities, whether as
principals or agents; (b) the Public Investment Corporation as defined in
the Public Investment Corporation Act, 2004 (Act 23 of 2004); (c) a person
or entity regulated by the Reserve Bank of South Africa; (d) an authorised
financial services provider, as defined in the Financial Advisory and
Intermediary Services Act, 2002 (Act 37 of 2002); (e) a financial
institution, as defined in the Financial Services Board Act, 1990 (Act 97
of 1990); (f) a wholly-owned subsidiary of a person contemplated in
subparagraph (c), (d) or (e), acting as agent in the capacity of an
authorised portfolio manager for a pension fund registered in terms of the
Pension Funds Act, 1956 (Act 24 of 1956), or as manager for a collective
investment scheme registered in terms of the Collective Investment Schemes
Control Act, 2002 (Act 45 of 2002); or (g) any combination of persons
contemplated in paragraphs (a) to (f).
The representations, warranties, acknowledgements and undertakings contained in
this Appendix are given to Capitec and BofA Merrill Lynch and are irrevocable.
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) as
may be applicable, payable by them or any other person on the purchase by them
of any Placing Shares or the agreement by them to purchase any Placing Shares.
Each Placee and any person acting on behalf of each Placee acknowledges and
agrees that BofA 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 BofA
Merrill Lynch, any money held in an account with any of BofA 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 BofA Merrill Lynch`s money
in accordance with the client money rules and will be used by BofA Merrill Lynch
in the course of its own business; and the Placee will rank only as a general
creditor of BofA Merrill Lynch.
All times and dates in this announcement may be subject to amendment. BofA
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 and the Appendix:
"Admission" means the admission of the Placing Shares to the JSE List and to
trading on the Main Board of the JSE;
"Announcement" means this announcement (including the Appendix to this
announcement);
"BofA Merrill Lynch" means Merrill Lynch International;
"Capitec" or the "Company" means Capitec Bank Holdings Limited;
"Capitec Group" or "Group" means the Company together with its subsidiaries;
"DFSA" means the Dubai Financial Services Authority;
"FSA" means the Financial Services Authority;
"JSE" means JSE Limited, licensed as an exchange under the South African
Securities Services Act, No. 36 of 2004, as amended;
"JSE List" means the list of securities admitted to listing maintained by the
JSE;
"Ordinary Share" means an ordinary share with par value of ZAR 0.01 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 BofA Merrill Lynch, on
behalf of the Company;
"Placing Agreement" means the placing agreement dated 31 October 2011 among the
Company and BofA 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 4,644,952 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;
"SENS" means the Securities Exchange News Service, an information dissemination
service administered by the JSE Limited;
"South Africa" means the Republic of South Africa;
"South African Companies Act" means the South African Companies Act, 71 of 2008,
as amended;
"STRATE" means the settlement and clearance system used by the JSE, managed by
Strate Limited, a public company duly incorporated in South Africa and which
company is a registered Central Securities Depository in terms of the Security
Services Act No. 36 of 2004
"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: 31 October 2011
Sponsor to Capitec
PSG Capital (Proprietary) Limited
Counsel to Capitec
Norton Rose LLP and Norton Rose South Africa
Date: 31/10/2011 08:30:00 Produced by the JSE SENS Department.
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