DTC
DTC
DTC - Datatec Limited - Datatec Limited GBP17.5million (US$34.8MILLION)
Institutional Placing
DATATEC LIMITED
(Incorporated in the Republic of South Africa)
(Registration number: 1994/005004/06)
ISIN: ZAE000017745
Share Code: DTC
("Datatec" or "the Group")
DATATEC LIMITED GBP17.5MILLION (US$34.8MILLION) INSTITUTIONAL PLACING
Datatec, the international Information & Communications Technology (ICT)
group, announces that it is today placing 7,200,000 new ordinary shares of
ZAR0.01 each (the "Placing Shares") with institutional investors (the
"Placing") at a price of 243 pence per share and ZAR 34.09. The proceeds of
the Placing, amounting to GBP17.5 million (US$34.8 million), will be used to
satisfy the cash consideration payable for the acquisition of Crane
Telecommunications Group Ltd ("Crane", the "Acquisition") and for general
corporate purposes. The Group has also announced an increase in its expected
EBITDA and earnings for the year to 28 February 2007 and a change in the
Group`s accounting policy for vendor maintenance contract sales - see separate
announcement.
The Acquisition
The Acquisition conditions precedent have now been satisfied. The
consideration payable on completion will comprise the issue of 3,891,971 new
ordinary shares (the "Consideration Shares") and GBP11.5 million in cash,
which will be satisfied by the proceeds of the Placing. The Acquisition is
expected to complete later today.
As previously announced, following completion of the Acquisition, Crane will
be integrated into the European arm of Westcon Group, Datatec`s distribution
division. The Acquisition follows Datatec`s recent purchase of NOXS, a
leading European security distributor, announced on 27 February 2007. These
acquisitions are important steps in Datatec`s strategic plans to leverage
Westcon Group`s financial strength and scale of operations in Europe,
including both broadening and strengthening its vendor relationships. These
two businesses also bring new opportunities in convergence, security and
mobility to both new and existing customers.
The Placing
The Placing is being made with institutional investors by Dresdner Kleinwort
Securities Limited ("Dresdner Kleinwort") and Investec (UK) Bank Limited
("Investec") and represents approximately 4.6 per cent. of the issued share
capital of Datatec.
The Placing Shares will, when issued, rank pari passu in all respects with the
existing issued ordinary shares of Datatec.
Application has been made to the London Stock Exchange for the admission of
the Placing Shares and Consideration Shares to the Alternative Investment
Market, and to the JSE Limited for the listing of these shares ("Admission").
Listing on both exchanges is expected to become effective on 9 May 2007.
The Placing is conditional, inter alia, upon (a) the placing agreement entered
into between Dresdner Kleinwort, Investec and Datatec having become
unconditional in all respects and not having been terminated in accordance
with its terms prior to Admission, and (b) Admission of the Placing Shares
becoming effective by 9 May 2007, or such later date as may be agreed.
The full terms and conditions of the Placing are set out in the appendix to
this announcement.
The financial effects of the Placing on the earnings per share and headline
earnings per share of the company for the last reported period are
insignificant (less than 3%) and have accordingly not been disclosed.
The financial effects of the Placing on the net asset value ("NAV") and net
tangible asset value ("NTAV") per share have been prepared for illustrative
purposes only and because of its nature may not fairly present the issuer`s
financial position, changes in equity, results of operations or cash flows.
The financial effects are the responsibility of the directors. The effect of
the Acquisition (separately reported on 11 April 2007) and the Placing on
Datatec`s NAV and NTAV per share for the six months ended 31 August 2006,
based on the assumptions set out below:
Before the Pro-Forma after the Pro-Forma after the
Acquisition and Acquisition Acquisition and
Placing (previously Placing
reported)
US cents US cents % change US cents % change
NAV per Share 322 326 1.2 332 3.1
NTAV per Share 209 191 -8.4 204 -2.4
The pro-forma earnings per share, headline earnings per share, NAV and NTAV
have been prepared on the following assumptions:
- figures before the Acquisition and Placing are the unaudited interim
results of Datatec for the six months ended 31 August 2006;
- 147.2 million Datatec shares in issue at 31 August 2006;
- funds are invested at an interest rate of 5.25%;
- the results of Crane are the unaudited results for the six months ended
31 December 2006;
- intangible fixed assets will be recognized on completion and amortised in
accordance with Datatec`s existing accounting policies;
- the 3.9 million Consideration Shares and 7.2 million Placing Shares are
assumed to be in issue from the start of the period
- a tax rate of 30% in the UK;
- the NAV and NTAV pro-forma assumes the Acquisition and Placing were
concluded effective 31 August 2006 and uses Crane`s unaudited balance sheet at
31 December 2006; and
- Crane`s preference share capital is treated as equity for the purpose of
these financial effects.
Enquiries:
Datatec Limited (www.datatec.co.za)
David Pfaff, Group Finance Director +27 (0) 11 233 1013
Wilna de Villiers, Group Marketing Manager
Dresdner Kleinwort
Sole Global Co-ordinator and sole bookrunner
James Rudd/Vish Patel + 44 (0) 20 7623 8000
Investec
Co-lead manager
Erik Anderson/Matthew Lewis + 44 (0) 20 7597 4000
College Hill (UK press)
Adrian Duffield/Corinna Dorward + 44 (0) 20 7457 2020
Fleishman-Hillard (SA press)
Lucien Vallun + 27 (0) 11 548 2000
This announcement has been issued by Datatec and is the sole responsibility of
Datatec. This announcement is for information purposes only and does not
constitute an offer to sell or issue any securities or a solicitation of an
offer to buy or acquire any securities or investment advice in any
jurisdiction including, without limitation, the United Kingdom, the United
Sates, Canada, Australia or Japan.
The Placing Shares have not been and will not be registered under the US
Securities Act of 1933 and many not be offered or sold within the United
States absent registration or an exemption from registration. No public
offering of securities will be made in the United States.
Dresdner Kleinwort Securities Limited, which is authorised and regulated by
the Financial Services Authority, is acting for the Company and for no one
else in connection with the Placing and will not be responsible to anyone
other than the Company for providing the protections afforded to customers of
Dresdner Kleinwort Securities Limited or for affording advice in relation to
the Placing, or any other matters referred to herein.
Investec Bank (UK) Limited, which is authorised and regulated by the Financial
Services Authority, is acting for the Company and for no one else in
connection with the Placing and will not be responsible to anyone other than
the Company for providing the protections afforded to customers of Investec
Bank (UK) Limited or for affording advice in relation to the Placing, or any
other matters referred to herein.
Neither this document nor any copy of it may be taken, transmitted or
distributed, directly or indirectly, in or into the United States, Canada,
Australia or Japan or in any jurisdiction in which such transmission or
distribution is unlawful. Any failure to comply with this restriction may
constitute a violation of US, Canadian, Australian or Japanese securities laws
or the securities laws of other states as the case may be.
Information contained in this announcement may include `forward looking
statements`. All statements other than statements of historical facts included
herein, including, without limitation, those regarding the Group`s financial
position, business strategy, plans and objectives of management for future
operations (including development plans and objectives relating to the Group`s
business) are forward-looking statements.
Such forward-looking statements are based on a number of assumptions regarding
the Group`s present and future business strategies and the environment in
which the Group expects to operate in the future. These forward-looking
statements speak only as to the date of this announcement and cannot be relied
upon as a guide to future performance. The Company expressly disclaims any
obligation or undertaking to disseminate any updates or revisions to any
forward-looking statements contained in this announcement to reflect any
changes in its expectations with regard thereto or any change in events,
conditions or circumstances on which any statement is based.
Note to Editors
Datatec is an international Information & Communications Technology (ICT)
group focused on the supply of advanced ICT and the delivery of professional
services into the higher growth segments of the global market. The Group`s
main lines of business comprise the global distribution of advanced networking
and communications convergence products (Westcon), IT infrastructure solutions
and network integration (Logicalis) and strategic telecommunications
consulting (Analysys Mason). Datatec is registered in South Africa and its
shares are listed in Johannesburg and London. The Group has approximately
3,000 employees around the world.
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN OR INTO THE UNITED STATES OF
AMERICA, AUSTRALIA, CANADA OR JAPAN
DATATEC LIMITED - PROPOSED PLACING OF NEW ORDINARY SHARES
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS
DOCUMENT AND THE TERMS AND CONDITIONS SET OUT AND REFERRED TO HEREIN ARE
DIRECTED ONLY AT PERSONS SELECTED BY DRESDNER KLEINWORT SECURITIES LIMITED
("DKIB") AND INVESTEC BANK (UK) LIMITED ("INVESTEC") WHO ARE "INVESTMENT
PROFESSIONALS" AS DESCRIBED IN ARTICLE 19 OR "HIGH NET WORTH COMPANIES,
UNINCORPORATED ASSOCIATIONS ETC" AS DESCRIBED IN ARTICLE 49 OF THE FINANCIAL
SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (the "FPO") OR
TO PERSONS WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED (ALL SUCH PERSONS
TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THIS DOCUMENT AND THE
TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY
PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT ACTIVITY TO WHICH THIS
DOCUMENT AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATE IS AVAILABLE ONLY
TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS.
THE NEW ORDINARY SHARES THAT ARE THE SUBJECT OF THE PLACING (THE "PLACING
SHARES") ARE NOT BEING OFFERED OR SOLD TO ANY PERSON IN THE EUROPEAN UNION,
OTHER THAN TO QUALIFIED INVESTORS AS DEFINED IN SECTION 86(7) OF THE FINANCIAL
SERVICES AND MARKETS ACT 2000 ("FSMA"), BEING PERSONS FALLING WITHIN ARTICLE
2.1(E)(I), (II) OR (III) OF DIRECTIVE 2003/71/EC (THE "PROSPECTUS DIRECTIVE"),
WHICH INCLUDES LEGAL ENTITIES WHICH ARE REGULATED BY THE FINANCIAL SERVICES
AUTHORITY (THE "FSA") OR ENTITIES WHICH ARE NOT SO REGULATED WHOSE CORPORATE
PURPOSE IS SOLELY TO INVEST IN SECURITIES.
The Placing Shares have not been and will not be registered under the United
States Securities Act of 1933, as amended (the "Securities Act") or under the
securities laws of any state or other jurisdiction of the United States and
may not be offered, sold, resold or delivered, directly or indirectly, in or
into the United States absent registration except pursuant to an exemption
from or in a transaction not subject to the registration requirements of the
Securities Act. No public offering of the Placing Shares is being made in the
United States. The Placing (as defined below) is being made outside the
United States in offshore transactions (as defined in Regulation S under the
Securities Act ("Regulation S")) meeting the requirements of Regulation S
under the Securities Act and may be made within the United States to
institutional investors who are qualified institutional buyers within the
meaning of Rule 144A under the Securities Act ("QIBs"), and also QPs (as
defined below) in transactions that are exempt from, or not subject to, the
registration requirements under the Securities Act. Persons receiving this
document (including custodians, nominees and trustees) must not forward,
distribute, mail or otherwise transmit it in or into the United States or use
the United States mails, directly or indirectly, in connection with the
Placing.
This document does not constitute an offer to sell or issue or a solicitation
of an offer to buy or subscribe for Placing Shares in any jurisdiction
including, without limitation, Canada, Australia, Japan or any other
jurisdiction in which such offer or solicitation is or may be unlawful (a
"Prohibited Jurisdiction"). This document and the information contained
herein are not for publication or distribution, directly or indirectly, to
persons in a Prohibited Jurisdiction unless permitted pursuant to an exemption
under the relevant local law or regulation in any such jurisdiction.
The distribution of this document, the Placing and/or issue of the Placing
Shares in certain jurisdictions may be restricted by law and/or regulation.
No action has been taken by Datatec Limited ("the Company"), DKIB or Investec
or any of their respective Affiliates (as defined below) that would permit an
offer of the Placing Shares or possession or distribution of this document or
any other publicity material relating to such Placing Shares in any
jurisdiction where action for that purpose is required. Persons receiving
this document are required to inform themselves about and to observe any such
restrictions.
Each person who is invited to and who chooses to participate in the Placing (a
"Placee") by making an oral offer to take up Placing Shares is deemed to have
read and understood this document in its entirety and to be providing the
representations, warranties, undertakings, agreements and acknowledgements
contained herein.
References in these terms and conditions to Placing Shares shall be deemed,
where the context requires, to include references to the depositary interests
("Depositary Interests") in respect of the underlying Placing Shares, details
of which are set out in the Company`s AIM admission document dated 17 October
2006.
Details of the Placing Agreement and the Placing Shares
The Company has today entered into a placing agreement (the "Placing
Agreement") with DKIB and Investec, under which DKIB and Investec have,
subject to the terms set out therein, severally agreed to use their reasonable
endeavours, as agents of the Company, to procure Placees for the Placing
Shares (the "Placing").
The Placing Shares will, when issued, be credited as fully paid and will rank
pari passu in all respects with the existing issued ordinary shares of ZAR0.01
each in the capital of the Company, including the right to receive all
dividends and other distributions declared, made or paid in respect of such
ordinary shares after the date of issue of the Placing Shares.
The Placing Shares will be issued free of any pre-emption rights, encumbrance,
lien or other security interest.
Application for admission to trading
Application has been made to the London Stock Exchange plc (the "London Stock
Exchange") for admission to trading of the Placing Shares on the AIM market of
the London Stock Exchange ("Admission") and to the JSE Limited for listing of
the Placing Shares. It is expected that Admission will become effective and
that dealings will commence on 9 May 2007, and in any event no later than 23
May 2007.
Participation in, and principal terms of, the Placing
Each of DKIB, Investec and their respective Affiliates (as defined below) is
entitled to participate as a Placee.
A price (the "Placing Price") will be payable to DKIB and Investec by all
their respective Placees.
Prospective Placees will be identified and contacted by DKIB and Investec.
The Placing is expected to close no later than 6:30 p.m. London time on
Thursday, 3 May 2007, but may be closed earlier at the sole discretion of
DKIB. DKIB may, in its sole discretion, accept offers to subscribe for
Placing Shares after the Placing has closed.
DKIB or Investec will re-contact and confirm orally to Placees the size of
their respective allocations and a trade confirmation will be dispatched as
soon as possible thereafter. DKIB`s and Investec`s (as the case may be) oral
confirmation of the size of allocations and each Placee`s oral commitments to
accept the same will constitute a legally binding agreement pursuant to which
each such Placee will be required to accept the number of Placing Shares
allocated to the Placee at the Placing Price and otherwise on the terms and
subject to the conditions set out herein.
DKIB reserves the right to scale back the number of Placing Shares to be
subscribed by any Placee in the event of an oversubscription under the
Placing. DKIB also reserves the right not to accept offers to subscribe
Placing Shares or to accept such offers in part rather than in whole. The
acceptance of offers shall be at the absolute discretion of DKIB. DKIB and
Investec shall be entitled to effect the Placing by such method as DKIB shall
in its sole discretion determine. To the fullest extent permissible by law,
neither DKIB, nor Investec, nor any holding company thereof, nor any
subsidiary, branch or affiliate of DKIB or Investec (each an "Affiliate") nor
any person acting on their behalf shall have any liability to Placees (or to
any other person whether acting on behalf of a Placee or otherwise). In
particular, neither DKIB, nor Investec nor any Affiliate thereof nor any
person acting on their behalf shall have any liability in respect of its
conduct of the Placing or of such alternative method of effecting the Placing
as DKIB may determine. No commissions will be paid to Placees or by Placees
in respect of any Placing Shares.
Each Placee`s obligations will be owed to the Company, to DKIB and to
Investec. Following the oral confirmation referred to above, each Placee will
also have an immediate, separate, irrevocable and binding obligation, owed to
DKIB and Investec, to pay to DKIB or Investec (or as they 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 acquire. The Company shall
allot through DKIB or Investec (as the case may be) such Placing Shares to
each Placee following each Placee`s payment to DKIB or Investec of such
amount.
All obligations of DKIB and Investec under the Placing will be subject to
fulfilment of the conditions referred to below under "Conditions of the
Placing".
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional
and not having been terminated in accordance with its terms.
The obligations of DKIB and Investec under the Placing Agreement are
conditional, inter alia, on:
1 Admission occurring by no later than 9 May 2007 (or such other date as
may be agreed between the Company and DKIB, not being later than 23 May 2007);
2 the Company complying with its obligations under the Placing Agreement to
the extent they fall to be performed prior to Admission including the
delivery, on the day of (and prior to) Admission, to DKIB and Investec of a
certificate confirming, inter alia, that none of the warranties and
undertakings given by the Company in the Placing Agreement has been breached
or is unfulfilled or was untrue, inaccurate or misleading when made or would
be breached or unfulfilled or be untrue, inaccurate or misleading were it to
be repeated by reference to the facts subsisting on the date of Admission;
3 the Company allotting prior to Admission, subject only to Admission, the
Placing Shares; and
4 the agreement relating to Datatec Limited`s acquisition of the share
capital of Crane Telecommunications Group Limited (the "Acquisition
Agreement") becoming wholly unconditional prior to or on Admission and
completion occurring in accordance with its terms.
If (a) the conditions above are not fulfilled or (to the extent permitted
under the Placing Agreement) waived by DKIB, or (b) the Placing Agreement is
terminated in the circumstances specified below, the Placing will lapse and
each Placee`s rights and obligations hereunder shall cease and determine at
such time and no claim may be made by a Placee in respect thereof. Neither
DKIB nor Investec 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 it may make as to whether or not to waive or to extend the time
and/or date for the satisfaction of any condition in the Placing Agreement or
in respect of the Placing generally.
By participating in the Placing, each Placee agrees that its rights and
obligations hereunder terminate only in the circumstances described above and
under `Right to terminate under the Placing Agreement` below, and will not be
capable of rescission or termination by the Placee.
Right to terminate under the Placing Agreement
DKIB and Investec may, at any time before Admission, terminate the Placing
Agreement by giving written notice to the Company if:
1 in the opinion of DKIB and Investec acting in good faith, any of the
warranties given by the Company in the Placing Agreement are not true and
accurate or have become misleading (or would not be true and accurate or would
be misleading if they were repeated at any time before Admission) by reference
to the facts subsisting at the relevant time when the notice referred to above
is given and which DKIB and Investec consider to be material in the context of
the Placing; or
2 in the opinion of DKIB and Investec acting in good faith, the Company
fails to comply with any of its obligations under the Placing Agreement or
under the Acquisition Agreement in any respect which is material in the
context of the Placing; or
3 in the opinion of DKIB and Investec acting in good faith, there has been
a material adverse change in the financial or trading position of the Group
(defined as the Company and its subsidiary undertakings); or
4 in the opinion of DKIB and Investec, there has been a change in national
or international financial, political, economic or stock market conditions
(primary or secondary); an incident of terrorism, outbreak or escalation of
hostilities, war, declaration of martial law or any other calamity or crisis;
a suspension or material limitation in trading of securities generally on any
stock exchange; any change in currency exchange rates or exchange controls or
a disruption of settlement systems or a material disruption in commercial
banking, the effect of which in each case would, in the opinion of DKIB and
Investec acting in good faith, be to materially and adversely prejudice the
success of the Placing.
By participating in the Placing, each Placee agrees with DKIB and Investec
that the exercise by DKIB and Investec of any right of termination or other
discretion under the Placing Agreement shall be within the absolute discretion
of DKIB and Investec and that DKIB and Investec need not make any reference to
the Placee in this regard and that, to the fullest extent permitted by law,
DKIB and Investec shall not have any liability whatsoever to the Placee in
connection with any such exercise.
No Prospectus
No offering document or prospectus has been or will be prepared in relation to
the Placing and Placees` commitments will be made solely on the basis of the
information contained in this document and any information previously
published by or on behalf of the Company by notification to a Regulatory
Information Service (as defined in the AIM Rules for Companies of the London
Stock Exchange). Each Placee, by accepting a participation in the Placing,
agrees that the content of this document is exclusively the responsibility of
the Company and confirms to DKIB, Investec and the Company that it has neither
received nor relied on any information, representation, warranty or statement
made by or on behalf of DKIB or Investec (other than the amount of the
relevant Placing participation in the oral confirmation given to Placees and
the trade confirmation referred to below), any of their respective Affiliates,
any persons acting on their behalf or the Company and none of DKIB, Investec,
any of their Affiliates, any persons acting on their behalf or the Company
will be liable for the decision of any Placee to participate in the Placing
based on any other information, representation, warranty or statement which
the Placee may have obtained or received (regardless of whether or not such
information, representation, warranty or statement was given or made by or on
behalf of any such persons). By participating in the Placing, each Placee
acknowledges and agrees, to DKIB and Investec for themselves and as agents for
the Company, that, except in relation to the information contained in this
document, it has relied on its own investigation of the business, financial or
other position of the Company in deciding to participate 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 (ISIN ZAE000017745) which are
allotted and issued to Placees through DKIB and Investec other than Placees
resident in South Africa following Admission will take place within the CREST
system, using the DVP mechanism, subject to certain exceptions and settlement
of transactions in the Placing Shares which are allotted and issued to Placees
who are resident in South Africa following Admission will take place within
the STRATE system. DKIB and Investec reserves the right to require settlement
for and delivery of the Placing Shares to Placees by such other means that it
deems necessary, if delivery or settlement is not possible or practicable
within the CREST system or the STRATE system within the timetable set out in
this document or would not be consistent with the regulatory requirements in
the Placee`s jurisdiction.
Each Placee allocated Placing Shares in the Placing will be sent a trade
confirmation stating the number of Placing Shares allocated to it, the Placing
Price, the aggregate amount owed by such Placee to DKIB or Investec and
settlement instructions. Placees of either DKIB or Investec in South Africa
who wish to take Placing Shares in STRATE will be advised the relevant
settlement instructions on such trade confirmation(s). It is expected that
such trade confirmation(s) will be despatched on 3 May 2007 and that this will
also be the trade date. Each Placee agrees that it will do all things
necessary to ensure that delivery and payment is completed in accordance with
either the standing CREST or STRATE or certificated settlement instructions
which it has in place with DKIB or Investec (as appropriate).
It is expected that settlement in the UK will be on 9 May 2007 and in South
Africa on 10 May 2007 in accordance with the instructions set out in the trade
confirmation.
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 2
percentage points above the base rate of Barclays Bank Plc.
Each Placee is deemed to agree that if it does not comply with these
obligations, DKIB and Investec (as the case may be) may sell any or all of the
Placing Shares allocated to the Placee on such Placee`s behalf and retain from
the proceeds, for its own account and profit, an amount equal to the aggregate
amount owed by the Placee plus any interest due. The Placee will, however,
remain liable for any shortfall below the aggregate amount owed by such Placee
and it 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, the
Placee 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 the Placee`s name or that of its
nominee or in the name of any person for whom the Placee is contracting as
agent or that of a nominee for such person, such Placing Shares will, subject
as provided below, be so registered free from any liability to PTM levy, stamp
duty or stamp duty reserve tax. If there are any circumstances in which any
other stamp duty or stamp duty reserve tax is payable in respect of the issue
of the Placing Shares, neither DKIB, Investec nor the Company shall be
responsible for the payment thereof. 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):
1 represents and warrants that it has read and understood this document in
its entirety and acknowledges that its participation in the Placing will be
governed by the terms of this document;
2 acknowledges that no prospectus or other offering document has been
prepared in connection with the placing of the Placing Shares;
3 agrees to indemnify on an after-tax basis and hold harmless the Company,
DKIB, Investec, any of their respective Affiliates and any person acting on
their behalf 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 document and further agrees that the provisions of this
document shall survive after completion of the Placing;
4 acknowledges that the ordinary shares of the Company with a nominal value
of ZAR 0.01 each are listed on both the JSE and the AIM market of the London
Stock Exchange, and the Company is therefore required to publish certain
business and financial information in accordance with the rules and practices
of the JSE and the London Stock Exchange (collectively, the "Exchange
Information"), which includes a description of the nature of the Company`s
business and the Company`s most recent balance sheet and profit and loss
account, and similar statements for preceding financial years, and that the
Placee is able to obtain or access the Exchange Information without undue
difficulty;
5 acknowledges that none of DKIB, Investec any of their Affiliates nor any
person acting on their behalf has provided, and will not provide it with, any
material or information regarding the Placing Shares or the Company; nor has
it requested DKIB, Investec any of their Affiliates or any person acting on
their behalf to provide it with any such material or information;
6 acknowledges that the content of this document is exclusively the
responsibility of the Company and that neither DKIB, Investec, any of their
respective Affiliates nor any person acting on their behalf will be
responsible for or shall have any liability for any information,
representation or statement relating to the Company contained in this document
or any information previously published by or on behalf of the Company and
neither DKIB, Investec, any of their respective Affiliates nor any person
acting on their behalf will be liable for any Placee`s decision to participate
in the Placing based on any information, representation or statement contained
in this document 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 to subscribe for the Placing Shares is
contained in this document and any Exchange Information, such information
being all that it deems necessary to make an investment decision in respect of
the Placing Shares, and that it has relied on its own investigation with
respect to the Placing Shares and the Company in connection with its decision
to subscribe for the Placing Shares and acknowledges that it is not relying on
any investigation that DKIB, Investec, any of their respective Affiliates or
any person acting on their behalf may have conducted with respect to the
Placing Shares or the Company and none of such persons has made any
representations to it, express or implied, with respect thereto;
7 acknowledges that it has not relied on any information relating to the
Company contained in any research reports prepared by DKIB, Investec, any of
their Affiliates or any person acting on DKIB`s, Investec`s or any of their
Affiliates` behalf and understands that (i) none of DKIB, Investec, any of
their Affiliates nor any person acting on their behalf has or shall have any
liability for public information or any representation; (ii) none of DKIB,
Investec any of their Affiliates nor any person acting on their behalf has or
shall have any liability for any additional information that has otherwise
been made available to such Placee, whether at the date of publication, the
date of this document or otherwise; and that (iii) none of DKIB, Investec, any
of their Affiliates nor any person acting on their behalf makes any
representation or warranty, express or implied, as to the truth, accuracy or
completeness of such information, whether at the date of publication, the date
of this document or otherwise;
8 represents and warrants that (i) it is entitled to acquire the Placing
Shares under the laws and regulations of all relevant jurisdictions which
apply to it; (ii) it has fully observed such laws and regulations and obtained
all such governmental and other guarantees and other consents and authorities
which may be required thereunder and complied with all necessary formalities;
(iii) it has all necessary capacity to commit to participation in the Placing
and to perform its obligations in relation thereto and will honour such
obligations; (iv) it has paid any issue, transfer or other taxes due in
connection with its participation in any territory and (v) it has not taken
any action which will or may result in the Company, DKIB, Investec any of
their Affiliates or any person acting on their behalf being in breach of the
legal and/or regulatory requirements of any territory in connection with the
Placing;
9 represents and warrants that the issue to the Placee, or the person
specified by the Placee for registration as holder, of Placing Shares will not
give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance
Act 1986 (depositary receipts and clearance services) and that the Placing
Shares are not being acquired in connection with arrangements to issue
depositary receipts or to issue or transfer Placing Shares into a clearance
system;
10 represents and warrants that it understands that the Placing Shares 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 (as
defined below) and that the Company has not been registered as an "investment
company" under the United States Investment Company Act of 1940, as amended;
11 represents and warrants that unless it is a "US Person" (within the
meaning of Regulation S) that is a QIB in the United States to which the
Placing Shares will be offered on a private placement basis, it is, or at the
time the Placing Shares are acquired, it will be, (a) the beneficial owner of
such Placing Shares and is neither a person located in the United States of
America, its territories or possessions, any state of the United States or the
District of Columbia (the "United States") nor holding the Placing Shares on
behalf of a person in the United States, (b) is acquiring the Placing Shares
in an offshore transaction (as defined in Regulation S under the Securities
Act) and (c) will not offer or sell, directly or indirectly, any of the
Placing Shares in the United States except in accordance with Regulation S or
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act;
12 represents and warrants that it has not offered or sold and will not
offer or sell any Placing Shares to persons in the United Kingdom prior to
Admission except to qualified investors as defined in section 86(7) of FSMA,
being persons falling within Article 2.1(e)(i), (ii) or (iii) of the
Prospectus Directive;
13 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;
14 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;
15 represents and warrants that it has complied with its obligations in
connection with money laundering and terrorist financing under the Criminal
Justice Act 1993, the Proceeds of Crime Act 2002, the Terrorism Act 2000, the
Anti-terrorism Crime and Security Act 2001 and the Money Laundering
Regulations (2003) (the "Regulations") and, if it is 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;
16 represents and warrants that it is (a) a person falling within Article
19(5) of the FPO or (b) a person falling within Article 49(2)(a) to (d) of the
FPO and undertakes that it will acquire, hold, manage or dispose of any
Placing Shares that are allocated to it for the purposes of its business;
17 represents and warrants that it is a qualified investor as defined in
section 86(7) of FSMA, being a person falling within Article 2.1(e)(i), (ii)
or (iii) of the Prospectus Directive;
18 undertakes that it (and any person acting on its behalf) will pay for the
Placing Shares acquired by it in accordance with this document on the due time
and date set out herein against delivery of such Placing Shares to it, failing
which the relevant Placing Shares may be placed with other Placees or sold as
DKIB may, in its absolute discretion, determine and it will remain liable for
any shortfall below the net proceeds of such sale and the placing proceeds of
such Placing Shares and may be required to bear any stamp duty or stamp duty
reserve tax (together with any interest or penalties due pursuant to the terms
set out or referred to in this document) which may arise upon the sale of such
Placee`s Placing Shares on its behalf;
19 acknowledges that neither DKIB, Investec, any of their Affiliates nor any
person acting on their behalf is making any recommendations to it or advising
it regarding the suitability or merits of any transaction it may enter into in
connection with the Placing, and acknowledges that participation in the
Placing is on the basis that it is not and will not be a client or customer of
DKIB or Investec or any of their respective Affiliates and that neither DKIB,
Investec, any of their respective Affiliates nor any person acting on their
behalf has any duties or responsibilities to it for providing the protections
afforded to their clients or customers or for providing advice in relation to
the Placing or in respect of any representations, warranties, undertakings or
indemnities contained in the Placing Agreement or for the exercise or
performance of any of DKIB`s or Investec`s rights and obligations thereunder,
including any right to waive or vary any condition or exercise any termination
right contained therein;
20 undertakes that (i) the person whom it specifies for registration as
holder of the Placing Shares will be (a) the Placee or (b) the Placee`s
nominee, as the case may be, (ii) neither DKIB, Investec nor the Company will
be responsible for any liability to stamp duty or stamp duty reserve tax
resulting from a failure to observe this requirement and (iii) the Placee and
any person acting on its behalf agrees to acquire the Placing Shares on the
basis that they will be issued to a CREST stock account of DKIB or Investec
or in the case of Placees who are resident in South Africa only, to a STRATE
account operated by Investec which will hold them as settlement agent as
nominee for the Placee until settlement in accordance with its standing
settlement instructions with payment for the Placing Shares being made
simultaneously upon receipt of the Placing Shares in the Placee`s stock
account on a delivery versus payment basis;
21 acknowledges that any agreements entered into by it pursuant to these
terms and conditions 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;
22 acknowledges that it irrevocably appoints any director of DKIB or
Investec as its agent for the purposes of executing and delivering to the
Company and/or its registrars any documents on its behalf necessary to enable
it to be registered as the holder of any of the Placing Shares agreed to be
taken up by it under the Placing;
23 represents and warrants that it is not a resident of any Prohibited
Jurisdiction and acknowledges that the Placing Shares have not been and will
not be registered nor will a prospectus be cleared in respect of the Placing
Shares under the securities legislation of any Prohibited Jurisdictions and,
subject to certain exceptions, may not be offered, sold, taken up, renounced,
delivered or transferred, directly or indirectly, within any Prohibited
Jurisdiction;
24 acknowledges that the agreement to settle each Placee`s acquisition of
Placing Shares (and/or the acquisition of a person for whom it is contracting
as agent) free of stamp duty and stamp duty reserve tax depends on the
settlement relating only to an acquisition by it and/or such person direct
from the Company of the Placing Shares in question. Such agreement assumes
that the Placing Shares are not being acquired in connection with arrangements
to issue depositary receipts or to issue or transfer the Placing Shares into a
clearance service. If there were any such arrangements, or the settlement
related to other dealing in the Placing Shares, stamp duty or stamp duty
reserve tax may be payable, for which neither the Company, DKIB nor Investec
will be responsible. If this is the case, the Placee should take its own
advice and notify DKIB and Investec accordingly;
25 acknowledges that the Placing Shares will be issued and/or transferred
subject to the terms and conditions set out in this document;
26 acknowledges that when a Placee or any person acting on behalf of the
Placee is dealing with DKIB or Investec, any money held in an account with
DKIB or Investec 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
relevant rules and regulations of the FSA. 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 DKIB`s or
Investec`s money in accordance with the client money rules and will be used by
DKIB or Investec (as applicable) in the course of its business; and the Placee
will rank only as a general creditor of DKIB or Investec (as applicable);
27 acknowledges that DKIB and Investec may (in their absolute discretion)
satisfy their obligations to procure Placees by themselves agreeing to become
a Placee in respect of some or all of the Placing Shares or by nominating any
connected or associated person to do so;
28 acknowledges and understands that the Company, DKIB, Investec and others
will rely upon the truth and accuracy of the foregoing representations,
warranties, agreements, undertakings and acknowledgements; and
29 acknowledges that until 40 days after the later of the commencement of
the Placing and the closing date, an offer or sale of Placing Shares within
the United States by any dealer (whether or not participating in the Placing)
may violate the registration requirements of the Securities Act if such offer
or sale is made otherwise than in accordance with Rule 144A or pursuant to
another exemption from registration under the Securities Act to a person that
is a QP (as defined below).
Additional Representations and Warranties by US Persons
In addition to the foregoing, each Placee which is a US Person to which the
Placing Shares will be offered in transactions exempt from, or not subject to,
the registration requirements of the Securities Act represents, warrants and
agrees as follows:
30 that (a) it is a qualified institutional buyer within the meaning of Rule
144A of the Securities Act; (b) it is a "qualified purchaser" within the
meaning of Section 2(a)(51) of the United States Investment Company Act of
1940, as amended ("QP"), and is not (i) a broker or dealer which owns or
invests less than US$25 million in securities of unaffiliated issuers; (ii) a
participant-directed employee plan or (iii) formed for the purposes of
investing in the Placing Shares or the Company; (c) it has duly executed, or
will duly execute, an investor letter in the form provided to it by DKIB and
Investec in which it will make certain undertakings, representations and
warranties in addition to those contained herein; and (d) it is subscribing
for the Placing Shares for its own account, or for the account managed on
behalf of another QIB that is also a QP, and not with a view to any
distribution within the meaning of the Securities Act or applicable state law
except as set forth below;
31 it acknowledges and agrees that no offering circular or prospectus will
be provided in connection with the Placing Shares and it has, or to the extent
it is acquiring Placing Shares for the account of another QIB, such other QIB
(a) has, sufficient knowledge, sophistication and experience in financial and
business matters so as to be capable of evaluating the merits and risks of the
purchase of the Placing Shares; (b) is able to bear the economic and financial
risk (including a complete loss) of such a purchase; (c) has had sufficient
time to consider and conduct its own investigation with respect to the offer
and purchase of the Placing Shares, including the tax, legal, currency and
other economic considerations relevant to such investment and (d) will not
look to the Company, DKIB, Investec, any of their respective Affiliates or any
person acting on their behalf for all or part of any such loss or losses it or
they may suffer;
32 it understands and agrees that (a) the Placing Shares are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act; (b)
the undersigned will not offer, sell, transfer, pledge, hypothecate or
otherwise dispose of any Placing Shares except in an offshore transaction
outside the United States in accordance with Regulation S under the Securities
Act (and not in a prearranged transaction resulting in the sale of Placing
Shares into the United States or to a US Person) in accordance with any other
applicable laws of the United States governing the offer and sale of such
Placing Shares, and in each case it will notify any purchaser of the Placing
Shares of the resale restrictions relating to the Placing Shares, if still
applicable; (c) understands and agrees that the Placing Shares (to the extent
they are in certificated form), unless otherwise determined by the Company in
accordance with applicable law, will bear a legend to that effect in addition
to such other legends as the Company deems necessary or as are required under
applicable law and (d) understands that the Company or registrar and transfer
agent for the Placing Shares will not be required to accept for registration
of transfer any Placing Shares except upon presentation of evidence (including
an opinion of legal counsel satisfactory to the Company) to the Company and
the transfer agent that the foregoing restrictions on transfer have been
complied with;
33 it understands and agrees that if any beneficial owner of ordinary shares
in the Company is at any time a US person and not a QP, the Company may (i)
require such beneficial owner to sell its ordinary shares to a person who is
not a US person or who is a QIB and a QP and is qualified to purchase such
shares in a transaction exempt from registration under the Securities Act or
(ii) sell such shares on behalf of such beneficial owner at the best price
reasonably obtainable to a person who is not a US person or who is a QIB and a
QP and is qualified to purchase such shares in a transaction exempt from
registration under the Securities Act;
34 without limiting the generality of clause (c) of paragraph 32 above, it
acknowledges that the Company may be a passive foreign investment company
("PFIC") for US federal income tax purposes, and it could be a PFIC in future
years. The Company has not undertaken an extensive PFIC analysis, however, if
such analysis reveals no significant differences between tax and book values
for income and losses, then there is a significant likelihood that the Company
is a PFIC currently and may be a PFIC in future years. If the Company is a
PFIC, then US taxable investors may be subject to adverse US tax consequences
in respect of their investment in the Company`s shares. US investors may be
able to mitigate these adverse US tax consequences by making certain elections
for US tax purposes;
35 it agrees that no purchaser of the Placing Shares shall deposit the
Placing Shares into any unrestricted American Depositary Receipt facility
established or maintained by a depositary bank, unless and until such time as
such Placing Shares are no longer "restricted securities" within the meaning
of Rule 144(a)(3) under the Securities Act; and
36 it acknowledges and agrees that the Company, DKIB, Investec, their
respective Affiliates and any person acting on their behalf will rely upon its
representations, warranties, undertakings, agreements and acknowledgements set
forth herein and in the investor letter, and agrees to notify the Company and
DKIB promptly in writing if any of its representations, warranties,
undertakings, agreements or acknowledgements cease to be accurate and
complete.
The acknowledgements, agreements, undertakings, representations and warranties
referred to above are given to each of the Company, DKIB, Investec (for their
own benefit and, where relevant, the benefit of their respective Affiliates
and any person acting on their behalf) and are irrevocable.
No UK stamp duty or stamp duty reserve tax should be payable to the extent
that the Placing Shares are issued or transferred (as the case may be) into
CREST to, or to the nominee of, a Placee who holds those shares beneficially
(and not as agent or nominee for any other person) within the CREST system and
registered in the name of such Placee or such Placee`s nominee.
Any arrangements to issue or transfer the Placing Shares into a depositary
receipts system or a clearance service or to hold the Placing Shares as agent
or nominee of a person to whom a depositary receipt may be issued or who will
hold the Placing Shares in a clearance service, or any arrangements
subsequently to transfer the Placing Shares, may give rise to stamp duty
and/or stamp duty reserve tax, for which neither the Company nor DKIB nor
Investec will be responsible and the Placee to whom (or on behalf of whom, or
in respect of the person for whom it is participating in the Placing as an
agent or nominee) the allocation, allotment, issue or delivery of Placing
Shares has given rise to such stamp duty or stamp duty reserve tax undertakes
to pay such stamp duty or stamp duty reserve tax forthwith and to indemnify on
an after-tax basis and to hold harmless the Company, DKIB and Investec in the
event that any of the Company and/or DKIB and/or Investec has incurred any
such liability to stamp duty or stamp duty reserve tax.
In addition, Placees should note that they will be liable for any capital
duty, stamp duty and all other stamp, issue, securities, transfer,
registration, documentary or other duties or taxes (including any interest,
fines or penalties relating thereto) payable outside the UK by them or any
other person on the acquisition by them of any Placing Shares or the agreement
by them to acquire any Placing Shares.
All times and dates in this document may be subject to amendment. DKIB and
Investec shall notify the Placees and any person acting on behalf of the
Placees of any such changes.
This document has been issued by the Company and is the sole responsibility of
the Company.
Dresdner Kleinwort Securities Limited, which is authorised and regulated by
the Financial Services Authority, is acting for the Company and for no one
else in connection with the Placing and will not be responsible to anyone
other than the Company for providing the protections afforded to customers of
Dresdner Kleinwort Securities Limited or for affording advice in relation to
the Placing, or any other matters referred to herein.
Investec Bank (UK) Limited, which is authorised and regulated by the Financial
Services Authority, is acting for the Company and for no one else in
connection with the Placing and will not be responsible to anyone other than
the Company for providing the protections afforded to customers of Investec
Bank (UK) Limited or for affording advice in relation to the Placing, or any
other matters referred to herein.
Date: 03/05/2007 09:00:01 Produced by the JSE SENS Department. |