HICL Infrastrct PLC - Proposed issue of equity
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO,
Proposed issue of equity
The Board of
The New Ordinary Shares will be issued at a price of 164.0p per Share (the "Issue Price"). The Issue Price represents a discount of 5.75 per cent. to the mid-market closing share price of 174.0p on
The net proceeds of the Issue will be applied in reducing the Company's funding requirement of approximately
Details of the Issue
The Issue will be made to qualifying investors (as defined in section 86(7) of the Financial Services and Markets Act 2000 (as amended)) through the Company's brokers, joint corporate brokers,
The Issue will be launched immediately following this announcement. To register their interest in participating in the Issue, potential investors should communicate their applications for New Ordinary Shares by telephone to their usual sales contact at Investec or RBC. The Issue is expected to close at
The number of New Ordinary Shares to be issued will be agreed between Investec, RBC and the Company following the close of the Issue, and announced shortly thereafter. Investec and RBC may choose to accept applications, either in whole or in part, on the basis of allocations determined in agreement with the Company, and may scale down any applications for this purpose on such basis as the Company, Investec and RBC may determine. Investec and RBC may also, notwithstanding the above, subject to the prior consent of the Company: (i) allocate New Ordinary Shares after the time of any initial allocation to any person submitting an application after that time, and (ii) allocate New Ordinary Shares after the Issue has closed to any person submitting an application after that time.
Application for Admission
Application will be made to the
Latest time and date for receipt of applications
Announcement of results of the Issue
New Ordinary Shares issued to investors on a T+2 basis
Admission and commencement of dealings in New Ordinary Shares
Investec Bank plc +44 (0) 20 7597 4000
RBC Capital Markets +44 (0) 20 7653 4000
Teneo +44 (0) 7342 031051/[email protected]
This announcement contains Inside Information.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE TAP ISSUE. THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) IS DIRECTED ONLY AT PERSONS SELECTED BY INVESTEC BANK PLC AND RBC EUROPE LIMITED (THE "JOINT BOOKRUNNERS") WHO ARE "INVESTMENT PROFESSIONALS" FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE FPO) OR "HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS ETC" FALLING WITHIN ARTICLE 49(2) OF THE FPO OR TO PERSONS TO WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED UNDER THE FPO (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). ONLY RELEVANT PERSONS MAY PARTICIPATE IN THE TAP ISSUE AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS.
THE NEW ORDINARY SHARES THAT ARE THE SUBJECT OF THE TAP ISSUE ARE NOT BEING OFFERED OR SOLD TO ANY PERSON IN THE EUROPEAN ECONOMIC AREA (EEA), OTHER THAN TO PERSONS WHO ARE BOTH (I) "QUALIFIED INVESTORS" AS DEFINED IN ARTICLE 2(E) OF THE PROSPECTUS REGULATION ((EU)2017/1129) (THE "PROSPECTUS REGULATION"), WHICH INCLUDES LEGAL ENTITIES WHICH ARE REGULATED BY THE FINANCIAL CONDUCT AUTHORITY OR ENTITIES WHICH ARE NOT SO REGULATED WHOSE CORPORATE PURPOSE IS SOLELY TO INVEST IN SECURITIES AND (II) PERSONS TO WHOM THE NEW ORDINARY SHARES MAY BE LAWFULLY MARKETED UNDER THE EU ALTERNATIVE INVESTMENT FUND MANAGERS DIRECTIVE (NO. 2011/ 61/EU) (THE "AIFM DIRECTIVE") OR THE APPLICABLE IMPLEMENTING LEGISLATION (IF ANY) OF THE MEMBER STATE OF THE EEA IN WHICH SUCH PERSON IS DOMICILED OR IN WHICH SUCH PERSON HAS A REGISTERED OFFICE.
The New Ordinary Shares have not been and will not be registered under the U.S. Securities Act of 1933, as amended (the "U.S. Securities Act") or with any securities regulatory authority of any State or other jurisdiction of the United States (as defined below), and accordingly may not be offered, sold or transferred within the United States of America, its territories or possessions, any State of the United States or the District of Columbia (the United States) except pursuant to an exemption from, or in a transaction not subject to, registration under the U.S. Securities Act. The Tap Issue is being made (i) outside the United States in reliance on the exemption from the registration requirements of the U.S. Securities Act provided by Regulation S and (ii) to persons located inside the United States or to U.S. Persons that are ''qualified institutional buyers'' (as the term is defined in Rule 144A under the U.S. Securities Act) that are also ''qualified purchasers'' within the meaning of section 2(A)(51) of the U.S. Investment Company Act in reliance on an exemption from registration provided by section 4(A)(2) under the U.S. Securities Act.
The Company has not been and will not be registered under the U.S. Investment Company Act of 1940, as amended (the "U.S. Investment Company Act") and investors will not be entitled to the benefits of the U.S. Investment Company Act. This Announcement does not constitute an offer to sell or issue or a solicitation of an offer to buy or subscribe for Tap Shares in any jurisdiction including, without limitation, the United States, Australia, Canada, Japan or South Africa or any other jurisdiction in which such offer or solicitation is or may be unlawful (an "Excluded Territory"). This Announcement and the information contained therein are not for publication or distribution, directly or indirectly, to persons in an Excluded Territory unless permitted pursuant to an exemption under the relevant local law or regulation in any such jurisdiction.
The distribution of this Announcement, and/or the issue of New Ordinary Shares in certain jurisdictions may be restricted by law and/or regulation. No action has been taken by the Company, the Joint Bookrunners or any of their respective affiliates as defined in Rule 501(b) under the U.S. Securities Act (as applicable in the context used, Affiliates) that would permit an offer of the New Ordinary Shares or possession or distribution of this Announcement or any other publicity material relating to the New Ordinary Shares in any jurisdiction where action for that purpose is required. Persons receiving this Announcement are required to inform themselves about and to observe any such restrictions.
The Joint Bookrunners, each of which is authorised and regulated in the United Kingdom by the
Information to Distributors
Solely for the purposes of the product governance requirements contained within: (a) EU Directive 2014/65/EU on markets in financial instruments, as amended ("MiFID II"); (b) Articles 9 and 10 of Commission Delegated Directive (EU) 2017/593 supplementing MiFID II; and (c) local implementing measures, in the UK being the FCA's Product Intervention and Governance Sourcebook (PROD) (together, the "MiFID II Product Governance Requirements"), and disclaiming all and any liability, whether arising in tort, contract or otherwise, which any "manufacturer" (for the purposes of the MiFID II Product Governance Requirements) may otherwise have with respect thereto, the New Ordinary Shares have been subject to a product approval process, which has determined that the New Ordinary Shares are: (i) compatible with an end target market of professionally advised retail investors who do not need a guaranteed income or capital protection and investors who meet the criteria of professional clients and eligible counterparties, each as defined in MiFID II; and (ii) eligible for distribution a) if to professionally advised retail investors, through advised distribution channels only; or b) through such distribution channels as are appropriate to professional clients and eligible counterparties, (in each case) as are permitted by MiFID II (the "Target Market Assessment"). Notwithstanding the Target Market Assessment, Distributors should note that: the price of New Ordinary Shares may decline and investors could lose all or part of their investment; the New Ordinary Shares offer no guaranteed income and no capital protection; and an investment in New Ordinary Shares is compatible only with investors who do not need a guaranteed income or capital protection, who (either alone or in conjunction with an appropriate financial or other adviser) are capable of evaluating the merits and risks of such an investment and who have sufficient resources to be able to bear any losses that may result therefrom. The Target Market Assessment is without prejudice to the requirements of any contractual, legal or regulatory selling restrictions in relation to the Tap Issue. Furthermore, it is noted that, notwithstanding the Target Market Assessment, the Joint Bookrunners will only contact prospective Applicants for participation in the Tap Issue who meet the criteria of professional clients and eligible counterparties.
For the avoidance of doubt, the Target Market Assessment does not constitute: (a) an assessment of suitability or appropriateness for the purposes of MiFID II; or (b) a recommendation to any investor or group of investors to invest in, or purchase, or take any other action whatsoever with respect to New Ordinary Shares. Each Distributor is responsible for undertaking its own target market assessment in respect of the New Ordinary Shares and determining appropriate distribution channels.
TERMS AND CONDITIONS OF THE TAP ISSUE
1.1 By participating in the Tap Issue each applicant for New Ordinary Shares (an "Applicant") is deemed to have read and understood this Announcement (including this Appendix) in its entirety and to be providing the representations, warranties, undertakings, agreements and acknowledgements contained in this Appendix.
1.2 Each Applicant which confirms its agreement (whether orally or in writing) to Investec and/or to RBC to acquire New Ordinary Shares under the Tap Issue will be bound by these terms and conditions and will be deemed to have accepted them.
1.3 The Company and/or Investec and/or RBC may require any Applicant to agree to such further terms and/or conditions and/or give such additional warranties and/or representations as it (in its absolute discretion) sees fit and/or may require any such Applicant to execute a separate letter (a "Tap Issue Letter"). The terms and conditions contained in any such Tap Issue Letter shall be supplemental and in addition to the terms and conditions contained in this Appendix.
2. Agreement to Acquire New Ordinary Shares
2.1 Conditional upon:
(a) Admission, occurring and becoming effective by
(b) the Tap Issue Agreement between the Company,
(c) Investec and/or RBC confirming to the Applicants their allocation of the relevant New Ordinary Shares,
an Applicant agrees to become a member of the Company and agrees to take those New Ordinary Shares allocated to it by Investec and/or RBC at the price per New Ordinary Share agreed between the Company and the Joint Bookrunners as the price at which the Tap Issue will be undertaken (the "Issue Price").
2.2 To the fullest extent permitted by law, each Applicant acknowledges and agrees that it will not be entitled to exercise any remedy of rescission at any time. This does not affect any other rights the Applicant may have.
3. Payment for New Ordinary Shares
3.1 Each Applicant must pay the Issue Price for the New Ordinary Shares issued to or for the benefit of the Applicant in the manner and by the time directed by Investec and/or RBC. If any Applicant fails to pay as so directed and/or by the time required, the relevant Applicant's application for the New Ordinary Shares shall at the Joint Bookrunners' discretion either be accepted or rejected in which case paragraphs 4.6 or 7.5 of these terms and conditions shall apply to such application respectively.
4. Participation in, and principal terms of, the Tap Issue
4.1 Prospective Applicants will be identified and contacted by the Joint Bookrunners.
4.2 The latest time and date for receipt of commitments under the Tap Issue is
4.3 The Joint Bookrunners will re-contact and confirm orally to Applicants the size of their respective allocations and a trade confirmation will be dispatched as soon as possible thereafter. The Joint Bookrunners' oral confirmation of the size of allocations and each Applicant's oral commitment to accept the same or such lesser number as determined in accordance with paragraph 4.4 below will constitute a legally binding agreement pursuant to which each such Applicant will be required to accept the number of New Ordinary Shares allocated to the Applicant at the Issue Price and otherwise on the terms and subject to the conditions set out in this Appendix.
4.4 The Company (after consultation with the Joint Bookrunners) reserves the right to scale back the number of New Ordinary Shares to be subscribed by any Applicant in the event of an oversubscription in the Tap Issue. The Company and the Joint Bookrunners also reserve the right not to accept offers to subscribe for New Ordinary Shares or to accept such offers in part rather than in whole. The Joint Bookrunners shall be entitled to effect the Tap Issue by such method as they shall in their sole discretion jointly determine. To the fullest extent permissible by law, neither the Joint Bookrunners, nor any holding company of the Joint Bookrunners, nor any subsidiary, branch or affiliate of the Joint Bookrunners (each an Affiliate) nor any person acting on behalf of any of the foregoing shall have any liability to Applicants (or to any other person whether acting on behalf of an Applicant or otherwise). In particular, neither of the Joint Bookrunners, nor any Affiliate thereof nor any person acting on their behalf shall have any liability to Applicants in respect of their conduct of the Tap Issue. No commissions will be paid to Applicants or directly by Applicants in respect of the New Ordinary Shares. Under the terms of the Tap Issue Agreement, the Company shall pay an aggregate commission of up to 1 per cent. of the gross proceeds raised from Applicants that have been procured by the Joint Bookrunners.
4.5 Each Applicant's obligations will be owed to the Company and to the Joint Bookrunners. Following the oral confirmation referred to above, each Applicant will have an immediate, separate, irrevocable and binding obligation, owed to the Joint Bookrunners, to pay to the Joint Bookrunners (or as the Joint Bookrunners may direct) in cleared funds an amount equal to the product of the Issue Price and the number of New Ordinary Shares which such Applicant has agreed to acquire under the Tap Issue. Commitments under the Tap Issue, once made, cannot be withdrawn without the consent of the Directors. The Company shall allot such New Ordinary Shares to each Applicant (or to either of the Joint Bookrunners for onward transmission to the relevant Applicant) following each Applicant's payment to the Joint Bookrunners of such amount.
4.6 Each Applicant agrees to indemnify on demand and hold each of the Joint Bookrunners, the Company and the Investment Manager and its 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 acknowledgements, undertakings, representations, warranties and agreements set forth in these terms and conditions as supplemented by any Tap Issue Letter.
4.7 All obligations of the Joint Bookrunners under the Tap Issue will be subject to fulfilment of the conditions referred to below under "Conditions".
5.1 The Tap Issue is conditional upon the Tap Issue Agreement becoming unconditional in relation to the Tap Issue and not having been terminated in accordance with its terms. The conditions in the Tap Issue Agreement are customary for an agreement of this nature and include (inter alia) Admission occurring in relation to the New Ordinary Shares and none of the representations and warranties given by the Company and the Investment Manager being breached or untrue in any material respect.
5.2 If the Tap Issue does not become unconditional, the Tap Issue will lapse and each Applicant's rights and obligations under the Tap Issue shall cease and determine at such time and no claim may be made by an Applicant in respect thereof. The Joint Bookrunners shall have no liability to any Applicant (or to any other person whether acting on behalf of an Applicant or otherwise) in respect of any decision they may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition relating to the Tap Issue in the Tap Issue Agreement.
5.3 By participating in the Tap Issue, each Applicant agrees that its rights and obligations hereunder terminate only in the circumstances described above and will not be capable of rescission or termination by the Applicant.
5.4 By participating in a Tap Issue, each Applicant agrees with the Joint Bookrunners that the exercise by the Joint Bookrunners of any right of termination or other discretion under the Tap Issue Agreement shall be within the absolute discretion of the Joint Bookrunners and that the Joint Bookrunners need not make any reference to the Applicant in this regard and that, to the fullest extent permitted by law, the Joint Bookrunners shall not have any liability whatsoever to the Applicant in connection with any such exercise.
6. No Prospectus
6.1 The Tap Issue is only available to Relevant Persons that are identified and contacted by the Joint Bookrunners and the New Ordinary Shares will only be offered in such a way as to not require a prospectus in the United Kingdom or elsewhere. No offering document or prospectus has been or will be submitted to be approved by the FCA in relation to the Tap Issue and Applicants' commitments will be made solely on the basis of the information contained in this Announcement (including this Appendix) and information that has been published by the Company in accordance with the FCA's Disclosure Guidance and Transparency Rules and the Company's pre-investment disclosure document prepared for the purposes of Article 23 of the AIFM Directive (collectively "Regulatory Information").
6.2 Each Applicant, by accepting a participation in the Tap Issue, agrees that the content of this Announcement, including this Appendix, is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information (other than the Regulatory Information), representation, warranty, or statement made by or on behalf of the Company or the Joint Bookrunners, or the Investment Manager or any other person and none of the Company, the Joint Bookrunners or the Investment Manager nor any other person will be liable for any Applicant's decision to participate in the Tap Issue based on any other information, representation, warranty or statement which the Applicant may have obtained or received. Each Applicant acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Tap Issue, and confirms that it has understood the risks of investing in the Company and acquiring New Ordinary Shares and has read the risk factors detailed in the Company's latest annual report and financial statements, in the Company's most recently published prospectus and in the Article 23 pre-investment disclosure document, each of which are available on the Company's website www.hicl.com. Each Applicant also acknowledges that it has had an opportunity to review and access the information on the Company's ongoing charges detailed in the Regulatory Information. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
7. Registration and settlement
7.1 Settlement of transactions in the relevant New Ordinary Shares following their Admission will take place within the CREST system, using the DVP mechanism, subject to certain exceptions. The Joint Bookrunners reserve the right to require settlement for and delivery of the relevant New Ordinary Shares to Applicants by such other means as they may deem necessary, if delivery or settlement is not possible or practicable within the CREST system within the timetable set out in the Announcement or would not be consistent with the regulatory requirements in the Applicant's jurisdiction.
7.2 Each Applicant allocated New Ordinary Shares in the Tap Issue will be sent a trade confirmation stating the number of New Ordinary Shares allocated to it, the aggregate amount owed by such Applicant to the Joint Bookrunners and settlement instructions. Applicants should settle against CREST Participant ID: 805 for Investec or CREST Participant ID: 388 for RBC depending on which of the Joint Bookrunners has sent the Applicant the trade confirmation. Each Applicant agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions which it has in place with a Joint Bookrunner.
7.3 It is expected that settlement will be on a T+2 basis in accordance with the instructions set out in the trade confirmation.
7.4 Interest is chargeable daily on payments not received from Applicants on the due date in accordance with the arrangements set out above at the rate of 2 percentage points above the base rate of
7.5 Each Applicant is deemed to agree that if it does not comply with these obligations, the Joint Bookrunners may sell any or all of the New Ordinary Shares allocated to the Applicant on such Applicant's behalf and retain from the proceeds, for their own account and profit, an amount equal to the aggregate amount owed by the Applicant plus any interest due. The Applicant will, however, remain liable for any shortfall below the aggregate amount owed by such Applicant and it may be required to bear any tax or other charges (together with any interest or penalties) which may arise upon the sale of such New Ordinary Shares on such Applicant's behalf.
7.6 If New Ordinary Shares are to be delivered to a custodian or settlement agent, the Applicant should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation.
7.7 Insofar as New Ordinary Shares are registered in the Applicant's name or that of its nominee or in the name of any person for whom the Applicant is contracting as agent or that of a nominee for such person, such New Ordinary 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 New Ordinary Shares, neither the Joint Bookrunners nor the Company shall be responsible for the payment thereof. Applicants will not be entitled to receive any fee or commission in connection with the Tap Issue.
8. Representations and Warranties
By participating in the Tap Issue, each Applicant will (and any person acting on such Applicant's behalf) be deemed to acknowledge, agree, represent and warrant to each of the Company, the Investment Manager and the Joint Bookrunners that:
8.1 it has read this Announcement, including this Appendix, in its entirety and acknowledges that its acquisition of New Ordinary Shares is subject to and based upon all the terms, conditions, representations, warranties, indemnities, acknowledgements, agreements and undertakings and other information contained herein and undertakes not to redistribute or duplicate this Announcement (including this Appendix);
8.2 no offering document or prospectus has been prepared in connection with the New Ordinary Shares and represents and warrants that it has not received a prospectus or other offering document in connection therewith;
8.3 the Ordinary Shares are listed on the premium listing segment of the Official List of the
8.4 it is relying solely on this Announcement (including this Appendix) and the Regulatory Information published by the Company prior to Admission of the New Ordinary Shares issued pursuant to the Tap Issue and not on any other information given, or representation or statement made at any time, by any person concerning the Company or the Tap Issue;
8.5 the content of this Announcement and the Regulatory Information is exclusively the responsibility of the Company and (in respect of the Regulatory Information) in addition to the Company, the persons stated therein as accepting responsibility, and apart from the liabilities and responsibilities, if any, which may be imposed on either of the Joint Bookrunners under any regulatory regime, none of the Investment Manager, either of the Joint Bookrunners nor any person acting on their behalf nor any of their affiliates makes any representation, express or implied, nor accepts any responsibility whatsoever for the contents of this Announcement and the Regulatory Information nor for any other statement made or purported to be made by them or on its or their behalf in connection with the Company, the New Ordinary Shares or the Tap Issue, including but without limitation the Company Key Information Document published in accordance with Regulation (EU) 1286/2014 of the European Parliament and the Council (commonly known as the 'PRIIPs Regulation');
8.6 if the laws of any territory or jurisdiction outside the United Kingdom are applicable to its agreement to acquire New Ordinary Shares under the Tap Issue, it warrants that it has complied with all such laws, obtained all governmental and other consents which may be required, complied with all requisite formalities and paid any issue, transfer or other taxes due in connection with its application in any territory and that it has not taken any action or omitted to take any action which will result in the Company, the Investment Manager or either of the Joint Bookrunners or any of their respective officers, agents or employees acting in breach of the regulatory or legal requirements, directly or indirectly, of any territory or jurisdiction outside the United Kingdom in connection with the Tap Issue;
8.7 it does not have a registered address in, and is not a citizen, resident or national of, any jurisdiction in which it is unlawful to make or accept an offer of the New Ordinary Shares and it is not acting on a non-discretionary basis for any such person;
8.8 it is not applying as, nor is it applying as nominee or agent for, a person who is or may be liable to notify and account for tax under the Stamp Duty Reserve Tax Regulations 1986 at any of the increased rates referred to in section 67, 70, 93 or 96 (depository receipts and clearance services) of the Finance Act 1986;
8.9 it accepts that none of the New Ordinary Shares have been or will be registered in any jurisdiction other than the United Kingdom and that the New Ordinary Shares may not be offered, sold or delivered, directly or indirectly, within any Excluded Territory;
8.10 if it is applying for New Ordinary Shares in circumstances under which the laws or regulations of a jurisdiction other than the United Kingdom would apply, that it is a person to whom the New Ordinary Shares may be lawfully offered under that other jurisdiction's laws and regulations;
8.11 if it is resident in the UK, it is a qualifying investor (as defined in section 86(7) of the
8.12 it has not been engaged to acquire the New Ordinary Shares on behalf of any other person who is not a Qualified Investor unless the terms on which it is engaged enable it to make decisions concerning the acceptance of offers of transferable securities on the client's behalf without reference to the client as described in section 86(2) of FSMA;
8.13 if it is a resident in the EEA (other than the United Kingdom): (a) it is a qualified investor within the meaning of the Prospectus Regulation; and (b) that it is a person to whom the New Ordinary Shares may be lawfully marketed under the AIFM Directive or under the applicable implementing legislation (if any) of that Relevant Member State; and (c) if it is a financial intermediary, as that term is used in Article 5 of the Prospectus Regulation, that the New Ordinary Shares purchased by it in the Tap Issue will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in a Relevant Member State other than
8.14 if it is outside the United Kingdom, neither the Announcement (including this Appendix) or any other information of document issued by or on behalf of or in respect of the Company or either of the Joint Bookrunners constitutes an invitation, offer or promotion to, or arrangement with, it or any person whom it is procuring to subscribe for New Ordinary Shares pursuant to the Tap Issue unless, in the relevant territory, such offer, invitation or other course of conduct could lawfully be made to it or such person and such documents or materials could lawfully be provided to it or such person and the New Ordinary Shares could lawfully be distributed to and subscribed and held by it or such person without compliance with any unfulfilled approval, registration or other regulatory or legal requirements;
8.15 it acknowledges that neither of the Joint Bookrunners nor any of their respective affiliates nor any person acting on their behalf is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Tap Issue or providing any advice in relation to the Tap Issue and participation in the Tap Issue is on the basis that it is not and will not be a client of either of the Joint Bookrunners or any of their affiliates and that the Joint Bookrunners and any of their affiliates do not have any duties or responsibilities to it for providing the protections afforded to their respective clients or for providing advice in relation to the Tap Issue or the nor in respect of any representations, warranties, undertaking or indemnities contained in these terms and conditions;
8.16 it acknowledges that where it is acquiring New Ordinary Shares for one or more managed, discretionary or advisory accounts, it is authorised in writing for each such account: (i) to acquire the New Ordinary Shares for each such account; (ii) to make on each such account's behalf the representations, warranties and agreements set out in this Appendix; and (iii) to receive on behalf of each such account any documentation relating to the Tap Issue in the form provided by the Company and/or either of the Joint Bookrunners. It agrees that the provision of this paragraph shall survive any resale of the New Ordinary Shares by or on behalf of any such account;
8.17 it accepts that if the Tap Issue does not proceed (for whatever reason) then none of the Company, the Joint Bookrunners, the Investment Manager, or any of their affiliates, nor persons controlling, controlled by or under common control with any of them nor any of their respective employees, agents, officers, members, stockholders, partners or representatives, shall have any liability whatsoever to it or any other person;
8.18 in connection with its participation in the Tap Issue it has observed all relevant legislation and regulations, in particular (but without limitation) those relating to money laundering and countering terrorist financing and that its application is only made on the basis that it accepts full responsibility for any requirement to identify and verify the identity of its clients and other persons in respect of whom it has applied. In addition, it warrants that it is a person: (i) subject to the UK Money Laundering Regulations 2017 (SI 2017/692) and any other applicable anti-money laundering guidance, regulations or legislation in force and applicable in the UK ("Money Laundering Regulations"); or (ii) subject to the EU Directive 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, as amended (the "Money Laundering Directive"); or (iii) acting in the course of a business in relation to which an overseas regulatory authority exercises regulatory functions and is based or incorporated in, or formed under the law of, a country in which there are in force provisions at least equivalent to those required by the Money Laundering Directive;
8.19 it agrees that, due to anti-money laundering and the countering of terrorist financing requirements, the Joint Bookrunners and/or the Company may require proof of identity of the Applicant and related parties and verification of the source of the payment before the application can be processed and that, in the event of delay or failure by the Applicant to produce any information required for verification purposes, the Joint Bookrunners and/or the Company may refuse to accept the application and the subscription monies relating thereto. It holds harmless and will indemnify the Joint Bookrunners and the Company against any liability, loss or cost ensuing due to the failure to process this application, if such information as has been required has not been provided by it or has not been provided on a timely basis;
8.20 it acknowledges and agrees that information provided by it to the Company and/or the Joint Bookrunners will be stored on the Company's and/or the Joint Bookrunners' computer system and manually. It acknowledges and agrees that for the purposes of means applicable data protection legislation (including the Data Protection Act 2018 and the General Data Protection Regulation (EU) 2016/679) and regulatory requirements in the UK and/or the EEA, as appropriate, in force from time to time (the "Data Protection Laws"), the Company and the Joint Bookrunners are/may be required to specify the purposes for which they will hold personal data. The Company and the Joint Bookrunners will only use such information for the purposes set out below (collectively, the "Purposes"), being to: (a) process its personal data (including sensitive personal data) as required by or in connection with its holding of New Ordinary Shares, including processing personal data in connection with credit and money laundering checks on it; (b) communicate with it as necessary in connection with its affairs and generally in connection with its holding of the New Ordinary Shares; (c) provide personal data to such third parties as the Company or the Joint Bookrunners may consider necessary in connection with its affairs and generally in connection with its holding of the New Ordinary Shares or as the Data Protection Laws may require, including to third parties outside the United Kingdom or the European Economic Area; and (d) without limitation, provide such personal data to the Company, the Joint Bookrunners, the Company's registrar and the Investment Manager and their respective associates for processing, notwithstanding that any such party may be outside the United Kingdom or the European Economic Area;
8.21 In providing the Company and/or the Joint Bookrunners with information, it hereby represents and warrants to the Company, the Joint Bookrunners and the Investment Adviser that it has obtained the consent of any data subject to the Company, the Joint Bookrunners, the Investment Adviser, the Company's registrar and their respective associates holding and using their personal data for the Purposes (including the explicit consent of the data subjects for the processing of any sensitive data or sensitive personal data for the Purposes). For the purposes of this document, "data subject", "personal data", "sensitive data" and "sensitive personal data" shall have the meanings attributed to them in the Data Protection Laws;
8.22 if it is acting as a "distributor" (for the purposes of the MiFID II Product Governance Requirements):
(a) it acknowledges that the Target Market Assessment undertaken by the Joint Bookrunners does not constitute: (i) an assessment of suitability or appropriateness for the purposes of MiFID II; or (ii) a recommendation to any investor or group of investors to invest in, or purchase, or take any other action whatsoever with respect to the New Ordinary Shares, and each distributor is responsible for undertaking its own target market assessment in respect of the New Ordinary Shares and determining appropriate distribution channels;
(b) notwithstanding any Target Market Assessment undertaken by the Joint Bookrunners, it confirms that it has satisfied itself as to the appropriate knowledge, experience, financial situation, risk tolerance and objectives and needs of the investors to whom it plans to distribute the New Ordinary Shares and with the end target market; and
(c) it acknowledges that the price of the New Ordinary Shares may decline and investors could lose all or part of their investment; the New Ordinary Shares offer no guaranteed income and no capital protection; and an investment in the New Ordinary Shares is compatible only with investors who do not need a guaranteed income or capital protection, who (either alone or in conjunction with an appropriate financial or other adviser) are capable of evaluating the merits and risks of such an investment and who have sufficient resources to be able to bear any losses that may result therefrom.
8.23 the representations, undertakings and warranties contained in this Appendix are irrevocable. It acknowledges that the Joint Bookrunners, the Company, the Investment Manager and their respective affiliates will rely upon the truth and accuracy of the foregoing representations and warranties and it agrees that if any of the representations or warranties made or deemed to have been made by its subscription of the relevant New Ordinary Shares are no longer accurate, it shall promptly notify the Joint Bookrunners and the Company in writing;
8.24 where it or any person acting on behalf of it is dealing with either of the Joint Bookrunners, any money held in an account with either of the Joint Bookrunners on behalf of it and/or any person acting on behalf of it will not be treated as client money within the meaning of the relevant rules and regulations of the
8.25 any of its clients, whether or not identified to the Joint Bookrunners or any of their affiliates or agents, will remain its sole responsibility and will not become clients of the Joint Bookrunners or any of their affiliates or agents for the purposes of the rules of the
8.26 it accepts that the allocation of New Ordinary Shares shall be determined by the Company (in consultation with the Joint Bookrunners and the Investment Manager) in their absolute discretion and that such persons may scale down any Tap Issue commitments for this purpose on such basis as they may determine;
8.27 time shall be of the essence as regards its obligations to settle payment for the relevant New Ordinary Shares and to comply with its other obligations under the Tap Issue; and
8.28 it requests, at its own initiative, that the Company (or its agents) notifies it of all future opportunities to acquire securities in the Company and provides it with all available information in connection therewith.
9. United States Purchase and Transfer Restrictions
By participating in the Tap Issue, each Applicant will (and any person acting on such Applicant's behalf) be deemed to acknowledge, agree, represent and warrant to each of the Company, the Investment Manager and the Joint Bookrunners that:
9.1 If it is located outside the United States, it is not a U.S. Person, it is acquiring the New Ordinary Shares in an ''offshore transaction'' within the meaning of, and in reliance on, Regulation S and it is not acquiring the New Ordinary Shares for the account or benefit of a U.S. Person;
9.2 if it is located inside the United States or is a U.S. Person, it is a "qualified institutional buyer" (as the term is defined in Rule 144A under the U.S. Securities Act) that is also a "qualified purchaser" within the meaning of Section 2(a)(51) of the Investment Company Act, and the related rules thereunder and is acquiring the New Ordinary Shares for its own account or for the account of one or more "qualified institutional buyers" that are also "qualified purchasers" for which it is acting as a duly authorised agent or for a discretionary account with respect to which it exercises sole investment discretion and not with a view to any resale, distribution or other disposition of any such securities in violation of any US federal or state securities laws;
9.3 it acknowledges that the New Ordinary Shares have not been and will not be registered under the U.S. Securities Act or with any securities regulatory authority of any State or other jurisdiction of the United States and may not be offered or sold in the United States or to, or for the account or benefit of, U.S. Persons absent registration, or an exemption from registration, under the U.S. Securities Act;
9.4 it acknowledges that the Company has not registered under the U.S. Investment Company Act and that the Company has put in place restrictions for transactions not involving any public offering in the United States, and to ensure that the Company is not and will not be required to register under the U.S. Investment Company Act;
9.5 it acknowledges that the Investment Manager has not registered under the U.S. Investment Advisers Act and that the Company has put in place restrictions on the sale and transfer of the New Ordinary Shares to ensure that the Investment Manager is not and will not be required to register under the U.S. Investment Advisers Act;
9.6 no portion of the assets used to purchase, and no portion of the assets used to hold, the New Ordinary Shares or any beneficial interest therein constitutes or will constitute the assets of (i) an "employee benefit plan" as defined in Section 3(3) of the U.S. Employee Retirement Income Security Act of 1974, as amended ("ERISA") that is subject to Title I of ERISA; (ii) a "plan" as defined in Section 4975 of the U.S. Internal Revenue Code of 1986, as amended (the "Code"), including an individual retirement account or other arrangement that is subject to Section 4975 of the Code; or (iii) an entity which is deemed to hold the assets of any of the foregoing types of plans, accounts or arrangements that is subject to Title I of ERISA or Section 4975 of the Code. In addition, if an investor is a governmental, church, non-U.S. or other employee benefit plan that is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Title I of ERISA or Section 4975 of the Code, its purchase, holding, and disposition of the New Ordinary Shares must not constitute or result in a non-exempt violation of any such substantially similar law;
9.7 that if any New Ordinary Shares offered and sold pursuant to Regulation S are issued in certificated form (or if a request to re-materialise uncertificated New Ordinary Shares into certificated form), then such certificates evidencing ownership will contain a legend substantially to the following effect unless otherwise determined by the Company in accordance with applicable law:
provided, that if any New Ordinary Shares are being sold pursuant to paragraph 9.9 below, and if the Company is a "foreign issuer" within the meaning of Regulation S at the time of sale, any such legend may be removed upon delivery of the certification described in paragraph 9.9 below, and provided further, that, if any New Ordinary Shares are being sold pursuant to paragraph 9.9 below, the legend may be removed by delivery to the Company of an opinion of counsel of recognised standing in form and substance reasonably satisfactory to the Company, to the effect that such legend is no longer required under applicable requirements of the U.S. Securities Act, U.S. Investment Company Act or State securities laws;
9.8 if in the future, the investor decides to offer, sell, transfer, assign or otherwise dispose of the New Ordinary Shares, it will do so only in compliance with an exemption from, or in a transaction not subject to, the registration requirements of the U.S. Securities Act and under circumstances which will not require the Company to register under the U.S. Investment Company Act. It acknowledges that any sale, transfer, assignment, pledge or other disposal made other than in compliance with such laws and the above stated restrictions will be subject to the compulsory transfer provisions as provided in the Company's Articles;
9.9 if it is a person described in paragraph 9.2 above and, if in the future it decides to offer, resell, pledge or otherwise transfer any of the New Ordinary Shares, it understands and acknowledges that the Shares are ''restricted securities'' within the meaning of Rule 144 under the U.S. Securities Act and such New Ordinary Shares may be offered, resold, pledged or otherwise transferred only (i) outside the United States to non-U.S. Persons in an offshore transaction in accordance with Rule 904 of Regulation S (including, for example, an ordinary trade over the
9.10 it is purchasing the New Ordinary Shares for its own account or for one or more investment accounts for which it is acting as a fiduciary or agent, in each case for investment only, and not with a view to or for sale or other transfer in connection with any distribution of the New Ordinary Shares in any manner that would violate the U.S. Securities Act, the U.S. Investment Company Act or any other applicable securities laws;
9.11 it acknowledges that the Company reserves the right to make inquiries of any holder of the New Ordinary Shares or interests therein at any time as to such person's status under the U.S. federal securities laws and to require any such person that has not satisfied the Company that holding by such person will not violate or require registration under the U.S. securities laws to transfer such New Ordinary Shares or interests in accordance with the Articles;
9.12 it acknowledges and understands that the Company is required to comply with FATCA and that the Company will follow FATCA's extensive reporting and withholding requirements from their effective date. The Applicant agrees to furnish any information and documents the Company may from time to time request, including but not limited to information required under FATCA;
9.13 it is entitled to acquire the New Ordinary Shares under the laws of all relevant jurisdictions which apply to it, it has fully observed all such laws and obtained all governmental and other consents which may be required thereunder and complied with all necessary formalities and it has paid all issue, transfer or other taxes due in connection with its acceptance in any jurisdiction of the New Ordinary Shares and that it has not taken any action, or omitted to take any action, which may result in the Company, the Investment Manager or the Joint Bookrunners, or their respective directors, officers, agents, employees and advisers being in breach of the laws of any jurisdiction in connection with the Tap Issue or its acceptance of participation in the Tap Issue;
9.14 it has received, carefully read and understands this Announcement (including this Appendix), and has not, directly or indirectly, distributed, forwarded, transferred or otherwise transmitted this Announcement (including this Appendix) or any other materials concerning the Company or the New Ordinary Shares to within the United States or to any U.S. Persons, nor will it do any of the foregoing; and
9.15 if it is acquiring any New Ordinary Shares as a fiduciary or agent for one or more accounts, the investor has sole investment discretion with respect to each such account and full power and authority to make such foregoing representations, warranties, acknowledgements and agreements on behalf of each such account.
The Company, the Investment Manager, the Joint Bookrunners and their respective directors, officers, agents, employees, advisers and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgments and agreements. If any of the representations, warranties, acknowledgments or agreements made by the Applicant are no longer accurate or have not been complied with, the Applicant will immediately notify the Company in writing.
10.1 The rights and remedies of the Joint Bookrunners and the Company under these terms and conditions are in addition to any rights and remedies which would otherwise be available to each of them and the exercise or partial exercise of one will not prevent the exercise of others.
10.2 The contract to acquire New Ordinary Shares under the Tap Issue will be governed by, and construed in accordance with, the laws of England and Wales. For the exclusive benefit of the Joint Bookrunners, the Company and the Investment Manager, each Applicant irrevocably submits to the jurisdiction of the courts of England and Wales and waives any objection to proceedings in any such court on the ground of venue or on the ground that proceedings have been brought in an inconvenient forum. This does not prevent an action being taken against an Applicant in any other jurisdiction.
10.3 In the case of a joint agreement to apply for New Ordinary Shares under the Tap Issue, references to an "Applicant" in these terms and conditions are to each of the Applicants who are a party to that joint agreement and their liability is joint and several.
10.4 The Joint Bookrunners and the Company expressly reserve the right to modify the Tap Issue (including, without limitation, the timetable and settlement) at any time before allocations are determined.
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