TIDMCRS
THE INFORMATION CONTAINED IN THIS ANNOUNCEMENT (INCLUDING THE APPENDIX AND THE
INFORMATION CONTAINED HEREIN) IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION
OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN, INTO OR FROM
THE UNITED STATES, CANADA, AUSTRALIA, JAPAN, THE REPUBLIC OF IRELAND, THE
REPUBLIC OF SOUTH AFRICA OR ANY JURISDICTION IN WHICH THE SAME WOULD BE
UNLAWFUL.
CRYSTAL AMBER FUND LIMITED
18 December 2014
Proposed placing of new ordinary shares ("Shares"), Amendments to the
performance fee and Notice of EGM
Further to the announcement of 10 December 2014, the Board of Directors (the
"Board") of Crystal Amber Fund Limited (the "Company") is pleased to announce
that the Company is undertaking a placing of new Shares (the "Placing Shares")
to qualified investors (the "Placing"). To date, the Company has received
conditional commitments from certain investors (including existing
Shareholders), for Placing Shares expected to raise minimum gross proceeds of
in excess of GBP30 million.
The Placing is being made on the terms set out in this announcement and is
expected to close at 4.30 p.m. (London time) on 21 January 2015, but may close
earlier at the absolute discretion of the Company. The Placing Price per
Placing Share will be at a premium of between 1.4 and 1.5 per cent. to the NAV
per share as at 19 January 2015, as further detailed below.
The Placing
The Company announced on 10 December 2014 that it was considering a secondary
issue of shares. In recent weeks, the Company and its agents have been actively
marketing such a placing and following such marketing, the Company announces
that it is now undertaking a conditional placing of the Placing Shares.
The Placing will remain open and the Company reserves the right to accept
further commitments to subscribe for Shares from Qualified Investors up to 21
January 2015 when the Placing will close.
In accordance with the statements made in the admission document published by
the Company on 16 June 2008, as the number of new Shares to be issued under the
Placing may be in excess of 30 per cent. of the Company's issued share capital
and as the Placing will be on a non-pre-emptive basis, the Board has determined
to seek the approval of Shareholders. Approval is intended to be sought in the
form of a special resolution to be proposed at an Extraordinary General Meeting
expected to be held on 23 January 2015 (the "EGM").
The Placing Shares will be issued at the Placing Price which will be calculated
as at the Calculation Date by reference to the NAV per Share on that date plus
a premium of between 1.4 and 1.5 per cent depending on the number of Placing
Shares to be issued. The premium at which the Placing Price has been set is
intended to cover the expected costs of the Placing and therefore to ensure
that there is no dilution to the NAV per Share as a result of the Placing and
will therefore vary according to the number of Placing Shares to be issued.
As at 30 November 2014, the NAV per Share was 150.07 pence and, as at 16
December 2014, the Company had 75,318,703 Shares in issue (excluding Ordinary
Shares held in treasury). Assuming an illustrative Placing Price of 152.32
pence (being a 1.5 per cent. premium to the NAV per Share on 30 November 2014)
and assuming no further commitments are received in the Placing, the Placing
would result in the allotment of approximately 20 million Shares, an
enlargement of approximately 26 per cent. of the Company's issued share capital
with gross proceeds of approximately GBP30 million.
Background to and reasons for the Placing
The Board's decision to implement the Placing can be seen against the
background of the recent performance of the Company. The Company delivered a
68.5 per cent. NAV total return in the three year period to 4 December 2014 and
a 85.1 per cent. increase in the Share price over the same period.
The Board and the Advisers believe that the Company is appropriately positioned
to continue to deliver attractive returns to Shareholders, through its focus on
special situation holdings which are more dependent upon self-help and active
management than upon macroeconomic recovery and, further, the increase in the
size of the Company following implementation of the Placing affords the
potential to enhance such returns for the reasons set out below.
Facilitate investments in larger companies
The Board and the Advisers consider that the implementation of the Company's
activist investment strategy may be enhanced by increasing the Company's focus
on, and the range of investments in, companies with market capitalisations in
the GBP250 million to GBP500 million range, which is higher than the market
capitalisation of companies generally invested in by the Company to date (as at
30 September 2014, the investee companies had a weighted average market cap of
GBP193 million).
Shares in companies with a market capitalisation in the GBP250 million to GBP500
million range are typically more liquid than the shares in companies with
smaller market capitalisations. The Board and the Advisers expect that
targeting such larger companies will better enable the Company to take
positions in the companies in which they perceive the best investment
opportunities to exist and to realise investments at the most opportune time.
The Investment Adviser's experience is that an additional benefit of investing
in larger companies is that their management may respond more constructively to
investors seeking to actively engage in the development of value creation
strategies.
Costs
The Board and the Advisers believe that the increase in the size of the Company
that would result from the Placing should reduce the Ongoing Charges Ratio, as
a result of the spreading of the Company's fixed costs over a larger asset
base. Following the implementation of the Proposals, it is estimated that the
annualised Ongoing Charges Ratio, assuming that the NAV remained constant at
the NAV at 30 November 2014 plus the net proceeds of the Placing and that the
annual costs were the same basis as for the year ended 30 June 2014, will
reduce to 2.19 per cent., compared to 2.34 per cent. if the Placing does not
proceed.
Use of proceeds
The Board and the Manager believe that significant market opportunities exist
to invest the proceeds of the Placing in accordance with the Company's activist
strategy.
The Board and the Manager currently expect that the net proceeds of the Placing
will be substantially committed within six months following the completion of
the Placing. However, there can be no guarantee that the net proceeds will be
so invested within that time frame.
Current investment outlook
Against an uncertain outlook of monetary policy tightening, the Directors and
the Advisers consider that the Company is well positioned with its focus on
special situations, which they believe may act as a catalyst to realise value.
The Directors and Advisers consider the Company to be less dependent on
macroeconomic conditions, given its focus on value opportunities and special
situations, with turnaround or self-help potential.
The Company remains ungeared and continues to purchase FTSE 100 Put Options as
insurance against a market sell-off.
Details of the Placing
The Placing will comprise the issue of new Shares at the Placing Price which
will be calculated at the Calculation Date by reference to the NAV per Share on
that date plus a premium of between 1.4 and 1.5 per cent., dependent on the
number of Placing Shares to be issued at Admission. The Placing is conditional
on: (i) the passing of the Resolution at the EGM by not less than 75 per cent.
of the total number of votes cast by Shareholders being entitled to vote; and
(ii) the Admission of the Placing Shares to trading on AIM.
On the basis of the commitments received to date, the Placing is expected to
raise gross proceeds of in excess of GBP30 million and the expenses are estimated
to amount to approximately GBP0.5 million. However, the size of the Placing may
increase and the Company reserves the right to accept further commitments to
subscribe for Shares from Qualified Investors up until 21 January 2015.
Application will be made to the London Stock Exchange for the Placing Shares to
be admitted to trading on AIM. It is expected that Admission will become
effective at 8.00 a.m. on 27 January 2015.
The Placing Shares will rank pari passu in all respects with the Shares
currently in issue, including the right to receive all dividends and other
distributions declared on or after the date on which they are issued.
It is expected that CREST accounts will be credited with entitlements to
Placing Shares as soon as practicable after 8.00 a.m. on the day of Admission
(as the case may be) and that share certificates (where applicable) will be
despatched on or shortly after 3 February 2015.
In connection with the Placing and conditional upon Admission, third party
introductory agents may receive placing commissions of up to 1.5 per cent. of
the value of those Placing Shares placed by such third party introductory
agents with investors on behalf of the Company.
Amendments to the performance fee
Current structure
Currently, payment of the performance fee is subject to:
* the achievement of a performance hurdle condition: the NAV per Share at the
end of the relevant performance period (adding back for this purpose the
aggregate amount of any dividends per Share paid to Shareholders in that
period) must exceed an amount equal to the Original Placing Price,
increased at a rate of (i) 7 per cent. per annum on an annual compounding
basis in respect of that part of the performance period from (and
including) the Original Admission Date up to (and not including) the 2013
Admission Date and (ii) 8 per cent. per annum on an annual compounding
basis in respect of that part of the performance period which falls from
(and including) the 2013 Admission Date up to the end of the relevant
performance period (and in respect of future performance periods) (the
Performance Hurdle Condition): and
* the achievement of a "high watermark": the NAV per Share at the end of the
relevant performance period must be higher than the highest previously
reported NAV per Share at the end of the performance period in relation to
which a performance fee was last earned (the High Watermark).
Depending on whether the Shares are trading at a discount or a premium to the
Company's Net Asset Value per Share when the performance fee becomes payable,
the performance fee will be either payable in cash (subject to the restrictions
set out below) or satisfied by the sale of Shares out of treasury or by the
issue of new fully paid Shares (the number of which shall be calculated as set
out below):
* if the Shares are trading at a discount to the Net Asset Value per Share
when the performance fee becomes payable, the performance fee shall be
payable in cash. Within a period of one calendar month after receipt of
such cash payment (extended to the extent the application of any close
periods precludes such subscription), the Manager shall be required to
purchase Shares in the market of a value equal to such cash payment
(rounding down to the nearest whole Share with the remainder of the cash
payment, if any, retained by the Manager in cash); and
* if the Shares are trading at, or at a premium to, the Net Asset Value per
Share when the performance fee becomes payable, the performance fee shall
be satisfied by the sale of Shares out of treasury or by the issue of new
fully paid Shares. The number of Shares that shall become payable shall be
a number equal to the performance fee payable divided by the closing
mid-market price per Share on the date on which such performance fee became
payable (rounding up to the nearest whole Share).
New structure
The Company and the Manager have agreed to amend the terms of the performance
fee as follows with effect from and conditional upon Admission.
The Performance Hurdle Condition will, following Admission be increased from 8
per cent. to 10 per cent. in respect of that part of the performance period
which falls from (and including) the date of 2015 Admission up to the end of
the current performance period and in respect of future performance periods.
The High Watermark will remain unchanged.
The Performance Fee will continue to be payable in cash or satisfied by the
sale of Shares out of treasury or the issue of new fully paid Shares as set out
above.
In addition, it is proposed that some minor clarificatory changes be made to
the provisions relating to the Performance Fee contained in the Management
Agreement, each of which will have a de minimis impact on the level of the
Performance Fee going forward and are in line with the manner in which the
Performance Fee has been calculated to date and will continue to be calculated.
Related party transaction
Under the AIM Rules, the Manager is deemed to be a related party of the Company
and the proposed amendments to the Management Agreement are therefore deemed to
be a related party transaction. The Directors consider, having consulted with
Sanlam Securities, that the proposed amendments to the Management Agreement are
fair and reasonable insofar as the Shareholders are concerned.
The Extraordinary General Meeting
A notice convening the Extraordinary General Meeting to be held on 23 January
2015 at 10.00 a.m. at Lefebvre Place, Lefebvre Street, St. Peter Port, Guernsey
GY1 2JP, at which the Resolution will be proposed, will be posted to
shareholders later today.
The Resolution is to be proposed as a special resolution (requiring the
approval of not less than 75 per cent. of the total number of votes cast at the
meeting by Shareholders being entitled to vote).
The Resolution will, if passed, grant the Directors the authority to issue new
Shares on a non-pre-emptive basis for cash in respect of the Placing.
Enquiries:
Crystal Amber Fund Limited
William Collins Tel: 01481 716 000
Sanlam Securities UK Limited - Nominated Adviser
David Worlidge/Simon Clements Tel: 020 7628 2200
Numis Securities Limited - Broker
Nathan Brown/Hugh Jonathan Tel: 020 7260 1426
Crystal Amber Advisers (UK) LLP - Investment Adviser
Richard Bernstein Tel: 020 7478 9080
IMPORTANT NOTICE
This Announcement has been issued by, and is the sole responsibility of, the
Company.
The Appendix to this Announcement (which forms part of this Announcement) sets
out the terms and conditions of the Placing.
By participating in the Placing, each person who is invited to and who chooses
to participate in the Placing (a Placee) by making an oral and legally binding
offer to acquire Placing Shares will be deemed to have read and understood this
Announcement in its entirety (including the Appendix) and to be making such
offer on the terms and subject to the conditions herein, and to be providing
the representations, warranties and acknowledgements contained in the Appendix.
Members of the public are not eligible to take part in the Placing. This
Announcement and the terms and conditions set out in the Appendix to this
Announcement are for information purposes only and are directed only at persons
in the United Kingdom who are: (a) investment professionals falling within
article 19(5) of the Financial Services and Markets Act 2000 (Financial
Promotion) order 2005 (the Order); or (b) persons falling within Article 49(2)
(a) to (d) ("high net worth companies, unincorporated associations, etc") of
the Order; or (c) persons to whom it may otherwise be lawfully communicated,
(all such persons together being referred to as relevant persons). This
Announcement and the terms and conditions set out in the Appendix to this
Announcement must not be acted on or relied on by persons who are not relevant
persons. Any investment or investment activity to which this Announcement and
the terms and conditions set out in the Appendix to this Announcement relate is
available only to relevant persons and will be engaged in only with relevant
persons.
This Announcement provides information about the Placing, but does not invite
participation in the Placing. This Announcement (including the Appendix) does
not constitute, and the Company is not making, an offer to the public of
transferable securities within the meaning of sections 85 and 102B of the
Financial Services and Markets Act 2000, as amended (FSMA). This Announcement
(including the Appendix) is therefore not an approved prospectus for the
purposes of section 85 of FSMA, and has not been prepared in accordance with
the prospectus rules of the FCA and as such neither its contents nor its issue
has been approved by the FCA or by any authority which would be a competent
authority for the purposes of any legislation that implements the Prospectus
Directive.
This Announcement (including the Appendix) and the information contained herein
is not for release, publication or distribution, in whole or in part, directly
or indirectly, in, into or from the United States (including its territories
and possessions, any state of the United States and the District of Columbia),
Australia, Canada, Japan, the Republic of Ireland, the Republic of South Africa
or any other state or jurisdiction into which the same would be unlawful. This
Announcement (including the Appendix) is for information purposes only and
shall not constitute or form part of any offer to buy, sell, subscribe for,
issue, or acquire, or the solicitation of any offer to buy, sell, subscribe
for, issue, or acquire any securities, nor shall there be any sale of
securities in any jurisdiction in which such offer, solicitation or sale would
be unlawful. Any failure to comply with these restrictions may constitute a
violation of the securities laws of such jurisdictions. In particular, the
Placing Shares have not been and will not be registered under the United States
Securities Act of 1933, as amended (the Securities Act) and may not be offered,
sold or transferred, directly or indirectly, within the United States except
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and the securities laws of any
state or other jurisdiction of the United States. No public offering of the
Placing Shares is being made in the United States, Australia, Canada, Japan,
the Republic of Ireland or the Republic of South Africa.
Each Placee should consult with its own advisers as to legal, tax, business and
related aspects of a subscription for the Placing Shares.
Numis Securities Limited, which is authorised and regulated in the United
Kingdom by the Financial Conduct Authority, is acting exclusively as broker to
Crystal Amber Fund Limited and for no one else in connection with the Placing
and will not be responsible to anyone other than Crystal Amber Fund Limited for
providing the protections afforded to clients of Numis Securities Limited or
for providing advice in relation to the Placing or any matter referred to in
this Announcement (including the Appendix).
Sanlam Securities UK Limited, which is authorised and regulated in the United
Kingdom by the Financial Conduct Authority, is acting as nominated adviser to
Crystal Amber Fund Limited and is acting for no-one else in connection with the
Placing and will not be responsible to anyone other than Crystal Amber Fund
Limited for providing the protections afforded to clients of Sanlam Securities
UK Limited nor for providing advice in relation to the Placing or any matter
referred to in this Announcement (including the Appendix).
The price of shares and the income from them may go down as well as up and
investors may not get back the full amount invested on disposal of the shares.
Past performance is no guide to future performance and persons needing advice
should consult an independent financial adviser authorised for the purposes of
the Financial Services and Markets Act 2000.
No representation or warranty, express or implied, is or will be made by or on
behalf of either Numis Securities Limited or Sanlam Securities UK Limited, and
no responsibility or liability is or will be accepted by either Numis
Securities Limited or Sanlam Securities UK Limited or any of their respective
affiliates, as to the accuracy, completeness or verification of the information
set out in this Announcement (including the Appendix), and nothing contained in
this Announcement (including the Appendix) is, or shall be relied upon as, a
promise or representation in this respect, whether as to the past or the
future. Numis Securities Limited and Sanlam Securities UK Limited and each of
their respective affiliates accordingly disclaim, to the fullest extent
permitted by law, all and any liability whether arising in tort, contract or
otherwise which they might otherwise have in respect of this Announcement
(including the Appendix) or any such statement.
Neither the content of the Company's website nor any website accessible by
hyperlinks on the Company's website is incorporated in, or forms part of, this
Announcement.
This Announcement contains (or may contain) certain forward-looking statements
with respect to certain of the Company's current expectations and projections
about future events. These statements, which sometimes use words such as "aim",
"anticipate", "believe", "intend", "plan", "estimate", "expect" and words of
similar meaning, reflect the Board's beliefs and expectations and involve a
number of risks, uncertainties and assumptions that could cause actual results
and performance to differ materially from any expected future results or
performance expressed or implied by the forward-looking statement. By their
nature, forward-looking statements involve risk and uncertainty because they
relate to future events and circumstances. Statements contained in this
Announcement regarding past trends or activities should not be taken as a
representation that such trends or activities will continue in the future. The
information contained in this Announcement is subject to change without notice
and, except as required by applicable law, the Company does not assume any
responsibility or obligation to update publicly or review any of the
forward-looking statements contained herein. You should not place undue
reliance on forward-looking statements, which speak only as of the date of this
Announcement. No statement in this Announcement is or is intended to be a
profit forecast or to imply that the earnings of the Company for the current or
future financial years will necessarily match or exceed the historical or
published earnings of the Company.
TERMS AND CONDITIONS OF APPLICATION UNDER THE PLACING
IMPORTANT INFORMATION FOR INVITED PLACEES ONLY REGARDING THE PLACING.
1. Introduction
The Company is undertaking a placing of new Ordinary Shares in the capital of
the Company to qualified investors. The Company has already received
commitments from certain Shareholders and new investors to subscribe, based on
the Company's latest published NAV, for Placing Shares with minimum gross
proceeds of in excess of GBP30 million. The Placing is not underwritten.
The Placing Shares will rank pari passu in all respects with the Ordinary
Shares currently in issue, including the right to receive all dividends and
other distributions declared on or after the date on which they are issued.
2. Application for Admission
Application will be made to the London Stock Exchange for the Placing Shares to
be admitted to trading on AIM ("Admission"). It is expected that Admission will
take place, and dealings in the Placing Shares will commence, on or about 27
January 2015.
3. Conditions of the Placing
The Placing is conditional inter alia on Admission and the passing of the
resolution proposed in the notice of general meeting that will accompany the
Circular.
4. Participation in the Placing
Each Placee which confirms its agreement to the Company to subscribe for
Placing Shares under the Placing will be bound by these terms and conditions
and will be deemed to have accepted them.
The Company may require any Placee to agree to such further terms and/or
conditions and/or give such additional warranties and/or representations as it
(in its absolute discretion) seesfit and/or may require any such Placee to
execute a separate contract note (a "Contract Note").
The Company will determine in its absolute discretion the extent of each
Placee's participation in the Placing, which may not necessarily be the same
for each Placee.
Each Placee's allocation will be confirmed to Placees orally by Sanlam
Securities UK Limited ("Sanlam Securities") and a trade confirmation or
Contract Note will be dispatched as soon as possible thereafter. The oral
confirmation to such Placement will constitute an irrevocable legally binding
commitment upon such person who will at that point become a Placee in favour of
the Company under which it agrees to acquire the number of Placing Shares
allocated to it at the Placing Price on the terms and conditions set out in
this Appendix and in accordance with the Company's Articles of Incorporation
(the "Articles").
Irrespective of the time at which a Placee's allocation pursuant to the Placing
is confirmed, settlement for all Placing Shares to be acquired pursuant to the
Placing will be required to be made at the same time on the basis explained
below under "Registration and Settlement".
5. No prospectus
Placees' commitments will be made solely on the basis of the information
contained in this Announcement (including this Appendix) and the Exchange
Information (as defined below), released by the Company today and which has not
been approved by, or submitted to the Financial Conduct Authority or the London
Stock Exchange, and subject to the further terms set forth in the Contract Note
to be provided to individual prospective Placees.
Each Placee, by accepting a participation in the Placing, agrees that the
content of this Announcement (including the Appendix) is exclusively the
responsibility of the Company and confirms that it has neither received nor
relied on any other information (other than the Exchange Information),
representation, warranty, or statement made by or on behalf of the Company or
any other person and neither the Company nor any other person will be liable
for any Placee's decision to participate in the Placing based on any other
information, representation, warranty or statement which the Placees may have
obtained or received. Each Placee acknowledges and agrees that it has relied on
its own investigation of the business, financial or other position of the
Company in accepting a participation in the Placing. Nothing in this paragraph
shall exclude the liability of any person for fraudulent misrepresentation or
fraud.
6. Agreement to subscribe for Placing Shares
Conditional on:
a. Admission occurring and becoming effective by 8.00 a.m. (London time) on or
prior to 27 January 2015 (or such later time and/or date, not being later
than 6 February 2015, as the Company may decide);
b. the passing of the resolution approving the Placing at the EGM (or any
adjournment thereof); and
c. Sanlam Securities confirming to the Placees their allocation of Placing
Shares,
a Placee agrees to become a member of the Company and agrees to subscribe for
those Placing Shares allocated to it by the Company at the Placing Price.
To the fullest extent permitted by law, each Placee 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 Placee may have.
7. Payment for Placing Shares
Each Placee must pay the Placing Price for the Placing Shares issued to the
Placee in the manner and by the time directed by the Company/Sanlam Securities.
If any Placee fails to pay as so directed and/or by the time required, the
relevant Placee's application for Placing Shares shall be rejected.
8. Registration and Settlement
Settlement of transactions in the Placing Shares (ISIN: GG00B1Z2SL48) following
Admission will take place within CREST provided that, subject to certain
exceptions, the Company reserves the right to require settlement for, and
delivery of, the Placing Shares (or a portion thereof) to Placees by such other
means that it deems necessary if delivery or settlement is not possible or
practicable within CREST within the timetable set out in this Announcement or
would not be consistent with the regulatory requirements in any Placee's
jurisdiction.
Each Placee allocated Placing Shares in the Placing will be sent a trade
confirmation or Contract Note stating the number of Placing Shares allocated to
it at the Placing Price, the aggregate amount owed by such Placee to Sanlam
Securities (as agent for the Company) and settlement instructions. Each Placee
agrees that it will do all things necessary to ensure that delivery and payment
is completed in accordance with either the CREST or certificated settlement
instructions that it has in place with Sanlam Securities.
It is expected that settlement in respect of the Placing Shares will be on 27
January 2015 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 two
percentage points above LIBOR as determined by Sanlam Securities.
Each Placee is deemed to agree that, if it does not comply with these
obligations, Sanlam Securities may sell any or all of the Placing Shares
allocated to that Placee on such Placee's behalf and retain from the proceeds,
for Sanlam Securities' account and benefit (as agent for the Company), an
amount equal to the aggregate amount owed by the Placee plus any interest due.
The relevant Placee will, however, remain liable and shall indemnify Sanlam
Securities on demand for any shortfall below the aggregate amount owed by it
and may be required to bear any stamp duty or stamp duty reserve tax or
securities transfer tax (together with any interest or penalties) which may
arise upon the sale of such Placing Shares on such Placee's behalf. By
communicating a bid for Placing Shares, each Placee confers on Sanlam
Securities all such authorities and powers necessary to carry out any such sale
and agrees to ratify and confirm all actions which Sanlam Securities lawfully
takes in pursuance of such sale.
If Placing Shares are to be delivered to a custodian or settlement agent,
Placees should ensure that the trade confirmation or Contract Note is copied
and delivered immediately to the relevant person within that organisation.
Insofar as Placing Shares are registered in a Placee's name or that of its
nominee or in the name of any person for whom a Placee is contracting as agent
or that of a nominee for such person, such Placing Shares should, subject as
provided below, be so registered free from any liability to UK stamp duty or
stamp duty reserve tax or securities transfer tax. Placees will not be entitled
to receive any fee or commission in connection with the Placing.
9. Representations, Warranties and Further Terms
By agreeing to subscribe for Placing Shares, each Placee which enters into a
commitment to subscribe for Placing Shares will (for itself and any person(s)
procured by it to subscribe for Placing Shares and any nominee(s) for any such
person(s)) be deemed to represent and warrant to each of the Company, Sanlam
Securities and Numis Securities Limited ("Numis") that:
a. in agreeing to subscribe for Placing Shares under the Placing, it is
relying solely on this Announcement (and its Appendix) issued by the
Company and not on any other information given, or representation or
statement made at any time, by any person concerning the Company or the
Placing. It agrees that none of the Company, Numis, Sanlam Securities, nor
any of their respective officers, agents employees, will have any liability
for any other information or representation and irrevocably and
unconditionally waives any rights it may have in respect of any other
information or representation;
b. it acknowledges and agrees that no offering document, admission document or
prospectus has been, or will be, prepared in connection with the Placing
and represents and warrants that it has not received, and will not receive,
an offering document, admission document or prospectus;
c. acknowledges that the Shares are admitted to trading on AIM and the Company
is therefore required to publish certain business and financial information
in accordance with the AIM Rules (collectively "Exchange Information"),
which includes the Company's announcements and circulars published in the
previous 12 months and that it is able to obtain access to such information
without undue difficulty;
d. it (or the beneficial owner as applicable) has all necessary capacity to
commit to participation in the Placing and to perform its obligations in
relation thereto and will honour such obligations;
e. if the laws of any territory or jurisdiction outside the United Kingdom are
applicable to its agreement to subscribe for Placing Shares under the
Placing, it warrants that it has complied with all such laws, obtained all
governmental and other consents which may be required, is duly authorised
and 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, Numis, Sanlam Securities 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 Placing;
f. it has carefully read and understands this Announcement (and its Appendix)
in its entirety, it has all the information it believes necessary or
appropriate in connection with its decision to subscribe for Placing Shares
and acknowledges that it is acquiring Placing Shares on the terms and
subject to the conditions set out in this Announcement (and its Appendix)
and the Articles as in force at Admission;
g. it has not relied on Numis, Sanlam Securities or any person affiliated with
either of them in connection with any investigation of the accuracy of any
information contained in this Announcement (and its Appendix);
h. the content of this Announcement (and its Appendix) and any Exchange
Information is exclusively the responsibility of the Company and its
Directors and neither Numis, Sanlam Securities nor any person acting on
their respective behalf nor any of their affiliates are responsible for or
shall have any liability for any information, representation or statement
contained in this Announcement (and its Appendix) or any information
published by or on behalf of the Company (including Exchange Information)
and will not be liable for any decision by a Placee to participate in the
Placing based on any information, representation or statement contained in
this Announcement (and its Appendix) or otherwise;
i. it acknowledges that no person is authorised in connection with the Placing
to give any information or make any representation other than as contained
in this Announcement (and its Appendix) and, if given or made, any
information or representation must not be relied upon as having been
authorised by Numis, Sanlam Securities, the Company or any of their
respective officers, agents or employees;
j. it represents and warrants that neither it, nor the person specified by it
for registration as a holder of Placing Shares is, or is acting as nominee
or agent for, and that the Placing Shares will not be allotted to, a person
who is or may be liable to stamp duty or stamp duty reserve tax under any
of sections 67, 70, 93 and 96 of the Finance Act 1986 (depository receipts
and clearance services);
k. it accepts that none of the Placing Shares have been or will be registered
under the laws of the United States, Canada, the Republic of South Africa,
Australia or Japan. Accordingly, the Placing Shares may not be offered,
sold, issued or delivered, directly or indirectly, within any of United
States, Canada, the Republic of South Africa, Australia or Japan, unless an
exemption from any registration requirement is available;
l. if it is within the United Kingdom, it is a person who falls within
Articles 49(2)(a) to (d) or 19(5) of the Financial Services and Markets Act
2000 (Financial Promotions) Order 2005 or is a person to whom the Placing
Shares may otherwise lawfully be offered under such Order, or, if it is
receiving the offer 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 Placing Shares may be lawfully offered under that other
jurisdiction's laws and regulations;
m. in the case of any Placing Shares acquired by an investor as a financial
intermediary as that term is used in Article 3(2) of the EU Directive 2003/
71/EC (the "Prospectus Directive"): (i) the Placing Shares acquired have
not been acquired on behalf of, nor have they been acquired with a view to
their offer or resale to, persons in any relevant Member State other than
qualified investors, as that term is defined in the Prospectus Directive,
or in circumstances in which the prior consent of the Company has been
given to the offer or resale; or (ii) where Placing Shares have been
acquired by it on behalf of persons in any relevant Member State other than
qualified investors, the offer of those Placing Shares to it is not treated
under the Prospectus Directive as having been made to such persons;
n. if it is a resident in any member state of the European Economic Area ("EEA
State"), (a) it is a qualified investor within the meaning of the law in
the relevant EEA State implementing Article 2(1)(e)(i), (ii) or (iii) of
the Prospectus Directive and (b) if that EEA State has implemented the
Alternative Investment Fund Managers Directive (2011/61/EU) (the "AIFM
Directive") that it is a person to whom the Placing Shares may lawfully be
marketed under the AIFM Directive or under the applicable implementing
legislation (if any) of that relevant EEA State;
o. if it is outside the United Kingdom, neither this Announcement (and its
Appendix) nor any other offering, marketing or other material in connection
with the Placing constitutes an invitation, offer or promotion to, or
arrangement with, it or any person whom it is procuring to subscribe for
Placing Shares pursuant to the Placing 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 Placing 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;
p. 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 Placing Shares and it is not acting on a non-discretionary
basis for any such person;
q. if the investor is a natural person, such investor is not under the age of
majority (18 years of age in the United Kingdom) on the date of such
investor's agreement to subscribe for Placing Shares under the Placing and
will not be any such person on the date any such Placing is accepted;
r. it has not, directly or indirectly, distributed, forwarded, transferred or
otherwise transmitted this Appendix or any other offering materials
concerning the Placing or the Placing Shares to any persons within the
United States or to any US Persons, nor will it do any of the foregoing;
s. it represents, warrants, acknowledges and agrees that it is not a national
or resident of the United States or a corporation, partnership or other
entity organised under the laws of the United States and that it will not
offer, sell, renounce, transfer or deliver, directly or indirectly, any of
the Placing Shares into the United States or any other jurisdiction where
to do so would be in breach of any applicable law and/or regulation and, in
addition, it acknowledges that the Placing Shares have not been and will
not be registered under the United States Securities Act of 1933, as
amended, or with any securities regulatory authority of any state or other
jurisdiction of the United States;
t. it has all the relevant permissions, authorisations and due capacity to
subscribe for the Placing Shares and to perform its obligations under these
terms and conditions and it acknowledges that neither Sanlam Securities nor
Numis 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
Placing or providing any advice in relation to the Placing and
participation in the Placing is on the basis that it is not and will not be
a client of Sanlam Securities or Numis and that neither Sanlam Securities
nor Numis have any duties or responsibilities to it for providing
protection afforded to their respective clients or for providing advice in
relation to the Placing nor in respect of any representations, warranties,
undertaking or indemnities contained in any placing letter;
u. it acknowledges that where it is subscribing for Placing Shares for one or
more managed, discretionary or advisory accounts, it is authorised in
writing for each such account: (i) to subscribe for the Placing Shares for
each such account; (ii) to make on each such account's behalf the
representations, warranties and agreements set out in this Announcement
(and its Appendix); and (iii) to receive on behalf of each such account any
documentation relating to the Placing in the form provided by the Company
and/or Numis. It agrees that the provision of this paragraph shall survive
any resale of the Placing Shares by or on behalf of any such account;
v. it irrevocably appoints any director of the Company and any director of
Sanlam Securities to be its agent and on its behalf (without any obligation
or duty to do so), to sign, execute and deliver any documents and do all
acts, matters and things as may be necessary for, or incidental to, its
subscription for all or any of the Placing Shares for which it has given a
commitment under the Placing, in the event of its own failure to do so;
w. it accepts that if the Placing does not proceed or the conditions to the
Placing Agreement are not satisfied or the Placing Shares for which valid
applications are received and accepted are not admitted to trading on AIM
for any reason whatsoever then none of Numis, Sanlam Securities, the
Company, 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;
x. in connection with its participation in the Placing it has observed all
relevant legislation and regulations, in particular (but without
limitation) those relating to money laundering ("Money Laundering
Legislation") and that its application is only made on the basis that it
accepts full responsibility for any requirement to 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 Money
Laundering Regulations 2007 in force in the United Kingdom; or (ii) subject
to the Money Laundering Directive (2005/60/EC of the European Parliament
and of the EC Council of 26 October 2005 on the prevention of the use of
the financial system for the purpose of money laundering and terrorist
financing); or (iii) subject to the Guernsey AML Requirements; or (iv)
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;
y. it acknowledges that due to anti-money laundering requirements, the Company
may require proof of identity 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 Company may refuse to accept the application and
the subscription moneys relating thereto. It holds harmless and will
indemnify the Company against any liability, loss or cost ensuing due to
the failure to process such application, if such information as has been
required has not been provided by it;
z. it acknowledges that any person in Guernsey involved in the business of the
Company who has a suspicion or belief that any other person (including the
Company or any person subscribing for Placing Shares) is involved in money
laundering activities, is under an obligation to report such suspicion to
the Financial Intelligence Service pursuant to the Terrorism and Crime
(Bailiwick of Guernsey) Law, 2002 (as amended);
aa. it acknowledges and agrees that information provided by it to the Company,
Registrar or Administrator will be stored on the Registrar's and the
Administrator's computer systems and manually. It acknowledges and agrees
that for the purposes of the Data Protection (Bailiwick of Guernsey) Law
2001 (the "Data Protection Law") and other relevant data protection
legislation which may be applicable, the Registrar and the Administrator
are required to specify the purposes for which they will hold personal
data. The Registrar and the Administrator will only use such information
for the purposes set out below (collectively, the "Purposes"), being to:
ab.
i. process its personal data (including sensitive personal data) as
required by or in connection with its holding of Placing Shares,
including processing personal data in connection with credit and money
laundering checks on it;
ii. communicate with it as necessary in connection with its affairs and
generally in connection with its holding of Placing Shares;
iii. provide personal data to such third parties as the Administrator or
Registrar may consider necessary in connection with its affairs and
generally in connection with its holding of Placing Shares or as the
Data Protection Law may require, including to third parties outside the
Bailiwick of Guernsey or the European Economic Area;
iv. without limitation, provide such personal data to the Company or the
Manager and their respective associates for processing, notwithstanding
that any such party may be outside the Bailiwick of Guernsey or the
European Economic Area; and
v. process its personal data for the Administrator's internal
administration.
Each Placee further confirms and undertakes that:
ab. in providing the Registrar and the Administrator with information, it
hereby represents and warrants to the Registrar and the Administrator that
it has obtained the consent of any data subject to the Registrar and the
Administrator 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 personal data for the Purpose
set out in paragraph (a)(a). For the purposes of this Appendix, "data
subject", "personal data" and "sensitive personal data" shall have the
meanings attributed to them in the Data Protection Law;
ac. the representations, undertakings and warranties contained in this Appendix
are irrevocable. It acknowledges that the Company and its 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 Placing Shares
are no longer accurate, it shall promptly notify the Company. The Placee
agrees to indemnify on an after-tax basis and hold harmless on demand each
of the Company, Numis, Sanlam Securities and each of their respective
affiliates and any person acting on its or 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 Appendix;
ad. where it or any person acting on behalf of it is dealing with Numis, any
money held in an account with Numis 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 Financial Conduct
Authority which therefore will not require Numis to segregate such money,
as that money will be held by Numis under a banking relationship and not as
trustee;
ae. where it or any person acting on behalf of it is dealing with Sanlam
Securities, any money held in an account with Sanlam Securities 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 Financial Conduct Authority which therefore will not require Sanlam
Securities to segregate such money, as that money will be held by Sanlam
Securities under a banking relationship and not as trustee;
af. any of its clients, whether or not identified to Sanlam Securities and/or
Numis, will remain its sole responsibility and will not become clients of
Sanlam Securities and/or Numis for the purposes of the rules of the
Financial Conduct Authority or for the purposes of any other statutory or
regulatory provision;
ag. it accepts that the allocation of Placing Shares shall be determined by the
Company in its absolute discretion and that the Company may scale down any
Placing commitments for this purpose on such basis as it may determine; and
ah. time shall be of the essence as regards its obligations to settle payment
for the Placing Shares and to comply with its other obligations under the
Placing.
The representations, warranties, acknowledgements and undertakings contained in
these terms and conditions are given to the Company and are irrevocable and
shall not be capable of termination in any circumstances.
10. Supply and Disclosure of Information
If Sanlam Securities, the Registrar or the Company or any of their agents
request any information about a Placee's agreement to subscribe for Placing
Shares under the Placing, such Placee must promptly disclose it to them.
11. Miscellaneous
The rights and remedies of Numis, Sanlam Securities, the Administrator, the
Registrar 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.
On application, if a Placee is a discretionary fund manager, that Placee may be
asked to disclose in writing or orally the jurisdiction in which its funds are
managed or owned. All documents provided in connection with the Placing will be
sent at the Placee's risk. They may be returned by post to such Placee at the
address notified by such Placee.
Each Placee agrees to be bound by the Articles once the Placing Shares, which
the Placee has agreed to subscribe for pursuant to the Placing and all disputes
and claims arising out of or in connection with its subject matter or formation
(including non-contractual disputes or claims), have been acquired by the
Placee. The contract to subscribe for Placing Shares under the Placing and the
appointments and authorities mentioned in this Announcement (and its Appendix)
will be governed by, and construed in accordance with, the laws of England and
Wales. For the exclusive benefit of Numis, Sanlam Securities, the
Administrator, the Company and the Registrar, each Placee 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 the Placee in any other jurisdiction.
In the case of a joint agreement to subscribe for Placing Shares under the
Placing, references to a "Placee" in these terms and conditions are to each of
the Placees who are a party to that joint agreement and their liability is
joint and several.
All times and dates in this document may be subject to amendment.
The Company expressly reserves the right to modify the Placing (including,
without limitation, the timetable and settlement) at any time before
allocations are determined.
DEFINITIONS
In this announcement the words and expressions listed below have the meanings
set out opposite them, except where the context otherwise requires:
2013 Admission Date the date on which Shares issued pursuant to the
previous secondary issue were admitted to trading
on AIM, being 21 August 2013
Admission or 2015 Admission the admission of the Placing Shares to trading on
AIM in accordance with the AIM Rules
Advisers the Manager and the Investment Adviser
AIM the market of that name operated by the London
Stock Exchange
AIM Rules the AIM Rules for Companies including the AIM Note
for Investing Companies and the AIM Rules for
Nominated Advisers, published by the London Stock
Exchange
Articles the articles of incorporation of the Company
Board or Directors the board of Directors of the Company or any duly
constituted committee thereof
Business Day a day (other than a Saturday, Sunday or public
holiday in England or Guernsey) on which banks are
generally open for business
Calculation Date the date, which is expected to be 19 January 2015,
at which the NAV per Share will be calculated for
the purposes of determining the Placing Price
Circular the circular to be issued by the Company in
connection with the Placing, amongst other things,
expected to be posted to Shareholders later today
Company Crystal Amber Fund Limited
Euroclear Euroclear UK & Ireland Limited, being the operator
of CREST
Extraordinary General the extraordinary general meeting of the Company
Meeting or EGM to be convened for 10.00 a.m. on 23 January 2015
or any adjournment thereof, notice of which will
be set out in the Circular
Financial Conduct Authority the UK Financial Conduct Authority
or FCA
FSMA the Financial Services and Markets Act 2000, as
amended
Form of Proxy the form of proxy accompanying the Circular for
use in connection with the Extraordinary General
Meeting
GFSC The Guernsey Financial Services Commission
Guernsey Rules the Authorised Closed-Ended Investment Schemes
Rules 2008
Investment Adviser Crystal Amber Advisers (UK) LLP
Law the Companies (Guernsey) Law, 2008 (as amended)
London Stock Exchange London Stock Exchange plc
Manager Crystal Amber Asset Management (Guernsey) Limited
Net Asset Value or NAV net asset value
Net Asset Value per Share or the Net Asset Value divided by the number of
NAV per Share Shares then in issue (excluding Shares held in
treasury)
Notice of EGM the notice of the Extraordinary General Meeting as
set out in the Circular
Ongoing Charges Ratio the Company's annualised ongoing charges divided
by the Company's average NAV in the same period,
expressed as a percentage
Original Admission Date 17 June 2008
Original Placing Price 100 pence per Share
Placing the conditional placing of the Placing Shares at
the Placing Price
Placing Price the NAV per Share on the Calculation Date plus a
premium of between 1.4 and 1.5 per cent.
Placing Shares the new Shares that will be placed with investors
under the Placing
Qualified Investors as defined in section 86(7) of the Financial
Services and Markets Act 2000 (as amended)
Regulatory Information a service approved by the London Stock Exchange
Service for the distribution to the public of AIM
announcements
Resolution the resolution to be proposed at the Extraordinary
General Meeting, details of which will be
contained in the Notice of EGM
Sanlam Securities Sanlam Securities UK Limited
Shareholder a holder of Shares
Shares ordinary shares of GBP0.01 each in the capital of
the Company
Shareholders holders of Shares
Sterling or GBP the lawful currency of the United Kingdom
UK or United Kingdom the United Kingdom of Great Britain and Northern
Ireland
United States the United States of America, its territories and
possessions, any state of the United States of
America and the District of Columbia
Unless otherwise stated in this document, all references to statute or other
forms of legislation shall refer to statute or forms of legislation of the UK.
END
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