TIDMOIT
RNS Number : 5393E
Odyssean Investment Trust PLC
08 July 2021
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS NOT
FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY,
IN OR INTO, THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, THE
REPUBLIC OF SOUTH AFRICA OR ANY MEMBER STATE OF THE EUROPEAN
ECONOMIC AREA.
LEI: 213800RWVAQJKXYHSZ74
8 July 2021
ODYSSEAN INVESTMENT TRUST PLC
Proposed Issue of Shares
Odyssean Investment Trust PLC ("OIT" or the "Company") today
announces that it is proposing to undertake an issue of new
ordinary shares ("New Ordinary Shares") by way of a placing (the
"Placing") in response to demand from certain related parties.
Harwood Capital LLP ("Harwood"), the Company's largest
shareholder and a "related party" (as defined under Chapter 11 of
the Financial Conduct Authority's Listing Rules), has indicated
demand for 2,600,000 New Ordinary Shares on behalf of its clients.
In addition, certain principals of the Company's portfolio manager,
Odyssean Capital LLP (together with Harwood, the "Related Parties")
wish to subscribe for not less than 370,000 New Ordinary Shares. In
aggregate, the Related Parties intend to subscribe for not less
than 2,970,000 New Ordinary Shares, subject to a maximum
subscription amount of 3,900,000 New Ordinary Shares (the "Related
Parties Issue"). The Related Parties Issue is a "smaller related
party transaction" within the scope of Listing Rule 11.1.10R.
The Placing will also be open to other eligible investors that
wish to subscribe for New Ordinary Shares. The Placing is expected
to close at 12:00 p.m. today, 8 July 2021.
The issue price is 158 pence per New Ordinary Share (the
"Placing Price"), equal to a 1% premium to the net asset value as
at 6 July 2021, being the last published net asset value per
ordinary share ("Ordinary Shares").
The New Ordinary Shares are being offered on a non-pre-emptive
basis pursuant to the authority granted by shareholders at the
Company's annual general meeting held on 22 September 2020.
To participate in the Placing, investors should communicate
their interest to Winterflood Securities Limited
("Winterflood").
The Placing will be made to Qualified Investors (within the
meaning of Article 2(e) of the UK version of Regulation (EU)
2017/2019 which is part of UK law by virtue of the European Union
(Withdrawal) Act 2018, as amended) through Winterflood, subject to
the terms and conditions set out below in the Appendix to this
Announcement. The decision to allot New Ordinary Shares to any
Qualified Investor shall be at the absolute discretion of the Board
of OIT, following consultation with Winterflood.
By making an offer to subscribe for New Ordinary Shares under
the Placing, investors will be deemed to have accepted the terms
and conditions set out below in the Appendix to this Announcement.
An investor that has made an offer to subscribe for New Ordinary
Shares under the Placing accepts that following the closing of the
Placing such offer shall be irrevocable without the consent of the
Directors. Upon being notified of its allocation of New Ordinary
Shares in the Placing, an investor shall be contractually committed
to acquire the number of New Ordinary Shares allocated to it at the
Placing Price.
Applications will be made to the Financial Conduct Authority for
admission of the New Ordinary Shares to the premium listing segment
of the Official List of the Financial Conduct Authority and to the
London Stock Exchange for admission to trading of the New Ordinary
Shares on the premium segment of its main market for listed
securities ("Admission"). It is expected that Admission will become
effective at 8.00 a.m. on 13 July 2021 and that dealings in the New
Ordinary Shares will commence at that time.
The New Ordinary Shares will, when issued, be credited as fully
paid and rank pari passu with the existing Ordinary Shares,
including the right to receive all future dividends and
distributions declared, made or paid.
Expected timetable
2021
Placing opens 7:00 a.m. on 8 July
Placing closes 12.00 p.m. on 8 July
Results of Placing announced 8 July
Admission 8.00 a.m. on 13 July
For further information please contact:
Odyssean Capital
Stuart Widdowson +44(0) 7710 031 620
Winterflood Securities Limited
Darren Willis
Neil Langford
Hande Derinkok +44(0)20 3100 0000
Frostrow Capital LLP
David Harris +44 (0)20 3427 3835
About Odyssean Investment Trust PLC
Odyssean Investment Trust PLC ("OIT") is a closed-ended
investment trust that seeks to deliver attractive returns to its
shareholders by investing in higher quality businesses and
supporting them to become even better. To achieve this the Board
has appointed Odyssean Capital LLP ("Portfolio Manager") to manage
the portfolio.
OIT invests in a concentrated portfolio of well-researched
smaller companies, typically too small for inclusion in the FTSE
250. Constructive corporate engagement is a key part of the
Portfolio Manager'sapproach, drawing on the investment team's
lengthy and successful track record in this area.
Further details of the Company can be found on its website
www.oitplc.com.
Important Information
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS ANNOUNCEMENT (INCLUDING THIS APPIX) AND THE TERMS AND
CONDITIONS OF THE PLACING SET OUT IN THIS APPIX ARE FOR INFORMATION
PURPOSES ONLY AND ARE DIRECTED ONLY AT: PERSONS IN THE UNITED
KINGDOM WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE
2(E) OF THE UK VERSION OF THE EU PROSPECTUS REGULATION WHICH IS
PART OF UK LAW BY VIRTUE OF THE EUROPEAN UNION (WITHDRAWAL) ACT
2018, AS AMED (THE "UK PROSPECTUS REGULATION") ("UK QUALIFIED
INVESTORS") WHO ARE PERSONS: (I) WHO HAVE PROFESSIONAL EXPERIENCE
IN MATTERS RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(5) OF
THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION)
ORDER 2005 (THE "ORDER"); OR (II) FALLING WITHIN ARTICLE 49(2)(A)
TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS,
ETC") OF THE ORDER; OR (III) ARE PERSONS TO WHOM IT MAY OTHERWISE
BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED
TO AS "RELEVANT PERSONS"). ANY INVESTMENT OR INVESTMENT ACTIVITY TO
WHICH THIS ANNOUNCEMENT RELATES IS AVAILABLE ONLY TO AND WILL ONLY
BE ENGAGED IN WITH THE PERSONS REFERRED TO ABOVE.
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 Placing is being made outside the United
States in reliance on the exemption from the registration
requirements of the U.S. Securities Act provided by Regulation
S.
The Company has not been and will not be registered under the
U.S. Investment Company Act of 1940 (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 New Ordinary Shares in any jurisdiction including,
without limitation, the United States, Australia, Canada, Japan
South Africa or any member state of the European Economic Area 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,
Winterflood 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.
Winterflood, which is authorised and regulated in the United
Kingdom by the Financial Conduct Authority, is acting for the
Company and for no one else in connection with the Placing and will
not be responsible to anyone other than the Company for providing
the protections afforded to its clients or for providing advice in
relation to the Placing, or any other matters referred to
herein.
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 ("Directive 2014/65/EU"); (b)
Articles 9 and 10 of Commission Delegated Directive (EU) 2017/593
supplementing Directive 2014/65/EU; (c) local implementing
measures; and/or (d) (where applicable to UK investors or UK firms)
the relevant provisions of the UK statutory instruments
implementing Directive 2014/65/EU and Commission Delegated
Directive (EU) 2017/593, Regulation (EU) No 600/2014 of the
European Parliament, as they form part of UK law by virtue of the
European Union (Withdrawal) Act 2018, as amended (together, the "UK
MiFID Laws") (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 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 Directive 2014/65/EU and the UK MiFID Laws (as applicable); 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 Directive 2014/65/EU and the UK MiFID Laws, as
applicable (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 Placing.
Furthermore, it is noted that, notwithstanding the Target Market
Assessment, Winterflood will only contact prospective Applicants
for participation in the Placing 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 Directive 2014/65/EU or the UK MiFID Laws; 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.
Appendix
Terms and Conditions of the Placing
1. General
1.1 By participating in the Placing 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 Winterflood to acquire New Ordinary Shares under
the Placing will be bound by these terms and conditions and will be
deemed to have accepted them.
1.3 The Company and/or Winterflood 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 "Placing Letter"). The terms and
conditions contained in any such Placing 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 8.00 a.m. on
the date indicated in this Announcement (or such later time and/or
date as the Company and Winterflood may agree), not being later
than 31 August 2021;
(b) the placing agreement between the Company, the Portfolio
Manager and Winterflood dated 8 July 2021 (the "Placing Agreement")
becoming otherwise unconditional in all respects in relation to the
Placing, as applicable, (save as to the Admission of the New
Ordinary Shares) and not having been terminated on or before
Admission; and
(c) Winterflood 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 Winterflood at
the Placing Price per New Ordinary Share.
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 Placing Price for the New
Ordinary Shares issued to or for the benefit of the Applicant in
the manner and by the time directed by Winterflood. 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 Winterflood's 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 Placing
4.1 Prospective Applicants will be identified and contacted by Winterflood.
4.2 The latest time and date for receipt of commitments under
the Placing is 12:00 p.m . (London time) on 8 July 2021.
Winterflood and the Company reserve the right to bring this date
forward, or to extend the timetable at its discretion.
4.3 Winterflood 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. Winterflood's
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 Placing Price and otherwise on
the terms and subject to the conditions set out in this
Appendix.
4.4 The Company (after consultation with Winterflood) 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 Placing. The Company and Winterflood 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. Winterflood shall be
entitled to effect the Placing by such method as it shall in its
sole discretion determine. To the fullest extent permissible by
law, neither Winterflood, nor any holding company of Winterflood,
nor any subsidiary, branch or affiliate of Winterflood (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 Winterflood, nor any Affiliate thereof nor any
person acting on their behalf shall have any liability to
Applicants in respect of their conduct of the Placing. No
commissions will be paid to Applicants or directly by Applicants in
respect of the New Ordinary Shares. Under the terms of the Placing
Agreement the Company shall pay Winterflood a commission equal to a
proportion of the gross proceeds raised from Applicants that have
been procured by Winterflood.
4.5 Each Applicant's obligations will be owed to the Company and
to Winterflood. Following the oral confirmation referred to above,
each Applicant will have an immediate, separate, irrevocable and
binding obligation, owed to Winterflood, to pay to Winterflood (or
as Winterflood may direct) in cleared funds an amount equal to the
product of the Placing Price and the number of New Ordinary Shares
which such Applicant has agreed to acquire under the Placing.
Commitments under the Placing, once made, cannot be withdrawn
without the consent of the Directors. The Company shall allot such
New Ordinary Shares to each Applicant (or to Winterflood for onward
transmission to the relevant Applicant) following each Applicant's
payment to Winterflood of such amount.
4.6 Each Applicant agrees to indemnify on demand and hold each
of Winterflood, the Company and the Portfolio 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 Placing Letter.
4.7 All obligations of Winterflood under the Placing will be
subject to fulfilment of the conditions referred to below under
"Conditions".
5. Conditions
5.1 The Placing is conditional upon the Placing Agreement
becoming unconditional in relation to the Placing and not having
been terminated in accordance with its terms. The conditions in the
Placing 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 , warranties and
undertakings given by the Company and the Portfolio Manager being
breached or untrue .
5.2 If the Placing does not become unconditional, the Placing
will lapse and each Applicant's rights and obligations under the
Placing shall cease and determine at such time and no claim may be
made by an Applicant in respect thereof. Winterflood 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
it 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
Placing in the Placing Agreement.
5.3 By participating in the Placing, 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 Placing, each Applicant agrees with
Winterflood that the exercise by Winterflood of any right of
termination or other discretion under the Placing Agreement shall
be within the absolute discretion of Winterflood and that
Winterflood needs not make any reference to the Applicant in this
regard and that, to the fullest extent permitted by law,
Winterflood shall not have any liability whatsoever to the
Applicant in connection with any such exercise.
6. No Prospectus
6.1 The Placing is only available to Relevant Persons that are
identified and contacted by Winterflood and the New Ordinary Shares
will only be offered in such a way as to not require a prospectus
to be published 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 Placing 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 (collectively
"Regulatory Information").
6.2 Each Applicant, by accepting a participation in the Placing,
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 Winterflood, or the Portfolio Manager or any other
person and none of the Company, Winterflood or the Portfolio
Manager nor any other person will be liable for any Applicant's
decision to participate in the Placing 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 Placing, 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 and in the
Company's most recently published prospectus, each of which are
available on the Company's website www.oitplc.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.
Winterflood reserves the right to require settlement for and
delivery of the relevant New Ordinary Shares to Applicants by such
other means as it may deem necessary, if delivery or settlement is
not possible or practicable within the CREST system within the
timetable set out in this Announcement.
7.2 Each Applicant allocated New Ordinary Shares in the Placing
will be sent a trade confirmation stating the number of New
Ordinary Shares allocated to it, the aggregate amount owed by such
Applicant to Winterflood and settlement instructions. Applicants
should settle against CREST Participant ID: 801. 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 Winterflood.
7.3 It is expected that settlement will be on a T+3 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
Barclays Bank Plc.
7.5 Each Applicant is deemed to agree that if it does not comply
with these obligations, Winterflood 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 its 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 Winterflood 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 Placing.
8. Representations and Warranties
By participating in the Placing, 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 Portfolio
Manager and Winterflood 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 Financial Conduct Authority,
and the Company is therefore required to publish Regulatory
Information, which includes a description of the nature of the
Company's business and the Company's most recent balance sheet and
profit and loss account and that the Applicant is able to obtain or
access such information without undue difficulty, and is able to
obtain access to such information or comparable information
concerning any other publicly traded company, without undue
difficulty;
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 Placing and not on any other information given, or
representation or statement made at any time, by any person
concerning the Company or the Placing;
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 Winterflood under any regulatory regime, none of
the Portfolio Manager, Winterflood nor any person acting on their
behalf nor any of their respective 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 Placing, including but
without limitation the Company Key Information Document published
in accordance with UK version of Regulation (EU) 1286/2014 of the
European Parliament and the Council (commonly known as the PRIIPs
Regulation) which is part of UK law by virtue of the European Union
(Withdrawal) Act 2018, as amended;
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 Placing, 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
Portfolio Manager or Winterflood 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;
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 it is a Qualified Investor within the meaning of the UK
Prospectus Regulation and also a person (i) who has professional
experience in matters relating to investments falling with Article
19(5) of the Financial Services and Markets Act 2000 (Financial
Promotion) Order 2005 (the "Order"); or (ii) falling within Article
49(2)(A) to (D) ("High Net Worth Companies, Unincorporated
Associations, etc") of the Order; or (iii) to whom this
Announcement (including this Appendix) may otherwise be lawfully
communicated;
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 outside the United Kingdom, neither this
Announcement (including this Appendix) or any other information of
document issued by or on behalf of or in respect of the Company or
Winterflood 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 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 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;
8.14 by participating in the Placing, 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 Portfolio Manager and Winterflood that 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;
8.15 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;
8.16 it acknowledges and understands that the Company is
required to comply with the U.S. Foreign Account Tax Compliance Act
("FATCA") and the OECD's Common Reporting Standard ("CRS") and that
the Company will follow FATCA's and CRS's extensive reporting and
FATCA's 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 or the CRS;
8.17 it acknowledges that neither Winterflood nor any of its
Affiliates nor any person acting on its or 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 Winterflood or any of its Affiliates and
that Winterflood and any of its Affiliates do not have any duties
or responsibilities to it for providing the protections afforded to
its clients or for providing advice in relation to the Placing in
respect of any representations, warranties, undertaking or
indemnities contained in these terms and conditions;
8.18 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 Placing in the form provided by the Company and/or Winterflood. 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;
8.19 it accepts that if the Placing does not proceed (for
whatever reason) then none of the Company, Winterflood, the
Portfolio 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;
8.20 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 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, Terrorist Financing and Transfer of Funds (Information
on the Payer) Regulations 2017 (SI 2017/692) as amended and
supplemented from time to time including by the Money Laundering
and Transfer of Funds (Information) (Amendment) (EU Exit)
Regulations 2019 in force in the United Kingdom; 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;
8.21 it agrees that, due to anti-money laundering and the
countering of terrorist financing requirements, Winterflood 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, Winterflood and/or the Company
may refuse to accept the application and the subscription monies
relating thereto. It holds harmless and will indemnify Winterflood
and the Company against any liability, loss or cost ensuing due to
the failure to process the application, if such information as has
been required has not been provided by it or has not been provided
on a timely basis;
8.22 it acknowledges and agrees that information provided by it
to the Company and/or Winterflood will be stored on the Company's
and/or Winterflood's computer system and manually. It acknowledges
and agrees that for the purposes of means applicable data
protection legislation ( including the General Data Protection
Regulation (EU) 2016/679 ("EU GDPR"), the UK version of the EU GDPR
which is part of UK law by virtue of the European Union
(Withdrawal) Act 2018, as amended and supplemented from time to
time including by the Data Protection, Privacy and Electronic
Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI
2019/419) and regulatory requirements in the UK in force from time
to time (the "Data Protection Laws"), the Company and Winterflood
are/may be required to specify the purposes for which they will
hold personal data. The Company and Winterflood 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 Winterflood 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; and (d) without limitation, provide
such personal data to the Company, Winterflood, the Company's
registrar and the Portfolio Manager and their respective associates
for processing, notwithstanding that any such party may be outside
the United Kingdom;
8.23 In providing the Company and/or Winterflood with
information, it hereby represents and warrants to the Company,
Winterflood and the Portfolio Manager that it has obtained the
consent of any data subject to the Company, Winterflood, the
Portfolio Manager, 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;
8.24 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 Winterflood and the Portfolio Manager does not constitute: (i)
an assessment of suitability or appropriateness for the purposes of
Directive 2014/65/EU or the UK MiFID Laws; 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
Winterflood and the Portfolio Manager, 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;
(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;
(d) it acknowledges that Winterflood is acting for the Company
in connection with the Placing and for no-one else and that it will
not treat any Applicant as its customer by virtue of such
application being accepted or owe any Applicant any duties or
responsibilities concerning the price of the New Ordinary Shares or
concerning the suitability of the New Ordinary Shares for the
Applicant or be responsible to any Applicant for the protections
afforded to its customers; and
(e) it agrees that if so required by Winterflood or the
Portfolio Manager, it shall provide aggregated summary information
on sales of the New Ordinary Shares as contemplated under rule
3.3.30R of the PROD Sourcebook and information on the reviews
carried out under rules 3.3.26R to 3.3.28R of the PROD
Sourcebook;
8.25 the representations, undertakings and warranties contained
in this Appendix are irrevocable. It acknowledges that Winterflood,
the Company, the Portfolio 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 Winterflood and the Company in
writing;
8.26 where it or any person acting on behalf of it is dealing
with Winterflood, any money held in an account with Winterflood 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 Winterflood to segregate such money, as that money
will be held by Winterflood under a banking relationship and not as
trustee;
8.27 any of its clients, whether or not identified to
Winterflood or any of its Affiliates or agents, will remain its
sole responsibility and will not become clients of Winterflood or
any of its Affiliates or agents for the purposes of the rules of
the Financial Conduct Authority or for the purposes of any other
statutory or regulatory provision;
8.28 it accepts that the allocation of New Ordinary Shares shall
be determined by the Company (in consultation with Winterflood and
the Portfolio Manager) in its absolute discretion and that such
persons may scale down any Placing commitments for this purpose on
such basis as they may determine;
8.29 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 Placing; and
8.30 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. Miscellaneous
9.1 The rights and remedies of Winterflood 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.
9.2 The contract to acquire New Ordinary Shares under the
Placing will be governed by, and construed in accordance with, the
laws of England and Wales. For the exclusive benefit of
Winterflood, the Company and the Portfolio 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.
9.3 In the case of a joint agreement to apply for New Ordinary
Shares under the Placing, 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.
9.4 Winterflood and the Company expressly reserve the right to
modify the Placing (including, without limitation, the timetable
and settlement) at any time before allocations are determined.
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END
MSCFLFETDSIDIIL
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July 08, 2021 02:00 ET (06:00 GMT)
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