NOT FOR
RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY
OR INDIRECTLY, IN OR INTO, THE UNITED STATES OF AMERICA, CANADA,
AUSTRALIA, NEW ZEALAND, THE REPUBLIC OF SOUTH AFRICA OR JAPAN OR
ANY OTHER JURISDICTION WHERE IT IS UNLAWFUL TO DISTRIBUTE THIS
ANNOUNCEMENT.
LEI: 213800RWVAQJKXYHSZ74
12 July 2024
Odyssean Investment Trust
plc
Proposed Placing and Retail
Offer
The board (the "Board") of Odyssean Investment Trust
plc (the "Company" or
"OIT") is pleased to
announce a placing (the "Placing") and retail offer of Shares in
the Company ("OIT Shares"
or the "Shares") (the
"Fundraising"). The retail
offer will be undertaken via the Winterflood Retail Access Platform
("WRAP") (the "WRAP Retail Offer").
The
Fundraising
The Company has received interest
from an investor wishing to acquire OIT Shares and in light of this
and the ongoing demand in the market, the Board has decided to
undertake a Placing. Any Shares issued pursuant to the Placing will
be issued at a price equal to a 1.0% premium to the last published
cum-income NAV per Share prior to the closing of the Placing (the
"Issue Price"). The Issue
Price is expected to be announced on 17 July 2024. The new Shares
will not be subject to stamp duty.
The net proceeds of the Fundraising
will be invested in accordance with the Company's investment
policy.
Winterflood Securities Limited
("Winterflood") is acting
as placing agent to the Company in relation to the Placing. The
Placing is not being underwritten.
In order to allow existing retail
shareholders to participate in the Fundraising, the Company is
undertaking the WRAP Retail Offer, which is being made under an
exemption against the need for an approved prospectus provided for
under the Financial Services and Markets Act 2000, and is expected
to run alongside the Placing. A separate
announcement will be released shortly detailing the WRAP Retail
Offer.
Any Shares issued in connection with the
Fundraising will be issued pursuant to the authority granted by the
shareholders at the Company's annual general meeting on 21
September 2023. The Fundraising may be subject to
scaling back at the sole discretion of the Board, in consultation
with Winterflood.
All Shares issued pursuant to the
Fundraising will, when issued and fully paid, confer the right to
receive all dividends or other distributions declared, if any, by
reference to a record date after the date of their issue and in all
other respects will rank pari
passu with the existing Shares.
Applications will be made to the
Financial Conduct Authority for admission of the Shares to the
premium listing segment of the Official List and to the London
Stock Exchange for admission to trading of the Shares on its main
market for listed securities ("Admission").
Further information on the Company
can be found at the Company's website: www.oitplc.com.
Timetable
The expected timetable for the
Fundraising is as follows:
|
2024
|
Fundraising opens
|
7:00am on 12
July
|
Issue Price announced
|
Approximately 11:00am
17 July
|
Fundraising closes
|
2:00pm on 17
July
|
Results of Fundraising announced
|
18 July
|
Admission of new Shares
|
8.00 am on 22
July
|
Availability of the Placing
Participation in the Placing will only be
available to persons in the United Kingdom who are qualified
investors as defined in article 2(e) of Regulation (EU) 2017/1129
which is part of UK law by virtue of the European Union
(Withdrawal) Act 2018, as amended) (the "UK Prospectus Regulation") ("Qualified Investors"). Qualified
Investors should communicate their firm interest to their usual
sales contact at Winterflood.
The Placing will be made through Winterflood,
subject to the terms and conditions (the "Terms and Conditions") set out below in
Appendix 1 to this announcement. The decision to allot the Shares
to any Qualified Investor pursuant to the Placing shall be at the
absolute discretion of Winterflood (in consultation with the
Company).
By making an offer to subscribe for
Shares under the Placing, investors will be deemed to have accepted
the Terms and Conditions. An investor that has made an offer to
subscribe for Shares under the Placing accepts that following the
closing of the Fundraising such offer shall be irrevocable. Upon
being notified of its allocation of Shares in the Placing, an
investor shall be contractually committed to acquire the number of
Shares allocated to it at the Issue Price.
Winterflood, in agreement with the
Company, may choose to accept applications, either in whole or in
part, on the basis of allocations determined, and may scale down
any applications for this purpose, on such basis as the Company and
Winterflood may determine. Winterflood may also, notwithstanding
the above, subject to the prior consent of the Company: (i)
allocate Shares after the time of any initial allocation to any
person submitting an application after that time; and (ii) allocate
Shares after the Fundraising has closed to any person submitting an
application after that time.
For further information please
contact:
Frostrow
Capital LLP (Company Secretary)
Mark Pope
|
+44 (0)20 3008 4913
|
|
|
Odyssean
Capital LLP (Portfolio Manager)
Stuart Widdowson
|
+44 (0)7710 031 620
|
|
|
Winterflood
Securities Limited
|
+44 (0)20 3100 0257
|
Neil Langford
Joe Winkley
Darren Willis
Hugh Middleton
|
|
Important Notice
The content of this announcement has been
prepared by, and is the sole responsibility of Odyssean Investment
Trust plc.
The information contained in this announcement
is given at the date of its publication and is subject to updating,
revision and amendment from time to time. Neither the content of
the Company's website nor any website accessible by hyperlinks to
the Company's website is incorporated in, or forms part of, this
announcement.
Members of the public are not eligible to take
part in the Placing. Information in this announcement relating to
the Placing (including within Appendix 1) and the terms and
conditions of the Placing set out in Appendix 1 are for information
purposes only and are directed only at: persons 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 amended (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
above.
Investors should make their own investigations
into the merits of an investment in the Company. Nothing in this
announcement amounts to a recommendation to invest in the Company
or amounts to investment, taxation or legal advice. Dividend
targets are a target only and not a profit forecast, there can be
no assurances that this target will be met. No representation is
being made by the inclusion of the data contained herein that the
Company will achieve results similar to that which it has achieved
in the past or avoid losses. Past performance cannot be relied on
as a guide to future performance.
It should be noted that a subscription for
Shares and investment in the Company carries a number of risks.
Investors should consider the risk factors set out in the Company's
latest annual report before making a decision to subscribe for
Shares. Investors should take independent advice from a person
experienced in advising on investment in securities such as the
Shares if they are in any doubt. Investors' capital is at
risk.
Any investment or investment activity to which
this announcement (including the Appendix) and the terms and
conditions set out herein relates is available only to, and will be
engaged in only with, Relevant Persons. This announcement
(including the Appendix) is for information purposes only and does
not itself constitute an offer for sale or subscription of any
securities in the Company. If persons are in any doubt as to
whether they are a Relevant Person they should consult a
professional adviser for advice.
The Shares have not been registered and will
not be registered under the U.S. Securities Act of 1933, as amended
(the "Securities Act") or
under the securities laws of any state or other jurisdiction of the
United States and may not be offered, sold, exercised, resold,
transferred or delivered, directly or indirectly, in or into the
United States or to, or for the account or benefit of any US Person
(within the meaning of Regulation S under the Securities Act),
except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and
in compliance with any applicable securities laws of any state or
other jurisdiction in the United States, and under circumstances
that that would not result in the Company being in violation of the
U.S. Investment Company Act of 1940, as amended (the "Investment Company Act"). The Company
has not been, and will not be, registered under the Investment
Company Act and as such investors are not and will not be entitled
to the benefits of the Investment Company Act.
The Shares are being offered and sold outside
the United States to non-U.S. Persons in offshore transactions in
reliance on the exemption from the registration requirements of the
Securities Act provided by Regulation S thereunder. There has been
and will be no public offering of the Shares in the United States.
The Shares have not been approved or disapproved by the United
States Securities and Exchange Commission, any state securities
commission in the United States or any other U.S. regulatory
authority, nor have any of the foregoing authorities passed upon or
endorsed the merits of the offering of the Shares pursuant to the
Fundraising or the accuracy or adequacy of this announcement. Any
representation to the contrary is a criminal offence in the United
States.
This announcement (including Appendix 1) does
not constitute an offer to sell or issue or a solicitation to buy
or subscribe for Shares in any jurisdiction including, without
limitation, the United States, Canada, Australia, New Zealand, the
Republic of South Africa, Japan or any other jurisdiction in which
such offer or solicitation is or may be unlawful (an "Excluded Territory"). This announcement
(including Appendix 1) is not for publication, release or
distribution, directly or indirectly, in whole or in part, to U.S.
Persons or to persons in an Excluded Territory.
The distribution of this announcement
(including Appendix 1), and/or the issue of Shares in certain
jurisdictions may be restricted by law and/or regulation. No action
has been taken by the Company, Winterflood or Odyssean Capital LLP
(the "Portfolio Manager")
or any of their respective affiliates that would permit an offer of
Shares pursuant to the Placing 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.
Certain statements made in this announcement
(including Appendix 1) are forward-looking statements. These
forward-looking statements can be identified by the fact that they
do not relate only to historical or current facts. Such statements
are based on current expectations and assumptions and are subject
to a number of risks and uncertainties that could cause actual
events or results to differ materially from any expected future
events or results expressed or implied in these forward-looking
statements. No assurance can be given that forward-looking
statements results will be achieved. The forward-looking statements
contained in this announcement speak only as of the date of this
announcement and the Company assumes no obligation to, and does not
intend to update or revise publicly any of them whether as a result
of new information, future events or otherwise, except to the
extent required by the Financial Conduct Authority, the London
Stock Exchange or by applicable law, the Listing Rules and the
Disclosure Guidance and Transparency Rules.
The information contained in this announcement
is subject to change without notice and the Company does not take
any responsibility or obligation nor does it intend to revise or
update publicly or review any of the forward-looking statements in
this announcement to reflect events or circumstances after the date
of this announcement (except to the extent required by the
Financial Conduct Authority, London Stock Exchange plc or by
applicable law). Prospective investors should not place undue
reliance on forward-looking statements, which speak only as of the
date of this announcement, as a prediction of actual results or
otherwise.
Winterflood or its affiliates from time to time
have provided in the past and may provide in the future investment
banking, financial advisory and commercial banking services to the
Company and its affiliates in the ordinary course of business for
which they have received or may receive customary fees and
commissions.
Winterflood, which is authorised and regulated
in the United Kingdom by the Financial Conduct Authority, is acting
only for the Company in connection with the matters described in
this announcement and is not acting for or advising any other
person, or treating any other person as its client, in relation
thereto and will not be responsible for providing the regulatory
protection afforded to clients of Winterflood or advice to any
other person in relation to the matter contained herein.
None of the Portfolio Manager or Winterflood,
or any of their respective affiliates, accepts any responsibility
or liability whatsoever for or makes any representation or
warranty, express or implied, as to this announcement, including
the truth, accuracy or completeness of the information in this
announcement (or whether any information has been omitted from the
announcement) or for any loss howsoever arising from any use of the
announcement or its contents aside from the responsibilities and
liabilities, if any, which may be imposed by the Financial Services
and Markets Act as amended (the "FSMA"), or the regulatory regime
established thereunder or any other applicable regulatory regime.
The Portfolio Manager and Winterflood and their respective
affiliates accordingly disclaim all and any liability whether
arising in tort, contract or otherwise which they might otherwise
have in respect of this announcement or its contents or otherwise
arising in connection therewith.
Information to
Distributors
Solely for the purposes of the product
governance requirements contained within 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"), and disclaiming all and any
liability, whether arising in tort, contract or otherwise, which
any "manufacturer" (for the purposes of the UK MiFID Laws) may
otherwise have with respect thereto, the Shares have been subject
to a product approval process, which has determined that the 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 the UK
MiFID Laws; and (ii) eligible for distribution
through all distribution channels permitted by the UK
MiFID Laws (the "Target Market
Assessment").
Notwithstanding the Target Market
Assessment, distributors should note that: the price of Shares may
decline and investors could lose all or part of their investment;
the Shares offer no guaranteed income and no capital protection;
and an investment in 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 issue of the
Shares. Furthermore, it is noted that, notwithstanding the
Target Market Assessment, Winterflood will only contact prospective
placees 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
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
the Shares.
Each distributor is responsible for undertaking
its own target market assessment in respect of the Shares and
determining appropriate distribution channels.
PRIIPS Regulation
In accordance with the UK version of
Regulation (EU) No 1286/2014 of the European Parliament and of the
Council of 26 November 2014 on key information documents for
packaged retail and insurance-based investment products (PRIIPs),
which forms part of UK law by virtue of the European Union
(Withdrawal) Act 2018, as amended (the "UK PRIIPs Laws"), a key information
document in respect of the new ordinary Shares has been prepared by
the Company and is available to investors on the Company's
website: oitplc.com
APPENDIX 1 -
TERMS AND CONDITIONS OF THE PLACING
1. INTRODUCTION
1.1. By
participating in the Placing each applicant for Shares (a
"Placee") is deemed to have
read and understood this announcement (the "Announcement") including this appendix
("Appendix 1") in its
entirety and to be providing the representations, warranties,
undertakings, agreements and acknowledgements contained in this Appendix
1.
1.2. Each Placee which
confirms its agreement (whether orally or in writing) to
Winterflood to subscribe for the Shares under the Placing will be
bound by these Terms and Conditions and will be deemed to have
accepted them.
1.3. Winterflood 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) sees fit and may require any such
Placee to execute a separate 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 1.
2. AGREEMENT TO SUBSCRIBE FOR
SHARES
2.1. Conditional
on:
2.1.1. Admission occurring and
becoming effective by 8.00 a.m. on 22 July 2024 (or such later time
and/or date as the Company and Winterflood may agree, not being
later than 31 August 2024);
2.1.2. the Placing not
having been terminated on or before the date of Admission;
and
2.1.3. Winterflood
confirming to the Placees their allocation of Shares,
(the "Conditions"),
a Placee agrees to become a member
of the Company and agrees to subscribe for those Shares allocated
to it by Winterflood at the Issue 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.
2.2. Any commitment to acquire
Shares under the Placing agreed orally with Winterflood, as agent
for the Company, will constitute an irrevocable, legally binding
commitment upon that person (who at that point will become a
Placee) in favour of the Company and Winterflood, to subscribe for
the number of Shares allocated to it on the terms and subject to
the conditions set out in these Terms and Conditions and in a
contract note (the ''Contract
Note'') and in accordance with the articles of association
of the Company. Except with the consent of Winterflood, such oral
commitment will not be capable of variation or revocation after the
time at which it is made.
2.3. Each Placee's allocation
of Shares under the Placing will be evidenced by a Contract Note
confirming: (i) the number of Shares that such Placee has agreed to
acquire; (ii) the aggregate amount that such Placee will be
required to pay for such Shares; and (iii) settlement instructions
to pay Winterflood, as agent for the Company. The provisions as set
out in these Terms and Conditions will be deemed to be incorporated
into that Contract Note.
3. PAYMENT FOR SHARES
3.1. Each Placee
undertakes to pay the Issue Price for the Shares issued to the
Placee in the manner and by the time directed by Winterflood. In
the event of any failure by any Placee to pay as so directed and/or
by the time required by Winterflood, the relevant Placee's
application for Shares may, at the discretion of Winterflood,
either be accepted or rejected and, in the former case, paragraph
4.6 and/or 7.5 below shall apply.
4.
PARTICIPATION IN, AND
PRINCIPAL TERMS OF, THE PLACING
4.1. Prospective Placees will
be identified and contacted by Winterflood.
4.2. The latest time and date
for receipt of commitments under the Fundraising is 2.00
p.m. (London time)
on 17 July 2024. Winterflood reserves the right to bring this date
forward, or to extend the timetable at its discretion.
4.3. Winterflood will
re-contact and confirm orally or by email to Placees the size of
their respective allocations and a Contract Note will be dispatched
as soon as possible thereafter. Winterflood's confirmation of the
size of allocations and each Placee'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 Placee will be required to accept the
number of Shares allocated to the Placee at the Issue Price and
otherwise on the terms and subject to the conditions set out in
this Appendix 1.
4.4. Winterflood (after
consultation with the Company) reserves the right to scale back the
number of Shares to be subscribed by any Placee in the Placing. The
Company and Winterflood also reserve the right not to accept offers
to subscribe for Shares or to accept such offers in part rather
than in whole. Winterflood shall be entitled to effect the
Fundraising 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 Placees
(or to any other person whether acting on behalf of an Placee or
otherwise). In particular, neither Winterflood, nor any Affiliate
thereof nor any person acting on their behalf shall have any
liability to Placees in respect of their conduct of the Placing. No
commissions will be paid to Placees or directly by Placees in
respect of the Shares. Under the terms of the Company's placing
agreement with Winterflood, the Company shall pay Winterflood a
commission equal to a proportion of the gross proceeds raised from
Placees.
4.5. Each Placee's obligations
will be owed to the Company and to Winterflood. Following the oral
or email confirmation referred to above, each Placee 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 Issue Price
and the number of Shares which such Placee has agreed to acquire
under the Placing. Commitments under the Placing, once made, cannot
be withdrawn without the consent of the directors of the Company
(the "Directors"). The
Company shall allot such Shares to each Placee (or to Winterflood
for onward transmission to the relevant Placee) following each
Placee's payment to Winterflood of such amount.
4.6. Each Placee 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. If the Placing does not
become unconditional, the Placing will lapse and each Placee's
rights and obligations under the Placing shall cease and terminate
at such time and no claim may be made by a Placee in respect
thereof. Winterflood shall have no liability to any Placee (or to
any other person whether acting on behalf of a Placee or otherwise)
in respect of any decision they may make as to whether or not to
waive or to extend the time and/or date for the satisfaction of any
Condition.
5.2. By participating in the
Placing, each Placee 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
Placee.
5.3. By participating in a
Placing, each Placee agrees with Winterflood that the exercise by
Winterflood of any right of termination or other discretion shall
be within the absolute discretion of Winterflood and that
Winterflood needs not make any reference to the Placee in this
regard and that, to the fullest extent permitted by law,
Winterflood shall not have any liability whatsoever to the Placee
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 Shares will only be offered in such a way as to
not require a separate prospectus to be issued in the United
Kingdom or elsewhere (subject to the Prospectus Order requirements
as detailed below). No offering document or prospectus has been or
will be submitted to be approved by the Financial Conduct Authority
in relation to the Placing and Placees' commitments will be made
solely on the basis of the information contained in this
Announcement (including this Appendix 1) and information that has
been published by the Company in accordance with the Financial
Conduct Authority's Disclosure Guidance and Transparency Rules and
certain business and financial information the Company is required
to publish in accordance with the rules and practices of the
Financial Conduct Authority (collectively "Exchange Information").
6.2. Each Placee, by accepting
a participation in the Placing, agrees that the content of this
Announcement, including this Appendix 1, 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 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
Placee's decision to participate in the Placing based on any other
information, representation, warranty or statement which the Placee
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 and confirms that it has understood
the risks of investing in the Company and acquiring Shares. Each
Placee also acknowledges that it has had an opportunity to review
and access the information on the Company's ongoing charges
detailed in the Exchange 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 Shares following 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 Shares (or a portion thereof) to
Placees 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 the Announcement or would
not be consistent with the regulatory requirements in the Placee's
jurisdiction.
7.2. Each Placee allocated
Shares in the Placing will be sent a Contract Note stating the
number of Shares allocated to it, the aggregate amount owed by such
Placee to Winterflood (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 the settlement instructions in the Contract Note or
as otherwise directed by Winterflood.
7.3. It is expected that
settlement in respect of the Shares will be on a T+2 basis in
accordance with the instructions set out in the Contract
Note.
7.4. Interest is chargeable
daily on payments not received from Placees on the due date in
accordance with the arrangements set out above at the rate of 2
percentage points above the base rate of Barclays Bank
Plc.
7.5. Each Placee is deemed to
agree that if it does not comply with these obligations,
Winterflood may sell any or all of the Shares allocated to the
Placee on such Placee's behalf and retain from the proceeds, for
their own account and profit (as agent for the Company), an amount
equal to the aggregate amount owed by the Placee plus any interest
due. The Placee will, however, remain liable for any shortfall
below the aggregate amount owed by such Placee and it may be
required to bear any tax or other charges (together with any
interest or penalties) which may arise upon the sale of such Shares
on such Placee's behalf. By communicating an application for
Shares, each Placee confers on Winterflood all such authorities and
powers necessary to carry out any such sale and agrees to ratify
and confirm all actions which Winterflood lawfully takes in
pursuance of such sale.
7.6. If Shares are to be
delivered to a custodian or settlement agent, the Placee should
ensure that the Contract Note is copied and delivered immediately
to the relevant person within that organisation.
7.7. Insofar as Shares are registered in the Placee's name or that
of its nominee or in the name of any person for whom the Placee is
contracting as agent or that of a nominee for such person, such
Shares will, subject as provided below, be so registered free from
any liability to UK stamp duty or stamp duty reserve tax or
securities transfer tax. If there are any circumstances in which
any other stamp duty or stamp duty reserve tax or securities
transfer tax is payable in respect of the issue of the Shares,
neither Winterflood nor the Company shall be responsible for the
payment thereof. Placees will not be entitled to receive any fee or
commission in connection with the Placing.
8. REPRESENTATIONS AND
WARRANTIES
By agreeing to subscribe for Shares
under the Placing, each Placee which enters into a commitment to
subscribe for Shares will (for itself and for any person(s)
procured by it to subscribe for Shares and any nominee(s) for any
such person(s)) be deemed to acknowledge, undertake, represent and
warrant to each of the Company, Winterflood, and the Portfolio
Manager that:
8.1. it has read this
Announcement, including this Appendix 1, in its entirety and
acknowledges that its acquisition of 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 1);
8.2. no offering document or
prospectus has been prepared in connection with the placing of the
Shares and it has not received a prospectus or other offering
document in connection therewith;
8.3. the Shares are listed on
the premium segment of the Official List of the Financial Conduct
Authority and the Company is therefore required to publish the
Exchange Information, which includes a description of the nature of
the Company's business and the Company's most recent financial
statements and that the Placee 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 1) and the Exchange
Information published by the Company prior to Admission of the
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. it has neither received nor relied on any confidential price
sensitive information concerning the Company in accepting this
invitation to participate in the Placing;
8.6. 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 Shares pursuant to the Placing and it is not acting on
a non-discretionary basis for any such person;
8.7. it has carefully read and
understands this Announcement, including this Appendix 1, in its
entirety and acknowledges that it is acquiring Shares subject to
these Terms and Conditions, the Contract Note and the articles of
association of the Company as in force;
8.8. the price payable per
Share is payable to Winterflood on behalf of the Company in
accordance with the terms of these Terms and Conditions and in the
Contract Note;
8.9. it has the funds
available to pay for in full the Shares for which it has agreed to
subscribe and it will pay the total subscription amount in
accordance with the terms set out in these Terms and Conditions and
as set out in the Contract Note on the due time and
date;
8.10. it has not relied on
Winterflood or any person affiliated with Winterflood in connection
with any investigation of the accuracy of any information contained
in this Announcement or otherwise;
8.11. the content of this
Announcement, including this Appendix 1, and the Exchange
Information is exclusively the responsibility of the Company and
(in respect of the Exchange 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 Affiliates makes any representation,
express or implied, nor accepts any responsibility whatsoever for
the contents of this Announcement and the Exchange 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 Shares or
the Placing;
8.12. 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, if
given or made, any information or representation must not be relied
upon as having been authorised by Winterflood, the Company or the
Portfolio Manager;
8.13. 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 and the Shares are not being
acquired in connection with arrangements to issue depositary
receipts or to transfer Shares into a clearance system;
8.14. if the laws of any
territory or jurisdiction outside the United Kingdom are applicable
to its agreement to subscribe for Shares under the Placing, 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, Winterflood or the Portfolio Manager or any
of their respective officers, agents, employees or affiliates
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;
8.15. it accepts that none of
the Shares have been or will be registered under the securities
laws, or with any securities regulatory authority other than of the
United Kingdom and that the Shares may not be offered, sold, issued
or delivered, directly or indirectly, within any Excluded Territory
unless an exemption from any registration requirement is
available;
8.16. if it is outside the United
Kingdom, this Announcement (including this Appendix 1) does not
constitute an invitation, offer or promotion to, or arrangement
with, it or any person whom it is procuring to subscribe for 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 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;
8.17. it, nor the prospective
beneficial owner of the Shares, does not have a registered address
in, and is not a citizen, resident or national of an Excluded
Territory or any jurisdiction in which it is unlawful to make or
accept an offer of the Shares and it is not acting on a
non-discretionary basis for any such person;
8.18. (a) it has complied
with and will continue to comply with its obligations under the
Market Abuse Regulation (EU) No. 596/2014, which is part of UK law
pursuant to the Market Abuse (Amendment) (EU Exit) Regulations (SI
2019/310), Criminal Justice Act 1993 and Part VIII of the FSMA and
other applicable law; (b) in connection with money laundering and
terrorist financing, it has complied with its obligations under the
Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000 (as
amended), and other applicable law, the Terrorism Act 2006, the
Money Laundering Regulations 2007 and the Money Laundering,
Terrorist Financing and Transfer of Funds (Information on the
Payer) 2017 Regulations; and (c) it is not a person: (i) with whom
transactions are prohibited under the Foreign Corrupt Practices Act
of 1977 or any economic sanction programmes administered by, or
regulations promulgated by, the Office of Foreign Assets Control of
the U.S. Department of the Treasury; (ii) named on the Consolidated
List of Financial Sanctions Targets maintained by HM Treasury of
the United Kingdom; or (iii) subject to financial sanctions imposed
pursuant to a regulation of the EU or a regulation adopted by the
United Nations (together, the "Regulations"); and, if making payment
on behalf of a third party, that satisfactory evidence has been
obtained and recorded by it to verify the identity of the third
party as required by the Regulations and has obtained all
governmental and other consents (if any) which may be required for
the purpose of, or as a consequence of, such purchase, and it will
provide promptly to Winterflood such evidence, if any, as to the
identity or location or legal status of any person which
Winterflood may request from it in connection with the Placing (for
the purpose of complying with such Regulations or ascertaining the
nationality of any person or the jurisdiction(s) to which any
person is subject or otherwise) in the form and manner requested by
Winterflood on the basis that any failure by it to do so may result
in the number of Shares that are to be purchased by it or at its
direction pursuant to the Placing being reduced to such number, or
to nil, as Winterflood may decide at its sole
discretion;
8.19. if it is a financial
intermediary, as that term is used in Article 5 of the Prospectus
Regulation, that the Shares purchased by it in the Placing will not
be acquired on a non-discretionary basis on behalf of, nor will
they be acquired with a view to their offer or resale to, persons
in a member state of the European Economic Area or the United
Kingdom other than Qualified Investors, or in circumstances in
which the prior consent of Winterflood has been given to the offer
or resale;
8.20. it has not offered or
sold and will not offer or sell any Shares to be issued pursuant to
the Placing to persons in the European Economic Area or the United
Kingdom prior to Admission except to persons whose ordinary
activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes
of their business or otherwise in circumstances which have not
resulted in and which will not result in an offer to the public in
any member state of the European Economic Area or the United
Kingdom within the meaning of the Prospectus Regulation;
8.21. unless otherwise specifically
agreed in writing with Winterflood, it is a Qualified Investor as
defined in the Prospectus Regulation and that it is a person to
whom the Shares may lawfully be marketed to under any applicable
legislation implementing The Alternative Investment Fund Managers
Regulations 2013 (as amended by The Alternative Investment Fund
Managers (Amendment etc.) (EU Exit) Regulations 2019) and the
Investment Funds Sourcebook forming part of the FCA
Handbook;
8.22. if it is within the
United Kingdom, it is (a) a person who falls within (i) Article
49(2)(A) to (D) or (ii) Article 19(5) of the Financial Services and
Markets Act 2000 (Financial Promotions) Order 2005 (the
"FPO") or is a person to
whom the Shares may otherwise lawfully be offered under the FPO,
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 Shares may be lawfully
offered under that other jurisdiction's laws and regulations and
(b) a "professional client" or an "eligible counterparty" within
the meaning of Chapter 3 of the Financial Conduct Authority's
Conduct of Business Sourcebook;
8.23. it and any person acting on
its behalf is entitled to acquire the Shares under the Placing
under the laws of all relevant jurisdictions and that it has all
necessary capacity and has obtained all necessary consents and
authorities and taken any other necessary actions to enable it to
commit to this participation in the Placing and to perform its
obligations in relation thereto (including, without limitation, in
the case of any person on whose behalf it is acting, all necessary
consents and authorities to agree to the terms set out or referred
to in this Announcement (including this Appendix 1)) and will
honour such obligations;
8.24. where it is acquiring Shares
under the Placing for one or more managed accounts, it is
authorised in writing by each managed account: (i) to acquire the
Shares for each managed account; (ii) to make on its behalf the
representations, warranties, acknowledgements, undertakings and
agreements in this Appendix 1 and the Announcement of which it
forms part; and (iii) to receive on its behalf any placing letter
relating to the Placing in the form provided to it by
Winterflood;
8.25 it has only communicated
or caused to be communicated and will only communicate or cause to
be communicated any invitation or inducement to engage in
investment activity (within the meaning of section 21 of FSMA)
relating to the Shares in circumstances in which section 21(1) of
FSMA does not require approval of the communication by an
authorised person and acknowledges and agrees that no documents are
being issued by Winterflood in its capacity as an authorised person
under section 21 of FSMA and such documents may not therefore be
subject to the controls which would apply if they were made or
approved a financial promotion by an authorised person;
8.26. it has complied and will
comply with all applicable provisions of the FSMA and the Financial
Services Act 2012 with respect to anything done by it in relation
to the Shares to be issued pursuant to the Placing in, from or
otherwise involving, the United Kingdom;
8.27.unless it is otherwise
expressly agreed with the Company and Winterflood, it has not,
directly or indirectly, distributed, forwarded, transferred or
otherwise transmitted this document to any persons within the
United States or to any U.S. Persons, nor will it do any of the
foregoing;
8.28. it represents,
acknowledges and agrees to the representations, warranties and
agreements as set out under the heading ''United States Purchase
and Transfer Restrictions'' in paragraph 9 below;
8.29. it acknowledges that neither
Winterflood nor any of its respective 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 or is
on the basis that it is not and will not be a client of Winterflood
and that Winterflood does not have any duties or responsibilities
to it for providing protection afforded to their respective clients
or for providing advice in relation to the Placing;
8.30. the person whom it specifies
for registration as holder of the Shares will be: (i) itself; or
(ii) its nominee, as the case may be. Neither Winterflood nor the
Company will be responsible for any liability to stamp duty or
stamp duty reserve tax resulting from a failure to observe this
requirement. Each Placee and any person acting on behalf of such
Placee agrees to participate in the Placing and it agrees to
indemnify the Company and Winterflood in respect of the same on the
basis that the Shares will be allotted to the CREST stock account
of Winterflood who will hold them as nominee on behalf of such
Placee until settlement in accordance with its standing settlement
instructions;
8.31. save in the event of
fraud on the part of Winterflood, none of Winterflood, its ultimate
holding companies nor any direct or indirect subsidiary
undertakings of such holding companies, nor any of their respective
directors, members, partners, officers and employees, shall be
responsible or liable to a Placee or any of its clients for any
matter arising out of Winterflood's role as placing agent or
otherwise in connection with the Placing and that where any such
responsibility or liability nevertheless arises as a matter of law
the Placee and, if relevant, its clients, will immediately waive
any claim against any of such persons which the Placee or any of
its clients may have in respect thereof;
8.32. it accepts that if the Placing
does not proceed or the Conditions to the Placing are not satisfied
as regards the Placing or the Shares for which valid applications
are received and accepted are not admitted to trading on the London
Stock Exchange plc's main market for any reason whatsoever, then
none of Winterflood or the Company or the Portfolio Manager, 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;
8.33. if it is acting as a
''distributor'' (for the purposes of the MiFID II Laws):
8.33.1. it acknowledges that
the Target Market Assessment undertaken by the Portfolio Manager
and Winterflood does not constitute: (a) an assessment of
suitability or appropriateness for the purposes of MiFID II; or (b)
a recommendation to any investor or group of investors to invest
in, or purchase, or take any other action whatsoever with respect
to the Shares and each distributor is responsible for undertaking
its own target market assessment in respect of the Shares and
determining appropriate distribution channels;
8.33.2 notwithstanding any Target
Market Assessment undertaken by the Portfolio Manager and
Winterflood, it confirms that, other than where it is a providing
an execution-only service to investors, 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 Shares and that is has considered the
compatibility of the risk/reward profile of such Shares with the
end target market; and
8.33.3 it acknowledges that the
price of the Shares may decline and investors could lose all or
part of their investment; the Shares offer no guaranteed income and
no capital protection; and an investment in the Shares is
compatible only with investors who do not need a guaranteed income
or capital protection, who (either alone or in conjunction with an
appropriate financial or other adviser) are capable of evaluating
the merits and risks of such an investment and who have sufficient
resources to be able to bear any losses that may result
therefrom;
8.34. if the Placee is a natural
person, such Placee is not under the age of majority (18 years of
age in the United Kingdom) on the date of such Placee's agreement
to subscribe for Shares under the Placing and will not be any such
person on the date any such agreement to subscribe under the
Placing is accepted;
8.35. Winterflood and the
Company are entitled to exercise any of their rights under these
Terms and Conditions or any other right in their absolute
discretion without any liability whatsoever to it;
8.36. the representations,
undertakings and warranties contained in this Announcement
(including this Appendix 1) are irrevocable. It acknowledges that
Winterflood and the Company 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
Shares are no longer accurate, it shall promptly notify Winterflood
and the Company;
8.37. 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;
8.38. any of its clients,
whether or not identified to Winterflood, will remain its sole
responsibility and will not become clients of Winterflood for the
purposes of the rules of the Financial Conduct Authority or for the
purposes of any other statutory or regulatory provision;
8.39. it accepts that the allocation
of Shares shall be determined by Winterflood, in its absolute
discretion (following consultation with the Company and the
Portfolio Manager) and that it may scale down the Placing
commitments for this purpose on such basis as it may
determine;
8.40. time shall be of the
essence as regards its obligations to settle payment for the Shares
and to comply with its other obligations under the
Placing;
8.41. it authorises Winterflood to
deduct from the total amount subscribed under the Placing the
aggregation commission (if any) payable on the number of Shares
allocated under the Placing;
8.42. it irrevocably appoints
any director of the Company and any director or duly authorised
employee or agent of Winterflood 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 Shares for which it has given a commitment under the Placing,
in the event of its own failure to do so;
8.43.to the fullest extent permitted
by law, it acknowledges and agrees to the disclaimers contained in
the Announcement, including this Appendix 1; and
8.44. it is capable of being
categorised as a person who is a ''professional client'' or an
''eligible counterparty'' within the meaning of Chapter 3 of the
Financial Conduct Authority's ("FCA") Conduct of Business
Sourcebook.
9. UNITED STATES PURCHASE AND TRANSFER
RESTRICTIONS
Unless it is otherwise expressly
agreed with the Company and Winterflood in these Terms and
Conditions, by participating in the Placing, each Placee
acknowledges and agrees that it will (for itself and any person(s)
procured by it to subscribe for Shares and any nominee(s) for any
such person(s)) be further deemed to acknowledge, undertake
represent and warrant to each of the Company, Winterflood and the
Portfolio Manager that:
9.1. it is not a U.S. Person,
is not located within the United States, is acquiring the Shares in
an offshore transaction meeting the requirements of Regulation S
under the Securities Act ( "Regulation S") and is not acquiring the
Shares for the account or benefit of a U.S. Person;
9.2. the Shares have not been
and will not be registered under the Securities Act or with any
securities regulatory authority of any state or other jurisdiction
of the United States and, subject to certain exceptions, may not be
offered or sold in the United States or to, or for the account or
benefit of, U.S. Persons absent registration or an exemption from
registration under the Securities Act;
9.3. it has not acquired the
Shares as a result of any general solicitation or general
advertising (as these terms are used in Regulation D under the
Securities Act), including advertisements, articles, notices or
other communications published in any newspaper, magazine or
similar media, or broadcast over radio, internet or television, or
any seminar or meeting whose attendees have been invited by general
solicitation or general advertising;
9.4. the Company has not
registered under the Investment Company Act and that the Company
has put in place restrictions for transactions not involving any
public offering in the United States, and to ensure that the
Company is not and will not be required to register under the
Investment Company Act;
9.5. unless the Company
expressly consents in writing otherwise, no portion of the assets
used to purchase, and no portion of the assets used to hold, the
Shares or any beneficial interest therein constitutes or will
constitute the assets of: (i) an ''employee benefit plan'' as
defined in Section 3(3) of the United
States Employee Retirement Income Security Act of 1974, as
amended ("ERISA") that is subject to Part 4 of
subtitle B of fiduciary responsibility or prohibited transaction
Title I of ERISA; (ii) a ''plan'' as defined in Section 4975 of the
U.S. Internal Revenue Code of 1986, as amended (the "U.S. Tax Code"), including an
individual retirement account, that is subject to Section 4975 of
the U.S. Tax Code; or (iii) an entity whose underlying assets
include the assets of any such ''employee benefit plan'' or
''plans'' by reason of ERISA or the U.S. Department of Labor
Regulations C.F.R. 2510.3-101, as and to the extent modified by
section 3(42) of ERISA (the "Plan
Assets Regulation"), or otherwise (including certain
insurance company general accounts) for the purposes of Section 4.6
of ERISA or Section 4975 of the U.S. Tax Code. In addition, if an
investor is a governmental, church, non-U.S. or other employee
benefit plan that is subject to any federal, state, local or
non-U.S. law that is substantially similar to the fiduciary
responsibility or prohibited transaction provisions of Title I of
ERISA or Section 4975 of the U.S. Tax Code, its purchase, holding,
and disposition of the Shares must not constitute or result in a
non-exempt violation of any such substantially similar
law;
9.6. the Company is required
to comply with the US Foreign Account Tax Compliance Act and agrees
to furnish any information and documents the Company may from time
to time request, including but not limited to information required
under such act;
9.7. if any Shares offered and
sold pursuant to Regulation S are issued in certificated form, then
such certificates evidencing ownership will contain a legend
substantially to the following effect unless otherwise determined
by the Company in accordance with applicable law: ''ODYSSEAN
INVESTMENT TRUST PLC" (THE ''COMPANY'') HAS NOT BEEN AND WILL NOT
BE REGISTERED UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940, AS
AMENDED (THE ''INVESTMENT COMPANY ACT''). IN ADDITION, THE
SECURITIES OF THE COMPANY REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE ''SECURITIES ACT''), OR WITH ANY SECURITIES
REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE
UNITED STATES. ACCORDINGLY, THIS SECURITY MAY NOT BE OFFERED, SOLD,
PLEDGED, EXERCISED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT
IN ACCORDANCE WITH THE SECURITIES ACT OR AN EXEMPTION THEREFROM AND
UNDER CIRCUMSTANCES WHICH WILL NOT REQUIRE THE COMPANY TO REGISTER
UNDER THE INVESTMENT COMPANY ACT, IN EACH CASE IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS. FURTHER, NO PURCHASE, SALE OR
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE
MADE UNLESS SUCH PURCHASE, SALE OR TRANSFER WILL NOT RESULT IN THE
ASSETS OF THE COMPANY CONSTITUTING ''PLAN ASSETS'' WITHIN THE
MEANING OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED OR THE PLAN ASSETS REGULATION;'
9.8. if in the future the
investor decides to offer, sell, transfer, assign or otherwise
dispose of the Shares, it will do so only in compliance with an
exemption from the registration requirements of the Securities Act
and under circumstances which: (a) will not require the Company to
register under the Investment Company Act; and (b) will not result
in the assets of the Company constituting ''plan assets'' within
the meaning of ERISA or the Plan Assets Regulation;
9.9. it is purchasing the
Shares for its own account or for one or more investment accounts
for which it is acting as a fiduciary or agent, in each case for
investment only, and not with a view to or for sale or other
transfer in connection with any distribution of the Shares in any
manner that would violate the Securities Act, the Investment
Company Act or any other applicable securities laws;
9.10 it acknowledges that the
Company reserves the right to make inquiries of any holder of the
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 the holding of
Shares by such person will not violate or require registration
under the U.S. securities laws to transfer such Shares or interests
in accordance with the articles of association of the
Company;
9.11. it is entitled to
acquire the Shares under the laws of all relevant jurisdictions
which apply to it, it has fully observed all such laws and obtained
all governmental and other consents which may be required
thereunder and complied with all necessary formalities and it has
paid all issue, transfer or other taxes due in connection with its
acceptance in any jurisdiction of the Shares and that it has not
taken any action, or omitted to take any action, which may result
in the Company, Winterflood, the Portfolio Manager or their
respective directors, officers, agents, employees and advisers
being in breach of the laws of any jurisdiction in connection with
its acceptance of participation in the Placing;
9.12. it has received, carefully
read and understands this Announcement (including this Appendix 1),
and has not, directly or indirectly, distributed, forwarded,
transferred or otherwise transmitted this Announcement (including
this Appendix 1) or any other presentation or offering materials
concerning the Shares to or within the United States or to any U.S.
Persons, nor will it do any of the foregoing;
9.13. if it is acquiring any
Shares as a fiduciary or agent for one or more accounts, it has
sole investment discretion with respect to each such account and
full power and authority to make such foregoing representations,
warranties, acknowledgements and agreements on behalf of each such
account; and
9.14. the Company, Winterflood, the
Portfolio Manager and their respective directors, officers, agents,
employees, advisers and others will rely upon the truth and
accuracy of the foregoing representations, warranties,
acknowledgments and agreements. If any of the representations,
warranties, acknowledgments or agreements made by the investor are
no longer accurate or have not been complied with, the investor
must immediately notify the Company and Winterflood.
10. SUPPLY OF INFORMATION
If Winterflood, the Registrar or the
Company or any of their agents request any information about a
Placee's agreement to subscribe for Shares under the Placing, such
Placee must promptly disclose it to them.
11. DATA PROTECTION
11.1 Each Placee
acknowledges that it has been informed that, pursuant to the
General Data Protection Regulation 2016/679 (the ''DP Legislation'') the Company and/or
the Company's registrar will following Admission, hold personal
data (as defined in the DP Legislation) relating to past and
present shareholders of the Company. Personal data will be retained
on record for a period exceeding seven years after it is no longer
used (subject to any limitations on retention periods set out in
applicable law). The Company's registrar will process such personal
data at all times in compliance with DP Legislation and shall only
process for the purposes set out in the Company's privacy notice
(the ''Purposes'') which is
available for consultation on the Company's website at
www.oitplc.com
(the ''Privacy
Notice'') which include to:
11.1.1
process its personal data to the extent and in such
manner as is necessary for the performance of its obligations under
its respective service contracts, including as required by or in
connection with the Placee's holding of Shares, including
processing personal data in connection with credit and anti-money
laundering checks on it;
11.1.2
communicate with it as necessary in connection with its affairs and
generally in connection with its holding of Shares;
11.1.3
comply with the legal and regulatory obligations of the Company
and/or the Company's registrar; and
11.1.4
process its personal data for the Company's registrar's internal
administration.
11.2
Where necessary to fulfil the
Purposes, the Company will disclose personal data to:
11.2.1
third parties located either within, or outside of the European
Economic Area, if necessary for the Company'sregistrar to perform
its functions, or when it is within its legitimate interests, and
in particular in connection with the holding of Shares;
or
11.2.2
its affiliates, the Company's
registrar or the Portfolio Manager and their respective associates,
some of which may be located outside the European Economic
Area.
11.3
Any sharing of personal data
between parties will be carried out in compliance with the
DP
Legislation and as set out in the
Company's Privacy Notice.
11.4
By becoming registered as a
holder of Shares a person becomes a data subject (as defined under
DP Legislation). In providing the Company's registrar with
information, the Placee hereby represents and warrants to the
Company and the Company's registrar that: (i) it complies in all
material aspects with its data controller obligations under DP
Legislation, and in particular, it has notified any data subject of
the Purposes for which personal data will be used and by which
parties it will be used and it has provided a copy of the Company's
Privacy Notice; and (ii) where consent is legally competent and/or
required under DP Legislation the Placee has obtained the consent
of any data subject to the Company and the Company's registrar and
their respective affiliates and group companies, 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 Purposes).
11.5
Each Placee acknowledges that
by submitting personal data to the Company's registrar (acting for
and on behalf of the Company) where the Placee is a natural person
he or she has read and understood the terms of the Company's
Privacy Notice.
11.6 Each Placee
acknowledges that by submitting personal data to the Company's
registrar (acting for and on behalf of the Company) where the
Placee is not a natural person it represents and warrants
that:
11.6.1
it has brought the Company's Privacy Notice to
the attention of any underlying data subjects on whose behalfor
account the Placee may act or whose personal data will be disclosed
to the Company as a result of the Placee agreeing to subscribe for
Shares; and
11.6.2
the Placee has complied in all other
respects with all applicable data protection legislation in respect
of disclosure and provision of personal data to the
Company.
11.7
Where the Placee acts for or
on account of an underlying data subject or otherwise discloses the
personal data of an underlying data subject, he/she/it shall, in
respect of the personal data it processes in relation to or arising
in relation to the Placing:
11.7.1
comply with all applicable data protection legislation;
11.7.2
take appropriate technical and organisational measures against
unauthorised or unlawful processing of the personal data and
against accidental loss or destruction of, or damage to the
personal data;
11.7.3
if required, agree with the Company and the Company's registrar,
the responsibilities of each such entity as regards relevant data
subjects' rights and notice requirements; and
11.7.4
it shall immediately on demand,
fully indemnify each of the Company and the Company's registrar and
keep them fully and effectively indemnified against all costs,
demands, claims, expenses (including legal costs and disbursements
on a full indemnity basis), losses (including indirect losses and
loss of profits, business and reputation), actions, proceedings and
liabilities of whatsoever nature arising from or incurred by the
Company and/or the Company's registrar in connection with any
failure by the Placee to comply with the provisions set out
above.
12. MISCELLANEOUS
12.1. The rights and remedies of the
Company, Winterflood and the Portfolio Manager 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.
12.2. Each Placee agrees to be
bound by the articles of association of the Company once the
Shares, which the Placee has agreed to subscribe for pursuant to
the Placing, have been acquired by the Placee. The contract to
subscribe for Shares under the Placing and the appointments and
authorities mentioned in this document and all disputes and claims
arising out of or in connection with its subject matter or
formation (including non-contractual disputes or claims) will be
governed by, and construed in accordance with, the laws of England
and Wales. For the exclusive benefit of Winterflood and the
Company, 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.
12.3. In the case of a joint
agreement to subscribe for 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.
12.4. 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.
12.5. Winterflood is entitled, at is
discretion and out of its own resources, at any time to rebate to
some or all investors, or to other parties, part or all of its fees
relating to the Placing.
12.6. ln accordance with the
UK version of Regulation (EU) No 1286/2014 of the European
Parliament and of the Council of 26 November 2014 on key
information documents for packaged retail and insurance-based
investment products and its implementing and delegated acts which
is part of UK law by virtue of the European Union (Withdrawal) Act
2018, as amended by The Packaged Retail and Insurance-based
Investment Products (Amendment) (EU Exit) Regulations 2019(the
"UK PRIIPs Regulation"),
the Portfolio Manager has prepared a key information document (the
"KID") in respect of the
Shares. The KID is made available by the Company to "retail
investors" prior to them making an investment decision in respect
of the Shares at www.oitplc.com.
If you are distributing Shares, it is your
responsibility to ensure that the KID is provided to any clients
that are "retail clients".
12.7. The Portfolio Manager is the
only manufacturer of the Shares for the purposes of the UK PRIIPs
Regulation and Winterflood is not the manufacturer for these
purposes. Winterflood does not make any representation, express or
implied, or accept any responsibility whatsoever for the contents
of the KID prepared by the Portfolio Manager nor accepts any
responsibility to update the contents of the KID in accordance with
the UK PRIIPs Regulation, to undertake any review processes in
relation thereto or to provide the KID to future distributors of
Shares. Each of Winterflood and its affiliates accordingly disclaim
all and any liability whether arising in tort or contract or
otherwise which it or they might have in respect of the key
information document prepared by the Portfolio Manager. Investors
should note that the procedure for calculating the risks, costs and
potential returns in the KID are prescribed by laws. The figures in
the KID may not reflect actual returns for the Company and
anticipated performance returns cannot be guaranteed.