Placing & Offer for subscription of C Shares
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, TO US PERSONS OR IN, INTO OR FROM THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, NEW ZEALAND OR THE REPUBLIC OF SOUTH AFRICA.
This announcement is an advertisement and not a prospectus. This announcement does not constitute or form part of, and should not be construed as, any offer for sale or subscription of, or solicitation of any offer to buy or subscribe for, any securities in Aberdeen All Asia Investment Trust PLC (the "Company") or securities in any other entity, in any jurisdiction, including the United States, nor shall it, or any part of it, or the fact of its distribution, form the basis of, or be relied on in connection with, any contract or investment decision whatsoever, in any jurisdiction. This announcement does not constitute a recommendation regarding any securities. Any investment decision must be made exclusively on the basis of the Prospectus published by the Company and any supplement thereto.
11 September 2013
ABERDEEN ALL ASIA INVESTMENT TRUST PLC
PROPOSED CHANGE OF INVESTMENT MANDATE
AND
PLACING AND OFFER FOR SUBSCRIPTION OF C SHARES
Introduction
The Board of Aberdeen All Asia Investment Trust PLC today announces proposals aimed at enhancing the Company's appeal to a wider range of investors and increasing the size of the Company. The Directors are proposing to achieve this by changing the Company's investment mandate to a Japan-only mandate and raising new capital by way of a placing and offer for subscription of C Shares (the "Issue"). The Board is also proposing to change its management fee arrangements with Aberdeen Asset Management Asia Limited ("Aberdeen Asia") as part of the Proposals.
If the Proposals are approved by Shareholders, the Directors intend to change the name of the Company to Aberdeen Japan Investment Trust PLC ("AJIT").
The implementation of the Proposals is conditional upon Shareholders' approval of:
· the change in investment mandate from an "All Asia" focus to Japan-only;
· the issue of C Shares and the disapplication of pre-emption rights in relation to such issue; and
· the adoption of new articles of association to provide for the rights of the C Shares.
The Company is seeking to raise gross proceeds of up to £100.0 million, by way of a non-pre-emptive placing and offer for subscription of up to 100 million C Shares at an issue price of 100p per C Share.
Applications will be made to the UK Listing Authority for the C Shares issued pursuant to the Placing and Offer for Subscription to be admitted to the premium segment of the Official List and to the London Stock Exchange for such C Shares to be admitted to trading on its Main Market. It is expected that Admission will occur, and that dealings in the C Shares will commence, on Friday, 11 October 2013.
Background to, and reasons for, the Proposals
Since the Company's appointment of Aberdeen Asia as investment manager in October 2006, the Company has delivered good performance. For the period 1 September 2007 to 31 August 2013, the Company has generated an average annual net asset value ("NAV") total return of 7.73 per cent. per annum in sterling terms. By comparison, the Company's benchmark, the MSCI All Countries Asia Pacific (including Japan) Index returned 4.62 per cent. per annum over the same period. This performance has been in spite of challenging market conditions at times.
Despite the overall good performance of the Company, demand for the Company's shares has not increased significantly. In the Board's view, appetite for the Company's current investment mandate combining Asian with Japanese stocks has weakened over the years and it has been difficult to attract new investors. Many prospective investors, especially private wealth managers, wish to be responsible for their own allocation between Japan and Asia and are therefore more inclined to invest in investment vehicles which are either focussed on Asia excluding Japan or are entirely Japan focussed.
The Company has a current market capitalisation of £51.2 million. The Board believes that this relatively small size and the related limited liquidity of the Ordinary Shares in the secondary market, inhibits the Company's ability to attract larger investors. Moreover, the Board's periodic share buyback programmes to manage the discount at which the Company's shares trade has reduced the issued share capital by approximately 12.6 per cent. since October 2006 when Aberdeen Asia was appointed investment manager. Significant growth in the size of the Company has therefore only been possible through market movements. The Company's lack of growth has also meant that it has not been able to reduce its ratio of ongoing charges to NAV.
The Board has for some time been considering ways in which the Company can be strengthened in response to these issues and has been in discussions with the Investment Manager and the Company's broker on ways to grow the Company. As a result of these discussions and in view of the improved outlook for Japanese equity markets, the Board has sought Shareholder views on the prospect of refining the Company's investment mandate to focus entirely on Japanese investments as a way of strengthening the appeal of the Company and increasing the potential for substantial growth.
Following investor feedback and Shareholder consultations, the Directors have concluded there is strong demand for Japan focussed investments with an appropriate currency hedge in place and that there will be material demand for the shares of an Aberdeen managed investment trust with a solely Japanese focussed mandate. The Company has consulted Shareholders representing approximately 30.6% of the issued ordinary share capital who have all indicated their support for the Proposals.
Accordingly, in light of such Shareholder support and having considered various options available to it, the Board believes that the Proposals represent the most favourable option for Shareholders going forward. In particular, the Directors believe that Japan, as a major global economy, offers long term investment potential with good opportunities available at a stock specific level which the Investment Manager is well qualified to take advantage of.
Change of Investment Mandate
The existing investment objective and policy for the Company ("Investment Mandate") consists of an objective to provide capital growth from a concentrated portfolio of companies domiciled, operating or generating revenue in the Asia-Pacific region, including Japan, through investing principally in global equity securities or equity related securities.
If Shareholders approve the proposed change of Investment Mandate in accordance with the Proposals, then the Company's investment objective will be changed so as to aim to achieve long term capital growth principally through investment in listed Japanese companies which are believed by the Investment Manager to have above average prospects for growth. The Company's holdings will generally be listed in Japan although the Portfolio may also include companies traded on stock markets outside Japan whose consolidated revenue is earned predominantly from trading in, or consolidated net assets are predominantly held in, Japan. Under the proposed new Investment Mandate, the Company's underlying Yen net exposure will be Sterling-hedged, to the extent the Board deems necessary, against fluctuations in the Yen Sterling exchange rate.
The Company's gearing policy, which is subject to a maximum gearing level of 25 per cent. of net assets at the time of drawdown (albeit that in practice the Board aims to restrict the Company's borrowing to approximately 20 per cent. of net assets), will remain the same under the new Investment Mandate.
Assuming the approval of the Proposals by Shareholders, the Company will be required to realise its non- Japanese investments and re-invest the proceeds in line with the new Investment Mandate. As at 9 September 2013 approximately 75 per cent. of the Company's portfolio was represented by investments outside Japan. Given the relatively liquid nature of the Portfolio, the Investment Manager expects that the realignment of that proportion of the Portfolio not presently invested in Japan will be completed within three weeks of the Resolution being passed at the General Meeting. The Investment Manager anticipates that the transition of the Portfolio to bring it into line with the new Investment Mandate and the investment of new funds raised as a result of the Issue, as well as conversion of the C Shares, will be largely completed within three weeks of the General Meeting.
Further details of the new Investment Mandate and, in particular, the proposed limitations and restrictions within the new Portfolio, are set out in the Shareholder Circular and the Prospectus expected to be published today.
Currency Hedging
The Board recognises that, while the investment opportunities in Japan are good, performance in Sterling terms of some of the Company's portfolio may be subject periodically to significant fluctuations because of changes in the value of the Yen. The effect on the Yen of the radical but welcome shift in the Japanese government's economic policies under Abenomics is a good example of this over the last nine months. The new investment mandate therefore provides for the Board to arrange an appropriate hedge for the underlying Yen net exposure in Sterling terms through the use of rolling forwards, options or other similar derivative instruments (albeit that such Sterling hedge cover may at times result in further volatility of the value of the portfolio). The Company's exposure to Yen fluctuations will be moderated by the natural hedge inherent in any borrowing in Yen as well as through exposure to Japanese companies which have significant sources of revenue from exports of goods and from non-Japanese operations.
On this basis, the Board expects that approximately 50 per cent. of the Company's Yen net assets will be hedged against fluctuations in the Yen Sterling exchange rate. The Board will monitor the hedging policy and its effects on the Company's performance on a regular basis and, advised by the Investment Manager, will review the levels of Sterling currency hedging in place over the longer term.
Aberdeen Asia's Track Record
The Company's underlying portfolio in Yen terms will, if the Proposals are approved, be similar to that of
Aberdeen Japan Growth Fund, a sub-fund of the Aberdeen Investment Funds ICVC which is a UK authorised open-ended investment company. Aberdeen Japan Growth Fund is managed by the Investment Manager and uses the same model portfolio as a base starting point from which the Company's portfolio will be principally constructed in accordance with its proposed new investment mandate albeit that the Company's investments will be restricted to listed companies and will have an 'All-Cap' investment approach.
The following table demonstrates Aberdeen Japan Growth Fund's performance against the Japan Lipper average and the TOPIX Index. The table is for illustrative purposes only and is not intended as a forecast of the Company's future performance. In particular, it should be noted that the Aberdeen Japan Growth Fund is an open-ended investment company while the Company is a closed ended investment trust and in each case, different management fee structures apply.
|
|
Ytd - 8 months |
1 year |
3 years |
5 years |
6 years |
|
|
% |
% |
% |
% |
% |
|
Aberdeen Japan Growth Fund 'A' |
13.24 |
19.24 |
40.05 |
55.56 |
33.64 |
|
Japan Lipper Average |
20.21 |
27.02 |
28.95 |
31.96 |
18.34 |
|
TOPIX Index |
20.48 |
26.67 |
25.07 |
27.82 |
19.75 |
All periods to 31 August 2013
NAV to NAV accounting for fees, net income reinvested, GBP
Sources: Aberdeen Asset Management and Lipper
The Board believes Aberdeen Asia's focus on a bottom-up investment process, together with careful stock selection, has served the Company well in the past, and as the above numbers show, it has delivered more than satisfactory performance from investing in Japan over time. Going forward, the Board believes that this style of investment should continue to serve the Company well through investing solely in Japan. Accordingly, the Board has decided that Aberdeen Asia should remain as Investment Manager of the Company.
Changes to the Investment Management Agreement
If the proposed Investment Mandate changes are approved by Shareholders at the General Meeting, it is proposed that the current investment management fee arrangements with Aberdeen Asia will be simplified. It is proposed that under the revised arrangements, Aberdeen Asia will be entitled to a basic annual fee of 0.95 per cent. of the value of the total assets up to £50 million decreasing to 0.75 per cent. of the value of the total assets over and above £50 million. There will no longer be a performance fee. Under current arrangements, Aberdeen Asia is entitled to a fixed annual fee of 0.75 per cent. of the value of total assets with a performance fee of up to 15 per cent. of the Company's outperformance of the MSCI All Countries Asia Pacific Index (including Japan) (in Sterling Terms) for the year in question.
C Share Issue
Conditional upon approval of the Proposals at the General Meeting, the Board is proposing to raise new capital by way of an issue of C Shares. Up to 100 million C Shares at an issue price of 100p per C Share will be available under a Placing and Offer for Subscription.
Typically, C shares are used by investment companies as a way of raising money from existing and new investors and constructing an investment portfolio over a period of time without exposing existing shareholders to uninvested cash, with the C shares converting into ordinary shares once the cash has substantially been invested. Prior to conversion of the C Shares taking place, all the costs and expenses of the Company (including the management fee as revised under the Proposals) will be apportioned between the separate pools of assets attributable to the Ordinary Shares and C Shares respectively.
Benefits of the Issue
The principal benefits for existing Shareholders and new investors of increasing the size of the Company through a C Share Issue include:
· investors are able to make a larger investment in the Company than the day-to-day secondary market liquidity in the Ordinary Shares may permit;
· the C Shares will convert into Ordinary Shares on a NAV for NAV basis, so neither the existing Ordinary Shareholders nor the new investors will suffer any NAV dilution on conversion of the C Shares into Ordinary Shares;
· the Company's market capitalisation will increase, which should help to make the Company more attractive to a wider and more diversified investor base and further enhance the secondary market liquidity in the Ordinary Shares; and
· the Company's fixed running costs will be spread across a wider capital base, thereby reducing the percentage of those costs per Ordinary Share.
The Directors believe that there are additional benefits for existing Ordinary Shareholders, principally that:
· the NAV of the existing Ordinary Shares will not be diluted by the expenses associated with raising the new capital or investing the net cash raised pursuant to the Issue, all of which will be paid out of the assets attributable to the C Shares; and
· the C Shares will be rated as a separate pool of capital and existing Ordinary Shareholders will not be exposed to the effects of the Company holding the substantial amount of net cash raised pursuant to the Issue pending the investment of that cash.
Share Buy Backs
The Board is keen to ensure that, in so far as it is possible, should a Shareholder not wish to remain invested in the Company following the proposed change of Investment Mandate, there should be a reasonably attractive form of exit opportunity. The Board believes there will be material demand for Ordinary Shares and Shareholders will be able to sell their Ordinary Shares in the market in the usual way at any time. Should the discount to NAV for the Ordinary Shares narrow following the announcement of the Proposals, Shareholders choosing to sell their holding in the market will be able to do so at a more favourable price than has prevailed over recent years.
The Board intends to use its current buy back authority to facilitate an exit for those Shareholders not wishing to remain invested in the Company going forward by operating an enhanced share buyback policy in the period up to the date of the General Meeting during which it will seek to reduce the discount to NAV at which the Company's shares trade by buying back Ordinary Shares. There can be no guarantee that the level of discount to be maintained will be satisfactory or that the price at which a Shareholder is able to exit his or her holding will represent a narrower discount than the price at which the Ordinary Shares currently trade. There are many factors beyond the control of the Board which may influence the price at which the Ordinary Shares will trade in such period.
As at 9 September 2013 (being the latest practicable date prior to the publication of the Shareholder Circular), the Company's Ordinary Shares were trading at 351.0p per share (representing a discount of 6.8 per cent. to the NAV per share). In the twelve month period to 31 August 2013 the Ordinary Shares traded at an average discount of 9.6 per cent. to the NAV per share.
Conditions of the Issue
The Issue, which has not been underwritten, is conditional on (among other things):
· The Resolution being passed at the General Meeting
· The Company and the Investment Manager having complied with all of their respective obligations under the Placing and Offer Agreement which fall to be performed or satisfied on or prior to Admission;
· the Placing and Offer Agreement not being terminated in accordance with its terms at any time prior to Admission; and
· Admission occurring by 8.00 a.m. on Friday 11 October 2013 (or such later date as the Company, the Investment Manager and J.P. Morgan Cazenove may agree, being in any event not later than 31 October 2013).
Expected Timetable
2013
Placing and Offer for Subscription open 11 September
Latest time and date for receipt of applications under
the Offer for Subscription 11.00 a.m. on 4 October
Latest time and date for receipt of commitments
under the Placing 12.00 Noon on 7 October
General Meeting to approve the new investment mandate,
adopt New Articles and approve the Issue 2.00 p.m. on 7 October
Result of Placing and Offer for Subscription announced 8 October
Admission of C Shares to premium segment of Official List
and to trading on London Stock Exchange's Main Market 8.00 a.m. on 11 October
CREST stock accounts in respect of C Shares
issued in uncertificated form credited 11 October
Prospectus
The prospectus relating to the Company prepared in accordance with the Prospectus Rules in connection with the Issue and the applications for Admission (the "Prospectus") will be submitted to the National Storage Mechanism and will shortly be available for inspection at: www.morningstar.co.uk/uk/nsm
The Prospectus will also shortly be available at www.all-asia.co.uk.
Copies of the Prospectus may be collected, free of charge, during normal business hours up to 11 October 2013 from the Company's registered office at Aberdeen Asset Managers Limited, Bow Bells House, 1 Bread Street, London EC4M 9HH. Alternatively, copies of the Prospectus can be requested by calling 0500 00 00 40 before the Offer for Subscription closes.
Shareholder Circular
The Company is posting a circular to Shareholders advising them of the proposed change of Investment Mandate and the Placing and Offer for Subscription. A copy of that circular will be submitted to the National Storage Mechanism and will shortly be available for inspection at: www.morningstar.co.uk/uk/nsm.
Enquiries
William Simmonds J.P. Morgan Cazenove 0207 588 2828
William Hemmings Aberdeen Asset Managers Limited 0207 463 6223
Gary Jones Aberdeen Asset Managers Limited 0207 463 6295
Notes
J.P.Morgan Securities plc (which conducts its UK investment banking business as "J.P.Morgan Cazenove") is acting for Aberdeen All Asia Investment Trust PLC and no one else in connection with the matters referred to in this announcement and will not be responsible to anyone other than Aberdeen All Asia Investment Trust PLC for providing the protections afforded to clients of J.P.Morgan Securities plc or for providing advice in relation to the matters referred to in this announcement.
This announcement does not constitute or form part of any offer or invitation to sell, or any solicitation of any offer to purchase, any shares offered by the Company. Any decision to apply for C shares pursuant to the Placing or Offer for Subscription should be made only on the basis of the information contained in the Prospectus.
Words and expressions defined in the Prospectus have the same meanings when used in this announcement.
Neither the National Storage Mechanism website nor the Company's website nor the content of any website accessible from hyperlinks on those websites (or any other website) is (or is deemed to be) incorporated into, or forms (or is deemed to form) part of this announcement.
APPENDIX: FURTHER DETAILS OF THE PLACING
THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, CANADA, AUSTRALIA, JAPAN OR SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL OR TO U.S. PERSONS. THE INFORMATION CONTAINED HEREIN DOES NOT CONSTITUTE AN OFFER OF SECURITIES FOR SALE INCLUDING IN THE UNITED STATES, CANADA, AUSTRALIA, JAPAN, NEW ZEALAND OR THE REPUBLIC OF SOUTH AFRICA OR TO U.S. PERSONS.
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THE TERMS AND CONDITIONS OF THE PLACING SET OUT IN THIS APPENDIX ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA WHO ARE QUALIFIED INVESTORS (WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE EU PROSPECTUS DIRECTIVE (WHICH MEANS DIRECTIVE 2003/71/EC AND INCLUDES ANY RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN ANY MEMBER STATE) (THE "PROSPECTUS DIRECTIVE"); (B) IN THE UNITED KINGDOM, 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"). THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) DOES NOT CONSTITUTE AN OFFER OR AN INVITATION TO ACQUIRE OR DISPOSE OF ANY SECURITIES IN THE COMPANY.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF A SUBSCRIPTION FOR PLACING SHARES.
Persons (including individuals, funds or otherwise) who are invited to and who choose to participate in the Placing, by making an oral or written offer to subscribe for C Shares (the "Placees"), will be deemed to have read and understood this Announcement (including this Appendix) in its entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, indemnities, acknowledgements, agreements and undertakings contained herein. In particular each such Placee represents, warrants and acknowledges that:
1. it is a Relevant Person (as defined above) and undertakes that it will acquire, hold, manage or dispose of any C Shares that are allocated to it for the purposes of its business;
2. in the case of a Relevant Person in a Member State of the European Economic Area which has implemented the Prospectus Directive (a "Relevant Member State"), (i) it is a Qualified Investor, and (ii) in the case of any C Shares acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive: (a) the C Shares acquired by it in the Placing have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any Relevant Member State other than Qualified Investors or in circumstances in which the prior consent of J.P. Morgan Securities plc ("JPMC") and the Company has been given to the offer or resale; or (b) where C Shares have been acquired by it on behalf of persons in any Relevant Member State other than Qualified Investors, the offer of those C Shares to it is not treated under the Prospectus Directive as having been made to such persons;
3 in the case of a Placee in a Member State of the European Economic Area which has implemented the Alternative Investment Fund Managers Directive (which means Directive 2011/61/EU)(the "AIFMD"), it is a person to whom C Shares may lawfully be marketed under AIFMD or under the applicable implementing legislation (if any) of such Member State; and
4. it is outside the United States, is not a U.S Person (within the meaning Regulation S ("Regulation S") under the U.S. Securities Act of 1933, as amended (the "Securities Act")), is subscribing for C Shares in an "offshore transaction" (within the meaning of Regulation S) and is purchasing the C Shares for its own account or is purchasing the C Shares for an account with respect to which it exercises sole investment discretion and that it (and any such account) is outside the United States and is not a U.S. Person or it is a dealer or other professional fiduciary in the United States acting on a discretionary basis for non-U.S. beneficial owners (other than an estate or trust), in reliance upon Regulation S.
The Company and JPMC will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and agreements.
This Announcement (including this Appendix) does not constitute an offer or invitation to underwrite, subscribe for or otherwise acquire or dispose of any securities or investment advice in any jurisdiction, including without limitation, the United States, Australia, Canada, Japan, New Zealand or the Republic of South Africa or in any jurisdiction in which such offer or invitation is unlawful (the "Restricted Jurisdictions") and the information contained herein is not for publication or distribution, directly or indirectly, to persons in any Restricted Jurisdiction or to U.S. Persons. No public offer of securities of the Company is being made other than in the United Kingdom.
In particular, the C Shares referred to in this Appendix 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. The C Shares have not been approved or disapproved by the US Securities and Exchange Commission, any State securities commission or other regulatory authority in the United States, nor have any of the foregoing authorities passed upon or endorsed the merits of the Placing or the accuracy or adequacy of this Announcement (including this Appendix) or the prospectus published by the Company on 11 September 2013 (the "Prospectus"). Any representation to the contrary is a criminal offence in the United States. 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") and investors will not be entitled to the benefits of the Investment Company Act. Persons receiving this Announcement (including this Appendix) (including custodians, nominees and trustees) must not forward, distribute, mail or otherwise transmit it in or into the United States or to U.S. Persons or use the United States mails, directly or indirectly, in connection with the Placing.
The C Shares may not be offered, sold or transferred within the United States. The C Shares are being offered and sold outside the United States to persons who are not U.S. Persons in reliance on Regulation S.
Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of this Announcement (including this Appendix) should seek appropriate advice before taking any action.
In this Announcement (including this Appendix), unless the context otherwise requires, Placee means a Relevant Person (including individuals, funds or others) on whose behalf a commitment to subscribe for C Shares has been given.
Details of the Placing Agreement and the C Shares
JPMC has entered into a placing and offer for subscription agreement (the "Placing Agreement") with the Company and Aberdeen Asset Management Asia Limited (the "Investment Manager") under which JPMC has, on the terms and subject to the conditions set out therein, undertaken, as agent for the Company, to use its reasonable endeavours to procure subscribers for the C Shares at the Placing Price of 100.0 pence per C Share.
The Ordinary Shares arising on conversion of the C Shares will rank pari passu with the Ordinary Shares then in issue for dividends and other distributions declared, made or paid by reference to a record date falling after the calculation time relating to conversion.The C Shares will be issued free of any encumbrance, lien or other security interest.
Application for listing and admission to trading
Application will be made to the UK Listing Authority for admission of the C Shares to the premium segment of the Official List of the UK Listing Authority (the "Official List") and to London Stock Exchange plc for admission to trading of the C Shares on the Main Market (together, "Admission"). It is expected that Admission will become effective on or around 11 October 2013 and that dealings in the C Shares will commence at that time.
Bookbuild
JPMC will today commence the bookbuilding process in respect to the Placing (the "Bookbuild") to determine demand for participation in the Placing by Placees. This Appendix gives details of the terms and conditions of, and the mechanics of participation in, the Placing.
JPMC and the Company shall be entitled to effect the Placing by such alternative method to the Bookbuild as they may, in their sole discretion, determine.
Participation in, and principal terms of, the Placing
1. JPMC is arranging the Placing as sole bookrunner and agent of the Company.
2. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by JPMC. JPMC including any holding company of it, any subsidiary, branch or affiliate of JPMC (each an "Affiliate") are entitled to enter bids in the Bookbuild as principal.
3. The C Shares will be offered at the price of 100.0 pence per Placing Share (the "Placing Price").
4. To bid in the Bookbuild, Placees should communicate their bid by telephone to their usual sales contact at JPMC. Each bid should state the number of C Shares which the prospective Placee wishes to subscribe for at the Placing Price. Bids may be scaled down by JPMC on the basis referred to in paragraph 8 below.
5. The Bookbuild is expected to close no later than Noon (London time) on 7 October 2013 but may be closed earlier or later at the sole discretion of JPMC. JPMC may, in agreement with the Company, accept bids that are received after the Bookbuild has closed.
6. A bid in the Bookbuild will be made on the terms and subject to the conditions in this Announcement (including this Appendix) and will be legally binding on the Placee on behalf of which it is made and except with JPMC's consent will not be capable of variation or revocation after the time at which it is submitted.
7. Each prospective Placee's allocation will be agreed between JPMC and the Company and will be confirmed orally by JPMC (as agent for the Company) following the close of the Bookbuild and a trade confirmation will be despatched as soon as possible thereafter in accordance with the standing arrangements in place between JPMC and the Placee. JPMC's oral confirmation to such Placee and each Placee's oral commitment to accept the same will constitute a legally binding agreement pursuant to which each such Placee will be required to accept the number of C Shares allocated to the Placee at the Placing Price and otherwise on the terms and subject to the conditions set out in this Appendix and in the Prospectus. Each Placee's obligations will be owed to the Company and to JPMC. Following the oral confirmation referred to above, each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to JPMC, to settle placing trades on a delivery versus payment basis through the facilities of CREST against an amount equal to the product of the Placing Price and the number of C Shares such Placee has agreed to subscribe. The Company shall allot such C Shares to JPMC as agent for the Placees pending delivery to the Placees in accordance with standing arrangements in place between JPMC and the Placee.
8. Subject to paragraphs 4 and 5 above, JPMC may choose to accept bids, either in whole or in part, on the basis of allocations determined in consultation with the Company and the Investment Manager and may scale down any bids for this purpose on such basis as JPMC may determine. JPMC may also, notwithstanding paragraphs 4 and 5 above, subject to the prior consent of the Company, (i) allocate C Shares after the time of any initial allocation to any person submitting a bid after that time and (ii) allocate C Shares after the Bookbuild has closed to any person submitting a bid after that time.
9. Except as required by law or regulation, no press release or other announcement will be made by JPMC or the Company using the name of any Placee (or its agent), in its capacity as Placee (or agent), other than with such Placee's prior written consent.
10. Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all C Shares to be acquired pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
11. No commissions will be paid to Placees or by Placees in respect of any C Shares.
12. All obligations under the Bookbuild and Placing will be subject to fulfilment or (where applicable) waiver of the conditions referred to below under "Conditions of the Placing" and to the Placing not being terminated on the basis referred to below under "Right to terminate under the Placing Agreement".
13. By participating in the Bookbuild, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
14. JPMC shall be entitled to effect the Bookbuild and the Placing by such method as it shall in its sole discretion determine. To the fullest extent permissible by law, neither JPMC, nor any 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 a Placee or otherwise). In particular, neither JPMC, nor any of its Affiliates nor any person acting on their behalf shall have any liability to Placees in respect of their conduct of the Bookbuild or of such alternative method of effecting the Placing as JPMC and the Company may agree.
15. All obligations of JPMC under the Placing will be subject to fulfilment of the conditions referred to below under "Conditions of the Placing".
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms. JPMC's obligations under the Placing Agreement are conditional on, inter alia:
(a) the representations and warranties contained in the Placing Agreement being true and accurate and not misleading on and as of the date of the Placing Agreement and immediately prior to Admission;
(b) the Company and the Investment Manager having complied with and performed their respective obligations under the Placing Agreement to the extent that the same fall to be performed before Admission (including, without limitation, delivery of the documents referred to and in accordance with the Placing Agreement);
(c) there not having occurred before Admission any development or event (or any development or event involving a prospective change of which the Company or the Investment Manager (as the case may be) is aware or might reasonably be expected to be aware) which will or is likely to have a material adverse effect on the condition (financial, operational, legal or otherwise), prospects, solvency, liquidity, management, results of operations, financial position, business or general affairs of the Company or of the Investment Manager or any other member of the Investment Manager's group whether or not arising in the ordinary course of business (a "Material Adverse Change");
(d) the Company allotting and issuing, subject only to Admission, the C Shares in accordance with the Placing Agreement; and
(e) Admission occurring not later than 8.00am (London time) on 11 October 2013 or such other date as the Company, the Investment Manager and JPMC may otherwise agree, but not being later than close of business on 31 October 2013.
If (i) any of the conditions contained in the Placing Agreement, including those described above, are not fulfilled or (where applicable) waived by JPMC by the respective time or date where specified (or such later time or date as the Company and JPMC may agree), (ii) any such conditions become incapable of being fulfilled or (iii) the Placing Agreement is terminated in the circumstances specified below, the Placing will lapse and the Placee's rights and obligations hereunder in relation to the C Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by the Placee in respect thereof.
JPMC may, at its discretion and upon such terms as it thinks fit, waive compliance by the Company or the Investment Manager with the whole or any part of any of their respective obligations in relation to the conditions in the Placing Agreement (save that the above condition relating to Admission taking place and the Company's allotment of the C Shares may not be waived) or extend in writing the time required for the fulfilment of any such conditions in respect of all or any part of the performance thereof. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement (including this Appendix).
Neither JPMC nor the Company shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision it may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition to the Placing nor for any decision they may make as to the satisfaction of any condition or in respect of the Placing generally and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of JPMC.
By participating in the Placing, each Placee agrees that its rights and obligations hereunder terminate only in the circumstances described above and under "Right to terminate under the Placing Agreement" below, and will not be capable of rescission or termination by the Placee.
Lock-up
The Company has agreed with JPMC that it will not, without the prior written consent of JPMC, during the period of 180 days from the date of Admission directly or indirectly: (i) issue, offer, lend, mortgage, assign, charge, pledge, sell, contract to sell or issue, sell any option or contract to purchase, purchase any option or contract to sell or issue, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, any shares in the capital of the Company ("Shares") or any interest in Shares or any securities convertible into or exercisable or exchangeable for, or substantially similar to, Shares or any interest in Shares or file any registration statement under the Securities Act or file or publish any prospectus with respect to any of the foregoing; or (ii) enter into any swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Shares, whether any such swap or transaction described in (i) or (ii) above is to be settled by delivery of the Shares or such other securities, in cash or otherwise.
Right to terminate under the Placing Agreement
JPMC is entitled, at any time before Admission, to terminate the Placing Agreement in accordance with the terms of the Placing Agreement in certain circumstances, including if in the opinion of JPMC:
(a) any statement contained in the Prospectus is or has become untrue or incorrect in any material respect or misleading; or
(b) it has become necessary to publish a Supplementary Prospectus; or
(c) the Warranties are not true and accurate or have become misleading (or would not be true and accurate or would be misleading if they were repeated at any time before Admission) by reference to the facts subsisting at the time when the notice referred to above is given; or
(d) the Company or the Investment Manager fails to comply with any of their respective obligations under the Placing Agreement; or
(e) there has been a Material Adverse Change; or
(f) there has been a force majeure event as specified in the Placing Agreement which would, in the opinion of JPMC, make it impracticable or inadvisable to proceed with the Issue.
By participating in the Placing, Placees agree that the exercise by JPMC of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of JPMC and that it need not make any reference to Placees and that it shall have no liability to Placees (or to any other person whether acting on behalf of the Placee or otherwise) whatsoever in connection with any such exercise or failure to so exercise.
Prospectus
The Prospectus approved by the UK Listing Authority will be published shortly in connection with the Placing and Offer for Subscription and Admission. A Placee may only rely on the information contained in the Prospectus in deciding whether or not to participate in the Placing.
Each Placee, 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 that the Prospectus is exclusively the responsibility of the Company and the persons stated therein as accepting responsibility for the Prospectus and confirms to JPMC, the Company and the Investment Manager that it has neither received nor relied on any information, representation, warranty or statement made by or on behalf of JPMC (other than the amount of the relevant Placing participation in the oral confirmation given to Placees and the trade confirmation referred to below), any of its Affiliates, any persons acting on its behalf or the Company other than the Prospectus and neither JPMC, nor any of its Affiliates, nor any persons acting on their behalf, nor the Company, nor the Investment Manager will be liable for the decision of any Placee to participate in the Placing based on any other information, representation, warranty or statement which the Placee may have obtained or received (regardless of whether or not such information, representation, warranty or statement was given or made by or on behalf of any such persons) other than the Prospectus. By participating in the Placing, each Placee acknowledges to and agrees with JPMC for itself and as agent for the Company that, except in relation to the information contained in this Announcement (including this Appendix) and the Prospectus, it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
Registration and Settlement
Settlement of transactions in the C Shares (ISIN:GB00BBGTJ556) following Admission will take place within the CREST system, subject to certain exceptions. JPMC and the Company reserve the right to require settlement for and delivery of the C Shares (or a portion thereof) to Placees by such other means that they deem necessary if delivery or settlement is not practicable within the CREST system within the timetable set out in this Announcement (including this Appendix) or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Following the close of the Bookbuild for the Placing, each Placee allocated C Shares in the Placing will be sent a trade confirmation in accordance with the standing arrangements in place with JPMC stating the number of C Shares allocated to it at the Placing Price, the aggregate amount owed by such Placee to JPMC and settlement instructions. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions that it has in place with JPMC. The Company will issue shares on a delivery versus payment basis.
It is expected that settlement will be on 11 October 2013 on a delivery versus payment/T+3 basis in accordance with the instructions set out in the trade confirmation.
Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above LIBOR as determined by JPMC.
Each Placee is deemed to agree that, if it does not comply with these obligations, JPMC may sell any or all of the C Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for JPMC's account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of such C Shares on such Placee's behalf. By communicating a bid for C Shares, each Placee confers on JPMC all such authorities and powers necessary to carry out any such sale and agrees to ratify and confirm all actions which JPMC lawfully takes in pursuance of such sale.
If C Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation.
Insofar as C Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such C Shares should, subject as provided below, be so registered free from any liability to UK 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 C Shares, neither JPMC nor the Company shall be responsible for the payment thereof. Placees will not be entitled to receive any fee or commission in connection with the Placing.
Representations, warranties and further terms
By participating in the Placing each Placee (and any person acting on such Placee's behalf):
1. represents and warrants that it has read this Announcement (including this Appendix), in its entirety and acknowledges that its acquisition of C Shares is subject to and based upon the Prospectus and 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);
2. acknowledges that the Ordinary Shares are listed on the premium segment of the Official List of the UK Listing Authority, and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the FCA (collectively "Exchange Information"), which includes a description of the nature of the Company's business and the Company's most recent balance sheet and profit and loss account and 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;
3. acknowledges that neither JPMC nor the Company nor the Investment Manager nor any of their respective Affiliates nor any person acting on behalf of any of them has provided, and will not provide it, with any material regarding the C Shares or the Company; nor has it requested any of JPMC, the Company, any of their Affiliates or any person acting on behalf of any of them to provide it with any such information;
4. acknowledges that the content of this Announcement (including this Appendix) is exclusively the responsibility of the Company and that none of JPMC, its Affiliates or any person acting on JPMC's behalf has or shall have any liability for any information, representation or statement contained in this Announcement (including this Appendix), the Prospectus or any information previously published by or on behalf of the Company (including any Exchange Information) and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this Announcement (including this Appendix), the Prospectus or otherwise. Each Placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing itself to acquire the C Shares is contained in this Announcement (including this Appendix), the Prospectus and any Exchange Information, such information being all that it deems necessary to make an investment decision in respect of the C Shares and that it has neither received nor relied on any other information given or representations, warranties or statements made by any of JPMC, the Company or the Investment Manager and neither JPMC nor the Company nor the Investment Manager will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person. Each Placee further acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing;
5. acknowledges that it has not relied on any information relating to the Company contained in any research reports prepared by JPMC, its Affiliates or any person acting on its or any of its Affiliates' behalf and that neither JPMC nor any person acting on behalf of it nor any of its Affiliates has or shall have any liability for any publicly available or filed information (including any Exchange Information) or any information, representation, warranty or statement relating to the Company contained therein or otherwise, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
6. if in a Member State of the European Economic Area, unless otherwise specifically agreed with JPMC in writing, represents and warrants that it is a Qualified Investor within the meaning of the Prospectus Directive;
7. if in a Member State of the European Economic Area which has implemented AIFMD, represents and warrants that it is a person to whom C Shares may lawfully be marketed under AIFMD or under the applicable implementing legislation (if any) of such Member State;
8. if in the UK, represents and warrants that it is a Qualified Investor and also a person (i) who has 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) to whom this Announcement (including this Appendix) may otherwise be lawfully communicated;
9. represents and warrants that it is not, and at the time the C Shares are acquired will not (unless an exemption under the relevant securities laws is available) be a resident of Australia, Canada, Japan, New Zealand or the Republic of South Africa, and, each of it and the beneficial owner(s) of the C Shares is, and at the time the C Shares are acquired will be, acquiring the C Shares in an "offshore transaction" in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act, and has such knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the C Shares, will not look to JPMC for all or part of any such loss it may suffer, is able to bear the economic risk of an investment in the C Shares, is able to sustain a complete loss of the investment in the C Shares and has no need for liquidity with respect to its investment in the C Shares;
10. represents and warrants that it is, or at the time the C Shares are acquired that it will be, the beneficial owner of such C Shares, or that the beneficial owner of such C Shares is not (unless an exemption under the relevant securities laws is available) a resident of Australia, Canada, Japan, New Zealand or the Republic of South Africa and that it (i) is not a U.S. Person and is acquiring the C Shares for its own account or (ii) is outside the United States and is acquiring the C Shares for the account of a non-U.S. Person with respect to which it exercises sole investment discretion or (iii) it is a dealer or other professional fiduciary in the United States acting in reliance upon Regulation S under the Securities Act on a discretionary basis for a non-U.S. Person;
11. represents and warrants that it is not an employee benefit plan as defined in section 3(3) of the United States Employee Retirement Income Security Act of 1974 and the regulations promulgated thereunder (as amended from time to time, "ERISA") (whether or not subject to the provisions of Title 1 of ERISA) or an individual retirement account as defined in section 408 of the Internal Revenue Code;
12. acknowledges that no action has been or will be taken by any of the Company, JPMC or any person acting on behalf of the Company or JPMC that would, or is intended to, permit a public offer of the C Shares in any country or jurisdiction other than the United Kingdom where any such action for that purpose is required;
13. acknowledges that the C Shares have not been and will not be registered or qualified for offer and sale nor will a prospectus be cleared in respect of any of the C Shares under the securities laws or legislation of any Restricted Jurisdiction and, subject to certain exceptions, may not be offered, sold, or delivered or transferred, directly or indirectly, within those jurisdictions;
14. acknowledges that the C Shares have not been and will not be registered under the Securities Act or with any State or other jurisdiction of the United States, nor approved or disapproved by the U.S. Securities and Exchange Commission, any state securities commission in the United States or any other United States regulatory authority, that the Company has not been registered as an "investment company" under the Investment Company Act and that the C Shares are being offered and sold on behalf of the Company in "offshore transactions" (within the meaning of Regulation S) to persons who are not U.S. Persons;
15. acknowledges that no representation has been made as to the availability of Rule 144 or any other exemption under the Securities Act for the reoffer, resale, pledge or transfer of the C Shares;
16. represents and warrants that neither it nor its affiliates nor any person acting on its or their behalf have engaged or will engage in any "directed selling efforts" (within the meaning of Regulation S) with respect to the C Shares in the United States;
17. represents and warrants that the issue to it, or the person specified by it for registration as holder, of C Shares will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary receipts and clearance services) and that the C Shares are not being acquired in connection with arrangements to issue depositary receipts or to transfer C Shares into a clearance system;
18. represents and warrants that it has complied with its obligations under the Criminal Justice Act 1993, section 118 of the Financial Services and Markets Act 2000 ("FSMA") and in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000, the Terrorism Act 2006, the Money Laundering Regulations 2007 (the "Regulations") and the Money Laundering Sourcebook of the FCA 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;
19. acknowledges that it is a term of the Placee's participation in the Placing that, to ensure compliance with the Regulations, JPMC may, in its absolute discretion, require verification of identity of it. Pending the provision to JPMC of evidence of identity, definitive certificates for the C Shares may be retained and/or the delivery of the C Shares into CREST may be delayed, each at JPMC's absolute discretion. JPMC also reserves the right to reject in whole or in part, or to scale down or limit, any participation;
20. if a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, represents and warrants that the C 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 Relevant Member State other than Qualified Investors (within the meaning of the Prospectus Directive), or in circumstances in which the prior consent of JPMC has been given to the offer or resale;
21. represents and warrants that it has not offered or sold and, prior to the expiry of a period of six months from Admission, will not offer or sell any C Shares to persons in the United Kingdom, 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 and which will not result in an offer to the public in the United Kingdom within the meaning of section 85(1) of the FSMA;
22. represents and warrants that it has not offered or sold and will not offer or sell any C Shares to persons in the European Economic Area 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 within the meaning of the Prospectus Directive;
23. represents and warrants that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) relating to the C Shares in circumstances and in a manner in which section 21(1) of the FSMA does not require approval of the communication by an authorised person;
24. represents and warrants that it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the C Shares in, from or otherwise involving, the United Kingdom;
25. represents and warrants that (i) it and any person on whose behalf it is acting is entitled to acquire the C Shares under the laws of all relevant jurisdictions; (ii) it has paid any issue, transfer or other taxes due in connection with its participation in the Placing; (iii) that it (and/or any such person) has fully observed such laws; (iv) it (and any such person) has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to its 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)) and will honour such obligations; and (v) it has not taken any action which will or may result in the Company, JPMC, the Investment Manager, any of their respective Affiliates or any person acting on their behalf being in breach of the legal and/or regulatory requirements of any territory in connection with the Placing;
26. undertakes that it (and any person on whose behalf it is acting) will make payment for the C Shares allocated to it in accordance with this Announcement (including this Appendix) on the due time and date set out in the trade confirmation against delivery of such C Shares, failing which the relevant C Shares may be placed with other subscribers or sold as JPMC may in its sole discretion determine and without liability to such Placee and that it will remain liable for any shortfall below the net proceeds of such sale and the placing proceeds of such C Shares and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties due pursuant to the terms set out or referred to in this Announcement (including this Appendix)) which may arise upon the sale of such Placee's C Shares on its behalf;
27. acknowledges that its allocation (if any) of C Shares will represent a maximum number of C Shares which it will be entitled, and required, to subscribe for, and the Company may call upon it to subscribe for a lower number of C Shares (if any), but in no event in aggregate more than the aforementioned maximum;
28. acknowledges that none of JPMC, nor any of its Affiliates, nor any person acting on behalf of any of them, is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of JPMC and that JPMC has no duties or responsibilities to it for providing the protections afforded to its clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
29. represents and warrants that it has independently made its own analysis and decision with regard to its commitment to subscribe for C Shares;
30. undertakes that the person whom it specifies for registration as holder of the C Shares will be (i) itself or (ii) its nominee, as the case may be. Neither JPMC 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 on whose behalf it is acting agrees to participate in the Placing and it agrees to indemnify the Company and JPMC in respect of the same on the basis that the C Shares will be allotted to the CREST stock account of JPMC who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions;
31. acknowledges that any agreements entered into by it pursuant to these terms and conditions and any non-contractual obligations arising out of or in connection with such agreements shall be governed by and construed in accordance with the laws of England and Wales and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of any such contract, except that enforcement proceedings in respect of the obligation to make payment for the C Shares (together with any interest chargeable thereon) may be taken by the Company or JPMC in any jurisdiction in which the relevant Placee is incorporated or in which any of its securities have a quotation on a recognised stock exchange;
32. agrees that the Company, JPMC and their respective affiliates and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and undertakings which are given to JPMC on its own behalf and on behalf of the Company and are irrevocable;
33. agrees to indemnify on an after tax basis and hold the Company, JPMC 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 representations, warranties, acknowledgements, agreements and undertakings in this Announcement (including this Appendix) and further agrees that the provisions of this Announcement (including this Appendix) shall survive after completion of the Placing;
34. acknowledges that its commitment to subscribe for C Shares on the terms set out herein and in the trade confirmation will continue notwithstanding any amendment that may in future be made to the terms of the Placing and that Placees will have no right to be consulted or require that their consent be obtained with respect to JPMC's or the Company's conduct of the Placing;
35. acknowledges that the C Shares will be issued and/or transferred subject to the terms and conditions set out in this Announcement (including this Appendix) and otherwise as stated in the Prospectus;
36. acknowledges that the basis of allocation will be determined by JPMC (following consultation with the Company and the Investment Manager) at its absolute discretion. The right is reserved to reject in whole or in part and/or scale back any participation in the Placing; and
37. represents and warrants that it is acting as principal only in respect of the Placing or, if it is acting for any other person: (i) it is duly authorised to do so and has full power to make the acknowledgments, representations and agreements in this Appendix on behalf of each such person; and (ii) it is and will remain liable to the Company and/or JPMC for the performance of all its obligations as a Placee in respect of the Placing (regardless of the fact that it is acting for another person).
The representations, warranties, acknowledgments and undertakings contained in this Announcement (including this Appendix) are given to JPMC for itself and on behalf of the Company and are irrevocable.
The agreement to settle a Placee's subscription of the C Shares (and/or the subscription of a person for whom such Placee is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to a subscription by it and/or such person direct from the Company for the C Shares in question. Such agreement assumes that the C Shares are not being subscribed for in connection with arrangements to issue depositary receipts or to issue or transfer the C Shares into a clearance service. If there are any such arrangements, or the settlement related to any other dealing in the C Shares, stamp duty or stamp duty reserve tax may be payable, for which neither the Company nor JPMC will be responsible and the Placee to whom (or on behalf of whom, or in respect of the person for whom it is participating in the Placing as an agent or nominee) the allocation, allotment, issue or delivery of C Shares has given rise to such UK stamp duty or stamp duty reserve tax undertakes to pay such UK stamp duty or stamp duty reserve tax forthwith and to indemnify on an after-tax basis and to hold harmless the Company and JPMC in the event that any of the Company and/or JPMC has incurred any such liability to UK stamp duty or stamp duty reserve tax. If this is the case, each Placee should seek its own advice and notify JPMC accordingly.
In addition, Placees should note that they will be liable for any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the subscription by them of any C Shares or the agreement by them to subscribe for any C Shares.
Each Placee, and any person acting on behalf of the Placee, acknowledges that JPMC does not owe any fiduciary or other duties to any Placee in respect of any representations, warranties, undertakings or indemnities in the Placing Agreement and that such representations, warranties, undertakings and indemnities are not given for the benefit of any Placee.
Each Placee and any person acting on behalf of the Placee acknowledges and agrees that JPMC or any of its Affiliates may, at its absolute discretion, agree to become a Placee in respect of some or all of the C Shares.
When a Placee or person acting on behalf of the Placee is dealing with JPMC, any money held in an account with JPMC on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FCA made under the FSMA. The Placee acknowledges that the money will not be subject to the protections conferred by the client money rules; as a consequence, this money will not be segregated from JPMC's money in accordance with the client money rules and will be used by JPMC in the course of its own business and the Placee will rank only as a general creditor of JPMC.
All times and dates in this Announcement (including this Appendix) may be subject to amendment, and Placees' commitments, representations and warranties are not conditional on any of the expected times and dates in this Announcement (including this Appendix) being achieved. JPMC shall notify the Placees and any person acting on behalf of the Placees of any changes.
The rights and remedies of JPMC 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 or partial exercise of one will not prevent the exercise of others.
This Announcement (including this Appendix) has been issued by the Company and is the sole responsibility of the Company.
This information is provided by RNS
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