Terms and Conditions of the Placing
EDISTON PROPERTY INVESTMENT COMPANY PLC
(the "Company")
Proposed Initial Placing and Offer for Subscription for up to 40,000,000 new Ordinary Shares
Terms and Conditions of the Placing
IMPORTANT INFORMATION FOR PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS DOCUMENT AND THE TERMS AND CONDITIONS SET OUT AND REFERRED TO HEREIN ARE DIRECTED ONLY AT PERSONS SELECTED BY CANACCORD GENUITY LIMITED ("CANACCORD GENUITY" OR THE "PLACING AGENT") WHO ARE "INVESTMENT PROFESSIONALS" FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "FPO") OR "HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS ETC" FALLING WITHIN ARTICLE 49(2) OF THE FPO OR TO PERSONS TO WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THIS DOCUMENT AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS DOCUMENT RELATES IS AVAILABLE ONLY TO, AND WILL BE ENGAGED IN ONLY WITH, RELEVANT PERSONS.
THE ORDINARY SHARES THAT ARE THE SUBJECT OF THE PLACING (THE "PLACING SHARES") ARE NOT BEING OFFERED OR SOLD TO ANY PERSON IN THE EUROPEAN UNION, OTHER THAN TO "QUALIFIED INVESTORS" AS DEFINED IN ARTICLE 2.1(E) OF DIRECTIVE 2003/71/EC (THE "PROSPECTUS DIRECTIVE"), WHICH INCLUDES LEGAL ENTITIES WHICH ARE REGULATED BY THE FINANCIAL CONDUCT AUTHORITY (THE "FCA") OR ENTITIES WHICH ARE NOT SO REGULATED WHOSE CORPORATE PURPOSE IS SOLELY TO INVEST IN SECURITIES.
The Placing Shares have not been and will not be registered under the United States 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, resold or delivered, directly or indirectly, in or into the United States or to or for the benefit of U.S. Persons (as such term is defined in Rule 902 of Regulation S under the Securities Act ("Regulation S") absent registration, except pursuant to an exemption from or in a transaction not subject to the registration requirements of the Securities Act. No public offering of the Placing Shares is being made in the United States. The Placing (as defined below) is being made outside the United States in offshore transactions (as defined in Regulation S) meeting the requirements of Regulation S under the Securities Act. Persons receiving this document (including custodians, nominees and trustees) must not forward, distribute, mail or otherwise transmit it in or into the United States or use the United States mails, directly or indirectly, in connection with the Placing.
This announcement is an advertisement and not a prospectus and investors should not subscribe for or purchase any shares referred to in this announcement except on the basis of the information in the prospectus published by the Company on 23 June 2015 in connection with the Initial Placing and Offer for Subscription (the "Prospectus"). Copies of the Prospectus are available to download at the National Storage Mechanism (www.hemscott.com/nsm.do) and may also be obtained, free of charge, from the offices of Canaccord Genuity Limited, 9th Floor, 88 Wood Street, London EC2V 7QR.
This announcement does not constitute an offer to sell or issue or a solicitation of an offer to buy or subscribe for Shares in any jurisdiction including, without limitation, the United States, Canada, Australia, Japan or any other jurisdiction in which such offer or solicitation is or may be unlawful (a "Prohibited Jurisdiction"). This announcement and the information contained herein are not for publication or distribution, directly or indirectly, to persons in a Prohibited Jurisdiction unless permitted pursuant to an exemption under the relevant local law or regulation in any such jurisdiction.
The distribution of this announcement or the Prospectus, the Placing and/or issue of the Shares in certain jurisdictions may be restricted by law and/or regulation. No action has been taken by the Company, the Placing Agent, or any of their respective Affiliates (as defined below) that would permit an offer of the Shares or possession or distribution of this announcement, the Prospectus or any other publicity material relating to such Shares in any jurisdiction where action for that purpose is required. Persons receiving this document are required to inform themselves about and to observe any such restrictions.
Canaccord Genuity Limited, which is authorised and regulated in the United Kingdom by the Financial Conduct Authority, is acting for the Company and for no one else in connection with the Placing and will not be responsible to anyone other than the Company for providing the protections afforded to clients of Canaccord Genuity Limited or for affording advice in relation to the Placing, or any other matters referred to herein.
By participating in the Initial Placing referred to in the Prospectus (the "Initial Placing" or the "Placing"), each person who is invited to and who chooses to participate in the Placing (a "Placee") by making an oral offer to take up Placing Shares is deemed to have read and understood this announcement in its entirety and to be providing the representations, warranties, undertakings, agreements and acknowledgements contained herein.
Each Placee which confirms its agreement (whether orally or in writing) to Canaccord Genuity to subscribe for the Placing Shares under the Placing will be bound by these terms and conditions and will be deemed to have accepted them.
The Company and/or Canaccord Genuity 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/or may require any such Placee to execute a separate placing letter (a "Placing Letter").
Participation in, and principal terms of, the Placing
A single price of 108.0p per Ordinary Share (the "Placing Price") will be payable to the Placing Agent by all Placees.
Prospective Placees will be identified and contacted by the Placing Agent.
Canaccord Genuity will re-contact and confirm orally to Placees the size of their respective allocations and a trade confirmation will be dispatched as soon as possible thereafter. Canaccord Genuity's oral confirmation of the size of allocations and each Placee's oral commitments to accept the same will constitute a legally binding agreement pursuant to which each such Placee will be required to accept the number of Placing Shares allocated to the Placee at the Placing Price and otherwise on the terms and subject to the conditions set out herein and in the Prospectus and subject to the memorandum and articles of incorporation of the Company.
The Placing Agent (after consulting with the Company and the Investment Adviser) reserves the right to scale back the number of Placing Shares to be subscribed by any Placee. The Company and the Placing Agent also reserve the right not to accept offers to subscribe for Placing Shares or to accept such offers in part rather than in whole. The Placing Agent shall be entitled to effect the Placing by such method as it shall in its sole discretion determine. To the fullest extent permissible by law, neither the Placing Agent or any holding company thereof, nor any subsidiary, branch or affiliate of the Placing Agent (each an "Affiliate") nor the Investment Adviser or 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 of the Placing Agent, nor the Investment Adviser, nor any Affiliate thereof nor any person acting on behalf of any of the foregoing shall have any liability to Placees in respect of its conduct of the Placing. No commissions will be paid to Placees or directly by Placees in respect of any Placing Shares.
Each Placee's obligations will be owed to the Company and to the Placing Agent. Following the oral confirmation referred to above, each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to the Placing Agent, to pay to the Placing Agent (or as the Placing Agent may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares such Placee has agreed to acquire. The Company shall allot such Placing Shares to each Placee following each Placee's payment to the Placing Agent of such amount.
All obligations of the Placing Agent 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.
The obligations of the Placing Agent under the Placing Agreement are conditional, inter alia, on:
1. admission of the Ordinary Shares ("Admission") to be issued pursuant to the Placing and Offer for Subscription (the "Issue") occurring by no later than 8.00 a.m. on 13 July 2015 (or such later date as may be agreed between the Company and the Placing Agent, not being later than 31 July 2015);
2. each of the Company Contracts (as defined in the Placing Agreement) having been executed and delivered by the parties thereto and becoming and continuing to be enforceable against each of the parties thereto (subject only to Admission) and having, and continuing to have, full force and effect and not being varied, modified, supplemented, rescinded or terminated (in whole or part) and no party to any such agreement having failed to enforce its rights thereunder in accordance with its terms or granted any waiver or indulgence in relation to any obligation thereunder or extension of time for its performance;
3. each of the Company Contracts becoming unconditional in all respects on or prior to Admission; and
4. the warranties contained in or referred to in the Placing Agreement by the Company and the Investment Adviser being true and accurate and not misleading on and as at the date of the Placing Agreement and as at and on Admission, in each case as thought they had been given and made on such dates by reference to the facts and circumstances then subsisting, and no matter having arisen prior to Admission which might reasonably be expected to give rise to a claim.
If (a) the conditions are not fulfilled (or, to the extent permitted under the Placing Agreement, waived by the Placing Agent), or (b) the Placing Agreement is terminated in the circumstances specified below, the Placing will lapse and each Placee's rights and obligations hereunder shall cease and determine at such time and no claim may be made by a Placee in respect thereof. The Placing Agent shall not 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 in the Placing Agreement or in respect of the Placing generally.
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 otherwise be capable of rescission or termination by the Placee.
Right to terminate under the Placing Agreement
Canaccord Genuity may, at any time before Admission, terminate the Placing Agreement by giving notice to the Company if:
(a) any matter or circumstance arises as a result of which, in the opinion of Canaccord Genuity (acting in good faith), it is reasonable to expect that any of the conditions under the Placing Agreement will not be satisfied in all material respects at the required time(s) (if any) and continue to be satisfied at Admission; or
(b) any of the warranties given by the Company or the Investment Adviser are not true or accurate or are misleading as at the date they are given (or would not be true and accurate or would be misleading if they were repeated at any time prior to Admission by reference to the facts and circumstances existing at that time), or
(c) there has been a breach of any of the undertakings contained in or given pursuant to clause 8 or any other provision of the Placing Agreement;
(d) Canaccord Genuity becomes aware that any statement contained in any Offer Document (being the Prospectus, the press announcements, the marketing presentation and any other document published or issued by or on behalf of the Company for the purposes of the Issue) is or has become untrue, incorrect or misleading in any material respect, or any matter has arisen which would, if the Issue was made at that time, constitute an omission from the Offer Documents, or any of them (or any amendment or supplement to any of them), and which Canaccord Genuity in good faith considers to be material and adverse in the context of the Issue or the Admission;
(e) any of the deliverable documents under the Placing Agreement has not been duly delivered by the date indicated thereunder as the due date for delivery for such document (or such later date as Canaccord Genuity may acting in its discretion in good faith decide) provided such non-delivery is material in the context of the Issue or Admission;
(f) the Company's application to the FCA for admission of the Shares to listing on the Official List, or the Company's application to the LSE for admission of the Shares to trading on the LSE's main market for listed securities, is withdrawn or refused by the FCA or the LSE (as appropriate) for any reason;
(g) in the opinion of Canaccord Genuity acting in good faith, there has been a Material Adverse Effect, or an Ediston Material Adverse Effect (whether or not foreseeable at the date of this Agreement) (as defined under the Placing Agreement); or
(h) the Company's entitlement to market the Ordinary Shares is revoked by the FCA pursuant to Article 62 of the AIFM Regulations.
In addition, if at any time prior to Admission there shall occur, develop or come into effect any of the following:
any fundamental change in UK or international, financial, political, economic, or stock market conditions; an incident of terrorism, outbreak or escalation of hostilities or war, declaration of a national emergency, or any other disaster or crisis in each case in the UK, the EEA or the United States of America; a suspension or material limitation in trading in securities generally on the London Stock Exchange, the New York Stock Exchange or NASDAQ; a general moratorium on commercial banking activities in London or any member state of the European Union declared by the relevant authorities; a disruption in commercial banking or securities settlement or clearance services in the United Kingdom; an adverse change or prospective adverse change in taxation in the United Kingdom; any change or development involving a prospective change in financial markets or in financial, monetary, political or economic conditions or currency exchange rates or controls in or affecting any international financial markets,
which in the opinion of Canaccord Genuity (acting in good faith) is of such magnitude or severity as to make it impractical or inadvisable to continue with the Issue, Canaccord Genuity may terminate the Placing Agreement.
By participating in the Placing, each Placee agrees with Canaccord Genuity that the exercise by Canaccord Genuity of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of Canaccord Genuity and that Canaccord Genuity need not make any reference to the Placee in this regard and that, to the fullest extent permitted by law, Canaccord Genuity shall not have any liability whatsoever to the Placee in connection with any such exercise.
Prospectus
The Prospectus has been published in connection with the Initial Placing and Offer for Subscription, the Placing Programme and Admission. The Prospectus has been approved by the UK Listing Authority. 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 document 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 (or part of it) and confirms to the Placing Agent and the Company that it has neither received nor relied on any information, representation, warranty or statement made by or on behalf of the Placing Agent (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, the Investment Adviser, the Company or any persons acting on behalf of any of the foregoing other than as contained in the Prospectus and neither the Placing Agent, any of its Affiliates, the Company, the Investment Adviser or any persons acting on behalf of any of the foregoing 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 as contained in the Prospectus. By participating in the Placing, each Placee acknowledges to and agrees with the Placing Agent for itself and as agent for the Company, that, except in relation to the information contained in this document 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 Placing Shares (ISIN GB00BNGMZB68) following Admission will take place within the CREST system, using the DVP mechanism, subject to certain exceptions. The Placing Agent reserves the right to require settlement for and delivery of the Placing Shares to Placees by such other means as it deems necessary, if delivery or settlement is not possible or practicable within the CREST system within the timetable set out in this document or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Each Placee allocated Placing Shares in the Placing will be sent a trade confirmation stating the number of Placing Shares allocated to it, the Placing Price, the aggregate amount owed by such Placee to Canaccord Genuity and settlement instructions. Placees should settle against CREST ID: 805, designation: leave blank. It is expected that such trade confirmation will be despatched on 9 July 2015 and that this will also be the trade date. 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 which it has in place with the Placing Agent.
It is expected that settlement will be on 13 July 2015 on a T+2 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 2 percentage points above the base rate of Barclays Bank Plc.
Each Placee is deemed to agree that if it does not comply with these obligations, the Placing Agent may sell any or all of the Placing Shares allocated to the Placee on such Placee's behalf and retain from the proceeds, for its own account and profit, 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 stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or settlement agent, the Placee should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation.
Insofar as Placing 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 Placing Shares will, subject as provided below, be so registered free from any liability to PTM levy, stamp duty or stamp duty reserve tax. If there are any circumstances in which any other stamp duty or stamp duty reserve tax is payable in respect of the issue of the Placing Shares, neither Canaccord Genuity 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.
Agreement to subscribe for New Shares
Conditional on: (i) Admission of New Shares occurring and becoming effective by 8.00 a.m. (London time) on 13 July 2015 (or such later time and/or date, not being later than 8.00 a.m. on 31 July 2015, as the Company and the Placing Agent may agree); (ii) the Placing Agreement becoming otherwise unconditional in all respects and not having been terminated on or before the date of such Admission; and (iii) the Placing Agent confirming to the Placees their allocation of New Shares, a Placee agrees to become a member of the Company and agrees to subscribe for those New Shares allocated to it by the Placing Agent at the Initial Placing and Offer Price under the Initial Placing and Offer. 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.
Representations and warranties
By agreeing to subscribe for New Shares, each Placee which enters into a commitment to subscribe
for New Shares will (for itself and any person(s) procured by it to subscribe for New Shares and any
nominee(s) for any such person(s)) be deemed to represent and warrant to each of the Company, the Investment Manager, and the Placing Agent that:
1. in agreeing to subscribe for New Shares under the Initial Placing and/or the Placing Programme, it is relying solely on the Prospectus and any supplementary prospectus issued by the Company and not on any other information given, or representation or statement made at any time, by any person concerning the Company, the Initial Placing and/or the Placing Programme. It agrees that none of the Company, the Investment Manager, the Placing Agent or the Registrar, nor any of their respective officers, agents employees, will have any liability for any other information or representation. It irrevocably and unconditionally waives any rights it may have in respect of any other information or representation;
2. if the laws of any territory or jurisdiction outside the United Kingdom are applicable to its agreement to subscribe for New Shares under the Initial Placing and/or the Placing Programme, it warrants that it has complied with all such laws, obtained all governmental and other consents which may be required, complied with all requisite formalities and paid any issue, transfer or other taxes due in connection with its application in any territory and that it has not taken any action or omitted to take any action which will result in the Company, the Investment Manager, the Placing Agent or the Registrar or any of their respective officers, agents or employees acting in breach of the regulatory or legal requirements, directly or indirectly, of any territory or jurisdiction outside the United Kingdom in connection with the Initial Placing and/or the Placing Programme;
3. it has carefully read and understands this announcement in its entirety and acknowledges that it is acquiring New Shares on the terms and subject to the conditions set out in Part IX of the Prospectus and the Articles as in force at the date of Admission of the relevant New Shares;
4. it has not relied on the Placing Agent or any person affiliated with the Placing Agent in connection
with any investigation of the accuracy of any information contained in the Prospectus;
5. the content of the Prospectus is exclusively the responsibility of the Company and its Directors and the Placing Agent nor any person acting on their behalf nor any of their respective affiliates are responsible for or shall have any liability for any information, representation or statement contained in the Prospectus or any information published by or on behalf of the Company and will not be liable for any decision by a Placee to participate in the Initial Placing and/or the Placing Programme based on any information, representation or statement contained in the Prospectus or otherwise;
6. it acknowledges that no person other than the Company, the Investment Adviser or Canaccord, is authorised in connection with the Initial Placing and/or the Placing Programme to give any information or make any representation other than as contained in the Prospectus and, if given or made, any information or representation must not be relied upon as having been authorised by the Company, the Investment Adviser or the Placing Agent;
7. 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 of the Finance Act 1986 (depository receipts and clearance services);
8. it accepts that none of the New Shares have been or will be registered under the laws of the United States, Canada, Australia, the Republic of South Africa or Japan. Accordingly, the New Shares may not be offered, sold, issued or delivered, directly or indirectly, within any of United States, Canada, Australia, the Republic of South Africa or Japan unless an exemption from any registration requirement is available;
9. if it is within the United Kingdom, it is a person who falls within Articles 49(2)(a) to (d) or 19(5) of the Financial Services and Markets Act 2000 (Financial Promotions) Order 2005 or it is a person to whom the New Shares may otherwise lawfully be offered under such Order or, if it is receiving the offer in circumstances under which the laws or regulations of a jurisdiction other than the United Kingdom would apply, it is a person to whom the New Shares may be lawfully offered under that other jurisdiction's laws and regulations;
10 if it is a resident in the EEA (other than the United Kingdom), (a) it is a qualified investor within the meaning of the law in the relevant Member State implementing Article 2(1)(e)(i), (ii) or (iii) of Directive 2003/71/EC and (b) if that relevant Member State has implemented the AIFMD, that it is a person to whom the new Shares may lawfully be marked under the AIFMD or under the applicable implementing legation (if any) of that relevant Member State;
11. in the case of any New Shares acquired by a Placee as a financial intermediary as that term is used in Article 3(2) of the Prospectus Directive (i) the New Shares acquired by it in the Initial Placing and/or the Placing Programme have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any relevant Member State other than qualified investors, as that term is defined in the Prospectus Directive 2010/73/EU, or in circumstances in which the prior consent of the Placing Agent has been given to the offer or resale; or (ii) where New Shares have been acquired by it on behalf of persons in any Relevant Member State other than qualified investors, the offer of those New Shares to it is not treated under the Prospectus Directive as having been made to such persons;
12. if it is outside the United Kingdom, neither this announcement nor the Prospectus nor any other offering, marketing or other material in connection with the Initial Placing and/or the Placing Programme constitutes an invitation, offer or promotion to, or arrangement with, it or any person whom it is procuring to subscribe for New Shares pursuant to the Initial Placing and/or the Placing Programme 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 New 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;
13. it does not have a registered address in, and is not a citizen, resident or national of, any jurisdiction in which it is unlawful to make or accept an offer of the New Shares and it is not acting on a non-discretionary basis for any such person;
14. 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 New Shares under the Initial Placing and/or the Placing Programme and will not be any such person on the date any such agreement to subscribe under the Initial Placing or Placing Programme is accepted;
15. it has not, directly or indirectly, distributed, forwarded, transferred or otherwise transmitted the Prospectus or any other offering materials concerning the Issues, the Initial Placing, the Placing Programme or the New Shares to any persons within the United States or to any US Persons, nor will it do any of the foregoing;
16. it represents, acknowledges and agrees to the representations, warranties and agreements as set out under the heading "United States Purchase and Transfer Restrictions" below;
17. it acknowledges that the Placing Agent nor any of their respective affiliates, nor any person acting on their behalf is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Initial Placing and/or Placing Programme or providing any advice in relation to the Initial Placing and/or Placing Programme and participation in the Initial Placing and/or Placing Programme is on the basis that it is not and will not be a client of the Placing Agent and that the Placing Agent has no duties or responsibilities to it for providing the protections afforded to its clients or for providing advice in relation to the Initial Placing and/or Placing Programme nor in respect of any representations, warranties, undertaking or indemnities otherwise required to be given by it in connection with its application under the Initial Placing and/or the Placing Programme;
18. it acknowledges that where it is subscribing for New Shares for one or more managed, discretionary or advisory accounts, it is authorised in writing for each such account; (i) to subscribe for the New Shares for each such account; (ii) to make on each such account's behalf the representations, warranties and agreements set out in this document; and (iii) to receive on behalf of each such account any documentation relating to the Initial Placing and/or Placing Programme in the form provided by the Company and/or the Placing Agent. It agrees that the provision of this paragraph shall survive any resale of the New Shares by or on behalf of any such account;
19. it irrevocably appoints any director of the Company and any director of the Placing Agent 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 New Shares for which it has given a commitment under the Initial Placing and/or the Placing Programme, in the event of its own failure to do so;
20. it accepts that if the Initial Placing and/or Placing Programme does not proceed or the conditions to the Placing Agreement are not satisfied or the New Shares for which valid applications are received and accepted are not admitted to the Official List of the FCA and to trading on the London Stock Exchange for any reason whatsoever then none of the Placing Agents or the Company, nor persons controlling, controlled by or under common control with any of them nor any of their respective employees, agents, officers, members, stockholders, partners or representatives, shall have any liability whatsoever to it or any other person;
21. in connection with its participation in the Initial Placing and/or Placing Programme it has observed all relevant legislation and regulations, in particular (but without limitation) those relating to money laundering ("Money Laundering Legislation") and that its application is only made on the basis that it accepts full responsibility for any requirement to verify the identity of its clients and other persons in respect of whom it has applied. In addition, it warrants that it is a person: (i) subject to the Money Laundering Regulations 2007 in force in the United Kingdom; or (ii) subject to the Money Laundering Directive (2005/60/EC of the European Parliament and of the EC Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing) (the "Money Laundering Directive"); or (iii) acting in the course of a business in relation to which an overseas regulatory authority exercises regulatory functions and is based or incorporated in, or formed under the law of, a country in which there are in force provisions at least equivalent to those required by the Money Laundering Directive;
22. it acknowledges that due to anti-money laundering requirements, the Placing Agent and the Company may require proof of identity and verification of the source of the payment before the application can be processed and that, in the event of delay or failure by the applicant to produce any information required for verification purposes, the Placing Agent and the Company may refuse to accept the application and the subscription moneys relating thereto. It holds harmless and will indemnify the Placing Agent and the Company against any liability, loss or cost ensuing due to the failure to process such application, if such information as has been required has not been provided by it;
23. it acknowledges and agrees that information provided by it to the Company or the Registrar will
be stored both on the Registrar's and the Administrator's computer system and manually. It acknowledges and agrees that the Registrar is required to specify the purposes for which it will hold personal data. The Registrar and the Administrator will only use such information for the purposes set out below (collectively, the "Purposes"), being to:
23.1. process its personal data (including sensitive personal data) as required by or in connection with its holding of New Shares, including processing personal data in connection with credit and money laundering checks on it;
23.2. communicate with it as necessary in connection with its affairs and generally in connection with its holding of New Shares;
23.3. provide personal data to such third parties as the Registrar or the Administrator may consider necessary in connection with its affairs and generally in connection with its holding of New Shares or as the Data Protection Law may require, including to third parties outside the European Economic Area;
23.4. process its personal data for the Registrar's or the Administrator's internal administration.
24. in providing the Registrar and the Administrator with information, it hereby represents and warrants to the Registrar and the Administrator that it has obtained the consent of any data subject to the Registrar and the Administrator and their respective associates holding and using their personal data for the Purposes (including the explicit consent of the data subjects for the processing of any sensitive personal data for the Purposes set out in paragraph 4.24 above). For the purposes of this announcment, "data subject", "personal data" and "sensitive personal data" shall have the meanings attributed to them in the Data Protection Law;
25. the Placing Agent and the Company are entitled to exercise any of their rights under the Placing
Agreement or any other right in their absolute discretion without any liability whatsoever to it;
26. the representations, undertakings and warranties contained herein are irrevocable. It acknowledges that the Placing Agent 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 the New Shares are no longer accurate, it shall promptly notify the Placing Agent and the Company;
27. where it or any person acting on behalf of it is dealing with the Placing Agent, any money held in
an account with the Placing Agent 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 FCA which therefore will not require the Placing Agent to segregate such money, as that money will be held by the Placing Agent under a banking relationship and not as trustee;
28. any of its clients, whether or not identified to the Placing Agent, will remain its sole responsibility
and will not become clients of the Placing Agent for the purposes of the rules of the FCA or for the purposes of any other statutory or regulatory provision;
29. it accepts that the allocation of New Shares shall be determined by the Placing Agent in their absolute discretion but in consultation with the Company and that the Placing Agent may scale down any commitments for this purpose on such basis as it may determine; and
30. time shall be of the essence as regards its obligations to settle payment for the New Shares and
to comply with its other obligations under the Initial Placing and/or the Placing Programme.
United States Purchase and Transfer Restrictions
By participating in the Initial Placing and/or the Placing Programme, each Placee acknowledges and agrees that it will (for itself and any person(s) procured by it to subscribe for New Shares and any nominee(s) for any such person(s)) be further deemed to represent and warrant to each of the Company, the Investment Manager, the Registrar and the Placing Agent that:
1. it is not a US Person and it is acquiring the New Shares in an offshore transaction meeting the requirements of Regulation S and it is not acquiring the New Shares for the account or benefit of a US Person;
2. it acknowledges that the New 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 may not be offered or sold in the United States or to, or for the account or benefit of, US Persons absent registration or an exemption from registration under the Securities Act;
3. it acknowledges that 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;
4. unless the Company expressly consents otherwise in writing, no portion of the assets used to purchase, and no portion of the assets used to hold, the New 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 ERISA that is subject to Title I of ERISA; (ii) a "plan" as defined in Section 4975 of the Tax Code, including an individual retirement account or other arrangement that is subject to Section 4975 of the Tax Code; or (iii) an entity which is deemed to hold the assets of any of the foregoing types of plans, accounts or arrangements that is subject to Title I of ERISA or Section 4975 of the Tax Code. In addition, if a Placee is a governmental, church, non-US or other employee benefit plan that is subject to any federal, state, local or non-US law that is substantially similar to the provisions of Title I of ERISA or Section 4975 of the Tax Code, its purchase, holding, and disposition of the New Shares must not constitute or result in a non-exempt violation of any such substantially similar law;
5. if any New 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:
"EDISTON PROPERTY INVESTMENT COMPANY PLC (THE "COMPANY") HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US INVESTMENT COMPANY ACT OF 1940, AS AMENDED. IN ADDITION, THE SECURITIES OF THE COMPANY REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS AMENDED, OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES."
6. if in the future the Placee decides to offer, sell, transfer, assign or otherwise dispose of its New Shares, it will do so only in compliance with an exemption from the registration requirements of the Securities Act and under circumstances which will not require the Company to register under the Investment Company Act. It acknowledges that any sale, transfer, assignment, pledge or other disposal made other than in compliance with such laws and the above stated restrictions will be subject to the compulsory transfer provisions as provided in the Articles;
7. it is purchasing the New Shares for its own account or for one or more investment accounts for which it is acting as a fiduciary or agent, in each case for investment only, and not with a view to or for sale or other transfer in connection with any distribution of the New Shares in any manner that would violate the Securities Act, the Investment Company Act or any other applicable securities laws;
8. it acknowledges that the Company reserves the right to make inquiries of any holder of the New Shares or interests therein at any time as to such person's status under US federal securities laws and to require any such person that has not satisfied the Company that holding by such person will not violate or require registration under US securities laws to transfer such New Shares or interests in accordance with the Articles;
9. it acknowledges and understands that the Company is required to comply with FATCA and agrees to furnish any information and documents the Company may from time to time request, including but not limited to information required under FATCA;
10. it is entitled to acquire the New Shares under the laws of all relevant jurisdictions which apply to it, it has fully observed all such laws and obtained all governmental and other consents which may be required thereunder and complied with all necessary formalities and it has paid all issue, transfer or other taxes due in connection with its acceptance in any jurisdiction of the New Shares and that it has not taken any action, or omitted to take any action, which may result in the Company, the Investment Manager, the Placing Agent or their respective directors, officers, agents, employees and advisers being in breach of the laws of any jurisdiction in connection with the Initial Placing and/or the Placing Programme or its acceptance of participation in the Initial Placing and/or the Placing Programme;
11. it has received, carefully read and understands the Prospectus and this announcement, and has not, directly or indirectly, distributed, forwarded, transferred or otherwise transmitted the Prospectus or any other presentation or offering materials concerning the New Shares to within the United States or to any US Persons, nor will it do any of the foregoing; and
12. if it is acquiring any New Shares as a fiduciary or agent for one or more accounts, the Placee has sole investment discretion with respect to each such account and full power and authority to make such foregoing representations, warranties, acknowledgements and agreements on behalf of each such account.
The Company, the Investment Adviser, the Placing Agent 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 Placee are no longer accurate or have not been complied with, the Placee will immediately notify the Company.
Supply and disclosure of information
If the Placing Agent, the Registrar or the Company or any of their agents request any information about a Placee's agreement to subscribe for New Shares under the Initial Placing and/or the Placing Programme, such Placee must promptly disclose it to them.
Miscellaneous
The rights and remedies of the Company, the Investment Adviser, the Placing Agent and the Registrar under these terms and conditions are in addition to any rights and remedies which would otherwise be available to each of them and the exercise or partial exercise of one will not prevent the exercise of others.
On application, if a Placee is a discretionary fund manager, that Placee may be asked to disclose in writing or orally the jurisdiction in which its funds are managed or owned. All documents provided in connection with the Initial Placing and/or the Placing Programme will be sent at the Placee's risk. They may be returned by post to such Placee at the address notified by such Placee.
Each Placee agrees to be bound by the Articles once the New Shares, which the Placee has agreed to subscribe for pursuant to the Initial Placing and/or the Placing Programme, have been acquired by the Placee. The contract to subscribe for New Shares under the Initial Placing and/or the Placing Programme and the appointments and authorities mentioned in this announcment 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 the Company, the Investment Adviser, the Placing Agent and the Registrar, each Placee irrevocably submits to the jurisdiction of the courts of England and Wales and waives any objection to proceedings in any such court on the ground of venue or on the ground that proceedings have been brought in an inconvenient forum. This does not prevent an action being taken against the Placee in any other jurisdiction.
In the case of a joint agreement to subscribe for New Shares under the Initial Placing and/or the Placing Programme, 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.
The Placing Agent and the Company expressly reserve the right to modify the Initial Placing and/or the Placing Programme (including, without limitation, the timetable and settlement) at any time before allocations are determined. The Initial Placing and/or the Placing Programme is subject to the satisfaction of the conditions contained in the Placing Agreement and the Placing Agreement not having been terminated.
Enquiries
Ediston Properties Limited 0131 225 5599
Danny O'Neill
Calum Bruce
Rankin Laing
Canaccord Genuity Limited 020 7523 8000
Will Barnett
Neil Brierley
Dominic Waters
Robbie Robertson
This information is provided by RNS
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