TIDMDPA
RNS Number : 6783P
DP Aircraft I Limited
09 June 2015
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THE TERMS AND CONDITIONS SET OUT HEREIN ARE DIRECTED ONLY
AT PERSONS SELECTED BY CANACCORD GENUITY LIMITED (CANACCORD
GENUITY) 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). THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT
BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT
PERSONS.
THE NEW 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
AND WHOSE CORPORATE PURPOSE IS SOLELY TO INVEST IN SECURITIES.
For immediate release
DP Aircraft I Limited (the "Company")
Proposed Placing of 96,333,333 ordinary preference shares of no
par value at an Issue Price of 105.89 cents per Placing Share
Terms and Conditions of the Placing
9 June 2015
IMPORTANT INFORMATION FOR PLACEES ONLY
The Placing Shares have not been and will not be registered
under the U.S. Securities Act or with any securities regulatory
authority of any state or other jurisdiction of the United States
(as defined below), and accordingly may not be offered, sold or
transferred within the United States of America, its territories or
possessions, any state of the United States or the District of
Columbia (the United States) except pursuant to an exemption from,
or in a transaction not subject to, registration under the U.S.
Securities Act. The Placing is being made outside the United States
only in offshore transactions (as defined in Regulation S under the
U.S. Securities Act (Regulation S)) meeting the requirements of
Regulation S, other than to U.S. Persons or persons acquiring for
the account or benefit of U.S. Persons, and may only be made to
persons within the United States or to U.S. Persons (or to persons
who are acting for the account or benefit of U.S. Persons) who are
qualified institutional buyers (QIBs) within the meaning of Rule
144A (Rule 144A) under the U.S. Securities Act, who are also
qualified purchasers (QPs) as defined in Section 2(a)(51) of the
U.S. Investment Company, pursuant to a transaction that is exempt
from, or not subject to, the registration requirements of the U.S.
Securities Act. The Company has not been and will not be registered
under the U.S. Investment Company Act and investors will not be
entitled to the benefits of the U.S. Investment Company Act.
Persons receiving this announcement (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.
In addition, except with the express written consent of the
Company given in respect of an investment in the Company, the
Placing Shares may not be acquired by (i) investors using assets of
(A) an "employee benefit plan" as defined in Section 3(3) of United
States Employee Retirement Income Security Act of 1974, as amended
(ERISA), that is subject to Title I ERISA; (B) a "plan" as defined
in Section 4975 of the United States Internal Revenue Code of 1986,
as amended (the U.S. Tax Code), including an individual retirement
account or other arrangement that is subject to Section 4975 of the
U.S. Tax Code; or (C) 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 U.S. Tax
Code or (ii) a governmental, church, non-U.S. or other employee
benefit plan that is subject to any federal, state, local or
non-U.S. law that is substantially similar to the provisions of
Title I of ERISA or Section 4975 of the U.S. Tax Code, unless its
purchase, holding, and disposition of the Placing Shares will not
constitute or result in a non-exempt violation of any such
substantially similar law.
This announcement does not constitute an offer to sell or issue
or a solicitation of an offer to buy or subscribe for Placing
Shares in any jurisdiction including, without limitation, the
United States, Australia, Canada, Japan, New Zealand or South
Africa or any other jurisdiction in which such offer or
solicitation is or may be unlawful (an Excluded Territory). This
announcement and the information contained herein are not for
publication or distribution, directly or indirectly, to persons in
an Excluded Territory unless permitted pursuant to an exemption
under the relevant local law or regulation in any such
jurisdiction.
The distribution of this announcement and/or issue of the
Placing Shares in certain jurisdictions may be restricted by law
and/or regulation. No action has been taken by the Company,
Canaccord Genuity or any of their respective affiliates as defined
in Rule 501(b) under the U.S. Securities Act (as applicable in the
context used, Affiliates) that would permit an offer of the Placing
Shares or possession or distribution of this announcement or any
other publicity material relating to such Placing Shares in any
jurisdiction where action for that purpose is required. Persons
receiving this announcement are required to inform themselves about
and to observe any such restrictions.
Canaccord Genuity, which is authorised and regulated in the
United Kingdom by the FCA, 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 or for affording advice in
relation to the Placing, or any other matters referred to in this
announcement.
By participating in the Placing, each subscriber for Placing
Shares (each 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).
Agreement to Subscribe for the Placing Shares
Conditional on: (i) Admission occurring and becoming effective
by 8.00 a.m. (London time) on or prior to 12 June 2015 (or such
later time and/or date, not being later than 31 July 2015, as the
Company, the Asset Manager and Canaccord Genuity may agree); (ii)
the Principal Documents having been executed; (iii) the Placing
Agreement becoming otherwise unconditional in all respects and not
having been terminated on or before 12 June 2015 (or such later
date, not being later than 31 July 2015, as the parties thereto may
agree); (iv) the Placing Proceeds being equal to or exceeding
US$102.0 million by 3.00 p.m. on 11 June 2015 (or such later date
as the Company, the Asset Manager and Canaccord Genuity may agree);
and (v) Canaccord Genuity confirming to the Placees their
allocation of the Placing Shares, a Placee agrees to become a
member of the Company and agrees to subscribe for those Placing
Shares allocated to it by Canaccord Genuity at the Issue Price. To
the fullest extent permitted by law, each Placee acknowledges and
agrees that it will not be entitled to exercise any remedy of
rescission at any time. This does not affect any other rights the
Placee may have.
Payment for Placing Shares
Each Placee must pay the Issue Price for the Placing Shares
issued to the Placee in the manner and by the time directed by
Canaccord Genuity. In the event of any failure by any Placee to pay
as so directed and/or by the time required by Canaccord Genuity,
the relevant Placee shall be deemed hereby to have appointed
Canaccord Genuity or any nominee of Canaccord Genuity as its agent
to use its reasonable endeavours to sell (in one or more
transactions) any or all of the Placing Shares in respect of which
payment shall not have been made as directed, and to indemnify
Canaccord Genuity and its affiliates on demand in respect of any
liability for stamp duty and/or stamp duty reserve tax or any other
liability whatsoever arising in respect of any such sale or sales.
A sale of all or any of such Placing Shares shall not release the
relevant Placee from the obligation to make such payment for
relevant Placing Shares to the extent that Canaccord Genuity or its
nominees have failed to sell such Placing Shares at a consideration
which, after deduction of the expenses of such sale and payment of
stamp duty and/or stamp duty reserve tax as aforementioned, exceeds
the Issue Price.
Participation in, and principal terms of, the Placing
A single price per Placing Share (being the Issue Price) will be
payable to Canaccord Genuity by all Placees.
Prospective Placees will be identified and contacted by
Canaccord Genuity.
The Placing is expected to close at noon on 9 June 2015.
However, the Company may, with the prior approval of Canaccord
Genuity, bring forward or postpone this date. In the event such
date is changed, the Company will notify investors who have applied
for Placing Shares either by post, by electronic mail or by the
publication of a notice through a Regulatory Information
Service.
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 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 Placing Shares allocated to the
Placee at the Issue Price and otherwise on the terms and subject to
the conditions set out in this announcement.
Canaccord Genuity (after consultation with the Company and the
Asset Manager) reserves the right to scale back the number of
Placing Shares to be subscribed by any Placee in the event of an
oversubscription under the Placing. The Company and Canaccord
Genuity also reserve the right not to accept offers to subscribe
for Placing Shares or to accept such offers in part rather than in
whole. Canaccord Genuity 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 Canaccord Genuity, nor
any holding company of Canaccord Genuity, nor any subsidiary,
branch or affiliate of Canaccord Genuity (each an Affiliate) nor
any person acting on behalf of any of the foregoing shall have any
liability to Placees (or to any other person whether acting on
behalf of a Placee or otherwise). In particular, neither Canaccord
Genuity, nor any Affiliate thereof nor any person acting on its
behalf shall have any liability to Placees in respect of its
conduct of the Placing.
Each Placee's obligations will be owed to the Company and to
Canaccord Genuity. Following the oral confirmation referred to
above, each Placee will also have an immediate, separate,
irrevocable and binding obligation, owed to Canaccord Genuity, to
pay to Canaccord Genuity (or as Canaccord Genuity may direct) in
cleared funds an amount equal to the product of the Issue Price and
the number of Placing Shares which such Placee has agreed to
acquire. The Company shall allot such Placing Shares to each Placee
following each Placee's payment to Canaccord Genuity of such
amount.
All obligations of Canaccord Genuity 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 Canaccord Genuity under the Placing Agreement
are conditional, inter alia, on:
(a) Admission occurring by no later than 8.00 a.m. on 12 June
2015 (or such later date as may be agreed between the Company, the
Asset Manager and Canaccord Genuity, not being later than close of
business on 31 July 2015); and
(b) the Company and the Asset Manager and JS Holding (together
the Asset Manager Parties), delivering, by no later than 5.00 p.m.
on the business day prior to Admission, to Canaccord Genuity
certificates confirming, inter alia, that none of the
representations, warranties and undertakings given by the Company
or the Asset Manager Parties in the Placing Agreement has been
breached or was untrue, inaccurate or misleading in any respect
when made or, by reason of any event occurring or circumstance
arising before the date of the certificates, would cease to be true
and accurate were it to be repeated on the date of the
certificates.
If (a) the conditions are not fulfilled (or to the extent
permitted under the Placing Agreement waived by Canaccord Genuity),
or (b) the Placing Agreement is terminated in the circumstances
specified below, the Placing will lapse and each Placee's rights
and obligations under the Placing shall cease and determine at such
time and no claim may be made by a Placee in respect thereof.
Canaccord Genuity shall have no liability to any Placee (or to any
other person whether acting on behalf of a Placee or otherwise) in
respect of any decision 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 be capable of rescission
or termination by the Placee.
Right to terminate under the Placing Agreement
Canaccord Genuity may at any time on or before Admission,
terminate the Placing Agreement by giving notice to the Company
that:
(a) any statement contained in the Prospectus is or has become
untrue or incorrect or misleading in any material respect or that
there has been a material omission therefrom or matters have arisen
which would, if the Prospectus were issued at that time, constitute
a material omission therefrom;
(b) any of the warranties given under the Placing Agreement was
untrue, inaccurate or misleading in any material respect when
given;
(c) there is a fact or circumstance which has arisen which has
given or would or is likely to give rise to a claim under the
indemnity at clause 11.3 of the Placing Agreement or which has
caused or would or might or is likely to cause such a warranty to
become untrue, inaccurate or misleading in any material respect at
any time (by reference to the facts or circumstances existing at
that time) before Admission becomes effective;
(d) any other event has occurred which requires a supplementary
prospectus to be published in accordance with the Prospectus Rules,
or otherwise results in the Prospectus being or becoming misleading
in any material respect or makes it inadvisable or inexpedient to
proceed with the Placing;
(e) any addition is made to the membership of the Board (for any
reason whatsoever) without the prior written consent of the Placing
Agent (such consent not to be unreasonably withheld or
delayed);
(f) without prejudice to the generality of paragraph (g) below
of the Placing Agreement, the Company has breached clause 3 of the
Placing Agreement (Delivery and Release of Documents) and failed to
comply within a reasonable time with the Placing Agent's request to
remedy the breach;
(g) the Company fails in any material respect to comply with any
of its obligations under the Placing Agreement; or
(h) certain events occur which, in the opinion of Canaccord
Genuity arrived at in good faith are likely materially and
adversely to affect the financial position, the business or the
prospects of the Company or make the success of the Placing
doubtful or makes the Placing or the creation of a market in the
New Shares temporarily or permanently impracticable or inadvisable
(in which case Canaccord Genuity shall consult with the Company and
the Asset Manager to the extent practicable prior to exercising its
right of termination).
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
A prospectus dated 5 June 2015 (the Prospectus) has been
published by the Company in connection with the Placing and
Admission. The Prospectus has been approved by the FCA. A Placee
may rely only 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 the Prospectus is exclusively the
responsibility of the Company and the persons stated therein as
accepting responsibility for the Prospectus and confirms to
Canaccord Genuity, the Company and the Asset Manager that it has
neither received nor relied on any information, representation,
warranty or statement made by or on behalf of Canaccord Genuity
(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 or the Asset Manager other than the
Prospectus and neither Canaccord Genuity, nor any of its
Affiliates, nor any persons acting on their behalf, nor the Company
nor the Asset 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 Canaccord Genuity for itself and as
agent for the Company that, except in relation to the information
contained in 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 following
Admission will take place within the CREST system, using the DVP
mechanism, subject to certain exceptions. Canaccord Genuity
reserves the right to require settlement for and delivery of the
Placing Shares to Placees by such other means as it may deem
necessary, if delivery or settlement is not possible or practicable
within the CREST system within the timetable set out in the
Prospectus 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 Issue Price, the aggregate amount owed by such Placee to
Canaccord Genuity and settlement instructions. Placees should
settle against CREST ID: 805. It is expected that such trade
confirmation will be despatched on 10 June 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 Canaccord
Genuity.
It is expected that settlement will be on 12 June 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.
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.
Representations and Warranties
By agreeing to subscribe for the Placing Shares, each Placee
which enters into a commitment to subscribe for the Placing Shares
will (for itself and any person(s) procured by it to subscribe for
the Placing Shares and any nominee(s) for any such person(s)) be
deemed to agree, represent and warrant to each of the Company, the
Asset Manager and Canaccord Genuity that:
(a) in agreeing to subscribe for Placing Shares under the
Placing, 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 or the Placing. It agrees that
none of the Company, the Asset Manager and Canaccord Genuity, nor
any of their respective officers, agents or 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;
(b) the content of the Prospectus and of this announcement is
exclusively the responsibility of the Company and its Directors and
apart from the liabilities and responsibilities, if any, which may
be imposed on Canaccord Genuity under any regulatory regime,
neither Canaccord Genuity nor any person acting on its behalf nor
any of its Affiliates makes any representation, express or implied,
nor accepts any responsibility whatsoever for the contents of the
Prospectus, nor the contents of this announcement nor for any other
statement made or purported to be made by them or on its or their
behalf in connection with the Company, the Placing Shares or the
Placing;
(c) if the laws of any territory or jurisdiction outside the
United Kingdom are applicable to its agreement to subscribe for
Placing Shares under the Placing, it warrants that it has complied
with all such laws, obtained all governmental and other consents
which may be required, 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
Asset Manager, or Canaccord Genuity, or any of their respective
officers, agents or employees acting in breach of the regulatory or
legal requirements, directly or indirectly, of any territory or
jurisdiction outside the United Kingdom in connection with the
Placing;
(d) it does not have a registered address in, and is not a
citizen, resident or national of, any jurisdiction in which it is
unlawful to make or accept an offer of the Placing Shares and it is
not acting on a non-discretionary basis for any such person;
(e) it agrees that, having had the opportunity to read the
Prospectus, it shall be deemed to have had notice of all
information and representations contained in the Prospectus, that
it is acquiring Placing Shares solely on the basis of the
Prospectus and any supplementary prospectus published by the
Company prior to Admission and no other information and that in
accepting a participation in the Placing it has had access to all
information it believes necessary or appropriate in connection with
its decision to subscribe for Placing Shares;
(f) it acknowledges that no person is authorised in connection
with the Placing to give any information or make any representation
other than as contained in the Prospectus and any supplementary
prospectus published by the Company prior to Admission and, if
given or made, any information or representation must not be relied
upon as having been authorised by Canaccord Genuity, the Company or
the Asset Manager;
(g) it is not applying as, nor is it applying as nominee or
agent for, a person who is or may be liable to notify and account
for tax under the Stamp Duty Reserve Tax Regulations 1986 at any of
the increased rates referred to in section 67, 70, 93 or 96
(depository receipts and clearance services) of the Finance Act
1986;
(h) it accepts that none of the Placing Shares have been or will
be registered under the laws of the United States, Canada,
Australia, Japan, New Zealand or South Africa or any other
jurisdiction where the availability of the Placing would breach any
Applicable Law (an Excluded Territory). Accordingly, the Placing
Shares may not be offered, sold or delivered, directly or
indirectly, within any Excluded Territory;
(i) if it is in the United Kingdom, if it is a Relevant Person;
(j) if it is receiving the offer in circumstances under which
the laws or regulations of a jurisdiction other than the United
Kingdom would apply, that it is a person to whom the Placing Shares
may be lawfully offered under that other jurisdiction's laws and
regulations;
(k) 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) of
the Prospectus Directive (Directive 2003/71/EC (and amendments
thereto, including Directive 2010/73/EU, to the extent implemented
in the Relevant Member State)) and (b) if that Relevant Member
State has implemented the AIFM Directive, that it is a person to
whom the Placing Shares may be lawfully marketed under the AIFM
Directive or under the applicable implementing legislation (if any)
of that Relevant Member State;
(l) 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 Placing constitutes an
invitation, offer or promotion to, or arrangement with, it or any
person whom it is procuring to subscribe for Placing Shares
pursuant to the Placing unless, in the relevant territory, such
offer, invitation or other course of conduct could lawfully be made
to it or such person and such documents or materials could lawfully
be provided to it or such person and Placing Shares could lawfully
be distributed to and subscribed and held by it or such person
without compliance with any unfulfilled approval, registration or
other regulatory or legal requirements;
(m) it acknowledges that neither Canaccord Genuity nor any of
its Affiliates nor any person acting on its or their behalf is
making any recommendations to it, advising it regarding the
suitability of any transactions it may enter into in connection
with the Placing or providing any advice in relation to the Placing
and participation in the Placing is on the basis that it is not and
will not be a client of Canaccord Genuity or any of its Affiliates
and that Canaccord Genuity and any of its Affiliates do not have
any duties or responsibilities to it for providing protection
afforded to their respective clients or for providing advice in
relation to the Placing nor in respect of any representations,
warranties, undertaking or indemnities contained in the Placing
Letter if relevant;
(n) it acknowledges that where it is subscribing for Placing
Shares for one or more managed, discretionary or advisory accounts,
it is authorised in writing for each such account: (i) to subscribe
for the Placing Shares for each such account; (ii) to make on each
such account's behalf the representations, warranties and
agreements set out in this announcement; and (iii) to receive on
behalf of each such account any documentation relating to the
Placing in the form provided by the Company and/or Canaccord
Genuity. It agrees that the provision of this paragraph shall
survive any resale of the Placing Shares by or on behalf of any
such account;
(o) it irrevocably appoints any Director and any director of
Canaccord Genuity to be its agent and on its behalf (without any
obligation or duty to do so), to sign, execute and deliver any
documents and do all acts, matters and things as may be necessary
for, or incidental to, its subscription for all or any of the
Placing Shares for which it has given a commitment under the
Placing, in the event of its own failure to do so;
(p) it accepts that if the Placing does not proceed or the
conditions to the Placing Agreement are not satisfied or the
Placing Shares for which valid application are received and
accepted are not admitted to listing on the SFM for any reason
whatsoever then none of the Company, Canaccord Genuity, the Asset
Manager or any of their affiliates, nor persons controlling,
controlled by or under common control with any of them nor any of
their respective employees, agents, officers, members,
stockholders, partners or representatives, shall have any liability
whatsoever to it or any other person;
(q) it acknowledges that any person in Guernsey who knows,
suspects, believes or has reasonable grounds for knowing,
suspecting or believing that any person (including the Company or
any person subscribing for Placing Shares) is involved in money
laundering or terrorist financing activities is under an obligation
to report such suspicion to the Financial Intelligence Service
pursuant to applicable Guernsey law (including but not limited to
the Disclosure (Bailiwick of Guernsey) Law 2007, the Criminal
Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999 and
the Terrorism and Crime (Bailiwick of Guernsey) Law 2002);
(r) it acknowledges and agrees that information provided by it
to the Company, Registrar or Administrator will be stored on the
Registrar's and the Administrator's computer system and manually.
It acknowledges and agrees that for the purposes of the Data
Protection (Bailiwick of Guernsey) Law 2001 (the Data Protection
Law) and other relevant data protection legislation which may be
applicable, the Registrar and the Administrator are required to
specify the purposes for which they will hold personal data. The
Registrar and the Administrator will only use such information for
the purposes set out below (collectively, the Purposes), being
to:
(i) process its personal data (including sensitive personal
data) as required by or in connection with its holding of Placing
Shares, including processing personal data in connection with
credit and money laundering checks on it;
(ii) communicate with it as necessary in connection with its
affairs and generally in connection with its holding of Placing
Shares;
(iii) provide personal data to such third parties as the
Administrator or Registrar may consider necessary in connection
with its affairs and generally in connection with its holding of
Placing Shares or as the Data Protection Law may require, including
to third parties outside the Bailiwick of Guernsey or the European
Economic Area;
(iv) without limitation, provide such personal data to the
Company, Canaccord Genuity or the Asset Manager and their
respective associates for processing, notwithstanding that any such
party may be outside the Bailiwick of Guernsey or the European
Economic Area; and
(v) process its personal data for the Administrator's internal administration;
(s) 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
subjects to the Registrar and the Administrator and their
respective associates holding and using their personal data for the
Purposes (including the explicit consent of the data subjects for
the processing of any sensitive personal data for the Purpose set
out in paragraph (r) above). For the purposes of this announcement
and the Prospectus, "data subject", "personal data" and "sensitive
personal data" shall have the meanings attributed to them in the
Data Protection Law;
(t) in connection with its participation in the Placing it has
observed all relevant legislation and regulations, in particular
(but without limitation) those relating to money laundering (Money
Laundering Legislation) and that its application is only made on
the basis that it accepts full responsibility for any requirement
to verify the identity of its clients and other persons in respect
of whom it has applied. In addition, it warrants that it is a
person: (i) subject to the Money Laundering Regulations 2007 in
force in the United Kingdom; or (ii) subject to the Money
Laundering Directive (2005/60/EC of the European Parliament and of
the EC Council of 26 October 2005 on the prevention of the use of
the financial system for the purpose of money laundering and
terrorist financing); or (iii) subject to the Guernsey AML
Requirements; or (iv) acting in the course of a business in
relation to which an overseas regulatory authority exercises
regulatory functions and is based or incorporated in, or formed
under the law of, a country in which there are in force provisions
at least equivalent to those required by the Money Laundering
Directive;
(u) it agrees that, due to anti-money laundering and the
countering of terrorist financing requirements, Canaccord Genuity,
the Administrator, the Registrar and/or the Company may require
proof of identity of the Placee and related parties and
verification of the source of the payment before the application
can be processed and that, in the event of delay or failure by the
Placee to produce any information required for verification
purposes, Canaccord Genuity, the Administrator, the Registrar
and/or the Company may refuse to accept the application and the
subscription moneys relating thereto. It holds harmless and will
indemnify Canaccord Genuity, the Administrator, the Registrar
and/or the Company against any liability, loss or cost ensuing due
to the failure to process this application, if such information as
has been required has not been provided by it or has not been
provided on a timely basis;
(v) Canaccord Genuity and the Company (and any agent on their
behalf) 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 them (or any agent acting on
their behalf);
(w) the representations, undertakings and warranties contained
in this announcement are irrevocable. It acknowledges that
Canaccord Genuity, 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 Placing Shares are no longer accurate, it shall promptly notify
Canaccord Genuity and the Company;
(x) where it or any person acting on behalf of it is dealing
with Canaccord Genuity, any money held in an account with Canaccord
Genuity 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 Canaccord Genuity to segregate such money, as that money
will be held by Canaccord Genuity under a banking relationship and
not as trustee;
(y) any of its clients, whether or not identified to Canaccord
Genuity or any of its Affiliates or agents, will remain its sole
responsibility and will not become clients of Canaccord Genuity or
any of its Affiliates or agents for the purposes of the rules of
the FCA or for the purposes of any other statutory or regulatory
provision;
(z) it accepts that the allocation of Placing Shares shall be
determined by Canaccord Genuity (in consultation with the Company
and the Asset Manager) in its absolute discretion and that such
persons may scale down any Placing commitments for this purpose on
such basis as they may determine; and
(aa) time shall be of the essence as regards its obligations to
settle payment for the Placing Shares and to comply with its other
obligations under the Placing.
United States Purchase and Transfer Restrictions
By participating in the Placing, each Placee acknowledges and
agrees that it will (for itself and any person(s) procured by it to
subscribe for Placing Shares and any nominee(s) for any such
person(s)) be further deemed to represent and warrant to each of
the Company, the Asset Manager and Canaccord Genuity that:
(a) if it is located outside the United States, it is not a U.S.
Person, it is acquiring the Placing Shares in an offshore
transaction meeting the requirements of Regulation S and it is not
acquiring the Placing Shares for the account or benefit of a U.S.
Person;
(b) if it is located inside the United States or is a U.S.
Person, it has received, read, understood and, prior to its receipt
of any Placing Shares, returned an executed U.S. Subscription
Agreement to the Company for the benefit of the Company and the
Asset Manager;
(c) it acknowledges that the Placing Shares have not been and
will not be registered under the U.S.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, U.S. Persons absent
registration or an exemption from registration under the U.S.
Securities Act;
(d) it acknowledges that the Company has not registered under
the U.S. 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 U.S. Investment
Company Act;
(e) no portion of the assets used to purchase, and no portion of
the assets used to hold, the Placing 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 U.S. Tax Code, including an individual retirement
account or other arrangement that is subject to Section 4975 of the
U.S. 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 U.S. Tax Code. In addition, if an investor is a governmental,
church, non-U.S. or other employee benefit plan that is subject to
any federal, state, local or non-U.S. law that is substantially
similar to the provisions of Title I of ERISA or Section 4975 of
the U.S. Tax Code, its purchase, holding, and disposition of the
Placing Shares must not constitute or result in a non-exempt
violation of any such substantially similar law;
(f) that if any Placing 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:
"DP AIRCRAFT I LIMITED (THE COMPANY) HAS NOT BEEN AND WILL NOT
BE REGISTERED UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940, AS
AMENDED (THE U.S. INVESTMENT COMPANY ACT). IN ADDITION, THE
SECURITIES OF THE COMPANY REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE U.S. SECURITIES ACT), OR WITH ANY SECURITIES
REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE
UNITED STATES. ACCORDINGLY, THIS SECURITY MAY NOT BE OFFERED, SOLD,
PLEDGED, EXERCISED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT
IN ACCORDANCE WITH THE U.S. SECURITIES ACT OR AN EXEMPTION
THEREFROM AND UNDER CIRCUMSTANCES WHICH WILL NOT REQUIRE THE
COMPANY TO REGISTER UNDER THE U.S. INVESTMENT COMPANY ACT, IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS."
provided, that if any Placing Shares are being sold pursuant to
sub-paragraph (i)(A) below, and if the Company is a "Foreign
Issuer" within the meaning of Regulation S at the time of sale, any
such legend may be removed upon delivery of the certification
described in sub-paragraph (i)(A) below, and provided further,
that, if any Placing Shares are being sold pursuant to
sub-paragraph (i)(B) below, the legend may be removed by delivery
to the Company of an opinion of counsel of recognised standing in
form and substance reasonably satisfactory to the Company;
(g) if in the future the investor decides to offer, sell,
transfer, assign or otherwise dispose of the Placing Shares, it
will do so only in compliance with an exemption from the
registration requirements of the U.S. Securities Act and under
circumstances which will not require the Company to register under
the U.S. 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;
(h) if it is a person described in paragraph (a) above and, if
in the future it decides to offer, resell, pledge or otherwise
transfer any of the Placing Shares, such Placing Shares may be
offered, resold, pledged or otherwise transferred only (A) outside
the United States to non-U.S. Persons in an offshore transaction in
accordance with Rule 904 of Regulation S (including, for example,
an ordinary trade over the London Stock Exchange), provided that
the Company is a "Foreign Issuer" within the meaning of Regulation
S at the time of sale, upon delivery to the Company of a
certification in the form set forth in the U.S. Subscription
Agreement or otherwise in such form as is reasonably satisfactory
to the Company, to the effect that such legend is no longer
required under applicable requirements of the U.S. Securities Act,
U.S. Investment Company Act or state securities laws, (B) in a
transaction that does not require registration under the U.S.
Securities Act or any applicable United States securities laws and
regulations or require the Company to register under the U.S.
Investment Company Act, subject to, if requested by the Company,
delivery of an opinion of counsel of recognised standing in form
and substance reasonably satisfactory to the Company, or (C) to the
Company;
(i) it is purchasing the Placing 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 Placing Shares in any manner that would violate
the U.S. Securities Act, the U.S. Investment Company Act or any
other applicable securities laws;
(j) it acknowledges that the Company reserves the right to make
inquiries of any holder of the Placing Shares or interests therein
at any time as to such person's status under the U.S. federal
securities laws and to require any such person that has not
satisfied the Company that holding by such person will not violate
or require registration under the U.S. securities laws to transfer
such Placing Shares or interests in accordance with the
Articles;
(k) it acknowledges and understands that the Company is required
to comply with the Foreign Account Tax Compliance Act provisions of
the U.S. Tax Code (FATCA) and that the Company will follow FATCA's
extensive reporting and withholding requirements. The investor
agrees to furnish any information and documents the Company may
from time to time request, including but not limited to information
required under FATCA;
(l) it is entitled to acquire the Placing 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 Placing Shares and that it has not taken any action, or omitted
to take any action, which may result in the Company or Canaccord
Genuity, or their respective directors, officers, agents, employees
and advisers being in breach of the laws of any jurisdiction in
connection with the Placing or its acceptance of participation in
the Placing;
(m) it has received, carefully read and understands this
announcement and the Prospectus, and has not, directly or
indirectly, distributed, forwarded, transferred or otherwise
transmitted this announcement or the Prospectus or any other
presentation or offering materials concerning the Placing Shares to
within the United States or to any U.S. Persons, nor will it do any
of the foregoing;
(n) if it is acquiring any Placing Shares as a fiduciary or
agent for one or more accounts, the investor has sole investment
discretion with respect to each such account and full power and
authority to make such foregoing representations, warranties,
acknowledgements and agreements on behalf of each such account;
and
(o) the Company, the Asset Manager, Canaccord Genuity 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 either of Canaccord Genuity, the Company or any of their
agents request any information in connection with a Placee's
agreement to subscribe for Placing Shares under the Placing or to
comply with any relevant legislation, such Placee must promptly
disclose it to them.
Miscellaneous
The rights and remedies of Canaccord Genuity and the Company
under these terms and conditions are in addition to any rights and
remedies which would otherwise be available to each of them and the
exercise or partial exercise of one will not prevent the exercise
of others.
On application, if a Placee is a discretionary fund manager,
that Placee may be asked to disclose in writing or orally the
jurisdiction in which its funds are managed or owned. All documents
provided in connection with the Placing will be sent at the
Placee's risk. They may be returned by post to such Placee at the
address notified by such Placee.
Each Placee agrees to be bound by the Articles (as amended from
time to time) once the Placing Shares, which the Placee has agreed
to subscribe for pursuant to the Placing, have been acquired by the
Placee. The contract to subscribe for Placing Shares under the
Placing and the appointments and authorities mentioned in this
announcement will be governed by, and construed in accordance with,
the laws of England and Wales. For the exclusive benefit of
Canaccord Genuity and the Company, each Placee irrevocably submits
to the jurisdiction of the courts of England and Wales and waives
any objection to proceedings in any such court on the ground of
venue or on the ground that proceedings have been brought in an
inconvenient forum. This does not prevent an action being taken
against a Placee in any other jurisdiction. A final and conclusive
judgment under which a sum of money is payable (not being a sum
payable in respect of taxes or other charges of a like nature or in
respect of a fine or penalty) obtained in the Supreme Court and the
Senior Courts of England and Wales, excluding the Crown Court,
against the Company in respect of the contract to subscribe for
Placing Shares under the Placing pursuant to these terms and
conditions after a hearing on the merits would be recognised as a
valid
judgment by the Guernsey courts and would be enforceable in
accordance with and subject to the provisions of the Judgments
(Reciprocal Enforcement) (Guernsey) Law 1957.
In the case of a joint agreement to subscribe for Placing Shares
under the Placing, references to a "Placee" in these terms and
conditions are to each of the Placees who are a party to that joint
agreement and their liability is joint and several.
Canaccord Genuity and the Company expressly reserve the right to
modify the Placing (including, without limitation, their timetable
and settlement) at any time before allocations are determined.
The Placing is subject to the satisfaction of the conditions
contained in the Placing Agreement and the Placing Agreement not
having been terminated. Further details of the terms of the Placing
Agreement are contained in paragraph 8 of Part XIII of the
Prospectus.
Capitalised terms not otherwise defined herein have the meaning
given to them in the Prospectus.
Enquiries:
Dexion Capital (Guernsey) Limited, Company Secretary
01481 743940
Kellie Blondel
Carol Kilby
DS Aviation GmbH & Co. KG
+ 49 231 557 173 300
Christian Mailly
Canaccord Genuity Limited
020 7523 8000
Dominic Waters
Neil Brierley
Will Barnett
David Yovichic
Helen Goldsmith
This information is provided by RNS
The company news service from the London Stock Exchange
END
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