REG - DP Aircraft I Ltd - Proposed issue of equity
11/11/2024 07:00
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RNS Number : 5918L DP Aircraft I Limited 11 November 2024
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS NOT FOR RELEASE,
PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO, THE UNITED
STATES, AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA OR ANY EEA
STATE (OTHER THAN A MEMBER STATE OF THE EEA WHERE THE COMPANY'S SECURITIES MAY
BE LAWLFULLY MARKETED) OR ANY OTHER JURISDICTION WHERE TO DO SO WOULD
CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF SUCH
JURISDICTION.
This announcement has been determined to contain inside information for the
purposes of the UK version of the EU Market Abuse Regulation (EU) No 596/2014
which is part of UK law by virtue of the European Union (Withdrawal) Act 2018,
as amended and supplemented from time to time.
11 November 2024
DP Aircraft I Limited
Proposed issue of equity
As previously noted in the interim accounts for the period ended 30(th) June
2024, the Board of Directors of DP Aircraft I Limited (the "Company") intends
to raise new equity of up to US$1 million in Q4 2024 in order to provide the
Company with additional working capital. The Board has now determined to
proceed with a fundraising through the issue of new ordinary shares in the
capital of the Company ("New Ordinary Shares") by way of tap issuance (the
"Tap Issue").
The Tap Issue will provide for the issue of up to 16,666,667 New Ordinary
Shares at a price of US$0.06 per Share, thereby raising gross proceeds of up
to US$1 million. The Tap Issue is being undertaken at a price which represents
a significant discount to the Company's unaudited NAV per Ordinary Share,
which was US$0.18751 as at 30 June 2024. At the Company's most recent Annual
General Meeting, held on 19 September 2023, authority was granted by
shareholders for the issue of up to 47,866,666 Ordinary Shares at a price
which is less than the prevailing NAV per Ordinary Share.
The Tap Issue will be launched immediately following this announcement. To
register their interest in participating in the Tap Issue, potential investors
should communicate their applications for New Ordinary Shares to their usual
contact at Investec. The Tap Issue is expected to close at 10.00 a.m. (London
time) on Friday, 15 November 2024 but may close earlier or later at the
discretion of the Company and Investec.
The Tap Issue will be made to qualified investors (as defined in Article 2(e)
of the UK version of the Prospectus Regulation (EU 2017/1129) which forms part
of UK law by virtue of the European Union (Withdrawal) Act 2018, as amended),
and will be subject to the terms and conditions set out in the Appendix to
this announcement.
Allocations of New Ordinary Shares
The number of New Ordinary Shares to be issued will be agreed between Investec
and the Company following the close of the Tap Issue and announced shortly
thereafter. In the event that applications from investors in aggregate exceed
the number of New Ordinary Shares available under the Tap Issue, it is
expected that precedence will be given to applications from shareholders on
the Company's share register as at close of business on 31 October 2024.
Notwithstanding the foregoing, Investec may choose to accept applications,
either in whole or in part, on the basis of allocations determined in
agreement with the Company, and may scale down any applications for this
purpose on such basis as the Company and Investec may determine.
Application for Admission
Application will be made for admission of the New Ordinary Shares to trading
on the Specialist Fund Segment of the London Stock Exchange's main market for
listed securities (the "SFS") ("Admission"). It is expected that Admission
will become effective, and that dealings in the New Ordinary Shares on the SFS
will commence, on Tuesday, 19 November 2024.
Expected Timetable
Latest time and date for receipt of applications 10.00 a.m. on Friday, 15 November 2024
Announcement of results of the Tap Issue Friday, 15 November 2024
New Ordinary Shares issued to successful applicants on a T+2 basis Friday, 15 November 2024
Admission and commencement of dealings in New Ordinary Shares 8.00 a.m. on Tuesday, 19 November 2024
Information about the Company
Thai Airways Leases
The Company's two aircraft are now operating on fixed monthly lease payments
with Thai Airways ("Thai") until October/December 2026 respectively. As
previously noted, the lease terms were extended by a further three years to
October/December 2029, with further scaled back monthly lease payments
starting from November 2026/January 2027. The Company retains a right of early
termination regarding this three year extension after consultation with the
Company's lending banks (the "Lenders"). As the lease agreements currently
stand, Thai are required to return the aircraft at the end of the lease terms
in full life condition, which would incur significant costs for Thai.
The Company is now in discussions with Thai regarding proposals to amend the
current lease arrangements. Following consultation with the Lenders, it has
been agreed that the Company will inform Thai by April 2025 whether or not the
early termination option under the leases will be exercised. As an ongoing
obligation, the Company is required to inform the Lenders of any negotiations
and or consultation which it has with Thai regarding any restructuring of the
lease arrangements.
Current Debt Financing
The Company's current debt finance arrangements with the Lenders expire at the
end of 2026. In this respect the Company can (i) negotiate to extend the loans
with the existing Lenders, (ii) refinance the loans with new lenders or (iii)
sell the aircraft ahead of the leases expiring at the end of 2026.
Discussions with the Lenders on possible next steps commenced in October
2024.
Whilst there is a requirement that by October 2025 the Company will provide
the Lenders with information on the steps it is taking to refinance or to
re-market the aircraft, followed by a Term Sheet by no later than August 2026,
the Board believes that there is a willingness amongst the Lenders to consider
an extension of the debt facilities from 2026 to 2029 on the basis that Thai
will likely come out of rehabilitation in the first half of 2025, bringing a
corresponding reduction in counterparty risk.
As at 31 October 2024, the Company had approximately US$83.3m of debt
outstanding to the Lenders. The expected level of outstanding debt at loan
maturity at 31 December 2026 is US$70.0m.
The Company will enter into discussions with the Lenders to reduce the debt
outstanding by US$3m per aircraft at loan maturity. The respective amounts
currently represent restricted cash which is a portion of the maintenance
reserves held on pledged accounts and owed to the Company.
Strategy
While the situation may change, the current preferred option for the Company
is for the sale of the aircraft with a lease attached which reflects improved
market terms and conditions. The Board and the Asset Manager remain fully
committed to extracting the best value for shareholders in this process and
are focussed on actions to improve and preserve the value of the assets. The
Board and the Asset Manager are still in the process of considering and
reviewing the various options available before recommending a preferred path.
Necessarily this will involve the proactive involvement of the Company's
Lenders, advisors and current lessee.
Boeing 787
The Board and Asset Manager believe the Boeing 787 remains an attractive asset
and note recent transaction activity in the market involving 787s (albeit
transparency around transaction values is currently limited). Boeing 787 wide
body production is still behind historic levels and delayed deliveries for new
aircraft are further strengthening demand. The Board notes that whilst the 787
aircraft is now key to Thai, the Company's aircraft type are the smaller 8
series with the Rolls Royce engine option and that all new wide bodied
aircraft Thai propose to add to their fleet are the GE powered, larger 787-9
variant. A key priority for the Company is progressing discussions with Thai
on how the Company's aircraft might fit into the overall Thai fleet strategy
and to what extent existing arrangements can be enhanced for the mutual
benefit of both parties.
Dividend
As previously noted, there is no realistic prospect of the Company's
shareholders receiving a dividend or other distribution prior to the end of
the lease terms. The key uncertainty remains the outlook for Thai (albeit the
position of Thai has improved considerably), the impact of inflation on the
travel industry and the knock-on effect these factors may have on aircraft
values and lease rentals.
Other Opportunities
The Board believes the aircraft will have long useful lives after 2026 (and
2029) and notes the supportive backdrop of increased demand for aircraft in
the industry. The Board intends to explore all options available that might
benefit shareholders, including alternative options to an extension with Thai.
As to the latter, to date exploratory discussions have taken place with
certain third parties, but it is premature to speculate on any potential
outcomes.
Use of Proceeds
The primary use of the proposed new equity is for ongoing working capital
requirements. This fund raising is not intended to cover the costs of a
refinancing, re-leasing or sale. It is currently assumed that some of these
costs can be funded from a US$1 million deposit facility agreed with the
Lenders, though it is unclear at this stage what total costs may be for these
activities and further funding may be required.
Cash Position
As at 31 October 2024, the Company had c.US$690k of cash on its balance sheet
and c.US$193k of ongoing accruals, excluding deferred amounts payable to the
Asset Manager, Broker and the Directors of c.US$1.1 million. Under the terms
agreed with the Lenders, the Company is permitted a total monthly payment of
US$70k out of the lease payments made by Thai. After accounting for this
income, the cash outflow for the Company for the year ended 30 June 2024
amounted to approximately US$325k.
Notwithstanding unavoidable cost increases and inflationary pressures, with
respect to ongoing working capital requirements, the Company has been able to
control the net cash burn by reducing certain costs and by deferring amounts
due to some service providers.
Aircraft Valuation
Average valuations for HS-TQC and HS-TQD as at 30 June 2024, based on
valuations provided by two independent valuers, were as follows:
Basis of Valuation US$m
Half-Life Base HS-TQC 52.8
HS-TQD 53.4
Half-Life Market HS-TQC 41.9
HS-TQD 42.4
*Full-Life Base HS-TQC 71.3
HS-TQD 71.9
*Full-Life Market HS-TQC 60.4
HS-TQD 60.9
*Full-Life Base 2026 Lease End HS-TQC 64.6
HS-TQD 65.1
*Full-Life Base 2029 Lease End HS-TQC 57.2
HS-TQD 57.6
* Thai is currently contractually required to return the aircraft in Full-Life
condition
(Base Value is the appraiser's opinion of the underlying economic value of an
aircraft in an open, unrestricted, stable market environment with a reasonable
balance of supply and demand, and assumes full consideration of its "highest
and best use." An aircraft's Base Value is founded in the historical trend of
values and in the projection of value trends and presumes an arm's-length,
cash transaction between willing, able and knowledgeable parties, acting
prudently, with an absence of duress and with a reasonable period of time
available for marketing. Market Value is the appraiser's opinion of the most
likely trading price that may be generated for an aircraft under the market
circumstances that are perceived to exist at the time in question. Market
Value assumes that the aircraft is valued for its highest, best use, that the
parties to the hypothetical sale transaction are willing, able, prudent and
knowledgeable, and under no unusual pressure for a prompt sale, and that the
transaction would be negotiated in an open and unrestricted market on an
arm's-length basis, for cash or equivalent consideration, and given an
adequate amount of time for effective exposure to prospective buyers.)
Enquiries
For further information, please contact:
Aztec Financial Services (Guernsey) Limited +44(0)
1481 748833
Sarah Felmingham / Chris Copperwaite
Investec Bank
plc
+44(0) 20 7597 4000
David Yovichic/Denis Flanagan
IMPORTANT INFORMATION
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE TAP ISSUE. THIS
ANNOUNCEMENT (INCLUDING THE APPENDIX) IS DIRECTED ONLY AT PERSONS SELECTED BY
INVESTEC 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 UNDER THE FPO (ALL SUCH PERSONS TOGETHER BEING
REFERRED TO AS "RELEVANT PERSONS"). ONLY RELEVANT PERSONS MAY PARTICIPATE IN
THE TAP ISSUE AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON
OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS.
THE NEW ORDINARY SHARES THAT ARE THE SUBJECT OF THE TAP ISSUE ARE NOT BEING
OFFERED OR SOLD TO ANY PERSON IN THE UNITED KINGDOM OR THE EUROPEAN ECONOMIC
AREA ("EEA"), OTHER THAN TO PERSONS WHO ARE BOTH (I) "QUALIFIED INVESTORS" AS
DEFINED IN ARTICLE 2(E) OF THE UK PROSPECTUS REGULATION OR ARTICLE 2(E) OF THE
EU PROSPECTUS REGULATION (AS APPLICABLE), WHICH INCLUDES LEGAL ENTITIES WHICH
ARE REGULATED BY THE FINANCIAL CONDUCT AUTHORITY (IN THE UK) OR
ENTITIES WHICH ARE NOT SO REGULATED WHOSE CORPORATE PURPOSE IS SOLELY TO
INVEST IN SECURITIES AND (II) PERSONS TO WHOM THE NEW ORDINARY SHARES MAY BE
LAWFULLY MARKETED UNDER THE UK AIFMD LAWS OR THE EU ALTERNATIVE INVESTMENT
FUND MANAGERS DIRECTIVE OR THE APPLICABLE IMPLEMENTING LEGISLATION (IF ANY) OF
THE MEMBER STATE OF THE EEA IN WHICH SUCH PERSON IS DOMICILED OR IN WHICH SUCH
PERSON HAS A REGISTERED OFFICE (AS APPLICABLE).
The New Ordinary Shares have not been and will not be registered under the
U.S. Securities Act of 1933, as amended (the "U.S. Securities Act") or with
any securities regulatory authority of any State or other jurisdiction of the
United States (as defined below), and accordingly may not be offered, sold or
transferred within the United States of America, its territories or
possessions, any State of the United States or the District of Columbia (the
"United States") except pursuant to an exemption from, or in a transaction not
subject to, registration under the U.S. Securities Act. The Tap Issue is being
made outside the United States in reliance on the exemption from the
registration requirements of the U.S. Securities Act provided by Regulation S.
The Company has not been and will not be registered under the U.S. Investment
Company Act of 1940, as amended (the "U.S. Investment Company Act") and
investors will not be entitled to the benefits of the U.S. Investment Company
Act.
This Announcement (including the Appendix) does not constitute an offer to
sell or issue or a solicitation of an offer to buy or subscribe for New
Ordinary Shares in any jurisdiction including, without limitation, the United
States, Australia, Canada, Japan, the Republic of South Africa, any EEA State
(other than any member state of the EEA where the Company's securities may be
lawfully marketed) 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 the issue of New Ordinary Shares
in certain jurisdictions may be restricted by law and/or regulation. No action
has been taken by the Company, Investec or any of their respective affiliates
as defined in Rule 501(b) under the U.S. Securities Act (as applicable in the
context used, "Affiliates") that would permit an offer of the New Ordinary
Shares or possession or distribution of this Announcement or any other
publicity material relating to the New Ordinary Shares in any jurisdiction
where action for that purpose is required. Persons receiving this Announcement
are required to inform themselves about and to observe any such restrictions.
Investec Bank plc ("Investec") is authorised in the United Kingdom by the
Prudential Regulation Authority and regulated by the Financial Conduct
Authority (the "FCA") and the Prudential Regulation Authority. Investec is
acting exclusively as broker for the Company and for no-one else in connection
with the Tap Issue and the matters described in this announcement, and will
not regard any other person as its client in relation to the Tap Issue and
will not be responsible to anyone other than the Company for providing the
protections afforded to clients of Investec or for providing advice in
relation to the Tap Issue or any of the other matters referred to herein.
Neither Investec nor any of its subsidiaries, branches or affiliates owes or
accepts any duty, liability or responsibility whatsoever (whether direct or
indirect, whether in contract, in tort, under statute or otherwise) to any
person who is not a client of Investec in connection with this announcement,
any statement contained herein or otherwise. Apart from the responsibilities
and liabilities, if any, which may be imposed on Investec by the Financial
Services and Markets Act 2000, or the regulatory regime established
thereunder, or under the regulatory regime of any jurisdiction where exclusion
of liability under the relevant regulatory regime would be illegal, void or
unenforceable, neither Investec nor any of its subsidiaries, branches or
affiliates accepts any responsibility or liability whatsoever for the contents
of this announcement, and no representation, express or implied, is made by
it, or purported to be made on its behalf, in relation to the contents of this
announcement, including its accuracy, completeness or verification of any
other statement made or purported to be made by it, or on its behalf, in
connection with the Tap Issue or the matters described in this announcement.
To the fullest extent permitted by applicable law, Investec, its subsidiaries,
branches and its affiliates accordingly disclaim all and any responsibility or
liability whether arising in tort, contract or otherwise (save as referred to
above in this paragraph) which they might otherwise have in respect of this
announcement, or any statement contained herein.
Information to Distributors
Solely for the purposes of the product governance requirements contained
within: (a) EU Directive 2014/65/EU on markets in financial instruments, as
amended ("MiFID II"); (b) Articles 9 and 10 of Commission Delegated Directive
(EU) 2017/593 supplementing MiFID II; (c) local implementing measures; and/or
(d) (where applicable to UK investors or UK firms) the relevant provisions of
the UK MiFID Laws (including the FCA's Product Intervention and Governance
Sourcebook ("PROD")) (together the "MiFID II Product Governance
Requirements"), and disclaiming all and any liability, whether arising in
tort, contract or otherwise, which any ''manufacturer'' (for the purposes of
the MiFID II Product Governance Requirements) may otherwise have with respect
thereto, the New Ordinary Shares have been subject to a product approval
process, which has determined that the New Ordinary Shares are: (i) compatible
with an end target market of (a) investors who meet the criteria of
professional clients and (b) eligible counterparties, each as defined in MiFID
II; and (ii) eligible for distribution through all distribution channels as
are permitted by MiFID II (the "Target Market Assessment").
Notwithstanding the Target Market Assessment, distributors should note that:
the price of the New Ordinary Shares may decline and investors could lose all
or part of their investment; the New Ordinary Shares offer no guaranteed
income and no capital protection; and an investment in the New Ordinary Shares
is compatible only with investors who do not need a guaranteed income or
capital protection, who (either alone or in conjunction with an appropriate
financial or other adviser) are capable of evaluating the merits and risks of
such an investment and who have sufficient resources to be able to bear any
losses that may result therefrom. The Target Market Assessment is without
prejudice to the requirements of any contractual, legal or regulatory selling
restrictions in relation to the Tap Issue.
For the avoidance of doubt, the Target Market Assessment does not constitute:
(a) an assessment of suitability or appropriateness for the purposes of MiFID
II; or (b) a recommendation to any investor or Company of investors to invest
in, or purchase, or take any other action whatsoever with respect to New
Ordinary Shares. Each distributor is responsible for undertaking its own
target market assessment in respect of the New Ordinary Shares and determining
appropriate distribution channels.
Definitions of certain capitalised terms used in this section and in the
Appendix are contained in paragraph 13 of the Appendix.
Appendix
Terms and Conditions of the Tap Issue
1. General
1.1 By participating in the issue referred to in this
Announcement (the "Tap Issue") each applicant for New Ordinary Shares (an
"Applicant") is deemed to have read and understood this Announcement
(including this Appendix) in its entirety and to be providing the
representations, warranties, undertakings, agreements and acknowledgements
contained in this Appendix.
1.2 Each Applicant which confirms its agreement (whether
orally or in writing) to Investec to subscribe for New Ordinary Shares under
the Tap Issue will be bound by these terms and conditions and will be deemed
to have accepted them.
1.3 The Company and/or Investec may require any Applicant to
agree to such further terms and/or conditions and/or give such additional
warranties and/or representations as it (in its absolute discretion) sees fit
and/or may require any such Applicant to execute a separate letter (a "Tap
Issue Letter"). The terms and conditions contained in any Tap Issue Letter
shall be supplemental and in addition to the terms and conditions contained in
this Appendix.
2. Agreement to Acquire New Ordinary Shares
2.1 Conditional upon:
(a) Admission occurring and becoming effective by 8.00 a.m.
(London time) on the date indicated in this Announcement (or such later time
and/or date, not being later than 22 November 2024, as the Company and
Investec Bank may agree); and
(b) Investec confirming to the Applicants their allocation of
the relevant New Ordinary Shares,
an Applicant agrees to become a member of the Company and agrees to subscribe
for those New Ordinary Shares allocated to it by Investec at the issue price
of US$0.06 per New Ordinary Share (the "Issue Price").
2.2 To the fullest extent permitted by law, each Applicant
acknowledges and agrees that it will not be entitled to exercise any remedy of
rescission at any time. This does not affect any other rights the Applicant
may have.
3. Payment for New Ordinary Shares
Each Applicant must pay the Issue Price for the New Ordinary Shares issued to
or for the benefit of the Applicant in the manner and by the time directed by
Investec. If any Applicant fails to pay as so directed and/or by the time
required, the relevant Applicant's application for the New Ordinary Shares
shall, at Investec's discretion, either be accepted or rejected in which case
paragraph 4.5 or 7.5 of these terms and conditions shall apply to such
application respectively.
4. Participation in, and principal terms of, the Tap Issue
4.1 Prospective Applicants will be identified and contacted
by Investec.
4.2 The latest time and date for receipt of commitments
under the Tap Issue is 10.00 a.m. on Friday 15 November 2024. The Company and
Investec reserve the right to bring this date forward, or to extend the
timetable at their discretion, provided that the closing date will not be
later than 22 November 2024.
4.3 Investec will re‐contact and confirm orally or in
writing to Applicants the size of their respective allocations and a trade
confirmation will be dispatched as soon as possible thereafter. Investec's
oral or written confirmation of the size of allocations and each Applicant's
oral commitment to accept the same or such lesser number as determined in
accordance with paragraph 4.4 below will constitute a legally binding
agreement pursuant to which each such Applicant will be required to accept the
number of New Ordinary Shares allocated to the Applicant at the Issue Price
and otherwise on the terms and subject to the conditions set out in this
Appendix.
4.4 The Company (after consultation with Investec) reserves
the right to scale back the number of New Ordinary Shares to be subscribed by
any Applicant in the event of an oversubscription in the Tap Issue. The
Company and Investec also reserve the right not to accept offers to subscribe
for New Ordinary Shares or to accept such offers in part rather than in whole.
Investec shall be entitled to effect the Tap Issue by such method as it shall
in its sole discretion determine. To the fullest extent permissible by law,
neither Investec, nor any holding company of Investec, nor any subsidiary,
branch or affiliate of Investec (each an "Affiliate") nor any person acting on
behalf of any of the foregoing shall have any liability to Applicants (or to
any other person whether acting on behalf of an Applicant or otherwise). In
particular, neither Investec nor any Affiliate thereof nor any person acting
on their behalf shall have any liability to Applicants in respect of their
conduct of the Tap Issue. No commissions will be paid to Applicants or
directly by Applicants in respect of the New Ordinary Shares.
4.5 Each Applicant's obligations will be owed to the Company
and to Investec. Following the oral or written confirmation(s) referred to
above, each Applicant will have an immediate, separate, irrevocable and
binding obligation, owed to Investec, to pay to Investec (or as Investec may
direct) in cleared funds an amount equal to the product of the Issue Price and
the number of New Ordinary Shares which such Applicant has agreed to acquire
under the Tap Issue. Commitments under the Tap Issue, once made, cannot be
withdrawn without the consent of the Directors. The Company shall allot such
New Ordinary Shares to each Applicant (or to Investec for onward transmission
to the relevant Applicant) following each Applicant's payment to Investec of
such amount.
4.6 Each Applicant agrees to indemnify on demand and hold
each of Investec, the Company and the Asset Manager and its and their
respective Affiliates harmless from any and all costs, claims, liabilities and
expenses (including legal fees and expenses) arising out of or in connection
with any breach of the acknowledgements, undertakings, representations,
warranties and agreements set forth in these terms and conditions as
supplemented by any Tap Issue Letter.
4.7 All obligations of Investec under the Tap Issue will be
subject to fulfilment of the conditions referred to below under "Conditions".
5. Conditions
5.1 The Tap Issue is conditional (inter alia) as described
in paragraph 2.1 above.
5.2 If the Tap Issue does not become unconditional, the Tap
Issue will lapse and each Applicant's rights and obligations under the Tap
Issue shall cease and determine at such time and no claim may be made by an
Applicant in respect thereof. Investec shall have no liability to any
Applicant (or to any other person whether acting on behalf of an Applicant or
otherwise) in respect of any decision they may make as to whether or not to
waive or to extend the time and/or date for the satisfaction of any condition
relating to the Tap Issue or in respect of the Tap Issue generally.
5.3 By participating in the Tap Issue, each Applicant agrees
that its rights and obligations hereunder terminate only in the circumstances
described above and will not be capable of rescission or termination by the
Applicant.
5.4 By participating in the Tap Issue, each Applicant agrees
with Investec that the exercise by Investec of any right of termination or
other discretion shall be within the absolute discretion of Investec and that
Investec need not make any reference to the Applicant in this regard and that,
to the fullest extent permitted by law, Investec shall not have any liability
whatsoever to the Applicant in connection with any such exercise.
6. No Prospectus
6.1 The Tap Issue is only available to Relevant Persons that
are identified and contacted by the Investec and the New Ordinary Shares will
only be offered in such a way as to not require a prospectus in Guernsey, the
United Kingdom or elsewhere. No offering document or prospectus has been or
will be submitted to be approved by the Guernsey Financial Services Commission
nor the States of Guernsey nor the FCA in relation to the Tap Issue and
Applicants' commitments will be made solely on the basis of the information
contained in this Announcement (including this Appendix) and information that
has been published by the Company in accordance with the Disclosure Guidance
and Transparency Rules and UK MAR (collectively "Regulatory Information").
6.2 Each Applicant, by accepting a participation in the Tap
Issue, agrees that the content of this Announcement, including this Appendix,
is exclusively the responsibility of the Company and confirms to Investec, the
Company and the Asset Manager that it has neither received nor relied on any
other information (other than the Regulatory Information), representation,
warranty, or statement made by or on behalf of the Company or Investec (other
than the amount of the relevant Applicant's participation in the oral or
written confirmation given to Applicants and the trade confirmation referred
to elsewhere in this Appendix), any of their respective Affiliates, or any
person acting on behalf of the Company, the Asset Manager or Investec, and
neither Investec, nor any of its Affiliates, nor any person acting on its or
their behalf, nor the Company will be liable for any Applicant's decision to
participate in the Tap Issue based on any other information, representation,
warranty or statement which the Applicant 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 such persons). By participating
in the Tap Issue, each Applicant acknowledges to and agrees with Investec for
itself and as agent for the Company, that it has relied on its own
investigation of the business, financial or other position of the Company in
accepting a participation in the Tap Issue, and confirms that it has
understood the risks of investing in the Company and acquiring New Ordinary
Shares and has read the risk factors detailed in the Company's latest annual
report and financial statements and in the Company's most recently published
prospectus, each of which are available on the Company's website
www.dpaircraft.com/. Nothing in this paragraph shall exclude the liability of
any person for fraudulent misrepresentation.
7. Registration and settlement
7.1 Settlement of transactions in the relevant New Ordinary
Shares following their Admission will take place within the CREST system,
using the DVP mechanism, subject to certain exceptions. Investec reserves the
right to require settlement for and delivery of the relevant New Ordinary
Shares to Applicants by such other means as it may deem necessary, if delivery
or settlement is not possible or practicable within the CREST system within
the timetable set out in this Announcement (including this Appendix) or would
not be consistent with the regulatory requirements in the Applicant's
jurisdiction.
7.2 Each Applicant allocated New Ordinary Shares in the Tap
Issue will be sent a trade confirmation stating the number of New Ordinary
Shares allocated to it, the aggregate amount owed by such Applicant to
Investec and settlement instructions. Applicants should settle against CREST
Participant ID: 331. Each Applicant agrees that it will do all things
necessary to ensure that delivery and payment is completed in accordance with
either the standing CREST or certificated settlement instructions which it has
in place with Investec.
7.3 It is expected that settlement will be on a T+2 basis in
accordance with the instructions set out in the trade confirmation. Trade
confirmations will be despatched on or around 15 November 2024 and this will
also be the trade date in respect thereof.
7.4 Interest is chargeable daily on payments not received
from Applicants on the due date in accordance with the arrangements set out
above at the rate of 2 percentage points above the base rate of Barclays Bank
Plc.
7.5 Each Applicant is deemed to agree that if it does not
comply with these obligations, Investec may sell any or all of the New
Ordinary Shares allocated to the Applicant on such Applicant's behalf and
retain from the proceeds, for their own account and profit, an amount equal to
the aggregate amount owed by the Applicant plus any interest due. The
Applicant will, however, remain liable for any shortfall below the aggregate
amount owed by such Applicant and it may be required to bear any tax or other
charges (together with any interest or penalties) which may arise upon the
sale of such New Ordinary Shares on such Applicant's behalf.
7.6 If New Ordinary Shares are to be delivered to a custodian
or settlement agent, the Applicant should ensure that the trade confirmation
is copied and delivered immediately to the relevant person within that
organisation.
7.7 Insofar as New Ordinary Shares are registered in the
Applicant's name or that of its nominee or in the name of any person for whom
the Applicant is contracting as agent or that of a nominee for such person,
such New Ordinary Shares will, subject as provided below, be so registered
free from any liability to PTM levy, stamp duty or stamp duty reserve tax. If
there are any circumstances in which any other stamp duty or stamp duty
reserve tax is payable in respect of the issue of the New Ordinary Shares,
neither Investec nor the Company shall be responsible for the payment thereof.
Applicants will not be entitled to receive any fee or commission in connection
with the Tap Issue.
8. Representations and Warranties
By participating in the Tap Issue, each Applicant acknowledges and agrees that
it will (for itself and any person(s) procured by it to acquire New Ordinary
Shares and any nominee(s) for any such person(s)) be deemed to acknowledge,
agree, represent and warrant to each of the Company, the Asset Manager and
Investec that:
8.1 it has carried out its own investigation of the Company
and the New Ordinary Shares and has read this Announcement, including this
Appendix, in its entirety and acknowledges that its acquisition of New
Ordinary Shares is subject to and based upon all the terms, conditions,
representations, warranties, indemnities, acknowledgements, agreements and
undertakings and other information contained herein and undertakes not to
redistribute or duplicate this Announcement (including this Appendix);
8.2 no offering document or prospectus has been prepared in
connection with the New Ordinary Shares and represents and warrants that it
has not received a prospectus or other offering document in connection
therewith;
8.3 the Ordinary Shares are listed on the Specialist Fund
Segment of the London Stock Exchange, and the Company is therefore required to
publish Regulatory Information, which includes a description of the nature of
the Company's business and the Company's most recent balance sheet and profit
and loss account and that the Applicant is able to obtain or access such
information without undue difficulty, and is able to obtain access to such
information or comparable information concerning any other publicly traded
company, without undue difficulty;
8.4 it is relying solely on this Announcement (including
this Appendix) and the Regulatory Information published by the Company prior
to Admission of the New Ordinary Shares issued pursuant to the Tap Issue and
not on any other information given, or representation or statement made at any
time, by any person concerning the Company or the Tap Issue. It agrees that
none of the Company, the Asset Manager and Investec, 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;
8.5 the content of this Announcement (including this
Appendix) and the Regulatory Information is exclusively the responsibility of
the Company and (in respect of the Regulatory Information) in addition to the
Company, the persons stated therein as accepting responsibility, and apart
from the liabilities and responsibilities, if any, which may be imposed on
Investec under any regulatory regime, neither Investec nor any person acting
on its behalf nor any of its or their Affiliates makes any representation,
express or implied, nor accepts any responsibility whatsoever for the contents
of this Announcement and the Regulatory Information nor for any other
statement made or purported to be made by them or on its or their behalf in
connection with the Company, the New Ordinary Shares or the Tap Issue,
including but without limitation any Key Information Document published by the
Company in accordance with UK PRIIPs Laws (and/or the EU PRIIPs Regulation);
8.6 if the laws of any territory or jurisdiction outside the
United Kingdom are applicable to its agreement to acquire New Ordinary Shares
under the Tap Issue, 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 Investec or any of their respective Affiliates, 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 Tap Issue;
8.7 it does not have a registered address in, and is not a
citizen, resident or national of, any jurisdiction in which it is unlawful to
make or accept an offer of the New Ordinary Shares and it is not acting on a
non-discretionary basis for any such person;
8.8 it acknowledges that no person is authorised in
connection with the Tap Issue to give any information or make any
representation other than as contained in this Announcement (including this
Appendix) or the Regulatory Information and, if given or made, any information
or representation must not be relied upon as having been authorised by any of
Investec, the Company and/or the Asset Manager;
8.9 it is not applying as, nor is it applying as nominee or
agent for, a person who is or may be liable to notify and account for tax
under the Stamp Duty Reserve Tax Regulations 1986 at any of the increased
rates referred to in section 67, 70, 93 or 96 (depository receipts and
clearance services) of the Finance Act 1986;
8.10 it accepts that none of the New Ordinary Shares have been or
will be registered in any jurisdiction other than the United Kingdom and that
the New Ordinary Shares may not be offered, sold or delivered, directly or
indirectly, within any Excluded Territory;
8.11 if it is applying for New Ordinary Shares in circumstances
under which the laws or regulations of a jurisdiction other than the United
Kingdom would apply, that it is a person to whom the New Ordinary Shares may
be lawfully offered under that other jurisdiction's laws and regulations;
8.12 it has not been engaged to acquire the New Ordinary Shares
(a) on behalf of any other person in the UK who is not a qualified investor
(within the meaning of Article 2(e) of the UK Prospectus Regulation) unless
the terms on which it is engaged enable it to make decisions concerning the
acceptance of offers of transferable securities on the client's behalf without
reference to the client as described in section 86(2) of FSMA or (b) where it
has been engaged to acquire New Ordinary Shares on behalf of any other person
in the EEA who is not a qualified investor (within the meaning of Article 2(e)
of the EU Prospectus Regulation) unless the offer of the New Ordinary Shares
is not treated under the EU Prospectus Regulation as having been made to such
other person;
8.13 if it is resident in the UK, (a) it is a qualified investor
within the meaning of Article 2(e) of the UK Prospectus Regulation and also a
person (i) who has professional experience in matters relating to investments
falling within Article 19(5) of the Financial Services and Markets Act 2000
(Financial Promotion) Order 2005 (the "Order"); or (ii) falling within Article
49(2)(a) to (d) ("High Net Worth Companies, Unincorporated Associations, etc")
of the Order; or (iii) to whom this Announcement (including this Appendix) may
otherwise be lawfully communicated, and (b) if it is a financial intermediary,
as that term is used in Article 5 of the UK Prospectus Regulation, that the
New Ordinary Shares acquired by it in the Tap Issue will not be acquired on a
non-discretionary basis on behalf of, nor will they be acquired with a view to
their offer or resale to, persons in the UK other than qualified investors
(within the meaning of Article 2(e) of the UK Prospectus Regulation), or in
circumstances in which the prior consent of Investec has been given to the
offer or resale;
8.14 if it is a resident in the EEA:
(a) it is a qualified investor within the meaning of Article 2(e) of the EU
Prospectus Regulation; and
(b) if the relevant Member State has implemented the EU AIFM Directive,
that it is a person to whom the New Ordinary Shares may be lawfully marketed
under the EU AIFM Directive or under the applicable implementing legislation
(if any) of the relevant Member State; and
(c) if it is a financial intermediary, as that term is used in Article 5 of
the EU Prospectus Regulation, that the New Ordinary Shares purchased by it in
the Tap Issue will not be acquired on a non-discretionary basis on behalf of,
nor will they be acquired with a view to their offer or resale to, persons in
a Member State other than qualified investors (within the meaning of Article
2(e) of the EU Prospectus Regulation), or in circumstances in which the prior
consent of Investec has been given to the offer or resale;
8.15 if it is outside the United Kingdom, neither this Announcement
(including this Appendix) nor any other information or document issued by or
on behalf of or in respect of the Company or Investec constitutes an
invitation, offer or promotion to, or arrangement with, it or any person whom
it is procuring to subscribe for New Ordinary Shares pursuant to the Tap Issue
unless, in the relevant territory, such offer, invitation or other course of
conduct could lawfully be made to it or such person and such documents or
materials could lawfully be provided to it or such person and the New Ordinary
Shares could lawfully be distributed to and subscribed and held by it or such
person without compliance with any unfulfilled approval, registration or other
regulatory or legal requirements;
8.16 if the Applicant is a natural person, such Applicant is not
under the age of majority (18 years of age in the United Kingdom) on the date
it agrees to apply for New Ordinary Shares and will not be any such person on
the date any such agreement to apply under the Tap Issue is accepted;
8.17 it has the funds available to pay in full for the New Ordinary
Shares for which it has agreed to acquire pursuant to its commitment under the
Tap Issue and that it will pay the total subscription in accordance with the
terms set out in this Appendix and, as applicable, as set out in the contract
note or other confirmation and the Tap Issue Letter (if any) on the due time
and date;
8.18 it has communicated or caused to be communicated and will
communicate or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of section 21 of FSMA) relating to
the New Ordinary Shares only in circumstances in which section 21(1) of FSMA
does not require approval of the communication by an authorised person; and
(ii) no document is being issued by Investec Bank in its capacity as an
authorised person under section 21 of FSMA;
8.19 it acknowledges that neither Investec 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 Tap Issue or providing
any advice in relation to the Tap Issue and participation in the Tap Issue is
on the basis that it is not and will not be a client of Investec or any of its
Affiliates and that Investec and any of its Affiliates do not have any duties
or responsibilities to it for providing the protections afforded to its
clients or for providing advice in relation to the Tap Issue or the Company
nor in respect of any representations, warranties, undertaking or indemnities
contained in these terms and conditions and/or in any Tap Issue Letter;
8.20 it acknowledges that where it is acquiring New Ordinary
Shares for one or more managed, discretionary or advisory accounts, it is
authorised in writing for each such account:
(a) to acquire the New Ordinary Shares for each such account;
(b) to make on each such account's behalf the representations, warranties
and agreements set out in this Appendix; and
(c) to receive on behalf of each such account any documentation relating to
the Tap Issue in the form provided by the Company and/or Investec. It agrees
that the provision of this paragraph shall survive any resale of the New
Ordinary Shares by or on behalf of any such account;
8.21 it irrevocably appoints any director of the Company and any
director of Investec 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 acquisition
of all or any of the New Ordinary Shares for which it has given a commitment
under the Tap Issue, in the event of its own failure to do so;
8.22 it accepts that if the Tap Issue does not proceed (for
whatever reason) then none of Investec, the Company, 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;
8.23 it acknowledges that any person in Guernsey involved in the
business of the Company who has a suspicion or belief that any other person
(including the Company or any person subscribing for New Ordinary Shares) is
involved in money laundering activities, is under an obligation to report such
suspicion to the Financial Intelligence Unit pursuant to the Terrorism and
Crime (Bailiwick of Guernsey) Law, 2002 (as amended);
8.24 if it is acting as a "distributor" (for the purposes of the
MiFID II Product Governance Requirements):
(a) it acknowledges that the Target Market Assessment
undertaken by Investec does not constitute: (a) an assessment of suitability
or appropriateness for the purposes of EU MiFID II or the UK MiFID II Laws; or
(b) a recommendation to any investor or Company of investors to invest in, or
purchase, or take any other action whatsoever with respect to the New Ordinary
Shares, and each distributor is responsible for undertaking its own target
market assessment in respect of the New Ordinary Shares and determining
appropriate distribution channels;
(b) notwithstanding any Target Market Assessment undertaken
by Investec, it confirms that it has satisfied itself as to the appropriate
knowledge, experience, financial situation, risk tolerance and objectives and
needs of the investors to whom it plans to distribute the New Ordinary Shares
and that it has considered the compatibility of the risk/reward profile of
such New Ordinary Shares with the end target market;
(c) it acknowledges that the price of the New Ordinary Shares
may decline and investors could lose all or part of their investment; the New
Ordinary Shares offer no guaranteed income and no capital protection; and an
investment in the New Ordinary Shares is compatible only with investors who do
not need a guaranteed income or capital protection, who (either alone or in
conjunction with an appropriate financial or other adviser) are capable of
evaluating the merits and risks of such an investment and who have sufficient
resources to be able to bear any losses that may result therefrom;
(d) it acknowledges that Investec is acting for the Company
in connection with the Tap Issue and for no-one else and that it will not
treat any Applicant as its customer by virtue of such application being
accepted or owe any Applicant any duties or responsibilities concerning the
price of the New Ordinary Shares or concerning the suitability of the New
Ordinary Shares for the Applicant or be responsible to the Applicant for the
protections afforded to its customers; and
(e) it agrees that if so required by Investec, it shall
provide aggregated summary information on sales of the New Ordinary Shares as
contemplated under rule 3.3.30R of the PROD Sourcebook and information on the
reviews carried out under rules 3.3.26R to 3.3.28R of the PROD Sourcebook;
8.25 in connection with its participation in the Tap Issue, it has
observed all relevant legislation and regulations, in particular (but without
limitation) those relating to money laundering 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
UK Money Laundering Regulations 2017; or (ii) subject to the EU Money
Laundering Directive; 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 EU Money
Laundering Directive;
8.26 it agrees that, due to anti-money laundering and the
countering of terrorist financing requirements, Investec and/or the Company
may require proof of identity of the Applicant and related parties and
verification of the source of the payment before the application can be
processed and that, in the event of delay or failure by the Applicant to
produce any information required for verification purposes, Investec and/or
the Company may refuse to accept the application and the subscription monies
relating thereto. It holds harmless and will indemnify Investec and/or the
Company against any liability, loss or cost ensuing due to the failure to
process its application, if such information as has been required has not been
provided by it or has not been provided on a timely basis;
8.27 Investec and the Company (and any agent on their behalf) are
entitled to exercise any of their rights in their absolute discretion without
any liability whatsoever to them (or any agent acting on their behalf);
8.28 the representations, undertakings and warranties contained in
this Appendix are irrevocable. It acknowledges that Investec, 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 relevant New Ordinary Shares are no longer accurate, it
shall promptly notify Investec and the Company in writing;
8.29 where it or any person acting on behalf of it is dealing with
Investec, any money held in an account with Investec on behalf of it and/or
any person acting on behalf of it will not be treated as client money within
the meaning of the relevant rules and regulations of the Financial Conduct
Authority which therefore will not require Investec to segregate such money,
as that money will be held by Investec under a banking relationship and not as
trustee;
8.30 any of its clients, whether or not identified to Investec or
any of its Affiliates or agents, will remain its sole responsibility and will
not become clients of Investec or any of its Affiliates or agents for the
purposes of the rules of the Financial Conduct Authority or for the purposes
of any other statutory or regulatory provision;
8.31 it accepts that the allocation of New Ordinary Shares shall be
determined by the Company (in consultation with Investec) in its absolute
discretion and that the Company may scale down any Tap Issue commitments for
this purpose on such basis as it may determine;
8.32 it is aware of the obligations regarding insider dealing in
the Criminal Justice Act 1993, the Proceeds of Crime Act 2002 and UK MAR and
confirms that it has and will continue to comply with those obligations;
8.33 time shall be of the essence as regards its obligations to
settle payment for the relevant New Ordinary Shares and to comply with its
other obligations under the Tap Issue; and
8.34 it requests, at its own initiative, that the Company (or its
agents) notifies it of all future opportunities to acquire securities in the
Company and provides it with all available information in connection
therewith.
9. United States Purchase and Transfer Restrictions
By participating in the Tap Issue, each Applicant acknowledges and agrees that
it will (for itself and any person(s) procured by it to acquire New Ordinary
Shares and any nominee(s) for any such person(s)) be further deemed to
acknowledge, agree, represent and warrant to each of the Company, the Asset
Manager and Investec that:
9.1 (A) it is located outside the United States, (B) it is
not a U.S. Person, (C) it is acquiring the New Ordinary Shares in an "offshore
transaction" meeting the requirements of Regulation S under the U.S.
Securities Act ("Regulation S") and not as a result of any directed selling
efforts (as defined in Regulation S) and (D) it is not acquiring the New
Ordinary Shares for the account or benefit of a U.S. Person;
9.2 it acknowledges that the New Ordinary 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, sold, resold, pledged, delivered,
assigned or otherwise transferred, directly or indirectly, into or within the
United States or to, or for the account or benefit of, U.S. Persons, except
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the U.S. Securities Act and in compliance with
any applicable securities laws of any State or other jurisdiction of the
United States and in a manner which would not result in the Company being
required to register under the U.S. Investment Company Act;
9.3 it acknowledges that the Company has not been and will
not be registered under the U.S. Investment Company Act and as such investors
are not and will not be entitled to the benefits of 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 on the
future trading of the Ordinary Shares to ensure that the Company is not and
will not be required to register under the U.S. Investment Company Act;
9.4 it acknowledges that the Asset Manager has not
registered under the U.S. Investment Advisers Act of 1940, as amended (the
"U.S. Investment Advisers Act") and that the Company has put in place
restrictions on the sale and transfer of the Ordinary Shares to ensure that
the Asset Manager is not and will not be required to register under the U.S.
Investment Advisers Act;
9.5 no portion of the assets used to purchase, and no
portion of the assets used to hold, the New Ordinary Shares or any beneficial
interest therein constitutes or will constitute the assets of (i) an "employee
benefit plan" as defined in Section 3(3) of the U.S. Employee Retirement
Income Security Act of 1974, as amended ("ERISA") that is subject to Title I
of ERISA; (ii) a "plan" as defined in Section 4975 of the U.S. Internal
Revenue Code of 1986, as amended (the "Code"), including an individual
retirement account or other arrangement that is subject to Section 4975 of the
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 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 Code, its purchase,
holding, and disposition of the New Ordinary Shares must not constitute or
result in a non-exempt violation of any such substantially similar law;
9.6 that if any New Ordinary Shares are issued in
certificated form (or if a request to rematerialize uncertificated New
Ordinary Shares into certificated form is made), 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 New Ordinary Shares are being sold pursuant to paragraph
9.7 below, and if the Company is a "foreign issuer" within the meaning of
Regulation S at the time of the sale, any such legend may be removed upon
delivery to the Company of a certification in such form and substance as is
reasonably satisfactory to the Company to establish that such legend is no
longer required under the applicable requirements of the U.S. Securities Act,
U.S. Investment Company Act, U.S. or State securities laws;
9.7 if in the future, the investor decides to offer, sell,
transfer, assign, pledge or otherwise dispose of the New Ordinary Shares or
any beneficial interest therein, it will do so only (i) outside the United
States in an "offshore transaction" complying with the provisions of
Regulation S under the U.S. Securities Act to a person not known by the
transferor to be a U.S. Person, by pre-arrangement or otherwise, or (ii) to
the Company or a subsidiary thereof. It acknowledges that any offer, sale,
transfer, assignment, pledge or other disposal made other than in compliance
with the foregoing restrictions will be subject to the compulsory transfer
provisions as provided in the Company's articles of incorporation (the
"Articles");
9.8 it is purchasing the New Ordinary 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
Ordinary Shares in any manner that would violate the U.S. Securities Act, the
U.S. Investment Company Act or any other applicable securities laws;
9.9 it is aware and acknowledges that the Company reserves
the right to make inquiries of any holder of the New Ordinary Shares or
interests therein at any time as to such person's status under the U.S.
federal securities laws and to require any such person that has not satisfied
the Company that holding by such person will not violate or require
registration under the U.S. securities laws to transfer such New Ordinary
Shares or interests in accordance with the Articles;
9.10 it acknowledges and understands that the Company is required
to comply with the U.S. Foreign Account Tax Compliance Act ("FATCA") and the
CRS and that the Company will follow FATCA's and CRS's extensive reporting and
FATCA's withholding requirements from their effective date. The Applicant
agrees to furnish any information and documents the Company may from time to
time request, including but not limited to information required under FATCA or
the CRS;
9.11 it is entitled to acquire the New Ordinary 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 Ordinary Shares and that it has not taken any
action, or omitted to take any action, which may result in the Company, the
Asset Manager or Investec, or their respective Affiliates, directors,
officers, agents, employees and advisers being in breach of the laws of any
jurisdiction in connection with the Tap Issue or its acceptance of
participation in the Tap Issue;
9.12 it has received, carefully read and understands this
Announcement (including this Appendix), and has not, directly or indirectly,
distributed, forwarded, transferred or otherwise transmitted this Announcement
(including this Appendix) or any other materials concerning the Company or the
New Ordinary Shares to within the United States or to any U.S. Persons, nor
will it do any of the foregoing;
9.13 if it is acquiring any New Ordinary 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
9.14 the Company, the Asset Manager and Investec 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 Applicant are no longer accurate or have not been complied with, the
Applicant will immediately notify Investec and the Company in writing.
10. Supply and Disclosure of Information
If Investec, the Company or any of their agents requests any information in
connection with an Applicant's agreement to subscribe for New Ordinary Shares
under the Tap Issue or to comply with any relevant legislation, such Applicant
must promptly disclose it to them.
11. Data Protection
11.1 Each Applicant acknowledges that it has been informed that,
pursuant to applicable data protection legislation (including the UK GDPR, the
EU GDPR and the DP Law) and regulatory requirements in Guernsey and/or the
EEA, as appropriate (the "DP Legislation") the Company, the Administrator
and/or the Registrar hold their personal data.
11.2 The Company, the Administrator and the Registrar will process
such personal data at all times in compliance with DP Legislation and shall
only process such information for the purposes set out in the Company's
privacy policy which is available for inspection at the Company's registered
office and a copy of which may be requested from the Administrator (the
"Privacy Notice").
11.3 Any sharing of personal data between parties will be carried
out in compliance with DP Legislation and as set out in the Company's Privacy
Notice.
11.4 In providing the Company, the Administrator or the Registrar
with personal data, the Applicant hereby represents and warrants to the
Company, the Administrator and the Registrar that:
(a) it complies in all material aspects with its data controller
obligations under DP Legislation, and in particular, it has notified any data
subject of the purposes for which personal data will be used and by which
parties it will be used and it has provided a copy of the Privacy Notice to
such relevant data subjects; and
(b) where consent is legally competent and/or required under DP
Legislation, the Applicant has obtained the consent of any data subject to the
Company, the Administrator and the Registrar and their respective affiliates
and Company companies, holding and using their personal data for the purposes
(including the explicit consent of the data subjects for the processing of any
sensitive personal data for the purposes).
11.5 Each Applicant acknowledges that by submitting personal data
to the Company, the Administrator or Registrar (acting for and on behalf of
the Company) where the Applicant is a natural person, he or she (as the case
may be) represents and warrants that (as applicable) he or she has read and
understood the terms of the Privacy Notice.
11.6 Each Applicant acknowledges that by submitting personal data
to the Company, the Administrator or the Registrar (acting for and on behalf
of the Company) where the Applicant is not a natural person, it represents and
warrants that:
(a) it has brought the Privacy Notice to the attention of
any underlying data subjects on whose behalf or account the Applicant may act
or whose personal data will be disclosed to the Company, the Administrator or
the Registrar (acting for and on behalf of the Company) as a result of the
Applicant agreeing to subscribe for New Ordinary Shares under the Tap Issue;
and
(b) the Applicant has complied in all other respects with all
applicable data protection legislation in respect of disclosure and provision
of personal data to the Company.
11.7 Where the Applicant acts for or on account of an underlying
data subject or otherwise discloses the personal data of an underlying data
subject, he/she/it shall, in respect of the personal data it processes in
relation to or arising in relation to the Tap Issue:
(a) comply with all applicable data protection
legislation;
(b) take appropriate technical and organisational measures
against unauthorised or unlawful processing of the personal data and against
accidental loss or destruction of, or damage to the personal data;
(c) if required, agree with the Company, the Administrator
and the Registrar (as applicable), the responsibilities of each such entity as
regards relevant data subjects' rights and notice requirements; and
(d) immediately on demand, fully indemnify the Company, the
Administrator and the Registrar (as applicable) and keep them fully and
effectively indemnified against all costs, demands, claims, expenses
(including legal costs and disbursements on a full indemnity basis), losses
(including indirect losses and loss of profits, business and reputation),
actions, proceedings and liabilities of whatsoever nature arising from or
incurred by the Company, the Administrator and/or the Registrar in connection
with any failure by the Applicant to comply with the provisions set out above.
12. Miscellaneous
12.1 The rights and remedies of Investec 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.
12.2 On application, if an Applicant is a discretionary fund
manager, that Applicant 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 Tap Issue will be sent at the Applicant's risk. They
may be returned by post to such Applicant at the address notified by such
Applicant.
12.3 Each Applicant agrees to be bound by the Articles (as amended
from time to time) once the relevant New Ordinary Shares for which the
Applicant has agreed to subscribe have been acquired by the Applicant. The
contract to acquire New Ordinary Shares under the Tap Issue will be governed
by, and construed in accordance with, the laws of England and Wales. For the
exclusive benefit of Investec, the Company and the Asset Manager, each
Applicant irrevocably submits to the jurisdiction of the courts of England and
Wales and waives any objection to proceedings in any such court on the ground
of venue or on the ground that proceedings have been brought in an
inconvenient forum. This does not prevent an action being taken against an
Applicant in any other jurisdiction.
12.4 In the case of a joint agreement to apply for New Ordinary
Shares under the Tap Issue, references to an "Applicant" in these terms and
conditions are to each of the Applicants who are a party to that joint
agreement and their liability is joint and several.
12.5 Investec and the Company expressly reserve the right to
modify the Tap Issue (including, without limitation, the timetable and
settlement) at any time before allocations are determined.
13. DEFINITIONS
For the purposes of this Appendix:
"Administrator" Aztec Financial Services (Guernsey) Limited in its capacity as the Company's
administrator
"Asset Manager" DS Aviation GmbH & CO. KG
"CRS" the OECD's Common Reporting Standard
"Disclosure Guidance and Transparency Rules" the disclosure guidance rules and the transparency rules made by the FCA under
Part VII of FSMA, as amended from time to time
"DP Law" the Data Protection (Bailiwick of Guernsey) Law 2017, as such may be varied,
amended or replaced from time to time
"EEA" European Economic Area
"EU AIFM Delegated Regulation" the Commission Delegated Regulation (EU) No 231/2013 of 19 December 2012
supplementing Directive 2011/61/EU of the European Parliament and of the
Council with regard to exemptions, general operating conditions, depositaries,
leverage, transparency and supervision
"EU Alternative Investment Fund Managers Directive" or "EU AIFM Directive" Directive 2011/61/EU of the European Parliament and of the Council of 8 June
2011 on Alternative Investment Fund Managers and amending Directives
2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No
1095/2010, and the EU AIFM Delegated Regulation
"EU GDPR" the General Data Protection Regulation (EU) 2016/679
"EU Market Abuse Regulation Regulation (EU) No 596/2014 of the European Parliament and of the Council of
16 April 2014 on market abuse and repealing the Directive of the European
Parliament and of the Council of 28 January 2003 and Commission Directives
2003/124/EC, 2003/ 125/EC and 2004/72/EC
"EU Money Laundering Directive" 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
"EU PRIIPs Regulation" Regulation (EU) No 1286/2014 of the European Parliament and of the Council of
26 November 2014 on key information documents for packaged retail and
insurance-based investment products (PRIIPs) and its implementing and
delegated acts
"EU Prospectus Regulation" Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14
June 2017 on the prospectus to be published when securities are offered to the
public or admitted to trading on a regulated market, and repealing Directive
2003/71/EC
"EUWA" The European Union (Withdrawal) Act 2018, as amended
"FCA" the United Kingdom Financial Conduct Authority (or any successor entity or
entities)
"FSMA" the Financial Services and Markets Act 2000, as amended from time to time
"Guernsey AML Requirements" the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law, 1999 (as
amended or replaced from time to time), ordinances, rules and regulations made
thereunder, and the Guernsey Financial Services Commission's Handbook on
Countering Financial Crime (as amended, supplemented and/or replaced from time
to time)
"Issue Price" the price per New Ordinary Share, being US$0.06
"Member State" each Member State of the European Economic Area
"MiFID II" EU Directive 2014/65/EU on markets in financial instruments, as amended
"OECD" the Organisation for Economic Co-operation and Development
"Registrar" Link Market Services (Guernsey) Limited
"UK AIFMD Laws" (i) the Alternative Investment Fund Managers Regulations 2013 (SI 2013/1773)
and any other implementing measure which operated to transpose EU AIFM
Directive in to UK law before 31 January 2020 (as amended from time to time
including by the Alternative Investment Fund Managers (Amendment) (EU Exit)
Regulations 2019 (SI 2019/328)); and (ii) the UK versions of the EU AIFM
Delegated Regulation and any other delegated regulations in respect of the EU
AIFM Directive, each being part of UK law by virtue of the EUWA, as further
amended and supplemented from time to time including by the Alternative
Investment Fund Managers (Amendment) (EU Exit) Regulations 2019 (SI 2019/328),
the Technical Standards (Alternative Investment Funds Management Directive)
(EU Exit) Instrument 2019 (FCA 2019/37) and the Exiting the European Union:
Specialist Sourcebooks (Amendments) Instrument 2019 (FCA 2019/25)
"UK GDPR" the UK version of the EU GDPR which is part of UK law by virtue of the EUWA,
as amended and supplemented from time to time including by the Data
Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit)
Regulations 2019 (SI 2019/419)
"UK MAR" the UK version of the EU Market Abuse Regulation which is part of UK law by
virtue of the EUWA, as amended and supplemented from time to time including by
the Market Abuse (Amendment) (EU Exit) Regulations 2019 (SI 2019/ 310)
"UK MiFID Laws" the regulations implementing MiFID II and the UK version of Regulation (EU) No
600/2014 of the European Parliament, which is part of UK law by virtue of the
EUWA, in each case as amended and supplemented from time to time
"UK Money Laundering Regulations 2017" the UK The Money Laundering, Terrorist Financing and Transfer of Funds
(Information on the Payer) Regulations 2017 (SI 2017/692) as amended and
supplemented from time to time including by the Money Laundering and Transfer
of Funds (Information) (Amendment) (EU Exit) Regulations 2019 (SI 2019/253)
"UK PRIIPs Laws" the UK version of the EU PRIIPs Regulation which is part of UK law by virtue
of the EUWA, as amended and supplemented from time to time including by the
Packaged Retail and Insurance-based Investment Products (Amendment) (EU Exit)
Regulations 2019 (SI 2019/403)
"UK Prospectus Regulation" the UK version of the EU Prospectus Regulation which is part of UK law by
virtue of the EUWA (as amended and supplemented from time to time (including,
but not limited to, by the UK Prospectus Amendment Regulations 2019 and The
Financial Services and Markets Act 2000 (Prospectus) Regulations 2019) (SI
2019/1043))
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