TIDMDPA
RNS Number : 5473Q
DP Aircraft I Limited
29 June 2022
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
Investec Bank plc (Investec Bank) is authorised in the United
Kingdom by the Prudential Regulation Authority and regulated by the
Financial Conduct Authority and the Prudential Regulation
Authority. Investec Europe Limited (trading as Investec Europe,
Investec Europe and together with Investec Bank, Investec) is
regulated in Ireland by the Central Bank of Ireland. Investec is
acting exclusively for the Company in connection with the matters
described in this announcement and is not acting for or advising
any other person, or treating any other person as its client, in
relation thereto and will not be responsible for providing the
regulatory protection afforded to its clients or advice to any
other person in relation to the matters contained herein. This does
not exclude any responsibilities or liabilities of Investec under
the Financial Services and Markets Act 2000 (FSMA) or the
regulatory regime established thereunder.
29 June 2022
DP Aircraft I Limited
Proposed issue of equity
As previously advised in its announcement of 1 April 2022, the
Board of Directors of DP Aircraft I Limited (the "Company") has
been consulting with the Company's largest shareholders with regard
to the possibility of undertaking an equity fundraising in order to
provide the Company with additional working capital. Having
considered the feedback received from such shareholders, as well as
the future prospects of the Company, the Board has determined to
proceed with the 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 30,000,000 New
Ordinary Shares at a price of US$0.025 per Share, thereby raising
up to US$750,000. The Tap Issue is being undertaken at a price
which represents a significant discount to the Company's NAV per
Ordinary Share, which was US$0.17366 as at 31 December 2021. At the
Company's most recent Annual General Meeting, held on 1 July 2021,
authority was granted by shareholders for the issue of up to
41,866,666 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 by telephone to their usual
sales contact at Investec. The Tap Issue is expected to close at
10.00 a.m. (London time) on Wednesday 6 July 2022 but may close
earlier or later at the discretion of the Company and Investec
Bank.
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. It is expected that
precedence will be given to applications from shareholders on the
Company's share register as at close of business on 27 June 2022;
and that, in the event that applications from shareholders in
aggregate exceed the number of New Ordinary Shares available,
allocations will be determined having regard for the number of
Shares in the Company held by the applicant as at close of business
on 27 June 2022. 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. Investec may also, notwithstanding the
above, subject to the prior consent of the Company: (i) allocate
New Ordinary Shares after the time of any initial allocation to any
person submitting an application after that time, and (ii) allocate
New Ordinary Shares after the Tap Issue has closed to any person
submitting an application after that time.
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 Friday 8 July 2022.
Expected Timetable
Latest time and date for receipt 10.00 a.m. on Wednesday, 6 July
of applications 2022
Announcement of results of the Wednesday, 6 July 2022
Tap Issue
New Ordinary Shares issued to Wednesday, 6 July 2022
successful applicants on a T+2
basis
Admission and commencement of 8.00 a.m. on Friday, 8 July
dealings in New Ordinary Shares 2022
Information about the Company
Following a loan agreement event of default last year, leading
to security enforcement and the disposal of the two aircraft
previously owned by the Company which were leased to Norwegian Air
(LN-LNA and LN-LNB), the Company has two remaining aircraft, namely
the two Boeing 787-8s leased to Thai Airways (HS-TQC and
HS-TQD).
(a) Arrangements with Thai Airways
On 1 April 2021, a Letter of Intent ("LOI") was signed with Thai
Airways amending the terms of the lease arrangements with the
Company and its subsidiaries (the "Group"). The new terms provide
for a power by the hour ("PBH") arrangement until December 2022
(i.e. rent will be payable by reference to actual monthly
utilisation of the aircraft), with scaled back monthly fixed lease
payments thereafter until 2026, reflecting the reduced rates now
seen in the market. The lease term was extended for a further 3
years to December 2029, with further scaled back monthly lease
payments starting from January 2027; but this extension is subject
to the Group retaining a right of early termination in December
2026 after consulting the lenders. In accordance with the LOI, the
effective date for the lease modification was 15 June 2021, being
the date on which Thailand's Central Bankruptcy Court approved the
restructuring. Thai Airways also undertook to ensure that the Thai
aircraft were airworthy and in flight-ready condition in all
respects by 30 June 2021, and this was achieved. The actual lease
agreement reflecting the terms set out in the LOI was signed on 1
April 2022.
(b) Arrangements with Thai Lending Banks
On 6 May 2021, subsequent to the LOI being entered into by the
Group and Thai Airways as described above, the Group and the
lending consortium providing debt financing to the Group in respect
of the assets leased to Thai Airways (the "Thai Lending Banks")
amended and restated the existing loan facility agreements in
respect of the Thai aircraft to accommodate the new lease terms.
Repayments of principal are being deferred until after the end of
the PBH arrangement, 31 December 2022; and the Group and the Thai
Lending Banks will enter into discussions towards the end of the
PBH period to determine how best to schedule interest payments,
principal repayments and a final balloon repayment, having regard
for both the income being received by the Group in respect of the
Thai aircraft, and the running costs of the Group. From the
effective date interest is charged on the deferred principal at the
percentage rate per annum equal to the sum of five per cent. (5.0%)
per annum (which, for the avoidance of doubt, includes the Margin)
plus LIBOR for the applicable period (such rate to be determined by
the Facility Agent). Prior to the end of the PBH arrangement, the
Thai Lending Banks and the Group will enter into negotiations to
fix the interest rate for the period post the PBH Arrangement.
Prior to the loan amendment detailed above, the Group and DekaBank
had agreed that the Group would only be required to make interest
payments on its borrowings relating to the assets leased to Thai,
with no concomitant capital repayment obligation; and that the
Group would make no dividend payments while deferrals remained
outstanding under those borrowings.
(c) Cash Position
As at the date of this announcement the Group has c.US$527k of
cash on its balance sheet, and US$206k of ongoing accruals (which,
for the avoidance of doubt, excludes costs incurred in relation to
the restructuring of the Thai leasing and debt arrangements, which
are paid from funds controlled by the Thai Lending Banks rather
than by the Company, and deferred amounts payable to the Asset
Manager and the Directors). Average monthly cash outflow for the
Company during 2022 has amounted to approximately US$105.3k. Under
the terms agreed with the Thai Lending Banks, the Company is (i)
permitted a monthly payment of US$70k out of the monies received by
the Group from Thai Airways through the PBH arrangement and (ii)
restricted from holding more than US$1.2m in cash at any time, with
any excess in either case paid over to the Thai Lending Banks.
(d) Debt Position
As at 26 June 2022, the Group had approximately US$98.3m of debt
outstanding to the Thai Lending Banks. The expected level of debt
at the end of the lease with Thai Airways cannot currently be
calculated definitively as the interest rate payable on such debt
is still to be agreed with the Thai Lending Banks. However, for
illustrative purposes, were the interest rate to be 5.0 per cent.
per annum for the remaining life of the debt, the debt would fall
to c.US$68.0m in 2026 (or US$46.1m if the lease were extended to
2029); and were the interest rate to be 6.0 per cent. per annum for
the remaining life of the debt, the debt would fall to c.US$71.6m
in 2026 (or US$52.3m if the lease were extended to 2029). (It
should be noted that the swap balance cannot be estimated until the
year end, and so has been excluded from the calculation of the
above estimates.)
(e) Aircraft Valuation
Average valuations for HS-TQC and HS-TQD as at 31 December 2021,
based on valuations provided by three independent valuers, were as
follows:
Basis of Valuation US$m
Current Half-Life
Base HS-TQC 66.70
HS TQD 66.23
Current Half-Life
Market HS-TQC 47.84
HS-TQD 47.61
Full-Life 2026 Lease
End HS-TQC 67.88
HS-TQD 67.52
Full-Life 2029 Lease
End HS-TQC 60.05
HS-TQD 59.74
(All future valuations assume an annual inflation rate of 2.0
per cent. Base value is the underlying value assumed by the
appraiser at a certain date working on the assumption of a stable
market and a reasonable balance of demand and supply. Market value
represents the most likely trading price that may be generated for
an aircraft under the market circumstances that are perceived to
exist at the time.)
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 APPIX) IS DIRECTED ONLY AT
PERSONS SELECTED BY INVESTEC BANK PLC OR INVESTEC EUROPE LIMITED
(TRADING AS INVESTEC EUROPE) (ACTING ON BEHALF OF INVESTEC BANK PLC
IN CERTAIN JURISDICTIONS IN THE EEA) 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,
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 Bank") 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, and Investec Europe Limited (trading as
Investec Europe "Investec Europe") acting as agent on behalf of
Investec Bank in certain jurisdictions in the EEA (together
Investec Bank and Investec Europe hereinafter in this Appendix
referred to as "Investec") is regulated in Ireland by the Central
Bank of Ireland. Investec is acting exclusively for the Company and
for no-one else in connection with the Tap Issue, 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. This does not exclude any
responsibilities or liabilities of Investec under FSMA or the
regulatory regime established thereunder.
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 group 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 29 July 2022, 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 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 4.4 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 Wednesday, 6 July 2022. 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 27 July 2022.
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 Policy Council 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 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 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 6 July 2022 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 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 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 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 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 with 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 it is a natural person, such Applicant is
not under the age of majority (18 years of age in the United
Kingdom) on the date of 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
respective Affiliates nor any person acting on their behalf is
making any recommendations to it, advising it regarding the
suitability of any transactions it may enter into in connection
with the 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
their respective 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 any 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 Service 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 group 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
their 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 they 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 New 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
AMED (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 AMED (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 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 group companies, holding and using
their personal data for the purposes (including the explicit
consent of the data subjects for the processing of any sensitive
personal data for the purposes).
11.5 Each 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 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,
which the Applicant has agreed to subscribe for 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 the disclosure guidance rules and the
and Transparency Rules" 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 Directive 2011/61/EU of the European
Fund Managers Directive" Parliament and of the Council of 8
or "EU AIFM Directive" 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 (2005/60/EC) of the European
Directive" 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
"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 Commission's Handbook
on Countering Financial Crime and Terrorist
Financing (as amended, supplemented
and/or replaced from time to time)
"Issue Price" the price per New Ordinary Share, being
US$0.025
"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 European
Union (Withdrawal) Act 2018, 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
European Union (Withdrawal) Act 2018,
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 European Union (Withdrawal)
Act 2018, 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 European Union (Withdrawal) Act
2018, in each case as amended and supplemented
from time to time
"UK Money Laundering the UK The Money Laundering, Terrorist
Regulations 2017" 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 European Union (Withdrawal) Act
2018, 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 European Union (Withdrawal)
Act 2018 (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))
This information is provided by RNS, the news service of the
London Stock Exchange. RNS is approved by the Financial Conduct
Authority to act as a Primary Information Provider in the United
Kingdom. Terms and conditions relating to the use and distribution
of this information may apply. For further information, please
contact rns@lseg.com or visit www.rns.com.
RNS may use your IP address to confirm compliance with the terms
and conditions, to analyse how you engage with the information
contained in this communication, and to share such analysis on an
anonymised basis with others as part of our commercial services.
For further information about how RNS and the London Stock Exchange
use the personal data you provide us, please see our Privacy
Policy.
END
IOEUWUWRUNUNUAR
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June 29, 2022 02:00 ET (06:00 GMT)
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