TIDMNESF
RNS Number : 2651E
NextEnergy Solar Fund Limited
15 July 2016
THIS ANNOUNCEMENT, AND THE INFORMATION CONTAINED IN IT, IS NOT
FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART,
DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, AUSTRALIA,
CANADA, JAPAN, SOUTH AFRICA, ANY MEMBER STATE OF THE EUROPEAN
ECONOMIC AREA (OTHER THAN THE UNITED KINGDOM, IRELAND, THE
NETHERLANDS AND SWEDEN) OR ANY OTHER JURISDICTION IN WHICH THE SAME
WOULD BE UNLAWFUL OR RESTRICTED BY LAW (COLLECTIVELY, "RESTRICTED
JURISDICTIONS") OR TO US PERSONS (WITHIN THE MEANING OF REGULATION
S UNDER THE US SECURITIES ACT OF 1933, AS AMED ("US PERSONS")).
THIS ANNOUNCEMENT DOES NOT CONSTITUTE OR FORM PART OF ANY OFFER
TO SELL OR ISSUE, OR ANY SOLICITATION OF ANY OFFER TO PURCHASE OR
SUBSCRIBE FOR, ANY SECURITIES IN THE COMPANY IN ANY RESTRICTED
JURISDICTION, NOR SHALL IT (OR ANY PART OF IT OR THE FACT OF ITS
DISTRIBUTION) FORM THE BASIS OF, OR BE RELIED ON IN CONNECTION
WITH, ANY CONTRACT THEREFOR OR INVESTMENT DECISION IS RESPECT OF
ANY SUCH SECURITIES. WITHOUT PREJUDICE TO THE FOREGOING GENERALITY,
THIS ANNOUNCEMENT DOES NOT CONSTITUTE A RECOMMATION REGARDING ANY
SECURITIES.
SAVE IN RELATION TO THE UNITED KINGDOM, IRELAND, THE NETHERLANDS
AND SWEDEN, NO ACTION HAS BEEN TAKEN BY THE COMPANY OR ANY OF THE
JOINT BOOKRUNNERS (AS DEFINED BELOW) THAT WOULD PERMIT AN OFFERING
OF NEW SHARES (AS DEFINED BELOW) OR POSSESSION OR DISTRIBUTION OF
THIS ANNOUNCEMENT, ANY OTHER PUBLICITY MATERIAL OR ANY OFFERING
MATERIAL RELATING TO SUCH SHARES IN ANY JURISDICTION WHERE ACTION
FOR THAT PURPOSE IS REQUIRED. PERSONS INTO WHOSE POSSESSION THIS
ANNOUNCEMENT OR ANY OTHER SUCH MATERIALS COMES SHOULD INFORM
THEMSELVES ABOUT, AND OBSERVE, ANY SUCH RESTRICTIONS. ANY FAILURE
TO COMPLY WITH ANY SUCH RESTRICTIONS MAY CONSTITUTE A VIOLATION OF
THE SECURITIES LAWS OF ANY SUCH JURISDICTION.
THE INFORMATION CONTAINED WITHIN THIS ANNOUNCEMENT CONSTITUTES
INSIDE INFORMATION.
15 July 2016
NextEnergy Solar Fund Limited ("NESF" or the "Company")
Net Asset Value Update and Proposed Tap Issuance Programme
Highlights
-- Net asset value ("NAV") as at 30 June 2016 of GBP283.1m (31 March 2016: GBP273.8m).
-- NAV per share as at 30 June 2016 increased to 101.9p (31
March 2016: 98.5p). After adjusting for the second interim dividend
for the year ended 31 March 2016 of 3.125p per share payable on 22
July 2016 to shareholders on register at 8 July 2016, the NAV per
share as at 30 June 2016 was 98.7p (31 March 2016: 95.4p).
-- Increase in NAV was principally driven by uplift in power
price forecasts from 2017 onwards as well as NESF's operating
results over the period.
-- Uplift in power price forecasts reflects recent increase in
forward power prices, and incorporates an increase until 2022, with
forecasts thereafter remaining largely unchanged from previous
estimates.
-- Proposed Tap Issuance Programme of up to 54,885,000 New
Shares (as defined below), equivalent to 19.7% of NESF's existing
voting share capital (which excludes 30,850,000 shares currently
held in treasury), to respond to market demand.
-- In response to interest from existing and new investors,
first Tap Issue (as defined below), to be conducted by way of a
bookbuilding process to qualifying existing and new investors, now
open:
- Issue price of 100.4p per New Share, equivalent to a premium
of 1.75% to the NAV per share of 98.7p per share as at 30 June 2016
(after adjusting for second interim dividend for year ended 31
March 2016).
- New Shares issued pursuant to first Tap Issue will receive
first quarterly dividend for year ending 31 March 2017, which is
expected to be 1.575p per share and payable in September 2016.
Kevin Lyon, chairman of NESF, said "Operating progress has been
very positive over the quarter, with asset management alpha of 4.3%
over the period and as we on-board recent acquisitions and focus on
portfolio performance. In addition, we have observed a significant
increase in power prices, both short- and medium-term, since late
April, and are integrating these market developments into our power
price forecasts.
I am pleased that there has been investor interest in supporting
the Company's further expansion, as we seek to take advantage of
the attractive acquisition opportunities we have identified."
NAV Update
The Board is pleased to announce the unaudited NAV per share as
at 30 June 2016 of 101.9p (31 March 2016: 98.5p). The Company's NAV
as at 30 June 2016 was GBP283.1 million (31 March 2016:
GBP273.8m).
The increase in NAV over the past quarter has been principally
driven by the increase in power price forecasts and the operating
results achieved over the three months ended 30 June 2016.
The Company observed an upturn in UK power prices starting in
late April, with short- and medium-term forward prices (both for
summer and winter contracts) rising significantly. In addition, the
UK gas prices (across the duration curve) have also increased
significantly over the period. As a result of these market
movements, the Company integrated an uplift in power prices into
its NAV calculation, having taken into account its portfolio of
power purchase agreements. The increment is limited to the period
from 2017 to 2022, with power prices thereafter expected to remain
largely unchanged. The Company's power price estimates for the
period 2017 to 2022 have increased by an average of GBP3.40 per MWh
(an increase of 7.9% of the previous average price estimated over
that period).
Operating performance was very positive. During the period,
energy generation was 0.7% above budget while irradiation across
the portfolio was 3.6% below expectations due to unfavourable
weather conditions in June. Asset management alpha on that basis
amounted to 4.3% over the period.
Background to the Tap Issuance Programme and Use of Proceeds
At 30 June 2016, the Company's portfolio comprised 33 assets
amounting to 414MW installed solar capacity and invested capital of
GBP481.0m. The Company's total financial debt at 30 June 2016 was
GBP216.1m (on a pro-forma look-through basis including project
level debt), of which GBP99.9m was long-term fully amortising debt
and the balance of GBP116.2m was drawn under the Company's
short-term credit facilities, and was equivalent to 43.4% of its
gross asset value at that date. On 8 July, the Company announced
the refinancing of its GBP22.7m short-term debt facility with NIBC
Bank N.V., repaying GBP1.0m in principal and extending the maturity
on the balance to June 2019.
The Company currently has a substantial pipeline of acquisition
targets and further growth opportunities under consideration which
the Company's investment manager believes are available at
valuations which are both attractive and consistent with the
Company's investment objective and dividend target.
While the medium- and long-term effects of the Brexit referendum
are as yet unknown, the Directors believe the Company may benefit
from, amongst others, a lower interest rate environment and
investors may also be increasingly attracted to the Company's sole
focus on operating solar projects in the UK as they seek
infrastructure assets demonstrating long-term low-volatility
attributes and with limited correlation to the financial
performance of other asset classes in the UK.
Accordingly, the Directors believe that that the risk-return
characteristics of an investment in the Company remain compelling
and are reflected in the Company's closing share price on 14 July
2016 of 102.5p, which was equivalent to a premium of 3.9% to the
NAV per share of 98.7p per share as at 30 June 2016 (after
adjusting for second interim dividend for year ended 31 March 2016
of 3.125p per share payable on 22 July 2016 to shareholders on the
register at 8 July 2016).
The Company currently has flexibility to raise additional equity
capital in an efficient and cost-effective manner by selling, on a
non--pre-emptive basis, the 30,850,000 ordinary shares currently
held in treasury by the Company pursuant to the general authority
granted at the extraordinary general meeting of the Company held on
30 November 2015 and issuing up to a further 24,035,000 new
ordinary shares pursuant to the general authority granted at the
annual general meeting of the Company held on 19 June 2015 (such
treasury shares and new shares being collectively the "New
Shares"). Accordingly, the Directors have decided to take advantage
of this flexibility to introduce a non-pre-emptive tap issuance
programme to issue 54,885,000 New Shares (the "Tap Issuance
Programme") in response to market demand and to invest the net
proceeds of each issue of New Shares pursuant to the Tap Issuance
Programme (each issue being a "Tap Issue") in accordance with the
Company's investment policy.
Further Details of the Tap Issuance Programme
The maximum number of New Shares available under the Tap
Issuance Programme is currently 54,885,000, equivalent to 19.7% of
NESF's existing voting share capital (which excludes the shares
currently held in treasury). The Directors are seeking to renew the
general authority to issue new shares on a non--pre-emptive basis
at the annual general meeting to be held on 24 August 2016.
Accordingly, the Directors reserve the right to increase the
maximum number of New Shares available under the Tap Issuance
Programme following that meeting to such number of New Shares as
may be issued without the Company being required to publish a
prospectus. Any such increase will be notified to investors by the
Company making an announcement via a regulatory information
service.
Under the Tap Issuance Programme, the Directors intend first to
sell the ordinary shares currently held in treasury by the Company
and then to issue new ordinary shares pursuant to the general
authority granted at the Company's annual general meeting in 2015
or 2016 (as appropriate).
The New Shares issued pursuant to each Tap Issue will be subject
to the Company's memorandum and articles of incorporation and
credited as fully paid and will rank pari passu in all respects
with the existing issued ordinary shares in the capital of the
Company, including the right to receive all dividends and other
distributions declared, made or paid on or in respect of such
ordinary shares by reference to a record date falling after the
date of issue of the New Shares. New Shares will only be issued
pursuant to the Tap Issuance Programme at a premium to NAV (after
costs of the relevant Tap Issue) and, accordingly, will not be
NAV-dilutive for existing shareholders.
Cantor Fitzgerald Europe ("Cantor Fitzgerald"), Fidante Capital
("Fidante Capital"), Macquarie Capital (Europe) Limited ("Macquarie
Capital") and Shore Capital Stockbrokers Limited and Shore Capital
And Corporate Limited (together, "Shore Capital") (collectively,
the "Joint Bookrunners") have been appointed as joint bookrunners
in respect of the Tap Issuance Programme pursuant to an agreement
entered between the Company and the Joint Bookrunners dated 15 July
2016 (the "Tap Issuance Agreement").
The decision to proceed with a Tap Issue, and the number of New
Shares to be issued pursuant to a Tap Issue, shall be at the
absolute discretion of the Company.
The ordinary shares currently held in treasury by the Company
and sold pursuant to the Tap Issuance Programme have already been
admitted to the premium listing segment of the Official List (the
"Official List") of the Financial Conduct Authority (the "FCA") and
to trading on the main market for listed securities of London Stock
Exchange plc. Applications will be made for the new ordinary shares
issued pursuant to the Tap Issuance Programme to be admitted to the
premium listing segment of the Official List of the FCA and to
trading on the main market for listed securities of London Stock
Exchange plc with effect from the relevant settlement date
(together, "Admission"). Tap Issues will be conditional upon the
Tap Issuance Agreement not being terminated.
(Note: Unless the context otherwise requires, references in this
announcement, including the appendices to it, (collectively, the
"Announcement") to issuing New Shares, and similar expressions, are
deemed to include references to selling New Shares that are
currently held in treasury pursuant to a Tap Issue.)
First Tap Issue
The Directors announce the first Tap Issue, to be conducted by
way of a bookbuilding process to qualifying existing and new
investors, at a price of 100.4p per New Share (the "Issue Price"),
equivalent to:
-- a premium of 1.75% to the NAV per share of 98.7p per share as
at 30 June 2016 after adjusting for the second interim dividend for
the year ended 31 March 2016 of 3.125p per share payable on 22 July
2016 to shareholders on the register at 8 July 2016; and
-- a discount of 2.0% to the closing share price on 14 July 2016 of 102.5p.
The New Shares issued pursuant to the first Tap Issue will
receive the first quarterly dividend for the year ending 31 March
2017, to be announced by the Company in August 2016 and payable in
September 2016.
The timetable for the first Tap Issue is as follows:
Bookbuild commences Friday, 15 July 2016
Bookbuild closes 3.00 p.m. on Thursday, 21 July 2016
Trade date Thursday, 21 July 2016
Result of first Tap Issue announced Friday, 22 July 2016
Settlement date Wednesday, 27 July 2016
(Note: The dates and times set out above elsewhere in this
Announcement are subject to change and may be extended or brought
forward by the Company (with the agreement of the Joint
Bookrunners). Any such change will be notified to investors by the
Company making an announcement via a regulatory information
service.)
To participate in the first Tap Issue, investors should
communicate their bid by telephone to their usual contact at Cantor
Fitzgerald, Fidante Capital, Macquarie Capital or Shore
Capital.
The Joint Bookrunners may choose to accept participants'
applications, either in whole or in part, on the basis of
allocations determined in agreement with the Company, and may scale
down any application for this purpose on such basis as the Company
and the Joint Bookrunners decide.
The first Tap Issue is subject to the terms and conditions set
out in appendix 1 of this Announcement.
For further information:
NextEnergy Capital Limited 020 3239 9054
Michael Bonte-Friedheim
Aldo Beolchini
Cantor Fitzgerald Europe 020 7894 7667
Sue Inglis
Fidante Capital 020 7832 0900
Robert Peel
Justin Zawoda-Martin
Macquarie Capital (Europe)
Limited 020 3037 2000
Ken Fleming
Nick Stamp
Shore Capital 020 7408 4090
Bidhi Bhoma
Anita Ghanekar
MHP Communications 020 3128 8100
Andrew Leach / Jamie Ricketts / Gina Bell
Important Notices
This announcement has been issued by and is the sole
responsibility of the Company.
Each of Cantor Fitzgerald, Fidante Capital, Macquarie Capital or
Shore Capital is authorised and regulated in the United Kingdom by
the FCA and acting as a joint bookrunner for the Company in
connection with the matters described in this Announcement. Persons
receiving this Announcement should note that none of Cantor
Fitzgerald, Fidante Capital, Macquarie Capital or Shore Capital
will be responsible to anyone other than the Company for providing
the protections afforded to customers of Cantor Fitzgerald, Fidante
Capital, Macquarie Capital or Shore Capital, or for advising any
other person on the arrangements described in this
Announcement.
None of Cantor Fitzgerald, Fidante Capital, Macquarie Capital or
Shore Capital has authorised the contents of, or any part of, this
Announcement and no liability whatsoever is accepted by any of
Cantor Fitzgerald, Fidante Capital, Macquarie Capital or Shore
Capital for the accuracy of any information or opinions contained
in this Announcement or for the omission of any information. No
representation or warranty, express or implied, is made by Cantor
Fitzgerald, Fidante Capital, Macquarie Capital or Shore Capital as
to the accuracy, completeness or verification of the information
set out in this Announcement, and nothing contained in this
Announcement is, or shall be relied upon as, a promise or
representation in this respect, whether as to the past or the
future. Accordingly, each disclaims, to the fullest extent
permitted by applicable law, any and all liability whether arising
in tort, contract or otherwise which they might otherwise be found
to have in respect of this Announcement or any such statement.
If you are in any doubt about the contents of this Announcement
you should consult your accountant, legal or professional adviser
or financial adviser. It should be remembered that the price of
securities and the income from them can go down as well as up and
past performance cannot be relied on as an indicator of future
performance.
Tap Issues will only be available to investors who are resident
in the United Kingdom, Ireland, the Netherlands or Sweden. Members
of the public are not invited to participate in and are not
eligible to take part in the Tap Issues.
In the UK, participation in the Tap Issues is limited at all
times to persons who are:
(i) investment professionals within the meaning of paragraph (5)
of Article 19, certified high net worth individuals within the
meaning of paragraph (2) of Article 48 or high net worth companies
or unincorporated associations within the meaning of paragraph (2)
of Article 49, of the Financial Services and Markets Act 2000
(Financial Promotion) Order 2005 (SI 2005/1529); and
(ii) qualified investors within the meaning of section 86(7) of
Financial Services and Markets Act 2000 ("FSMA");
(all such persons together being referred to as "relevant
persons"). Any person who is not a relevant person should not act
or rely on this Announcement or any of its contents. Any
investment, or investment activity to which this Announcement
relates, is available only in the United Kingdom to relevant
persons and will be engaged in only with relevant persons. By
receiving this Announcement, you are deemed to warrant to the
Company and each of the Joint Bookrunners that you fall within the
categories of person described above. No New Shares have been
offered or sold, or will be offered or sold, to persons in the
United Kingdom prior to publication of this Announcement except in
circumstances which have not resulted in an offer to the public in
the United Kingdom within the meaning of section 102B of FSMA. This
Announcement is only addressed to, and the Tap Issues are, and will
be, only directed at, persons in member states of the European
Economic Area ("EEA") who are "qualified investors" within the
meaning of Article 2(1) (e) of the Prospectus Directive ("Qualified
Investors"). This Announcement must not be acted on or relied upon
in any member state of the EEA, by persons who are not Qualified
Investors. Any investment or investment activity to which this
Announcement relates is available, in any member state of the EEA,
only to Qualified Investors, and will be engaged in only with such
persons. This Announcement has been prepared on the basis that all
offers of New Shares will be made pursuant to any exemption under
the Prospectus Directive, as implemented in member states of the
EEA, from the requirement to produce a prospectus for offers of New
Shares. Accordingly, any person making or intending to make any
offer within the EEA of or for New Shares of the Company which are
not the subject of the Tap Issuance Programme contemplated in this
Announcement should only do so in circumstances in which no
obligation arises for the Company, Cantor Fitzgerald, Fidante
Capital, Macquarie Capital or Shore Capital to produce a prospectus
for such offer. None of the Company, Cantor
Fitzgerald, Fidante Capital, Macquarie Capital or Shore Capital
has authorised, nor do they authorise, the making of any offer of
New Shares of the Company through any financial intermediary, other
than offers made by Cantor Fitzgerald, Fidante Capital, Macquarie
Capital or Shore Capital which constitute the final placement of
New Shares contemplated in this Announcement.
In the case of any New Shares being offered to a financial
intermediary (as that term is used and defined in section 86(7) of
FSMA), such financial intermediary will also be deemed to have
represented, acknowledged and agreed that the New Shares acquired
by it in any Tap Issue have not been acquired on a
non-discretionary basis on behalf of, nor have they been acquired
with a view to their offer or resale to, persons in circumstances
which may give rise to an offer of any New Shares to the public
other than their offer or resale in a relevant member state to
Qualified Investors or in circumstances in which the prior consent
of the Company, Cantor Fitzgerald, Fidante Capital, Macquarie
Capital and Shore Capital has been obtained to each such proposed
offer or resale. Each of the Company, Cantor Fitzgerald, Fidante
Capital, Macquarie Capital and Shore Capital and their respective
affiliates will rely on the truth and accuracy of the foregoing
representation, acknowledgement and agreement.
This Announcement does not constitute or form part of any offer
or invitation to sell or issue, or any solicitation of any offer to
purchase or subscribe for, any New Shares:
(i) in any jurisdiction in which such offer, invitation or
solicitation is not authorised;
(ii) in any jurisdiction in which the person making such offer,
invitation or solicitation is not qualified to do so; or
(iii) to any person to whom it is unlawful to make such offer,
invitation or solicitation or invitation.
The distribution of this Announcement and the offer of the New
Shares may be restricted by law. Persons into whose possession this
Announcement comes must therefore inform themselves about and
observe any such restrictions. Any failure to comply with these
restrictions may constitute a violation of the securities laws of
any such jurisdiction. In particular, this Announcement may not be
distributed, forwarded to or transmitted in, into or from the
United States, Australia, Canada, Japan, South Africa, or any
member state of the EEA (other than the United Kingdom, Ireland,
the Netherlands and Sweden) or to any US Person. Any person within
the United States and any US Person who obtains a copy of this
Announcement must disregard it. No public offering of the New
Shares is being made in any jurisdiction. No action has been or
will be taken by the Company, Cantor Fitzgerald, Fidante Capital,
Macquarie Capital or Shore Capital that would permit the offer of
New Shares or possession or distribution of this Announcement in
any jurisdiction where action for that purpose is required.
No offering document or prospectus has been, or will be,
submitted to be approved by the FCA in relation to the Tap Issuance
Programme or any Tap Issue and investors' commitments to
participate in the first Tap Issue will be made solely on the basis
of the information contained in this Announcement. Investors should
not consider any information in this Announcement to be legal, tax
or business advice.
All statements in this Announcement other than statements of
historical fact are, or may be deemed to be, "forward-looking
statements". In some cases, these forward-looking statements may be
identified by the use of forward-looking terminology, including the
terms "targets", "believes", "estimates", "anticipates", "expects",
"intends", "may", "will" or "should" or, in each case, their
negative or other variations or comparable terminology. They appear
in a number of places throughout the Announcement and include
statements regarding the intentions, beliefs or current
expectations of the Company and/or Directors concerning, among
other things, the performance, results of operations, financial
condition, liquidity, prospects and dividend policy of the Company.
By their nature, forward-looking statements involve risks and
uncertainties because they relate to events and depend on
circumstances that may or may not occur in the future.
Forward-looking statements are not guarantees of future
performance. The Company's actual performance, result of
operations, financial condition, liquidity and dividend policy may
differ materially from the impression created by the
forward-looking statements contained in this Announcement. In
addition, even if the performance, results of statements contained
in this Announcement, those results or developments may not be
indicative of results or developments in subsequent periods.
Important factors that may cause these differences include, but are
not limited to: changes in economic conditions generally; changes
in interest rates; impairments in the value of the Company's
assets; legislative/regulatory changes; changes in taxation
regimes; the availability and cost of capital for future
expenditure; the availability of suitable financing. Prospective
investors should specifically consider the factors identified in
this Announcement which could cause actual results to differ before
making an investment decision.
NESF has raised equity proceeds of GBP285.4m since its initial
public offering on the main market of the London Stock Exchange in
April 2014. It also has credit facilities of GBP241.6m in place
(Macquarie Bank Limited and Santander: GBP120m; MIDIS: GBP55.0m;
Bayerisiche Landesbank: GBP44.9m; NIBC Bank B.V.: GBP21.7m).
Appendix 1 - Terms and Conditions of the First Tap Issue
In this Announcement, unless the context otherwise requires,
"Participating Investor" means a person (including individuals,
funds or others) on whose behalf a commitment to acquire New Shares
has been given.
1. Introduction
1.1 Each Participating Investor which confirms its agreement to
the Company and/or Cantor Fitzgerald and/or Fidante Capital and/or
Macquarie Capital and/or Shore Capital to acquire New Shares
pursuant to the Tap Issue will be bound by these terms and
conditions and will be deemed to have accepted them.
1.2 The Company and/or Cantor Fitzgerald and/or Fidante Capital
and/or Macquarie Capital and/or Shore Capital may require any
Participating Investor to agree to such further terms and/or
conditions and/or give such additional warranties and/or
representations as they (in their absolute discretion) see fit
and/or may require any such Participating Investor to execute a
separate placing letter.
2. Agreement to subscribe for New Shares
Conditional on:
(i) Admission of any New Shares to be issued pursuant to the
first Tap Issue occurring and becoming effective by 8.00 a.m. on 27
July 2016 (or such later time and/or date, not being later than
8.00 a.m. on 4 August 2016, as the Company and the Joint
Bookrunners may agree) (the "Settlement Date");
(ii) the Tap Issuance Agreement being otherwise unconditional in
all respects in respect of the first Tap Issue and not having been
terminated on or before the Settlement Date, a Participating
Investor agrees to become a member of the Company and agrees to
acquire those New Shares allocated to it pursuant to the Tap
Issuance Programme at the Issue Price.
To the fullest extent permitted by law, each Participating
Investor 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 Participating Investor may have.
3. Payment for New Shares
3.1 Each Participating Investor must pay the Issue Price for the New Shares acquired by the Participating Investor in the manner and by the time directed by relevant Joint Bookrunner. If any Participating Investor fails to pay as so directed and/or by the time required, the relevant Participating Investor's application for New Shares may, at the discretion of the Joint Bookrunners, either be rejected or accepted and, in the latter case, paragraph 3.2 of these terms and conditions shall apply.
3.2 Each Participating Investor is deemed to agree that if it
does not comply with its obligation to pay the relevant Issue Price
for the New Shares allocated to it in accordance with paragraph 3.1
of these terms and conditions and the Joint Bookrunners elect to
accept that Participating Investor's application, Cantor
Fitzgerald, Fidante Capital, Macquarie Capital or Shore Capital (as
appropriate) may sell all or any of the New Shares allocated to the
Participating Investor on such Participating Investor's behalf and
retain from the proceeds, for their own account and profit, an
amount equal to the aggregate amount owed by the Participating
Investor plus any interest due. However, the Participating Investor
will remain liable for any shortfall below the aggregate amount
owed by such Participating Investor 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 Shares on such
Participating Investor's behalf.
4. Representations and Warranties
By agreeing to acquire New Shares pursuant to the Tap Issue,
each Participating Investor which enters into a commitment to
acquire New Shares will (for itself and any person(s) procured by
it to acquire New Shares and any nominee(s) for any such person(s))
be deemed to represent and warrant to each of the Company,
NextEnergy Capital IM Limited (the "Investment Manager"),
NextEnergy Capital Limited (the "Investment Adviser"), Cantor
Fitzgerald, Fidante Capital, Macquarie Capital, Shore Capital and
Pershing Securities Limited ("PSL") (acting as the settlement agent
of Fidante Capital in connection with the Tap Issuance Programme)
that:
(i) (a) it is relying solely on this Announcement and not on any
other information given, or representation or statement made at any
time, by any person concerning the Company, the Tap Issuance
Programme or the Tap Issue, (b) it agrees that none of the Company,
the Investment Manager, the Investment Adviser, any of the Joint
Bookrunners, PSL or the Company's registrar (the "Registrar"), nor
any of their respective affiliates, officers, employees or agents,
will have any liability for any other information or representation
and (c) it irrevocably and unconditionally waives any rights it may
have in respect of any other information or representation;
(ii) it has read this Announcement in its entirety and that its
acquisition of New Shares is subject to the Company's articles of
incorporation (the "Articles") and the terms, conditions,
representations, warranties, acknowledgements, agreements and
undertakings and other information contained in this Announcement
and undertakes not to redistribute or duplicate this
Announcement;
(iii) the content of this Announcement is exclusively the
responsibility of the Company and its Directors and none of the
Joint Bookrunners, PSL or any person acting on their respective
behalf nor any of their respective affiliates are responsible for
or shall have any liability for any information, representation or
statement contained in this Announcement or any information
published by or on behalf of the Company and will not be liable for
any decision by a Participating Investor to participate in the Tap
Issue based on any information, representation or statement
contained in this Announcement or otherwise;
(iv) it acknowledges that no offering document or prospectus has
been prepared in connection with the Tap Issue and represents and
warrants that it has not received and will not receive a prospectus
or other offering document in connection therewith;
(v) it acknowledges that (a) none of the Company, the Joint
Bookrunners, PSL or any of their respective affiliates or any
person acting on behalf of any of them has provided, and will not
provide it, with any material regarding the Company or the New
Shares other than this Announcement and (b) it has not requested
any of the Company, the Joint Bookrunners, PSL, any of their
respective affiliates or any person acting on behalf of any of them
to provide it with any such information;
(vi) it has not relied on any of the Joint Bookrunners, PSL or
any person affiliated with any of them in connection with any
investigation of the accuracy of any information contained in this
Announcement;
(vii) 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 and, if
given or made, any information or representation must not be relied
upon as having been authorised by the Company, the Investment
Manager, the Investment Adviser, any of the Joint Bookrunners or
PSL;
(viii) represents and warrants that, save for the inside
information disclosed in this announcement, it has neither received
nor relied on any inside information (as defined in section 118C of
FSMA) in connection with the Tap Issue;
(ix) it is entitled to acquire the New Shares under the laws of
all relevant jurisdictions which apply to it, it has fully observed
all such laws and obtained all governmental and other consents
which may be required thereunder and complied with all necessary
formalities and it has paid all issue, transfer or other taxes due
in connection with its acceptance in any jurisdiction of the New
Shares and that it has not taken any action, or omitted to take any
action, which may result in any of the Company, the Manager, the
Investment Adviser, the Joint Bookrunners, PSL or their respective
directors, partners, officers, employees, agents and advisers being
in breach of the laws of any jurisdiction in connection with the
Tap Issuance Programme or its acceptance of participation in the
Placing Programme;
(x) it acknowledges that, where it is acquiring New Shares for
one or more managed, discretionary or advisory accounts, it is
authorised in writing for each such account: (a) to acquire the New
Shares for each such account; (b) to make on each such account's
behalf the representations, warranties and agreements set out in
this Announcement; 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 any of the Joint Bookrunners (and it
agrees that this sub-paragraph (x) shall survive any resale of the
New Shares by or on behalf of any such account;
(xi) if the laws of any territory or jurisdiction outside the
United Kingdom are applicable to its agreement to subscribe for New
Shares pursuant to 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 any of the
Company, the Investment Manager, the Investment Adviser, the Joint
Bookrunners, PSL or the Registrar or any of their respective
affiliates, officers, employees or agents 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;
(xii) it accepts that none of the New Shares has been or will be
registered under the laws of the United States, Australia, Canada,
Japan or South Africa and, accordingly, the New Shares may not be
offered, sold, issued or delivered, directly or indirectly, within
any of United States, Australia, Canada, Japan or South Africa
unless an exemption from any registration requirement is
available;
(xiii) it has not, directly or indirectly, distributed,
forwarded, transferred or otherwise transmitted this Announcement
or any other offering materials concerning the Tap Issue or the New
Shares to any persons within the United States or to any US
Persons, nor will it do any of the foregoing;
(xiv) it represents, acknowledges and agrees to the
representations, warranties and agreements as set out under the
heading "United States Purchase and Transfer Restrictions" in
paragraph 5 below;
(xv) if it is within the United Kingdom, it is a person who
falls within Articles 49(2)(a) to (d) or 19(5) of the Financial
Services and Markets Act 2000 (Financial Promotions) Order 2005 or
it is a person to whom the New Shares may otherwise lawfully be
offered under such Order or, if it is receiving the offer in
circumstances under which the laws or regulations of a jurisdiction
other than the United Kingdom would apply, it is a person to whom
the New Shares may be lawfully offered under that other
jurisdiction's laws and regulations;
(xvi) if it is a resident in the EEA (other than the United
Kingdom), (a) it is a qualified investor within the meaning of the
law in the relevant Member State implementing Article 2(1)(e)(i),
(ii) or (iii) of Directive 2003/71/EC and (b) if that relevant
Member State has implemented the AIFM Directive, that it is a
person to whom the New Shares may lawfully be marketed under the
AIFM Directive or under the applicable implementing legation (if
any) of that relevant Member State;
(xvii) in the case of any New Shares acquired by a Participating
Investor as a financial intermediary as that term is used in
Article 3(2) of the Prospectus Directive, (a) the New Shares
acquired by it in the Tap Issue have not been acquired on behalf
of, nor have they been acquired with a view to their offer or
resale to, persons in any relevant Member State other than
qualified investors, as that term is defined in the Prospectus
Directive 2010/73/EU, or in circumstances in which the prior
consent of the Joint Bookrunners has been given to the offer or
resale or (b) where New Shares have been acquired by it on behalf
of persons in any relevant Member State other than qualified
investors, the offer of those New Shares to it is not treated under
the Prospectus Directive as having been made to such persons;
(xviii) if it is outside the United Kingdom, neither this
Announcement nor any other offering, marketing or other material in
connection with the Tap Issue constitutes an invitation, offer or
promotion to, or arrangement with, it or any person whom it is
procuring to acquire or subscribe for New 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 New Shares could lawfully be distributed
to and acquired or subscribed and held by it or such person without
compliance with any unfulfilled approval, registration or other
regulatory or legal requirements;
(xix) it does not have a registered address in, and is not a
citizen, resident or national of, any jurisdiction in which it is
unlawful to make or accept an offer of the New Shares and it is not
acting on a non-discretionary basis for any such person;
(xx) it is not applying as, nor is it applying as nominee or
agent for, a person who is or may be liable to notify and account
for tax under the Stamp Duty Reserve Tax Regulations 1986 at any of
the increased rates referred to in section 67, 70, 93 or 96 of the
Finance Act 1986 (depository receipts and clearance services);
(xxi) if the Participating Investor is a natural person, such
Participating Investor is not under the age of majority (18 years
of age in the United Kingdom) on the date of such Participating
Investor's agreement to acquire New Shares pursuant to the Tap
Issue and will not be any such person on the date any such
agreement to acquire pursuant to the Tap Issue is accepted;
(xxii) 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 ("Money Laundering Legislation") and that its
application is only made on the basis that it accepts full
responsibility for any requirement to verify the identity of its
clients and other persons in respect of whom it has applied and, in
addition, it warrants that it is a person: (a) subject to the Money
Laundering Regulations 2007 in force in the United Kingdom; (b)
subject to the Money Laundering Directive (2005/60/EC of the
European Parliament and of the EC Council of 26 October 2005 on the
prevention of the use of the financial system for the purpose of
money laundering and terrorist financing) (the "Money Laundering
Directive"); or (c) acting in the course of a business in relation
to which an overseas regulatory authority exercises regulatory
functions and is based or incorporated in, or formed under the law
of, a country in which there are in force provisions at least
equivalent to those required by the Money Laundering Directive;
(xxiii) it acknowledges that due to anti-money laundering
requirements, the Company and/or any of the Joint Bookrunners
and/or PSL may require proof of identity and verification of the
source of the payment before the application can be processed and
that, in the event of delay or failure by the applicant to produce
any information required for verification purposes, the Company,
the Joint Bookrunners and/or PSL may refuse to accept the
application and the application moneys relating thereto and it
holds harmless and will indemnify the Company, each of the Joint
Bookrunners and PSL against any liability, loss or cost ensuing due
to the failure to process such application, if such information as
has been required has not been provided by it;
(xxiv) 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 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);
(xxv) that they are aware of, have complied with and will at all
times comply with their obligations in connection with money
laundering under the Proceeds of Crime Act 2002;
(xxvi) it acknowledges that none of the Joint Bookrunners nor
any of their respective affiliates, nor any person acting on behalf
of any of the Joint Bookrunners (which, for the avoidance of doubt,
in the case of Fidante Capital in connection with the Tap Issuance
Programme includes PSL) is making any recommendations to it or
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 its participation in the Tap Issue
is on the basis that it is not and will not be a client of any of
the Joint Bookrunners and that none of the Joint Bookrunners has
any duties or responsibilities to it for providing the protections
afforded to its clients or for providing advice in relation to the
Tap Issue nor in respect of any representations, warranties,
undertaking or indemnities otherwise required to be given by it in
connection with its application pursuant to the Tap Issue;
(xxvii) where it or any person acting on behalf of it is dealing
with any of the Joint Bookrunners or PSL, any money held in an
account with a Joint Bookrunner or PSL on behalf of it and/or any
person acting on behalf of it will not be treated as client money
within the meaning of the relevant rules and regulations of the FCA
which therefore will not require the relevant Joint Bookrunner or
PSL to segregate such money, as that money will be held by the
relevant Joint Bookrunner or PSL under a banking relationship and
not as trustee;
(xxviii) any of its clients, whether or not identified to any of
the Joint Bookrunners or PSL, will remain its sole responsibility
and will not become clients of any of the Joint Bookrunners or PSL
for the purposes of the rules of the FCA or for the purposes of any
other statutory or regulatory provision;
(xxix) save in the event of fraud on the part of Cantor
Fitzgerald, none of Cantor Fitzgerald, any direct or indirect
subsidiary undertakings of Cantor Fitzgerald, any other member of
the Cantor Fitzgerald, L.P. group or any of their respective
directors, members, partners, officers and employees shall be
responsible or liable to a Participating Investor or any of its
clients for any matter arising out of Cantor Fitzgerald's role as
joint bookrunner and financial adviser or otherwise in connection
with the Tap Issue and that, where such responsibility or liability
nevertheless arises as a matter of law, the Participating Investor
and, if relevant, its clients, will immediately waive any claim
against such persons which the Participating Investor or any of its
clients may have in respect thereof;
(xxx) save in the event of fraud on the part of Fidante Capital,
none of Fidante Capital, any direct or indirect subsidiaries of
Fidante Capital, any other member of Fidante Capital's group or any
of their respective directors, members, partners, officers and
employees shall be responsible or liable to a Participating
Investor or any of its clients for any matter arising out of
Fidante Capital's role as joint bookrunner or otherwise in
connection with the Tap Issue and that, where such responsibility
or liability nevertheless arises as a matter of law, the
Participating Investor and, if relevant, its clients, will
immediately waive any claim against such persons which the
Participating Investor or any of its clients may have in respect
thereof;
(xxxi) save in the event of fraud on the part of Macquarie
Capital, none of Macquarie Capital, any direct or indirect
subsidiaries of Macquarie Capital, any other member of Macquarie
Capital's group or any of their respective directors, members,
partners, officers and employees shall be responsible or liable to
a Participating Investor or any of its clients for any matter
arising out of Macquarie Capital's role as joint bookrunner or
otherwise in connection with the Tap Issue and that, where such
responsibility or liability nevertheless arises as a matter of law,
the Participating Investor and, if relevant, its clients, will
immediately waive any claim against such persons which the
Participating Investor or any of its clients may have in respect
thereof;
(xxxii) save in the event of fraud on the part of Shore Capital,
none of Shore Capital, any direct or indirect subsidiaries of Shore
Capital, any other member of Shore Capital's group or any of their
respective directors, members, partners, officers and employees
shall be responsible or liable to a Participating Investor or any
of its clients for any matter arising out of Shore Capital's role
as joint bookrunner or otherwise in connection with the Tap Issue
and that, where such responsibility or liability nevertheless
arises as a matter of law, the Participating Investor and, if
relevant, its clients, will immediately waive any claim against
such persons which the Participating Investor or any of its clients
may have in respect thereof;
(xxxiii) it irrevocably appoints any director of the Company and
any director, partner, officer or authorised employee of any of the
Joint Bookrunners 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
Shares for which it has given a commitment pursuant to the Tap
Issue, in the event of its own failure to do so;
(xxxiv) it accepts that if the Tap Issue does not proceed or the
conditions to the Tap Issuance Agreement are not satisfied for any
reason whatsoever then none of the Company, the Joint Bookrunners
or PSL, or any persons controlling, controlled by or under common
control with any of them or any of their respective directors,
partners, officers, employees, agents, representatives or
shareholders, shall have any liability whatsoever to it or any
other person;
(xxxv) the Company and each of the Joint Bookrunners are
entitled to exercise any of their rights under the Tap Issuance
Agreement or any other right in their absolute discretion without
any liability whatsoever to it;
(xxxvi) the representations, undertakings and warranties
contained in this Announcement are irrevocable and it acknowledges
that the Company, each of the Joint Bookrunners and their
respective affiliates will rely upon the truth and accuracy of the
foregoing representations and warranties and it agrees that if any
of the representations or warranties made or deemed to have been
made by its subscription of the New Shares are no longer accurate,
it shall promptly notify the Company and the Joint Bookrunners;
(xxxvii) it accepts that the allocation of New Shares shall be
determined by the Joint Bookrunners in their absolute discretion
but in consultation with the Company and the Investment Adviser and
that the Joint Bookrunners may scale down any commitments for this
purpose on such basis as they may determine;
(xxxviii) authorises the Joint Bookrunners to deduct from the
total amount paid pursuant to the Tap Issue the commission (if any)
payable to the Joint Bookrunners in accordance with the terms of
the Tap Issuance Agreement;
(xxxix) time shall be of the essence as regards its obligations
to settle payment for the New Shares and to comply with its other
obligations pursuant to the Tap Issue;
(xl) it acknowledges and agrees that information provided by it
to the Company, the Registrar or the Company's administrator (the
"Administrator") will be stored on the Registrar's and the
Administrator's computer system and manually and also acknowledges
and agrees that, for the purposes of the Data Protection (Bailiwick
of Guernsey) Law 2001 (the "Data Protection Law") and other
relevant data protection legislation which may be applicable, the
Registrar and the Administrator are required to specify the
purposes for which they will hold personal data and that the
Registrar and the Administrator have specified that they will only
use such information for the following purposes (collectively, the
"Purposes"):
(a) process its personal data (including sensitive personal
data) as required by or in connection with its holding of New
Shares, including processing personal data in connection with
credit and money laundering checks on it;
(b) communicate with it as necessary in connection with its
affairs and generally in connection with its holding of New
Shares;
(c) provide personal data to such third parties as the Registrar
or the Administrator may consider necessary in connection with its
affairs and generally in connection with its holding of New Shares
or as the Data Protection Law may require, including to third
parties outside the Bailiwick of Guernsey or the European Economic
Area; and
(d) without limitation, provide such personal data to the
Company, the Joint Bookrunners, PSL, the Investment Manager and/or
the Investment Adviser, as applicable, and their respective
associates for processing, notwithstanding that any such party may
be outside the Bailiwick of Guernsey or the EEA;
(xli) process its personal data for the Administrator's internal administration; and
(xlii) in providing the Registrar and the Administrator with
information, it represents and warrants to the Registrar and the
Administrator that it has obtained the consent of any data subjects
to the Registrar and the Administrator and their respective
associates holding and using their personal data for the Purposes
(including the explicit consent of the data subjects for the
processing of any sensitive personal data for the purpose set out
in sub-paragraph (xI) above).
For the purposes of this Announcement, "data subject", "personal
data" and "sensitive personal data" shall have the meanings
attributed to them in the Data Protection Law;
5. United States Purchase and Transfer Restrictions
By participating in the Tap Issue, each Participating Investor
acknowledges and agrees that it will (for itself and any person(s)
procured by it to acquire New Shares and any nominee(s) for any
such person(s)) be further deemed to represent and warrant to each
of the Company, the Investment Manager, the Investment Adviser, the
Joint Bookrunners and the Registrar that:
(i) it is not a US Person and it is not acquiring the New Shares
for the account or benefit of a US Person;
(ii) it acknowledges that the New Shares have not been and will
not be registered under the US Securities Act of 1933, as amended,
or with any securities regulatory authority of any state or other
jurisdiction of the United States and may not be offered or sold in
the United States or to, or for the account or benefit of, US
Persons; and
(iii) it acknowledges that the Company has not registered under
the US Investment Company Act of 1940, as amended, and that the
Company has put in place restrictions for transactions not
involving any public offering in the United States, and to ensure
that the Company is not and will not be required to register under
that Act;
(iv) unless the Company expressly consents in writing otherwise,
no portion of the assets used to acquire, and no portion of the
assets used to hold, the New Shares or any beneficial interest
therein constitutes or will constitute the assets of:
(a) an "employee benefit plan" as defined in Section 3(3) of the
US Employee Retirement Income Security Act on 1974, as amended,
("ERISA") that is subject to Title I of ERISA;
(b) a "plan" as defined in Section 4975 of the US Internal
Revenue Code of 1986, as amended, (the "Internal Revenue Code"),
including an individual retirement account or other arrangement
that is subject to Section 4975 of the Internal Revenue Code;
or
(c) an entity which is deemed to hold the assets of any of the
foregoing types of plans, accounts or arrangements that is subject
to Title I of ERISA or Section 4975 of the Internal Revenue
Code;
(v) if the Participating Investor is a governmental, church,
non-US or other employee benefit plan that is subject to any
federal, state, local or non-US law that is substantially similar
to the provisions of Title I of ERISA or Section 4975 of the
Internal Revenue Code, its purchase, holding, and disposition of
the New Shares will not constitute or result in a non-exempt
violation of any such substantially similar law;
(vi) it acknowledges that, if any New Shares offered and sold
pursuant to Regulation S are issued in certificated form, then such
certificates evidencing ownership will contain a legend
substantially to the following effect unless otherwise determined
by the Company in accordance with applicable law:
"NEXTENERGY SOLAR FUND LIMITED (THE "COMPANY") HAS NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE US INVESTMENT COMPANY ACT OF 1940,
AS AMED (THE "INVESTMENT COMPANY ACT"). IN ADDITION, THE SECURITIES
OF THE COMPANY REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS AMED
(THE "SECURITIES ACT"), OR WITH ANY SECURITIES REGULATORY AUTHORITY
OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES.
ACCORDINGLY, THE SECURITIES OF THE COMPANY REPRESENTED BY THIS
CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED, EXERCISED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, US PERSONS EXCEPT IN ACCORDANCE WITH THE
SECURITIES ACT OR AN EXEMPTION THEREFROM AND UNDER CIRCUMSTANCES
WHICH WILL NOT REQUIRE THE COMPANY TO REGISTER UNDER THE INVESTMENT
COMPANY ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS."
(vii) if in the future it decides to offer, sell, transfer,
assign, pledge or otherwise dispose of the New Shares, it will do
so only in compliance with an exemption from the registration
requirements of the Securities Act and under circumstances which
will not require the Company to register under the Investment
Company Act and it acknowledges that any sale, transfer,
assignment, pledge or other disposal made other than in compliance
with such laws and the above stated restrictions will be subject to
the compulsory transfer provisions as provided in the Articles;
(viii) it is purchasing the New Shares for its own account or
for one or more investment accounts for which it is acting as a
fiduciary or agent, in each case for investment only, and not with
a view to or for sale or other transfer in connection with any
distribution of the New Shares in any manner that would violate the
Securities Act, the Investment Company Act or any other applicable
securities laws;
(ix) it acknowledges that the Company reserves the right to make
inquiries of any holder of the New Shares or interests therein at
any time as to such person's status under the US federal securities
laws and to require any such person that has not satisfied the
Company that holding by such person will not violate or require
registration under the US federal securities laws to transfer such
New Shares or interests in accordance with the Articles;
(x) it acknowledges and understands the Company is required to
comply with the US Foreign Account Tax Compliance Act of 2010, as
amended, ("FATCA") and that the Company will follow FATCA's
extensive reporting and withholding requirements and it agrees to
furnish any information and documents which the Company may from
time to time request, including but not limited to, information
required under FATCA; and
(xi) it has not, directly or indirectly, distributed, forwarded,
transferred or otherwise transmitted this Announcement or any other
presentation or offering materials concerning the New Shares to or
within the United States or to any US Persons, nor will it do any
of the foregoing.
The Company, the Investment Manager, the Investment Adviser, the
Joint Bookrunners, PSL and their respective directors, partners,
officers, employees, agents, 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 Participating
Investor are no longer accurate or have not been complied with, the
Participating Investor will immediately notify the Company and the
Joint Bookrunners.
6. Supply and Disclosure of Information
If the Company, any of the Joint Bookrunners, PSL, the Registrar
or any of their agents request any information about a
Participating Investor's agreement to acquire New Shares pursuant
to the Tap Issue, such Participating Investor must promptly
disclose it to them.
7. Miscellaneous
7.1 PSL is acting as settlement agent for Fidante Capital in
connection with the Tap Issuance Programme and for no-one else and
will not treat a Participating Investor or any other person as its
customer by virtue of such application being accepted or owe a
Participating Investor or any other person any duties or
responsibilities concerning the price of New Shares or concerning
the suitability of New Shares for a Participating Investor or for
any other person or be responsible to a Participating Investor or
to any other person for providing the protections afforded to its
customers.
7.2 The rights and remedies of the Company, the Investment
Manager, the Investment Adviser, each of the Joint Bookrunners, PSL
and the Registrar under these terms and conditions are in addition
to any rights and remedies which would otherwise be available to
each of them and the exercise or partial exercise of one will not
prevent the exercise of others.
7.3 On application, if a Participating Investor is a
discretionary fund manager, that Participating Investor 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 Participating
Investor's risk. They may be returned by post to such Participating
Investor at the address notified by such Participating
Investor.
7.4 Each Participating Investor agrees to be bound by the
Articles once the New Shares, which the Participating Investor has
agreed to acquire pursuant to the Tap Issue, have been acquired by
the Participating Investor. The contract to acquire New Shares
pursuant to the Tap Issue and the appointments and authorities
mentioned in this Announcement and all disputes and claims arising
out of or in connection with its subject matter or formation
(including non-contractual disputes or claims) will be governed by,
and construed in accordance with, the laws of England and Wales.
For the exclusive benefit of the Company, the Investment Manager,
the Investment Adviser, the Joint Bookrunners, PSL and the
Registrar, each Participating Investor irrevocably submits to the
jurisdiction of the courts of England and Wales and waives any
objection to proceedings in any such court on the ground of venue
or on the ground that proceedings have been brought in an
inconvenient forum. This does not prevent an action being taken
against the Participating Investor in any other jurisdiction.
7.5 In the case of a joint agreement to acquire New Shares
pursuant to the Tap Issue, references to a "Participating Investor"
in these terms and conditions are to each of the Participating
Investors who are a party to that joint agreement and their
liability is joint and several.
7.6 The Company and each of the Joint Bookrunners expressly
reserve the right to modify the Tap Issue (including, without
limitation, the timetable and settlement) at any time before
allocations are determined.
7.7 The representations, warranties, acknowledgments and
undertakings contained in this Appendix are given to each Joint
Bookrunner for itself and on behalf of the Company and are
irrevocable.
7.7 The agreement to settle a Participating Investor's
acquisition (and/or the acquisition by a person for whom such
Participating Investor is contracting as agent) free of stamp duty
and stamp duty reserve tax depends on the settlement relating only
to an acquisition by it and/or such person direct from the Company
for the New Shares in question. Such agreement assumes that the New
Shares are not being acquired for or in connection with
arrangements to issue depositary receipts or to transfer the New
Shares into a clearance service. If there are any such
arrangements, or the settlement relates to any other subsequent
dealing in the New Shares, UK stamp duty or stamp duty reserve tax
may be payable, for which neither the Company nor the Joint
Bookrunners will be responsible, and the Participating Investor to
whom (or on behalf of whom, or in respect of the person for whom it
is participating in the Tap Issue as an agent or nominee) the
allocation, allotment, issue or delivery of New Shares has given
rise to such UK stamp duty or stamp duty reserve tax undertakes to
pay such UK stamp duty or stamp duty reserve tax forthwith and to
indemnify on an after-tax basis and to hold harmless the Company
and the Joint Bookrunners in the event that any of the Company
and/or the Joint Bookrunners has incurred any such liability to UK
stamp duty or stamp duty reserve tax. If this is the case, each
Participating Investor should seek its own advice and notify the
Joint Bookrunners accordingly.
7.8 Participating Investors should note that they will be liable
for any stamp duty and all other stamp, issue, securities,
transfer, registration, documentary or other duties or taxes
(including any interest, fines or penalties relating thereto)
payable outside the United Kingdom by them or any other person on
the subscription by them of any New Shares or the agreement by them
to subscribe for any New Shares.
7.9 Each Participating Investor, and any person acting on behalf
of the Participating Investor, acknowledges that the Joint
Bookrunners do not owe any fiduciary or other duties to any
Participating Investor in respect of any representations,
warranties, undertakings or indemnities in the Tap Issuance
Agreement.
7.10 Each Participating Investor and any person acting on behalf
of the Participating Investor acknowledges and agrees that the
Joint Bookrunners and any of their respective affiliates, acting as
investors for their own respective accounts, may acquire New Shares
pursuant to the Tap Issue and in that capacity may retain,
purchase, sell, offer to sell or otherwise deal for their own
accounts in such New Shares and other securities of the Company or
related investments in connection with the Tap Issue or otherwise.
The Joint Bookrunners do not intend to disclose the extent of any
such investment or transactions otherwise than in accordance with
any legal or regulatory obligations to do so.
7.11 Should the Tap Issue be aborted or fail to complete for any
reason, monies received will be returned without interest at the
risk of the applicant.
Appendix 2 - Article 23 and AIFMD Disclosure
The regulatory regime in the European Union covering the
management, administration and marketing of alternative investment
funds, widely referred to as "AIFMD", requires the alternative
investment fund manager (the "AIFM") of a fund such as NESF to
disclose information in accordance with AIFMD. NESF is a
Guernsey-domiciled, non--EU alternative investment fund for the
purposes of the AIFMD and the UK Alternative Investment Fund
Managers Regulations 2013 (the "UK AIFM Regulations"). NESF's AIFM
is the Investment Manager.
AIFMD has been implemented in the United Kingdom by a
combination of HM Treasury Regulations and FCA Handbook rules and
requires that, among other things, certain information is made
available by the AIFM to potential investors prior to their making
an investment in the Company. The required information is set out
in Article 23 of the AIFMD. The UK AIFM Regulations also require
the AIFM to disclose certain information on a periodic basis.
Investors are referred to NESF's prospectus dated 10 November
2014 (the "Last Prospectus")and annual report and accounts for the
year ended 31 March 2016 (the "2016 Annual Report"), both of which
are available at the Company's website
(www.nextenergysolarfund.com).
By participating in the Tap Issue, each Participating Investor
is certifying that it has read and understood the Last Prospectus,
the 2016 Annual Report and this Appendix.
This information is provided by RNS
The company news service from the London Stock Exchange
END
MSCLFFEIDIISLIR
(END) Dow Jones Newswires
July 15, 2016 02:00 ET (06:00 GMT)
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