Incisive Capital Ltd will, as part of our consultancy services to businesses seeking investment, share copies of an information memorandum (“IM”) which has been prepared in connection with a proposed subscription of shares in the Company with whom we are working.
The basis on which this occurs is outlined below:
No shares in the Company are offered to the public for the purposes of the Prospectus Regulations 2005 and no application has been or will be made for the admission of any of the Company’s shares to the official list of the UK Listing Authority, to trading on the AIM or to trading on any other recognised investment exchange. This offer is exempt from the Prospectus Regulations as it is being made at less than €5,000,000 as defined in the FSMA.
The IM is confidential and intended only for the person to whom it has been delivered (each a “Recipient”). Except where required by the operation of applicable law or regulation, or in respect of a Recipient’s professional advisers who are subject to confidentiality requirements equivalent to those detailed herein, under no circumstances may a copy of the IM be shown, copied, transmitted or otherwise provided to any person other than the Recipient. The IM shall remain the property of the Company, which reserves the right to require that the Recipient promptly return or delete all materials received from the Company, any copies made thereof and any notes or analyses derived therefrom.
The IM is for illustration and discussion purposes only and is not intended to be, nor should it be construed as, financial, legal, tax or investment advice. Potential investors should take independent financial, legal, tax and investment advice.
No representation or warranty is made by the Company as to the accuracy, reliability or completeness of the information, opinions or representations contained herein. Except where imposed by the operation of applicable law or regulation, the Company, and any officer, member, agent, employee or advisor of the Company shall not be liable for any loss or damage suffered by any person who has relied upon the IM.
The IM is exempt from the general restriction in section 21 of The FSMA on the communication of invitations or inducements to engage in investment activity on the grounds that it being distributed in the United Kingdom only to persons whom the Directors of the Company believe are of a kind described in Articles:
19(5) (Investment professionals),
48(2) (Certified high net worth individuals),
49(2) (High net worth companies, unincorporated associations etc.),
50(1) (Sophisticated investors),
50 A (1) (Self-certified sophisticated investors), and
51 (Associations of high net worth or sophisticated investors) of
FSMA (Financial Promotion) Order 2005 (“FMSA Order”)
(each a “relevant person” and together “relevant persons”).
It is not intended to be distributed or passed on, directly or indirectly, to any other class of persons.
Any investment to which the document relates is available only to relevant persons and any other person and other classes of person should not rely on the document.
Any person who receives the IM who is not a relevant person must not act or rely upon the IM for any purposes whatsoever.
“Investment Professional” is defined in Article 19 of the FMSA Order, as (a) an authorised person; (b) an exempt person where the IM relates to a controlled activity which is a regulated activity in relation to which the person is exempt; (c) any other person: (i) whose ordinary activities involve carrying on the controlled activity to which the IM relates for the purpose of a business carried on by the Recipient; or (ii) who it is reasonable to expect will carry on such activity for the purposes of a business carried on by the Recipient; (d) a government, local authority (whether in the United Kingdom or elsewhere) or an international organisation; or (e) a person (“A”) who is a director, officer or employee of a person (“B”) falling within any of the foregoing sub-paragraphs (a) to (d) where this IM is made to A in that capacity and where A’s responsibilities when acting in that capacity involve the Recipient in the carrying on by B of controlled activities. The IM is directed at persons having professional experience in matters relating to investments, and any investment or investment activity to which the IM relates is available only to, and will be engaged in only with, such persons. Persons who do not have professional experience of matters relating to investments should not rely upon the IM.
“Certified high net worth individual” is defined in Article 48 of the FMSA Order. A person qualifies as a high net worth individual if, as detailed in the FMSA Order, they have, during the financial year immediately preceding the date of their certification: (a) an annual income to the value of £100,000 or more throughout such financial year; (b) held net assets to the value of £250,000 or more (excluding their primary residence or any loan secured on that residence, any rights under a qualifying contract of insurance or any benefits (in the form of pensions or otherwise) which are payable on the termination of service or on death or retirement); and (c) signed, within the period of 12 months prior to receipt by them of the IM, a statement in the prescribed form in Part I of Schedule 5 of the FMSA Order.
“Certified sophisticated investor” is defined in Article 50 of the FMSA Order A person qualifies as a certified sophisticated investor if they have: a current certificate in writing or other legible form signed by an authorised person to the effect that the investor is sufficiently knowledgeable to understand the risks associated with an investment of this nature; and signed, within the period of 12 months prior to the IM being made to them, a statement in the prescribed form in article 50 of the FMSA Order that they qualify as a certified sophisticated investor able to receive exempt promotions. You must note that relying on the IM for the purpose of engaging in any investment activity may expose you to a significant risk of losing all of the property invested or of incurring additional liabilities.
“Self-certified sophisticated investor” is defined in Article 50A of the FMSA Order. A person qualifies as a self-certified sophisticated investor if they have, in accordance with article 50A of the FMSA Order, signed, within the period of 12 months prior to them receiving this IM, a statement in the prescribed form in Part II of Schedule 5 of the FMSA Order, confirming that they are a self-certified sophisticated investor because they: (a) are a member of a network or syndicate of business angels and have been so for at least the last six months prior to the date of the statement; (b) have made more than one investment in an unlisted company in the two years prior to the date of the statement; (c) are working, or have worked in the two years prior to the date of the statement, in a professional capacity in the private equity sector, or in the provision of finance for small and medium enterprises; and/or (d) are or have been in the two years prior to the date of the statement, a director of a company with an annual turnover of at least £1,000,000.
“Associations of high net worth or sophisticated investors” is defined in Article 51 of the FMSA Order as an association of persons (or a member of such association) which is wholly or predominantly: (i) certified or self-certified high net worth individuals within the meaning of article 48 of the FMSA Order; (ii) high net worth persons falling within article 49(2) (a) to (d) of the FMSA Order; or (iii) certified or self certified sophisticated investors within the meaning of articles 50 or 50A of the FMSA Order. Please note that the IM relates only to an investment under the terms of which a person cannot incur a liability or obligation to pay or contribute more than he commits by way of investment.
As the Company is not regulated by the Financial Conduct Authority of the United Kingdom, investors may not complain to the Financial Conduct Authority, nor have the benefit of the Financial Services Compensation Scheme, the Financial Ombudsman Scheme or other protections afforded by FSMA and any rules and regulations made thereunder, including those made for the protection of retail clients.