The following Restrictions on Distribution are not exhaustive and do not constitute legal advice. No representation is made that the restrictions set out below are complete or accurate.
Generally: The distribution of marketing materials, including but not limited to newsletters and presentations and the offering of shares of Funds for which RAB Capital plc has been appointed the Investment Manager (“Shares”) may be restricted in certain jurisdictions. The following restrictions on distribution is for general guidance only, and it is the responsibility of any person or persons in possession of marketing material of any of the funds for which RAB Capital plc has been appointed as Investment Manager (the “Funds”) and wishing to make application for Shares to inform themselves of, and to observe, all applicable laws and regulations of any relevant jurisdiction. Prospective applicants for Shares should obtain their own legal advice as to whether there are any (i) restrictions applicable to them in respect of the purchase of securities in any of the Funds, (ii) legal requirements also applying and (iii) applicable exchange control regulations and applicable taxes in the countries of their respective citizenship, residence or domicile.
Austria: Marketing materials relating to RAB Funds and the Prospectus of the Funds have been produced for the purpose of providing information about the Shares and will be provided only to qualified investors as defined in s1 para 1 subpara 5a of the Austrian Capital Market Act 1991 (Kapitalmarktgesetz) in the course of a private placement in Austria. All these qualified investors will be individually known in advance and individually selected by, or on behalf of, the Funds in Austria. Marketing materials relating to the Funds and the Prospectus of the Funds are made available on the condition that they are for the use only by the recipient and may not be passed on to any other person or be reproduced in any part. Shares have not been and will not be offered in the course of a public offering or of equivalent marketing in Austria and therefore, the provisions of the Austrian Investment Fund Act 1993 (Investmentfondsgesetz 1993), as amended, and the provisions of the Austrian Capital Market Act, as amended, relating to registration requirements and to prospectus requirements do not apply.
Shares have thus neither been registered for public distribution in Austria with the Austrian Financial Market Authority nor been the subject matter of a prospectus compliant with the Austrian Investment Fund Act or the Austrian Capital Market Act.
Belgium: The offering of Shares has not been and will not be notified to the Belgian Banking, Finance and Insurance Commission (Commissie Voor Het Bank, Financie-en Assurantiewezen /Commission Bancaire, Financière et des Assurances) nor have marketing materials relating to RAB Funds, nor their respective Prospectus been, nor will they be, approved by the Belgian Banking, Finance and Insurance Commission. Shares may be offered in Belgium only to individuals or legal entities investing a minimum of €250,000, in reliance on Article 3, 1° of the Royal Decree of 7 July 1999 on the public character of transactions which aim to solicit public savings and the assimilation of certain transactions with a public offer. Marketing materials relating to RAB Funds and the Prospectus of the Funds may be distributed in Belgium only to such investors for their personal use and exclusively for the purposes of this offering of Shares. Accordingly, such marketing materials and Prospectus may not be used for any other purpose or passed on to any other investor in Belgium.
Cayman Islands: No invitation may be made to the public in the Cayman Islands to subscribe for the Shares.
Finland: Marketing materials relating to the Funds and the Prospectus of the Funds do not constitute an offering circular (tarjousesite) or listing particulars (listalleottoesite) under the Finnish Securities Market Act (1989/495) nor have they been filed with or approved by the Finnish Financial Supervision Authority. Shares must not be offered or sold directly or indirectly in the Republic of Finland or to residents of Finland other than in compliance with all applicable provisions of the laws of the Republic of Finland and especially in compliance with the Finnish Securities Market Act and any regulations made thereunder, as supplemented and amended from time to time.
France: Shares may not be offered or sold directly or indirectly in the Republic of France and neither the Prospectus of any RAB Funds, which have not been submitted to the Autorité des Marchés Financiers, nor any marketing materials or offering material or information contained therein relating to the Funds, may be supplied in the Republic of France nor used in connection with any offer for subscription or sale of the Shares in the Republic of France.
Germany: Shares of the RAB Funds have not been and will not be registered under the German Investment Act or any other German securities laws. Any public distribution, advertisement or similar activities in Germany will constitute a violation of applicable law. Marketing materials relating to RAB Funds and the Prospectus of the Funds may only be circulated in Germany on a private placement basis in accordance with the German Investment Act.
Hong Kong: WARNING – The contents of marketing materials relating to RAB Funds and their respective Prospectus have not been reviewed by any regulatory authority in Hong Kong. You are advised to exercise caution in relation to this offer. If you are in any doubt about any of the contents of any of these documents, you should obtain independent professional advice. The Funds are not authorised by the Securities and Futures Commission in Hong Kong pursuant to Section 104 of the Securities and Futures Ordinance of Hong Kong and a copy of the Prospectus of RAB Funds has not been registered by the Registrar of Companies in Hong Kong pursuant to Section 342C of the Companies Ordinance of Hong Kong. Marketing materials relating to RAB Funds and their respective Prospectus must not, therefore, be issued, or possessed for the purpose of issue, to persons in Hong Kong other than (1) to professional investors within the meaning of the Securities and Futures Ordinance of Hong Kong (including professional investors falling within the Securities and Futures (Professional Investors) Rules) or (2) in circumstances which would not constitute an offer to the public or any section thereof.
FOR INVESTORS IN INDIA ONLY:
THE SHARES OF THE FUND ARE NOT BEING OFFERED TO THE INDIAN PUBLIC FOR SALE OR SUBSCRIPTION BUT ARE BEING PRIVATELY PLACED WITH A LIMITED NUMBER OF SOPHISTICATED PRIVATE AND INSTITUTIONAL INVESTORS. THE FUND IS NOT REGISTERED AND/OR APPROVED BY THE SECURITIES AND EXCHANGE BOARD OF INDIA OR ANY OTHER GOVERNMENTAL/ REGULATORY AUTHORITY IN INDIA. PURSUANT TO THE FOREIGN EXCHANGE MANAGEMENT ACT, 1999, ANY INVESTOR RESIDENT IN INDIA MAY BE REQUIRED TO OBTAIN PRIOR SPECIAL PERMISSION OF THE RESERVE BANK OF INDIA BEFORE MAKING INVESTMENTS OUTSIDE OF INDIA, INCLUDING ANY INVESTMENT IN THE FUND.
Ireland: Marketing materials relating to RAB Funds and the Prospectus of RAB Funds do not constitute or form part of any offer or invitation to the public to subscribe for or purchase Shares in the Funds and shall not be construed as such and no person other than the person to whom such marketing materials or Prospectuses have been addressed or delivered shall be eligible to subscribe for or purchase Shares in the Funds. Shares in the Funds will not in any event be marketed in Ireland without the prior authorisation of the Irish Financial Regulator.
Isle of Man: RAB Funds are not recognised collective investment scheme for the purposes of Sections 12 or 13 of the Financial Supervision Act 1988 (“the FS Act”) of the Isle of Man and are thus subject to the prohibition on the promotion of collective investment schemes contained in Section 1(1) of the FS Act. Accordingly, marketing materials relating to RAB Funds and the Prospectus of RAB Funds may only be issued or passed on to any person in the Isle of Man by way of the two limited exceptions to this general prohibition contained in Section 1(2) of the FS Act and the Financial Supervision (Promotion of Unregulated Schemes) (Exemption) Regulations 1992. Shareholders in the Funds are not protected by any statutory compensation scheme and the Isle of Man Financial Supervision Commission does not regulate the Funds and has not approved them.
Italy: Shares may not be offered or sold and the Prospectus, or any circular, marketing materials or other document or offering material relating to the Shares, may not be published, distributed or made available in the Republic of Italy or to any Italian resident investor in circumstances which would be in breach of relevant Italian law and regulations.
Japan: The Shares have not been registered pursuant to Article 4, Paragraph 1 of the Financial Instruments and Exchange Law of Japan (Law no. 25 of 1948, as amended) and, accordingly, none of the Shares nor any interest therein may be offered or sold, directly or indirectly, in Japan or to, or for the benefit, of any Japanese person or to others for re-offering or resale, directly or indirectly, in Japan or to any Japanese person except under circumstances which will result in compliance with all applicable laws, regulations and guidelines promulgated by the relevant Japanese governmental and regulatory authorities and in effect at the relevant time. For this purpose, a “Japanese person” means any person resident in Japan, including any corporation or other entity organised under the laws of Japan.
Jersey: Marketing materials relating to RAB Funds and the Prospectus of RAB Funds relate to a private placement and do not constitute an offer to the public in Jersey to subscribe for the Shares of the Funds. No regulatory approval has been sought to the offer in Jersey and it must be distinctly understood that the Jersey Financial Services Commission does not accept any responsibility for the financial soundness of or any representations made in connection with the Funds. The offer of Shares is personal to the person to whom the Prospectuses of RAB Funds are being delivered by or on behalf of the Funds, and a subscription for the Shares will only be accepted from such person. Marketing materials relating to RAB Funds as well as the Prospectus of the Funds may not be reproduced or used for any other purpose.
Korea: The Shares have not been registered under the Securities and Exchange Act of Korea and none of the Shares may be offered, sold or delivered, directly or indirectly, or offered or sold to any person for re-offering or resale, directly or indirectly, in Korea or to any resident of Korea except pursuant to applicable laws and regulations of Korea.
Netherlands: Marketing materials relating to RAB Funds and the Prospectus of the Funds are not addressed to or intended for any individual or legal entity in the Netherlands except (a) individuals or legal entities who or which trade or invest in securities in the course of a profession or trade within the meaning of the Dutch securities legislation (which includes banks, brokers, insurance companies, pension funds, other institutional investors and treasuries and financing companies of groups which are active in a professional manner in the financial markets for their own account) or (b) other persons to whom, or in circumstances where, an exemption applies pursuant to the Act on the Supervision of Collective Investment Schemes, as amended.
Spain: The Funds have not been authorised by nor registered with the Spanish Securities Market Commission as a foreign collective investment scheme in accordance with section 15.2 of Law 35/2003 of 4 November 2003 on Collective Investment Schemes. Accordingly, the Shares of the Funds may not be offered or sold in Spain by means of any publicity activities as defined in section 3 of Royal Decree 291/1992 of 27 March 1992 on Issues and Public Offerings for the Sale of Securities, as amended.
Sweden: The Funds are not authorised under the Swedish Securities Funds Act, and any sale, redemption or repurchase of Shares will take place outside Sweden. Marketing materials relating to RAB Funds and the Prospectus of the Funds may not be distributed to the public in Sweden, and a Swedish recipient of such documents may not in any way forward them to the public in Sweden.
Switzerland: The Funds have not been authorised for public distribution in or from Switzerland pursuant to the Swiss Collective Investment Schemes Act of 23 June 2006 (the "CISA") and its implementing regulations. Accordingly, the Shares may only be offered and marketing materials relating to the Funds as well as the Prospectus of the Funds may only be distributed in or from Switzerland to "qualified investors" (as this term is defined in the CISA and its implementing regulations).
United Kingdom: The Funds are not recognised collective investment scheme for the purposes of the Financial Services and Markets Act 2000 of the United Kingdom (the “Act”). The promotion of the Funds and the distribution of their Prospectus in the United Kingdom is accordingly restricted by law.
Whilst marketing materials relating to the Funds as well as the Prospectus of such Funds may be issued outside the United Kingdom directly by the Funds, and the Directors of the Funds are responsible for the content of such documents, wherever issued, it is being issued inside and outside the United Kingdom by RAB Capital plc (which is authorised and regulated by the Financial Services Authority (“FSA”)) to and/or is directed only at persons who are professional clients or eligible counterparties for the purposes of the FSA’s Conduct of Business Sourcebook.
Prospectus of the RAB Funds are exempt from the scheme promotion restriction (in Section 238 of the Act) on the communication of invitations or inducements to participate in unrecognised collective investment schemes on the grounds that it is being issued to and/or directed at only the types of person referred to above. To the extent that marketing material relating to the Funds and the Prospectus of the Funds are issued by RAB Capital plc, the Shares are only available to such persons and the Prospectus must not be relied or acted upon by any other persons.
Any recipient of marketing materials relating to the Funds as well as the Prospectus of the Funds who is an authorised person may (if and to the extent it is permitted to do so by the FSA rules applicable to it) distribute it or otherwise promote the Funds in accordance with Section 238 of the Act but not otherwise. Any recipient of marketing materials relating to the Funds as well as the Prospectus of the Funds who is not an authorised person may not distribute it to any other person.
United States: The Shares have not been and will not be registered under the United States Securities Act of 1933 (as amended) (the “1933 Act”) or the securities laws of any of the states of the United States, nor is such registration contemplated. The Shares may not be offered, sold or delivered directly or indirectly in the United States or to or for the account or benefit of any “US Person” except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the 1933 Act and any applicable state laws. Any re-offer or resale of any of the Shares in the United States or to US Persons may constitute a violation of US law.
The Shares are being offered outside the United States pursuant to the exemption from registration under Regulation S under the 1933 Act and inside the United States in reliance on Regulation D promulgated under the 1933 Act and Section 4(2) thereof.
There is no public market for the Shares and no such market is expected to develop in the future. The Shares offered hereby are subject to restrictions on transferability and resale and may not be transferred or resold except as permitted under the Articles, the 1933 Act and applicable state securities law pursuant to registration or exemption therefrom.
The Funds have not been and will not be registered under the United States Investment Company Act of 1940 (as amended) (the "1940 Act") pursuant to the provisions of Section 3(c)(7) of the 1940 Act, which excludes from the definition of “investment company” a privately offered fund that is organised outside the US and whose US Person security holders consists exclusively of “qualified purchasers,” as defined in Section 2(a)(51) of the 1940 Act.
The Funds may arrange or permit the private placement in the United States of a portion of the Shares under the exemption provided by Section 4(2) of the 1933 Act and Regulation D promulgated thereunder to US Persons that are "accredited investors" (as defined in Rule 501(a) of Regulation D under the 1933 Act) and “qualified purchasers” (as defined in Section 2(a)(51) of the 1940 Act), under restrictions and other circumstances designed to preclude a distribution that would otherwise require registration of the Shares under the 1933 Act, cause the Funds to become subject to the registration requirements of the 1940 Act, cause the Funds to file a disclosure document under the United States Commodity Exchange Act (“CEA”), or cause the assets of the Funds to be "plan assets" for the purposes of the United States Employee Retirement Income Security Act of 1974 (as amended) ("ERISA"), including presentation by such investors, prior to the delivery to them of Shares, of subscription documentation containing specified representations and agreements.
The Funds will not accept any subscriptions from investors that are employee benefit plans or entities whose assets constitute employee benefit plans subject to ERISA or section 4975 of the United States Internal Revenue Code of 1986 (as amended) (together, "Benefit Plans") if after such subscription the Shares of any class held by Benefit Plans would be 25 per cent or more of the total outstanding Shares of that class. If the Shares of any class held by Benefit Plans were to exceed this 25 per cent limit, the Fund’s assets would be considered "plan assets" under ERISA, which could result in adverse consequences to the Fund, the Investment Manager and the fiduciaries of the Benefit Plans.
RAB Capital plc
