Disclaimer
This section of the Hybridan LLP ("Hybridan") website (the "Website") and the documents contained herein have been issued by Hybridan for information purposes only and should not be construed in any circumstances as an offer to sell or solicitation of any offer to buy any security or other financial instrument, nor shall they, or the fact of the distribution, form the basis of, or be relied upon in connection with, any contract relating to such action. The information contained in this section of the Website has no regard for the specific investment objectives, financial situation or needs of any specific entity and is not a personal recommendation to anyone. Persons accessing this section of the Website should make their own investment decisions based upon their own financial objectives and financial resources and, if any doubt, should seek advice from an investment advisor.
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The information contained in this section of the Website should not be relied upon as being an independent or impartial view of the subject matter and, for the avoidance of doubt, does not constitute "independent investment research" for the purposes of the Financial Services Authority ("FSA") rules. The individuals who prepared the information contained in this section of the Website may be involved in providing other financial services to the company or companies referenced in this information or to other companies who might be said to be competitors of the company or companies referenced in this section of the Website. As a result, both Hybridan and the individual members, directors, officers and/or employees who prepared the information contained in this section of the Website may have responsibilities that conflict with the interests of the persons who access this section of the Website. Hybridan and/or connected persons may, from time to time, have positions in, make a market in and/or effect transactions in any investment or related investment mentioned in this section of the Website and may provide financial services to the issuers of such investments.
This section of the Website is only directed at persons who (i) fall within Article 19(5) (persons who have professional experience in matters relating to investments) or Article 49(2) (a) to (d) (high net worth companies, unincorporated associations, etc) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended) or (ii) are Professional Clients or Eligible Counterparties (as those terms are defined in the rules of the FSA) (all such persons referred to in (i) and (ii) together being referred to as "relevant persons"). The information contained in this section of the Website must not be acted on or relied upon by persons who are not relevant persons. For the purposes of clarity, the information contained in this section of the Website is not intended for and should not be relied upon by persons who would be classified as Retail Clients (as defined by the rules of the FSA).
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Hybridan and/or its associated undertakings may from time-to-time provide investment advice or other services to, or solicit such business from, any of the companies referred to in the information contained in this section of the Website. Accordingly, information may be available to Hybridan that is not reflected in this material and Hybridan may have acted upon or used the information prior to or immediately following its publication. In addition, Hybridan, the members, directors, officers and/or employees thereof and/or any connected persons may have an interest in the securities, warrants, futures, options, derivatives or other financial instrument of any of the companies referred to in this section of the Website and may from time-to-time add or dispose of such interests.
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19. -
(1) The financial promotion restriction does not apply to any communication which-
(a) is made only to recipients whom the person making the communication believes on reasonable grounds to be investment professionals; or
(b) may reasonably be regarded as directed only at such recipients.
(2) For the purposes of paragraph (1)(b), if all the conditions set out in paragraph (4)(a) to (c) are met in relation to the communication, it is to be regarded as directed only at investment professionals.
(3) In any other case in which one or more of the conditions set out in paragraph (4)(a) to (c) are met, that fact is to be taken into account in determining whether the communication is directed only at investment professionals (but a communication may still be regarded as so directed even if none of the conditions in paragraph (4) is met).
(4) The conditions are that-
(a) the communication is accompanied by an indication that it is directed at persons having professional experience in matters relating to investments and that any investment or investment activity to which it relates is available only to such persons or will be engaged in only with such persons;
(b) the communication is accompanied by an indication that persons who do not have professional experience in matters relating to investments should not rely on it;
(c) there are in place proper systems and procedures to prevent recipients other than investment professionals engaging in the investment activity to which the communication relates with the person directing the communication, a close relative of his or a member of the same group.
(5) "Investment professionals" means-
(a) an authorised person;
(b) an exempt person where the communication 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 him in carrying on the controlled activity to which the communication relates for the purpose of a business carried on by him; or
(ii) who it is reasonable to expect will carry on such activity for the purposes of a business carried on by him;
(d) a government, local authority (whether in the United Kingdom or elsewhere) or an international organisation;
(e) a person ( "A") who is a director, officer or employee of a person ( "B") falling within any of sub-paragraphs (a) to (d) where the communication is made to A in that capacity and where A's responsibilities when acting in that capacity involve him in the carrying on by B of controlled activities.
(6) For the purposes of paragraph (1), a communication may be treated as made only to or directed only at investment professionals even if it is also made to or directed at other persons to whom it may lawfully be communicated.
High net worth companies, unincorporated associations etc.
49. -
(1) The financial promotion restriction does not apply to any communication which-
(a) is made only to recipients whom the person making the communication believes on reasonable grounds to be persons to whom paragraph (2) applies; or
(b) may reasonably be regarded as directed only at persons to whom paragraph (2) applies.
(2) This paragraph applies to-
(a) any body corporate which has, or which is a member of the same group as an undertaking which has, a called-up share capital or net assets of not less than-
(i) if the body corporate has more than 20 members or is a subsidiary undertaking of an undertaking which has more than 20 members, £500,000;
(ii) otherwise, £5 million;
(b) any unincorporated association or partnership which has net assets of not less than £5 million;
(c) the trustee of a high value trust;
(d) any person ( "A") whilst acting in the capacity of director, officer or employee of a person ( "B") falling within any of sub-paragraphs (a) to (c) where A's responsibilities, when acting in that capacity, involve him in B's engaging in investment activity;
(e) any person to whom the communication may otherwise lawfully be made.
(3) For the purposes of paragraph (1)(b)-
(a) if all the conditions set out in paragraph (4)(a) to (c) are met, the communication is to be regarded as directed at persons to whom paragraph (2) applies;
(b) in any other case in which one or more of those conditions are met, that fact is to be taken into account in determining whether the communication is directed at persons to whom paragraph (2) applies (but a communication may still be regarded as so directed even if none of the conditions in paragraph (4) is met).
(4) The conditions are that-
(a) the communication includes an indication of the description of persons to whom it is directed and an indication of the fact that the controlled investment or controlled activity to which it relates is available only to such persons;
(b) the communication includes an indication that persons of any other description should not act upon it;
(c) there are in place proper systems and procedures to prevent recipients other than persons to whom paragraph (2) applies engaging in the investment activity to which the communication relates with the person directing the communication, a close relative of his or a member of the same group.
(5) "Called-up share capital" has the meaning given in the 1985 Act or in the 1986 Order.
(6) "High value trust" means a trust where the aggregate value of the cash and investments which form part of the trust's assets (before deducting the amount of its liabilities)-
(a) is £10 million or more; or
(b) has been £10 million or more at anytime during the year immediately preceding the date on which the communication in question was first made or directed.
(7) "Net assets" has the meaning given by section 264 of the 1985 Act or the equivalent provision of the 1986 Order
Eligible Counterparty
Each of the following is a per se eligible counterparty (including an entity that is not from an EEA state that is equivalent to the any of the following):
(a) an investment firm;
(b) a credit institution;
(c) an insurance company;
(d) a collective investment scheme authorised under the UCITS Directive or its management company;
(e) a pension fund or its management company;
(f) another financial institution authorised or regulated under EU legislation or the national law of an EEA State;
(g) an undertaking exempted from the application of MiFID under either Article 2(1)(k) (certain own account dealers in commodities or commodity derivatives) or Article 2(1)(l) (locals) of that directive;
(h) a national government or its corresponding office, including a public body that deals with the public debt;
(i) a central bank;
(j) supranational organisation.
Professional Client
An entity required to be authorised or regulated to operate in the financial markets. The following list includes all authorised entities carrying out the characteristic activities of the entities mentioned, whether authorised by an EEA State or a third country and whether or not authorised by reference to a directive:
(a) a credit institution;
(b) an investment firm;
(c) any other authorised or regulated financial institution;
(d) an insurance company;
(e) a collective investment scheme or the management company of such a scheme;
(f) a pension fund or the management company of a pension fund;
(g) a commodity or commodity derivatives dealer;
(h) a local;
(i) any other institutional investor;
A large undertaking meeting two of the following size requirements on a company basis:
(a) balance sheet total of EUR 20,000,000;
(b) net turnover of EUR 40,000,000;
(c) own funds of EUR 2,000,000;
A national or regional government, a public body that manages public debt, a central bank, an international or supranational institution (such as the World Bank, the IMF, the ECP, the EIB) or another similar international organisation;
Another institutional investor whose main activity is to invest in financial instruments (as defined in the glossary to the FSA Rules). This includes entities dedicated to the securitisation of assets or other financing transactions.
Investment Professional
"Investment professionals" means
(a) an FSA authorised person;
(b) an exempt person pursuant to the terms of the Financial Services and Markets Act 2000 where the communication 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 him in carrying on the controlled activity to which the communication relates for the purpose of a business carried on by him; or
(ii) who it is reasonable to expect will carry on such activity for the purposes of a business carried on by him;
(d) a government, local authority (whether in the United Kingdom or elsewhere) or an international organisation;
(e) a person ("A") who is a director, officer or employee of a person ("B") falling within any of sub-paragraphs (a) to (d) where the communication is made to A in that capacity and where A's responsibilities when acting in that capacity involve him in the carrying on by B of controlled activities.
High Net worth Entities and Companies
(a) Any body corporate which has, or which is a member of the same group as an undertaking which has, a called-up share capital or net assets of not less than-
(i) if the body corporate has more than 20 members or is a subsidiary undertaking of an undertaking which has more than 20 members, £500,000;
(ii) otherwise, £5 million;
(b) Any unincorporated association or partnership which has net assets of not less than £5 million;
(c) The trustee of a high value trust;
(d) Any person ("A") whilst acting in the capacity of director, officer or employee of a person ("B") falling within any of sub-paragraphs (a) to (c) where A's responsibilities, when acting in that capacity, involve him in B's engaging in investment activity.
