Appointment of AIFM and Depositary
NEWS RELEASE
21 July 2014
The Biotech Growth Trust PLC
The European Union Alternative Investment Fund Managers Directive
Appointment of Alternative Investment Fund Manager and Depositary
The Biotech Growth Trust PLC (the "Company) announces that with effect from 22
July 2014 the Company will enter into arrangements necessary to ensure
compliance with the European Union Alternative Investment Fund Managers
Directive (the "Directive").
The Company has appointed Frostrow Capital LLP (the "Manager") as its
alternative investment fund manager ("AIFM") on the terms and subject to the
conditions of a new management agreement between the Company and the Manager
(the "Management Agreement").
The existing management agreement between the Company and the Manager dated 5
April 2007 (the "Original Management Agreement") has been terminated.
In addition, the Company has entered into a portfolio management agreement (the
"Portfolio Management Agreement") with the Manager and OrbiMed Capital LLC (the
"Portfolio Manager"), pursuant to which the Manager has delegated portfolio
management of the Company's assets to the Portfolio Manager. The investment
management agreement between the Company and the Portfolio Manager dated 26
April 2006 (the "Investment Management Agreement") has been terminated.
The Company has appointed J.P. Morgan Europe Limited (the "Depositary") to act
as the Company's depositary for the purposes of the Directive pursuant to a
depositary agreement between the Company, the Manager and the Depositary (the
"Depositary Agreement").
The custody agreement between the Company and Goldman, Sachs & Co. has been
terminated.
The Company has also entered into a delegation agreement (the "Delegation
Agreement") with the Prime Broker, the Manager and the Depositary, pursuant to
which the Depositary has delegated the safe-keeping of certain of the Company's
assets to J.P. Morgan Clearing Corp (the "Prime Broker").
The Company has also appointed J.P. Morgan Clearing Corp. (the "Prime Broker")
and certain other J.P. Morgan entities to provide the Company with execution,
clearing, settlement, custody, financing and other services pursuant to an
institutional account agreement between the Company, the Prime Broker and other
members of the JPMorgan group (the "Institutional Account Agreement").
Each of the Management Agreement, the Portfolio Management Agreement, the
Depositary Agreement and the Delegation Agreement shall enter into effect on 22
July 2014.
Further details of the agreements follow.
Management Agreement
The Management Agreement is based on the Original Management Agreement and only
differs to the extent necessary to ensure that the relationship between the
Company and the Manager is compliant with the requirements of the Directive.
Under the Management Agreement, the Manager has agreed to, either itself or
through delegates, provide all of the usual and necessary services of a manager
of an investment trust company, including such risk management, portfolio
management, accounting, administrative, consultancy, advisory, company
secretarial and general management services as are necessary for this purpose
and to advise the Company generally in relation to trends in the investment
trust sector, and such other corporate, financial, legal, regulatory,
accounting and other issues as are likely to affect the policies or strategies
of the Company.
The Company will pay the Manager a fixed fee (plus VAT if applicable) of £
60,000 per annum accruing daily and payable quarterly in arrears on each
Calculation Date (as defined in the Management Agreement), plus a periodic fee
at the rate of 0.30% per annum of Market Capitalisation (as defined in the
Management Agreement) payable quarterly.
The Manager's liability to the Company under the Management Agreement is
limited in certain respects, including in respect of any loss, claim, costs,
charges and expenses, liabilities or damages arising out of the acts or
omissions of any investment manager or investment adviser to whom it has
delegated its portfolio management function. However, in all cases, all
limitations of liability of the Manager to the Company are subject to the
applicable rules of the Directive.
The Management Agreement contains provisions under which the Company will
indemnify the Manager against liability in the absence of negligence, wilful
default, fraud or breach of contract.
Either party may terminate the Management Agreement by giving to the other not
less than 12 months' written notice (or such shorter period of written notice
as the other party may accept). It may also be terminated with immediate effect
by either party in specified circumstances.
Portfolio Management Agreement
The Portfolio Management Agreement is based on the Investment Management
Agreement and only differs to the extent necessary to ensure that the
relationship between the Company, the Portfolio Manager and the Manager is
compliant with the requirements of the Directive.
The fees payable by the Company to the Portfolio Manager for its services under
the Portfolio Management Agreement remain the same as under the Investment
Management Agreement.
The liability provisions in the Portfolio Management Agreement are broadly the
same as those in the Investment Management Agreement, but the Company will now
indemnify the Portfolio Manager for any losses incurred as a result of the
Manager's actions.
Either party may terminate the Portfolio Management Agreement by giving to the
other not less than 12 months' written notice (or such shorter period of
written notice as the other party may accept). It may also be terminated with
immediate effect by the parties in specified circumstances.
Depositary Agreement
The Company will pay the Depositary for its services such amounts as may be
agreed between the Depositary and the Company, together with the Depositary's
reasonable and properly incurred out of pocket or incidental expenses, costs or
charges. Except for fees of sub-custodians within the Depositary's regular
sub-custody network, which will be borne by the Depositary, any sub-custodian
fees or fees charged by any other sub-custodian, which will be at normal
commercial rates, will also be recouped from the Company. The Depositary is
permitted to deduct any monies owed to it from the Company's cash accounts.
The Depositary will be liable to the Company and its shareholders for any loss
suffered by them arising from the negligent or intentional failure to perform
its obligations pursuant to the Depositary Agreement or applicable law.
The Company will indemnify the Depositary against any liabilities imposed on it
in connection with the Depositary's appointment or the performance of its
obligations under the Depositary Agreement, other than as a result of the
Depositary's fraud, negligence or wilful misconduct.
The Depositary Agreement is terminable by any party on six months' written
notice and (unless the Company has been wound up) will not terminate until a
replacement depositary is appointed. It may also be terminated immediately in
specified circumstances.
Delegation Agreement
The Delegation Agreement transfers the Depositary's liability under Article 21
(12) of the Directive for the loss of the Company's financial instruments held
in custody by the Prime Broker to the Prime Broker in accordance with Article
21(13) of the Directive. While the Depositary Agreement prohibits the re-use of
the Company's assets by the Depositary or the Prime Broker without the prior
consent of the Company or the Manager acting on behalf of the Company, the
Company has consented to the transfer and reuse of its assets by the Prime
Broker in accordance with the terms of the Institutional Account Agreement by
entering into the Institutional Account Agreement.
The Prime Broker must exercise due care and diligence in the performance of its
services under the Delegation Agreement and will be liable to the Depositary,
the Company, or the Manager acting on behalf of the Company, for any direct
loss arising from the Prime Broker's negligence, fraud, or wilful default in
the performance of those duties or from its intentional failure to perform them
or for its breach of the terms of the Delegation Agreement.
The Delegation Agreement is terminable by the Depositary on thirty days' notice
to the other parties, or immediately in specified circumstances.
Institutional Account Agreement
Under the terms of the Institutional Account Agreement, the Prime Broker and/or
other members of the JPMorgan group (together, "JPMorgan") may provide the
Company with execution, clearing, settlement, custody, financing and other
services. As security for the Company's obligations to JPMorgan, the Company
may be required to transfer margin to JPMorgan.
Upon the occurrence of certain events of default with respect to the Company,
as specified in the Institutional Account Agreement, JPMorgan may, inter alia,
accelerate, cancel, terminate or liquidate or otherwise close out the
Institutional Account Agreement or any transaction thereunder and retain any
margin, set-off or recoup any obligation of JPMorgan to the Company against any
obligation of the Company to JPMorgan and sell or otherwise liquidate any of
the Company's margin which it holds.
Under the terms of the Institutional Account Agreement, the Prime Broker is
authorised to borrow, lend or otherwise use all cash and any security carried
by the Prime Broker in the Company's accounts for a greater sum than, and for
period longer than, the Company's obligations to the Prime Broker and the Prime
Broker will have no obligation to maintain a like amount of similar property in
possession or control. In the event of the Prime Broker's insolvency, the
Company may be unable to recover such assets in full.
JPMorgan will charge fees for the services provided under the Institutional
Account Agreement at its then-prevailing rates and may change such rates upon
prior written notice.
The Company has agreed to indemnify JPMorgan for its losses, claims, damages,
liabilities, obligations, penalties, taxes, judgements, awards and costs other
than in the event of JPMorgan's wilful misfeasance, bad faith or gross
negligence. JPMorgan will have no liability to the Company under the
Institutional Account Agreement save in the event of its wilful misfeasance,
bad faith or gross negligence.
Any party may terminate the Institutional Account Agreement on 30 days' prior
written notice to the others.
Certain Information required to be disclosed under the FCA's Investment Fund
Sourcebook ("FUND")
In accordance with the requirements of the Directive, the Manager is required
to make available to potential investors the following information, which is
announced by the Directors of the Company on behalf of the Manager:
FUND 3.2.2R Information Information
Item
2 Procedures by which the In accordance with Listing Rule 15.4.8, the
AIF may change its Company must obtain the prior approval of its
investment strategy or shareholders to any material change to its
investment policy, or both. investment policy. Under Listing Rule 15.4.9,
in considering what is a material change to the
published investment policy, the Company should
have regard to the cumulative effect of all the
changes since its shareholders last had the
opportunity to vote on the investment policy
or, if they have never voted, since the
admission to listing.
All non-material changes will be made by
approval of the Board.
3 Main legal implications Legal Implications
of the contractual
relationship entered into Upon an investor becoming a shareholder, the
for the purpose of shareholder will be bound by the terms of the
investment. memorandum and articles of association of the
Company (the "Articles) which take effect as a
contract between the shareholders and the
Company. Shareholders will have the rights and
obligations set out in the Articles of the
Company and the U.K. Companies Act 2006.
The Articles are subject to the laws of England
and Wales and may be amended by a special
resolution of holders of the Company's shares
as provided for under the Articles.
The Company is incorporated as a public company
with limited liability in England and Wales and
the Company and all or substantially all of its
directors and officers are expected to be
located in the U.K. Certain judgments obtained
in EU member states (or Iceland, Norway and
Switzerland) can be enforced in England and
Wales under the Brussels Regulation or the 2007
Lugano Convention and certain judgements in a
country to which any of the Administration of
Justice Act 1920, the Foreign Judgments
(Reciprocal Enforcement) Act 1933 or the Civil
Jurisdiction and Judgments Act 1982 applies can
also be enforced in England and Wales by making
an application to the High Court for an order
for registration of the judgment for
enforcement. The Court may decline to recognise
the judgments in limited circumstances.
It may be possible to enforce a judgment in a
country to which none of the above regimes
apply if it is: (1) final and conclusive on the
merits; (2) given by a court regarded by
English law as competent to do so; and (3) for
a fixed sum of money.
Investors' rights against service providers
The Company is reliant on the performance of
services provided by certain third party
service providers, including the Manager, the
Portfolio Manager, the Prime Broker, the
Depositary, sponsors and corporate
stockbrokers, legal advisors, registrars and
the auditor (the "Service Providers"). No
shareholder, in their capacity as such, will
generally have any direct contractual claim
against any Service Provider with respect to
such Service Provider's default of any of their
duties towards the Company.
5 How AIFM complies with The Manager intends to cover potential
the requirements relating professional liability risks resulting from its
to professional liability activities as AIFM by holding professional
risk. indemnity insurance against liability arising
from professional negligence which is
appropriate to the risks covered, in accordance
with the Directive and all applicable rules and
regulations implementing the Directive in the
UK (the "AIFM Rules").
6(a) AIFM management The Manager has delegated portfolio management
functions delegated by the of the Company's assets to the Portfolio
AIFM. Manager pursuant to the Portfolio Management
Agreement.
6(b) Any safe-keeping The Depositary has delegated safe-keeping of
function delegated by the certain of the Company's assets to the Prime
depositary Broker pursuant to the Delegation Agreement.
6(c) The identity of each The Portfolio Manager is OrbiMed Capital LLC.
delegate
The Prime Broker is J.P. Morgan Clearing Corp.
6(d) Any conflicts of The Company does not consider that any
interest that may arise conflicts of interest arise between the Manager
from such delegations and the Portfolio Manager.
The Company does not consider that any
conflicts of interest arise between the
Depositary and the Prime Broker.
8 A description of the The Manager maintains a liquidity management
AIF's liquidity risk policy to monitor the liquidity risk of the
management, including the Company. The Company's shareholders have no
redemption rights of right to redeem their shares from the Company
investors but may trade shares on the secondary market.
However, there is no guarantee that there will
be a liquid market in the shares.
10 Fair treatment of The Manager has established procedures,
investors arrangements and policies to ensure compliance
with the principles more particularly described
in the AIFM Rules relating to the fair
treatment of investors. The principles of
treating investors fairly include, but are not
limited to:
(a) acting in the best interests of the Company
and of its shareholders;
(b) ensuring that the investment decisions
taken for the account of the Company are
executed in accordance with the Company's
investment policy and objective and risk
profile;
(c) ensuring that the interests of any group of
shareholders are not placed above the interests
of any other group of shareholders;
(d) ensuring that fair, correct and transparent
pricing models and valuation systems are used
for the Company;
(e) preventing undue costs being charged to the
Company and its shareholders;
(f) taking all reasonable steps to avoid
conflicts of interests and, when they cannot be
avoided, identifying, managing, monitoring and,
where applicable, disclosing those conflicts of
interest to prevent them from adversely
affecting the interests of shareholders; and
(g) recognising and dealing with complaints
fairly.
14 Availability of the The Company's latest annual report can be found
latest annual report. on the Company's website at the following
address: www.biotechgt.com
16 Identity of prime Please see above under "Institutional Account
brokers, description of Agreement".
material arrangements with
prime brokers and
management of conflicts,
transfer and reuse of AIF
assets and any transfer of
liability.
17 Availability of periodic In accordance with the AIFM Rules, the Manager
and regular information intends to publish the following information in
required under FUND 3.2.5R relation to the Company's portfolio in its
and FUND 3.2.6R. annual report and audited accounts, which can
be found on the Company's website -
www.biotechgt.com:
(a) the percentage of the Company's assets that
are subject to special arrangements arising
from their illiquid nature;
(b) any new arrangements for managing the
liquidity of the Company;
(c) the current risk profile of the Company and
the risk management systems employed by the
Manager to manage those risks; and
(d) the total amount of leverage employed by
the Company.
Any changes to the following information will
be provided by the Manager to investors without
undue delay:
(a) the maximum level of leverage which the
Manager may employ on behalf of the Company;
and
(b) the right of re-use of collateral or any
changes to any guarantee granted under any
leveraging arrangement.
For further information please contact:
Victoria Hale
Frostrow Capital LLP, Company Secretary
Telephone: 020 3170 8732
20472643.2.EU_BUSINESS