Overseas shareholders
The release, publication or distribution of this Current Report on Form
8-K
in jurisdictions other than the United
Kingdom and the United States may be restricted by law and therefore any persons who are subject to the laws of any jurisdiction other than the United Kingdom or the United States (including Restricted Jurisdictions, as defined below) should inform
themselves about, and observe, any applicable legal or regulatory requirements. Any failure to comply with applicable legal or regulatory requirements of any jurisdiction may constitute a violation of securities laws in that jurisdiction.
Copies of this Current Report on Form
8-K
and any formal documentation relating to the proposed acquisition (the
“Acquisition”) are not being, and must not be, directly or indirectly, mailed or otherwise forwarded, distributed or sent in or into or from any jurisdiction where local laws or regulations may result in a significant risk of civil,
regulatory or criminal exposure if information concerning the Acquisition is sent or made available to Nightstar shareholders in that jurisdiction (“Restricted Jurisdiction”), or any jurisdiction where to do so would constitute a violation
of the laws of such jurisdiction and persons receiving such documents (including custodians, nominees and trustees) must not mail or otherwise forward, distribute or send them in or into or from any Restricted Jurisdiction. Doing so may render
invalid any related purported vote in respect of acceptance of the Acquisition.
If the Acquisition is implemented by way of a takeover offer (as that
term is defined in section 974 of the UK Companies Act 2006) (“Offer”), the Offer may not (unless otherwise permitted by applicable law and regulation) be made, directly or indirectly, in or into or by use of the mails or any other means
or instrumentality (including, without limitation, facsimile,
e-mail
or other electronic transmission, telex or telephone) of interstate or foreign commerce of, or any facility of a national, state or other
securities exchange of any Restricted Jurisdiction and the Acquisition will not be capable of acceptance by any such use, means, instrumentality or facilities or from within any Restricted Jurisdiction.
Further details in relation to Nightstar shareholders in overseas jurisdictions is contained in the joint shareholder circular and proxy statement.
Notice to U.S. investors in Nightstar
The Acquisition
relates to the shares of a company incorporated in England and Wales and is being made by means of a scheme of arrangement provided for under Part 26 of the UK Companies Act 2006 and subject to the proxy solicitation rules under the Securities
Exchange Act of 1934 (the “U.S. Exchange Act”). The Acquisition, implemented by way of a scheme of arrangement, is not subject to the tender offer rules under the U.S. Exchange Act. If, in the future, Tungsten Bidco Limited exercises its
right to implement the Acquisition by way of an Offer, subject to the terms of the implementation agreement, the Acquisition will be made in compliance with applicable United States laws and regulations.
It may be difficult for U.S. Nightstar shareholders and Nightstar ADS Holders to enforce their rights and any claim arising out of the U.S. federal securities
laws, because Nightstar is located in a
non-U.S.
country, and some or all of its officers and directors are residents of a
non-U.S.
country. U.S. Nightstar shareholders
and Nightstar ADS Holders may not be able to sue a non-U.S. company or its officers or directors in a
non-U.S.
court for violations of the U.S. securities laws. Further, it may be difficult to compel a
non-U.S.
company and its affiliates to subject themselves to a U.S. court’s judgment.