Placing of Shares
blinkx PLC
3 November 2009
NOT FOR RELEASE BEFORE 7.00 AM 3 NOVEMBER 2009
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA OR JAPAN
blinkx PLC ("blinkx" or the "Company") proposed placing of 27,927,971 new ordinary shares at a placing price of 18 pence per new ordinary share
blinkx announces that it is today placing 27,927,971 new ordinary shares, with a nominal value of 1 penny per share ("Placing Shares"), representing approximately 10 per cent. of blinkx's existing issued share capital, with Autonomy Corporation plc ("Autonomy") and institutional investors (the "Placing"). The Placing is expected to raise approximately £5.0 million before expenses.
blinkx's video search engine is built on a technology that was conceived at Cambridge University, enhanced by $150M in R&D over 12 years and is now protected by 110 patents. blinkx's TV and Video search index performs over 17.4 million searches every day and the company has partnered with over 650 media companies, including CBS, NBC Digital Media, Fox Sports, ITN and Time Inc. In 2007, blinkx introduced AdHoc, a contextual advertising platform for online video. AdHoc delivers advertising based on a patent-pending combination of technology, which enables it to place relevant advertisements in relevant videos at the most relevant points in time.
Despite the macroeconomic challenges of the preceding 18 months, based on the strength of its unique technology, content and audience, blinkx was able to increase the average price of its advertising products, and more than double its annual revenue in the financial year ending March 2009. In addition, blinkx has today announced its half year results to 30th September, reporting revenues of $13.1M, up 106 per cent. from first half of the prior year. blinkx has also capitalized on the downturn over the past year to acquire relevant technology infrastructure. Despite being fully funded, the placing will provide capital to allow blinkx to seize growth opportunities that will arise as the economy recovers.
blinkx's principal shareholder, Autonomy, strongly believes in this market opportunity for blinkx. Indeed, Autonomy has demonstrated its strong support of the Transaction by agreeing to underwrite the issue of the Placing Shares.
blinkx was successfully demerged from Autonomy in April 2007. Autonomy and affiliates of the group currently control approximately 19 per cent. of the issued voting share capital of blinkx. If the conditions to the Placing are satisfied, to the extent that no Placing Shares are placed with institutional investors, the percentage of the issued voting share capital of blinkx controlled by Autonomy and affiliates would increase to approximately 26 per cent.
Commenting on the transaction, CEO of blinkx, Suranga Chandratillake said "Today blinkx is the global gold standard for Video and TV Search and we will continue the strong investment in both our brand and technology to capitalize on this once-in-a-generation opportunity. During the downturn blinkx has made significant progress and is now ready to ride the wave of an upturn. We have prepared the business for this and will take all opportunities to aggressively pursue this growth when an upturn arrives."
Financial Media Contacts: | Analyst and Investor Contacts: |
Edward Bridges/Charles Palmer/Haya Herbert-Burns Financial Dynamics +44 (0)20 7831 3113 | Suranga Chandratillake, Chief Executive Officer Blinkx plc +1 (415) 848-2986 |
Citi (NOMAD) | |
Charles Lytle +44 (0)20 7986 4000 Henry Davis +44 (0)20 7986 4000 |
This announcement is for information only and, save as expressly set out herein, does not constitute an offer or invitation to underwrite, subscribe for or otherwise acquire or dispose of any securities or investment advice in any jurisdiction, including without limitation, the United Kingdom, the United States, Australia, Canada or Japan. Persons needing advice should consult an independent financial adviser.
This announcement has been issued by and is the sole responsibility of blinkx plc (the "Company"). Citgroup Global Markets U.K. Equity Limited ("Citi), which is authorised and regulated in the United Kingdom by the Financial Services Authority, is acting for the Company and for no-one else in relation to the Placing, and will not be responsible to any other person for providing the protections afforded to each of its respective clients nor for providing advice in connection with the Placing. No representation or warranty, express or implied, is or will be made as to, or in relation to, and no responsibility or liability is or will be accepted by Citi or by any of its affiliates or agents as to or in relation to, the accuracy or completeness of this announcement or any other written or oral information made available to or publicly available to any interested party or its advisers, and any liability therefore is expressly disclaimed.
The distribution of this announcement and the placing of the Placing Shares as set out in this announcement in certain jurisdictions may be restricted by law. No action has been taken by the Company or Citi that would permit an offering of the Placing Shares or possession or distribution of this announcement or any other offering or publicity material relating to the Placing Shares in any jurisdiction where action for that purpose is required. Persons into whose possession this announcement comes are required by the Company and Citi to inform themselves about, and to observe, such restrictions. Any failure to comply with these restrictions may constitute a violation of the securities laws of any such jurisdiction.
This announcement is directed only at persons (i) having professional experience in matters relating to investments who fall within the definition of "investment professionals" in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order") or (ii) who are high net worth entities falling within Article 49(2)(a) to (d) of the Order, and other persons to whom it may otherwise lawfully be communicated (all such persons together being referred to as "relevant persons"). This announcement must not be acted or relied on in the United Kingdom by persons who are not relevant persons.
The Placing Shares have not been, and will not be, registered under the US Securities Act of 1933, as amended (the "Securities Act") or under the laws of any state or other jurisdiction of the United States and may not be offered, sold or transferred, directly or indirectly, within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws.
Subject to certain exceptions, this announcement does not constitute an offer to sell or issue or the solicitation of an offer to buy or acquire securities of the Company in the United States, Australia, Canada, South Africa or Japan or any jurisdiction in which such an offer or solicitation is unlawful. No money, securities or other consideration is being solicited and, if sent in response to the information herein, will not be accepted. There will be no public offer of any securities of the Company in the United States or elsewhere.
Any indication in this announcement of the price at which ordinary shares have been bought or sold in the past cannot be relied upon as a guide to future performance. No statement in this announcement is intended to be a profit or production forecast and no statement in this announcement should be interpreted to mean that earnings per share of the Company for the current or future financial years would necessarily match or exceed the historical published earnings per share of the Company.
Forward-looking Statements
This announcement contains (or may contain) certain forward-looking statements with respect to certain of blinkx plans and its current goals and expectations relating to its future financial condition and performance and which involve a number of risks and uncertainties. blinkx cautions readers that no forward-looking statement is a guarantee of future performance and that actual results could differ materially from those contained in the forward-looking statements. These forward-looking statements can be identified by the fact that they do not relate only to historical or current facts. Forward-looking statements sometimes use words such as 'aim', 'anticipate', 'target', 'expect', 'estimate', 'intend', 'plan', 'goal', 'believe', or other words of similar meaning. Examples of forward-looking statements include, among others, statements regarding blinkx future financial position, income growth, impairment charges, business strategy, projected levels of growth in its markets, projected costs, estimates of capital expenditure, and plans and objectives for future operations of blinkx and other statements that are not historical fact.
By their nature, forward-looking statements involve risk and uncertainty because they relate to future events and circumstances, including, but not limited to, UK domestic and global economic and business conditions, the effects of continued volatility in credit markets, market-related risks such as changes in interest rates and exchange rates, the policies and actions of governmental and regulatory authorities, changes in legislation, the further development of standards and interpretations under International Financial Reporting Standards ("IFRS") applicable to past, current and future periods, evolving practices with regard to the interpretation and application of standards under IFRS, the outcome of pending and future litigation, the success of future acquisitions and other strategic transactions and the impact of competition - a number of which factors are beyond blinkx control. As a result, blinkx actual future results may differ materially from the plans, goals, and expectations set forth in blinkx forward-looking statements. Any forward-looking statements made herein by or on behalf of blinkx speak only as of the date they are made. Except as required by the FSA, AIM or applicable law, blinkx expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained in this announcement to reflect any changes in blinkx expectations with regard thereto or any changes in events, conditions or circumstances on which any such statement is based.
APPENDIX
Details of the Placing Agreement and of the Placing Shares
Autonomy Corporation plc ("Autonomy"), Citigroup Global Markets UK Equity Limited ("Citi") and blinkx plc ("blinkx" or the "Company") have today entered into an agreement (the "Placing Agreement") under which, on the terms and subject to the conditions set out therein, Citi has agreed to use reasonable endeavours to procure placees for 27,927,971 new ordinary shares in the capital of blinkx of par value 1p (the "Placing Shares") at a price of 18 pence per share (the "Placing Price") (the "Placing"). Autonomy has agreed to acquire any Placing Shares for which Citi does not procure placees under the Placing. The Placing is intended to raise approximately £5 million before expenses.
The Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing ordinary shares in blinkx, including the right to receive all dividends and other distributions declared, made or paid in respect of such ordinary shares after the date of admission of the Placing Shares.
The allotment and issue of the Placing Shares will be made by the Company to Placees in consideration for the transfer to the Company of certain shares in a Jersey incorporated subsidiary of the Company by Citi. This Appendix gives details of the terms and conditions of, and the mechanics of participation in, the Placing. No commissions will be paid to Placees or by Placees in respect of any Placing Shares.
In this announcement, unless the context otherwise requires, "Placee" means a person (including individuals, funds or others) by whom or on whose behalf a commitment to acquire Placing Shares has been given and accepted in accordance with this Appendix.
Application for listing and admission to trading
Application will be made to London Stock Exchange plc for admission to trading of the Placing Shares on AIM, a market of London Stock Exchange plc ("AIM") ("Admission").
It is expected that Admission will become effective on or around 6 November 2009 and that dealings in the Placing Shares will commence at that time.
Participation in, and principal terms of, the Placing
1. Citi is arranging the Placing as Global Co-ordinator, Bookrunner and agent of blinkx.
2. Each of Citi and its affiliates is entitled to participate as a Placee.
3. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by Citi.
4. Prospective Placees will be identified and contacted by Citi. Alternatively, prospective Placees may contact Citi directly and request to participate in the Placing. The Placing is expected to close no later than 7 a.m. London time on 4 November 2009, but may be closed earlier in the sole discretion of Citi. Citi may, in its sole discretion, accept offers to acquire Placing Shares after the Placing has closed.
5. Citi will reߛcontact and confirm orally to Placees the size of their respective allocations and a trade confirmation will be dispatched as soon as possible thereafter. Each prospective Placee's allocation will be determined by Citi and Autonomy jointly, following consultation with the Company, and will be confirmed orally by Citi as agent of blinkx following the close of the Placing. Citi's oral confirmation of the size of allocations and each Placees' oral commitments to accept the same will constitute a legally binding agreement pursuant to which each such Placee will be required to accept the number of Placing Shares allocated to the Placee at the Placing Price and otherwise on the terms and conditions set out in this Appendix and in accordance with blinkx's memorandum and articles of association and each Placee will be deemed to have read and understood this announcement in its entirety (including this Appendix).
6. Citi reserves the right to scale back the number of Placing Shares offered to any Placee on such basis as Citi may determine in its sole discretion. Citi also reserves the right not to accept offers for the Placing Shares or to accept such offers in part rather than in whole. The acceptance of offers shall be at the absolute discretion of Citi. Citi shall be entitled to effect the Placing by such method as it shall in its sole discretion determine.
7. Each prospective Placee's allocation and commitment will be evidenced by a contract note issued to such Placee by Citi. The terms of this Appendix will be deemed incorporated by reference therein.
8. Following the oral confirmation referred to in paragraph 5, each Placee will have an immediate, separate, irrevocable and binding obligation, owed to Citi to pay to Citi (or as Citi may direct) as principal in cleared funds at the time set out in paragraph 10, an amount equal to the product of the Placing Price and the number of Placing Shares such Placee has agreed to acquire and blinkx has agreed to allot and issue to that Placee.
9. Except as required by law or regulation, no press release or other announcement will be made by Citi or blinkx using the name of any Placee (or its agent), in its capacity as Placee (or agent), other than with such Placee's prior written consent.
10. Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be acquired pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
11. All obligations under the Placing will be subject to fulfilment of the conditions referred to below under "Conditions of the Placing" and to the Placing not being terminated on the basis referred to below under "Right to terminate under the Placing Agreement".
12. By participating in the Placing, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
13. To the fullest extent permissible by law, neither Citi nor any of its affiliates shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither Citi nor any of its affiliates shall have any liability (including to the extent permissible by law, any fiduciary duties) in respect of Citi's conduct of the Placing or of such alternative method of effecting the Placing as it may determine. Nothing in this paragraph shall exclude or limit the liability of any person for fraudulent misrepresentation by that person.
Conditions of the Placing
The obligations of (as applicable) Citi and Autonomy under the Placing Agreement in respect of the Placing Shares are conditional on, inter alia: the publication of certain announcements; the warranties of blinkx in the Placing Agreement being true and accurate; fulfilment by blinkx of its obligations; Admission taking place; allotment of the Placing Shares and delivery of certain agreed form documents by blinkx to Citi. Citi and Autonomy together have discretion to waive compliance with certain conditions and/or agree an extension. If any of the conditions are not fulfilled or waived by Citi and Autonomy the Placing Agreement shall cease and determine and, subject to certain limited exceptions, no party to the Placing Agreement shall have any claim against any other party to the Placing Agreement.
Lock up
blinkx has agreed with Citi and Autonomy that, for a period beginning on the date of this announcement and ending on the date which is 60 calendar days after the day on which the transactions effected pursuant to the Placing Agreement will be settled, otherwise than is contemplated by the Placing Agreement or this announcement and other than in respect of grants or exercises of options or share issues pursuant to the terms of the existing employee share schemes of the Company disclosed in any information publicly announced to any of the regulatory information services included within the list maintained on the London Stock Exchange's website (a "Regulatory Information Service") by or on behalf of blinkx prior to the date of this announcement, neither blinkx nor any person controlled by blinkx, nor any person acting on blinkx's behalf, will, directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise transfer or dispose of any securities of the same class as the Placing Shares or any securities convertible into or exchangeable for securities of the same class as the Placing Shares or other instruments representing interests in securities of the same class as the Placing Shares or enter into any swap or other agreement or transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the shares, whether such swap or transaction is to be settled by delivery of shares or other securities, in cash or otherwise, in each case without the prior written consent of Citi.
Right to terminate under the Placing Agreement
Citi and/or Autonomy may at its/their absolute discretion by notice to the Company terminate the Placing Agreement at any time prior to Admission in the following circumstances:
1. the conditions set out in the Placing Agreement are not fulfilled or waived by the date specified therein (or such later time and/or date as the Company and Citi may agree);
2. there has been (i) a breach by blinkx of any of its representations or warranties contained in the Placing Agreement or (ii) any failure by the Company to perform certain undertakings in the Placing Agreement which would make it impracticable or inadvisable to proceed with the Placing;
3. if there has been any material adverse change;
4. if there has occurred:
(i) any suspension or material limitation in trading generally on AIM, the London Stock Exchange or the New York Stock Exchange;
(ii) any suspension or material limitation in trading of the Company's ordinary shares on any exchange or in any over-the-counter market;
(iii) any material disruption of in securities settlement, payment or clearance services in the United Kingdom;
(iv) any moratorium on commercial banking activities is declared by United States Federal or New York State or United Kingdom authorities; or
(v) any outbreak or escalation of hostilities, or any change in financial markets, currency exchange rates or controls or any calamity or crisis that in the judgment of Citi and/or Autonomy is material and adverse and which, singly or together with any other event specified in this sub-clause makes it, in the judgment of Citi and/or Autonomy, impracticable or inadvisable to proceed with the Placing or Admission; and
5. if there is an insolvency event.
No Prospectus
No offering document or prospectus has been or will be submitted to be approved by the FSA in relation to the Placing and Placees' commitments will be made solely on the basis of the information contained in this announcement (including this Appendix) released by blinkx today, and subject to the further terms set forth in the contract note to be provided to individual prospective Placees. Each Placee, by accepting a participation in the Placing, agrees that the content of this announcement (including this Appendix) is exclusively the responsibility of blinkx and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of blinkx or Citi or Autonomy or any other person and none of blinkx or Citi or Autonomy nor any of their respective affiliates will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of blinkx in accepting a participation in the Placing. Nothing in this paragraph shall exclude or limit the liability of any person for fraudulent misrepresentation by that person.
Registration and Settlement
Settlement of transactions in the Placing Shares (ISIN: GB00B1WBW239) following Admission will take place within the CREST system, subject to certain exceptions. blinkx reserves the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to Placees in certificated form if in Citi's reasonable opinion delivery or settlement is not possible or practicable within the CREST system or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Each Placee allocated Placing Shares in the Placing will be sent a contract note stating the number of Placing Shares to be allocated to it at the Placing Price and settlement instructions. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with the standing CREST or certificated settlement instructions that it has in place with Citi.
blinkx will deliver the Placing Shares to a CREST account operated by Citi as blinkx's agent and Citi will enter its delivery (DEL) instruction into the CREST system. The input to CREST by a Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.
It is expected that settlement will be on Friday 6th November 2009 on a T + 3 basis in accordance with the instructions given to Citi.
Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above LIBOR as determined by Citi.
Each Placee is deemed to agree that, if it does not comply with these obligations, Citi may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for Citi's account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation.
Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares should, subject as provided below, be so registered free from any liability to UK stamp duty or stamp duty reserve tax.
Placees will not be entitled to receive any fee or commission in connection with the Placing.
Representations and Warranties
By participating in the Placing each Placee (and any person acting on such Placee's behalf) for itself and for any such respective Placee:
1. represents and warrants that it has read this announcement, including this Appendix, in its entirety and that its acquisition of Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, acknowledgements, agreements and undertakings and other information contained herein;
2. acknowledges that no offering document or prospectus has been prepared in connection with the placing of the Placing Shares and represents and warrants that it has not received a prospectus or other offering document in connection therewith;
3. represents and warrants that it has neither received nor relied on any confidential price sensitive information concerning the Company in accepting this invitation to participate in the Placing;
4. represents and warrants that it has the power and authority to carry on the activities in which it is engaged, to acquire Placing Shares and to execute and deliver all documents necessary for such acquisition;
5. acknowledges that none of Citi or Autonomy or blinkx nor any of their respective affiliates nor any person acting on behalf of any of them has provided, and will not provide it, with any material regarding the Placing Shares or blinkx other than this announcement; nor has it requested Citi, blinkx or Autonomy or any of their respective affiliates or any person acting on behalf of any of them to provide it with any such information;
6. acknowledges that (i) it, and each account it represents is not, and at the time the Placing Shares are acquired will not be residents of Australia, Canada or Japan, and each of it and, each account it represents, and at the time the Placing Shares are acquired will be outside the United States and acquiring the Placing Shares in an "offshore transaction" within the meaning of Regulation S under the United States Securities Act of 1933, as amended (the "Securities Act") and it has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Placing Shares, and it and any accounts for which it is acting are each able to bear the economic risk of its investment in the Placing Shares, will not look to blinkx or Citi or Autonomy for all or part of any such loss or losses it may suffer, are able to sustain a complete loss on its investment in the Placing Shares, have no need for liquidity with respect to its investment in the Placing Shares and have no reason to anticipate any change in its circumstances, financial or otherwise, which may cause or require any sale or distribution by of all or any part of the Placing Shares, and (ii) that the Placing Shares have not been and will not be registered under the Securities Act or the securities legislation of Australia, Canada or Japan and, subject to certain exceptions, may not be offered, sold, taken up, renounced or delivered or transferred, directly or indirectly, within those jurisdictions;
7. acknowledges that the content of this announcement is exclusively the responsibility of blinkx and that neither Citi nor Autonomy nor any person acting on their behalf has or shall have any liability for any information, representation or statement contained in this announcement or any information previously published by or on behalf of blinkx and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this announcement or otherwise. Each Placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing itself to acquire the Placing Shares is contained in this announcement and any information previously published by blinkx by notification to a Regulatory Information Service, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares and that it has neither received nor relied on any other information given or representations, warranties or statements made by Citi or blinkx or Autonomy and non of Citi, blinkx or Autonomy will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement. Each Placee further acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of blinkx in respect of the Placing Shares and when deciding to participate in the Placing;
8. acknowledges that neither Citi nor Autonomy nor any person acting on behalf of them nor any of their respective affiliates has or shall have any liability for any publicly available or filed information or any representation relating to blinkx, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
9. agrees and undertakes that neither it nor any of its affiliates has engaged or will engage in directed selling efforts (as such term is defined in Regulation S under the Securities Act) with respect to the Placing Shares in the United States;
10. represents and warrants that it is acquiring the Placing Shares purchased by it for its own account, or for one or more accounts as to each of which it is acting as duly authorised fiduciary or agent with sole investment discretion and with full authority to make the acknowledgement representations and agreements herein with respect to each such account and not with a view to or for resale in connection with, the distribution thereof, in whole or in part, in the United States;
11. acknowledges that (i) the Placing Shares are admitted to trading on AIM and the Company is therefore required to publish certain business and financial information in accordance with the AIM Rules for Companies (the "AIM Information"), which includes, but is not limited to, a description of the nature of the Company's business and the Company's most recent balance sheet and profit and loss account, and similar statements for preceding years, and that it has reviewed such AIM Information as it has deemed necessary or that it is able to obtain or access the AIM Information without undue difficulty; (ii) it may not rely, and has not relied, on any investigation that Citi, any of its affiliates acting on its respective behalf, or any person acting on its behalf may have conducted with respect to the Placing Shares or the Placing; (iii) none of Citi, Autonomy, any of their affiliates nor the Company has made any representations to it, express or implied, with respect to the Company, the Placing and the Placing Shares or the accuracy, completeness or adequacy of the AIM Information; (iv) it has made its investment decision to acquire the Placing Shares in the Placing on the basis of its own independent investigation with respect to the Company, the Placing and the Placing Shares; and (v) it has had access to such financial and other information (including the business, financial condition, prospects, creditworthiness, status and affairs of the Company, the Placing and the Placing Shares) concerning the Company, the Placing and the Placing Shares including, without limitation, the information noted above, as it has deemed necessary in connection with its own investment decision to acquire any of the Placing Shares. It acknowledges and agrees that it will not hold Citi, or any of its affiliates responsible for any misstatements in or omissions from any publicly available information concerning the Company including (without limitation) the AIM Information;
12. acknowledges that where it is acquiring the Placing Shares for one or more managed accounts, it represents and warrants that it is authorised in writing by each managed account. Each Placee agrees that the provisions of this paragraph 12 shall survive the resale of the Placing Shares by or on behalf of the managed accounts;
13. represents and warrants that if it is a pension fund or investment company, its acquisition of Placing Shares is in full compliance with applicable laws and regulations;
14. acknowledges that blinkx, Citi and their respective affiliates and others will rely upon the truth and accuracy of the foregoing acknowledgements, representations, warranties and agreements and agrees that, if any of the acknowledgements, representations, warranties and agreements made in connection with its acquiring of Placing Shares is no longer accurate, it shall promptly notify blinkx and Citi and (ii) if it is acquiring any Placing Shares as a fiduciary or agent for one or more investor accounts, it represents that it has sole investment discretion with respect to each such account and that it has full power to, and does, make the acknowledgements, representations, warranties and agreements made herein on behalf of such account;
15. represents and warrants that neither it, nor the person specified by it for registration as holder of Placing Shares is, or is acting as nominee or agent for, and that the Placing Shares will not be allotted to, a person who is or may be liable to stamp duty or stamp duty reserve tax under any of sections 67, 70, 93 and 96 of the Finance Act 1986 (depositary receipts and clearance services);
16. represents and warrants that it has complied with its obligations in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2003 and the Money Laundering Regulations 2003 (the "Regulations") and, if making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations;
17. if a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive (including any relevant implementing measure in any member state), represents and warrants that the Placing Shares acquired by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in a member state of the European Economic Area which has implemented the Prospectus Directive other than to qualified investors, or in circumstances in which the prior consent of the Global Co-ordinator has been given to the proposed offer or resale;
18. represents and warrants that it and any person acting on its behalf falls within Article 19(5) and/or 49(2)(a) to (d) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended, and undertakes that it will acquire, hold, manage and (if applicable) dispose of any Placing Shares that are allocated to it for the purposes of its business only;
19. represents and warrants that it has not offered or sold and, prior to the expiry of a period of six months from Admission, will not offer or sell any Placing Shares to persons in the United Kingdom, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted and which will not result in an offer to the public in the United Kingdom within the meaning of section 85(1) of the Financial Services and Markets Act 2000 ("FSMA");
20. represents and warrants that it has not offered or sold and will not offer or sell any Placing Shares to persons in the European Economic Area prior to Admission except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted in and which will not result in an offer to the public in any member state of the European Economic Area within the meaning of the Prospectus Directive (including any relevant implementing measure in any member state);
21. represents and warrants that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) relating to the Placing Shares in circumstances in which section 21(1) of FSMA does not require approval of the communication by an authorised person;
22. represents and warrants that it has complied and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the United Kingdom;
23. represents and warrants that it is a "qualified investor" within the meaning of the Prospectus Directive (including any relevant implementing measure in any member state);
24. represents and warrants that it and any person acting on its behalf is entitled to acquire the Placing Shares under the laws of all relevant jurisdictions and that it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to this participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this announcement) and will honour such obligations;
25. undertakes that it (and any person acting on its behalf) will make payment for the Placing Shares allocated to it in accordance with this announcement on the due time and date set out herein, failing which the relevant Placing Shares may be placed with other persons or sold as Citi may in its discretion determine and it will remain liable for any amount by which the net proceeds of such sale falls short of the product of the Placing Price and the number of Placing Shares allocated to it and may be required to bear any stamp duty for stamp duty reserve tax (together with any interest or penalties due pursuant to the terms set out or referred to in this announcement) which may arise upon the sale of such Placee's Placing Shares on its behalf;
26. acknowledges that its allocation (if any) of Placing Shares will represent a maximum number of Placing Shares which it will be entitled, and required, to acquire, and that Citi may call upon it to acquire a lower number of Placing Shares (if any), but in no event in aggregate more than the aforementioned maximum;
27. acknowledges that neither Citi nor any of its affiliates, nor any person acting on behalf of any of them, is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of Citi and that Citi has no duties or responsibilities to it for providing the protections afforded to its clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
28. undertakes that the person whom it specifies for registration as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the case may be. Neither Citi nor blinkx will be responsible for any liability to stamp duty or stamp duty reserve tax resulting from a failure to observe this requirement. Each Placee and any person acting on behalf of such Placee agrees to participate in the Placing and it agrees to indemnify Citi and blinkx in respect of the same on the basis that the Placing Shares will be allotted to the CREST stock account of Citi who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions;
29. acknowledges that any agreements entered into by it pursuant to these terms and conditions shall be governed by and construed in accordance with the laws of England and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of any such contract, except that enforcement proceedings in respect of the obligation to make payment for the Placing Shares (together with any interest chargeable thereon) may be taken by Citi in any jurisdiction in which the relevant Placee is incorporated or in which any of its securities have a quotation on a recognised stock exchange;
30. agrees to indemnify, on an after tax basis, and hold blinkx, Citi, Autonomy and their respective affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this Appendix and further agrees that the provisions of this Appendix shall survive after completion of the Placing;
31. acknowledges that no action has been or will be taken by any of the Company, Citi, Autonomy or any person acting on its or their behalf that would, or is intended to, permit a public offer of the Placing Shares in any country or jurisdiction where any action for that purpose is required;
32. acknowledges that it has knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of acquiring the Placing Shares. It further acknowledges that it is experienced in investing in securities of this nature and is aware that it may be required to bear, and is able to bear, the economic risk of, and is able to sustain, a complete loss in connection with the Placing. It has relied upon its own examination and due diligence of the Company and its associates taken as a whole, and the terms of the Placing, including the merits and risks involved; and
33. acknowledges that its commitment to acquire Placing Shares on the terms set out herein and in the contract note will continue notwithstanding any amendment that may in future be made to the terms of the Placing and that Placees will have no right to be consulted or require that their consent be obtained with respect to the conduct of the Placing.
The foregoing representations, warranties and confirmations are given for the benefit of blinkx as well as Citi (and, where applicable, Autonomy).
The agreement to settle a Placee's acquisition (and/or the acquisition of a person for whom such Placee is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to the acquisition by it and/or such person direct from blinkx of the Placing Shares in question. Such agreement assumes, and is based on a warranty from each Placee, that neither it, nor the person specified by it for registration as holder of Placing Shares is, or is acting as nominee or agent for, and that the Placing Shares will not be allotted to, a person who is or may be liable to stamp duty or stamp duty reserve tax under any of sections 67, 70, 93 and 96 of the Finance Act 1986 (depositary receipts and clearance services). If there are any such arrangements, or the settlement relates to any other dealing in the Placing Shares, stamp duty or stamp duty reserve tax may be payable. In that event the Placee agrees that it shall be responsible for such stamp duty or stamp duty reserve tax, and neither blinkx nor Citi shall be responsible for such stamp duty or stamp duty reserve tax. If this is the case, each Placee should seek its own advice and notify Citi.
In addition, Placees should note that they will be liable for any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the acquisition by them of any Placing Shares or the agreement by them to acquire for any Placing Shares.
Citi is acting exclusively for blinkx and no-one else in relation to the Placing and will not be responsible to any person (including Placees) other than blinkx for providing the protections afforded to their respective clients or for providing advice in relation to the Placing or in relation to the contents of this announcement or any other transaction, arrangement or matter referred to herein.
Each Placee and any person acting on behalf of the Placee acknowledges that Citi does not owe any fiduciary or other duties to any Placee in respect of any representations, warranties or undertakings in the Placing Agreement.
Each Placee, and any person acting on behalf of each Placee, acknowledges and agrees that Citi or any of its respective affiliates may, at their absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares.
When a Placee or person acting on behalf of the Placee is dealing with Citi any money held in an account with Citi on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FSA made under FSMA. The Placee acknowledges that the money will not be subject to the protections conferred by the client money rules; as a consequence, this money will not be segregated from Citi's money in accordance with the client money rules and will be used by Citi in the course of its own business; and the Placee will rank only as a general creditor of Citi.
All times and dates in this announcement may be subject to amendment. Citi shall notify the Placees and any person acting on behalf of the Placees of any changes.
This information is provided by RNS
No comments:
Post a Comment