TIDMPHRM
RNS Number : 3230D
Phorm Corporation Limited
27 March 2014
NEITHER THIS ANNOUNCEMENT NOR ANY PART OF IT CONSTITUTES AN
OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY,
SUBSCRIBE OR ACQUIRE ANY NEW ORDINARY SHARES IN ANY JURISDICTION IN
WHICH ANY SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL. THE
INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR
PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR
INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN OR ANY OTHER
JURISDICTION IN WHICH SUCH PUBLICATION, RELEASE OR DISTRIBUTION
WOULD BE UNLAWFUL. PERSONS INTO WHOSE POSSESSION THIS ANNOUNCEMENT
(INCLUDING THE APPENDICES) COMES ARE REQUIRED BY THE COMPANY AND
MIRABAUD SECURITIES LLP TO INFORM THEMSELVES ABOUT AND TO OBSERVE
ANY SUCH RESTRICTIONS.
27 March 2014
Phorm Corporation Limited
("Phorm" or the "Company")
Proposed Placing to raise approximately GBP10 million gross
Operational Update and
Notice of Extraordinary General Meeting
Over 30 million daily unique users across nine ISPs
Phorm (AIM: PHRM), a leading internet personalisation technology
company, announces, further to its announcement of yesterday, that
it has today conditionally placed via Mirabaud Securities LLP
("Mirabaud Securities"), in aggregate, 90,909,000 new ordinary
shares of nil par value each in the capital of the Company (the
"Placing Shares"), with certain new and existing institutional and
other investors, at a price of 11 pence per share (the "Placing
Price") to raise approximately GBP10 million before expenses (the
"Placing").
Phorm intends to use the net proceeds raised from the Placing
for the Group's general working capital purposes.
Details of the Placing
The Placing is conditional, inter alia, upon:
- the passing of the necessary resolutions to give authority to
the Phorm Directors to allot and issue the Placing Shares at an
extraordinary general meeting to be convened at the offices of
Hogan Lovells International LLP, Atlantic House, Holborn Viaduct,
London EC1A 2FG, United Kingdom at 12 noon (London time) on 14
April 2014; and
- admission of the Placing Shares to trading on the AIM market
operated by the London Stock Exchange plc ("AIM").
The Placing Shares have been conditionally placed by Mirabaud
Securities, as agent of the Company, with certain existing and new
institutional and other investors pursuant to the Placing
Agreement. Under the terms of the Placing Agreement, Mirabaud
Securities will receive commission from the Company conditional on
Admission and the Company will give customary warranties and
undertakings to Mirabaud Securities in relation, inter alia, to its
business and the performance of its duties. In addition, the
Company has agreed to indemnify Mirabaud Securities in relation to
certain liabilities that it may incur in undertaking the Placing.
Mirabaud Securities has the right to terminate the Placing
Agreement in certain circumstances prior to Admission, in
particular, in the event that there has been, inter alia, a
material breach of any of the warranties. The Placing is not being
underwritten.
The mid-market price of an Ordinary Share at the close of
business on 26 March 2014 (being the latest practicable date prior
to this announcement) was 11 pence. Application will be made to the
London Stock Exchange for admission of the Placing Shares to
trading on AIM ("Admission"). It is expected that Admission will
become effective and that dealings in the Placing Shares will
commence at 8.00 a.m. on 15 April 2014.
The Placing Shares will represent approximately 14.65 per cent.
of the Company's enlarged issued ordinary share capital. The new
Ordinary Shares will be fully paid and will rank pari passu in all
respects with the existing Ordinary Shares. Following completion of
the Placing, the total issued share capital of the Company will
comprise 620,392,695 ordinary shares of nil par value each.
Operational update
The Company has continued to make excellent progress and in
March 2014 reached a total of over 30 million daily unique users
and is now deployed across nine ISPs.
Related party transactions
Pursuant to the Placing, Meditor European Master Fund Limited
("Meditor") and Viollette Company Limited ("Viollette") will each
be investing GBP1.4 million in Placing Shares. These subscriptions
for Placing Shares will result in Meditor and Viollette being
interested, in aggregate, in 210,596,786 Ordinary Shares and
221,672,251 Ordinary Shares respectively, representing
approximately 33.95 per cent. and 35.73 per cent. respectively of
the Company's enlarged issued ordinary share capital on completion
of the Placing.
In the event that both Meditor and Viollette were to convert in
full their pre-existing holdings of, in aggregate, GBP1.95m of
secured convertible loan notes issued in April 2013, and taking
into account their planned participations in the Placing, their
shareholdings in the Company would increase to 34.93 per cent. and
36.61 per cent. respectively.
Solely by virtue of Meditor and Viollette currently being
substantial shareholders in the Company, Meditor's and Viollette's
respective subscriptions for Placing Shares constitute related
party transactions for the purposes of Rule 13 of the AIM Rules for
Companies.
In light of the above, the directors of Phorm consider, having
consulted with Strand Hanson Limited (the Company's Nominated
Adviser), that the terms of Meditor's and Viollette's
participations in the Placing are fair and reasonable insofar as
the Company's shareholders are concerned.
The abovementioned participation of Viollette in the Placing is
currently subject to the receipt of certain limited internal
investment approvals of a routine nature. In the event that such
anticipated approvals are not forthcoming, the Company and its
broker, Mirabaud Securities, would seek to procure an alternative
placee(s) and/or scale back the size of the Placing and a further
announcement would be made as appropriate.
Extraordinary General Meeting
A formal notice convening an extraordinary general meeting, to
be held at the offices of Hogan Lovells International LLP, Atlantic
House, Holborn Viaduct, London EC1A 2FG, United Kingdom at 12 noon
(London time) on 14 April 2014, is set out at the end of a circular
being posted to shareholders today which, once posted, will also be
made available to download from the Company's website at
www.phorm.com.
For further information please contact:
Phorm Corporation Limited
Andy Croxson (analysts and investors) +44 (0) 203 397 6001
UK Investors
Mirabaud Securities LLP +44 20 7321 2508 (Broker)
Jason Woollard
Peter Krens
Strand Hanson Limited +44 20 7409 3494 (Nominated Adviser)
James Harris
Matthew Chandler
James Dance
US Investors
Lippert/Heilshorn and Associates +1 212 838 3777 (Investor
Relations)
John Heilshorn
About Phorm
Phorm is a global personalisation technology company that makes
content and advertising more relevant to the consumer. Phorm's
innovative platform preserves user privacy and delivers a more
interesting online experience.
Phorm's industry leading technology enables its Internet Service
Provider ("ISP") partners to offer a new type of online advertising
platform and a free consumer internet content feature, ensuring
more relevant advertisements and personalised content for opted-in
users.
Phorm's advertising platform revolutionises current standards of
online privacy, fully protecting the identity of consumers. Unlike
virtually all other targeted advertising propositions, Phorm's
solution is completely opt-in. Only those users consenting to the
service are profiled and only ever on an anonymous basis.
Phorm's partners include leading ISPs, Publishers, Advertising
Networks and Advertisers.
Phorm, under a predecessor holding company, was admitted to the
AIM market of the London Stock Exchange in 2004.
For more information, please visit: www.phorm.com
The new Ordinary Shares are being offered and sold pursuant to
exemptions from the registration requirements of the United States
Securities Act of 1933, as amended (the "Securities Act"), and will
be offered and sold either (i) outside the United States to persons
who are not 'U.S. Persons' (within the meaning of Regulation S
under the Securities Act) in transactions complying with Regulation
S or (ii) within the United States in private placements to persons
who are institutional persons who are Accredited Investors (within
the meaning of Regulation D under the Securities Act) in
transactions complying with Regulation D.
The Ordinary Shares have not been approved by the U.S.
Securities and Exchange Commission or by any US state securities
commission or authority, nor has any such US authority reviewed or
commented on the accuracy or adequacy of this announcement.
The Ordinary Shares have not been (and will not be) registered
under the Securities Act or securities laws of any US state or
jurisdiction and will not be offered or sold 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 such other applicable securities laws.
APPENDIX I
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE
PLACING.
THIS ANNOUNCEMENT, INCLUDING THE APPENDICES AND THE INFORMATION
CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE
OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM THE
UNITED STATES, CANADA, AUSTRALIA, JAPAN OR ANY JURISDICTION IN
WHICH THE SAME WOULD BE UNLAWFUL (A "RESTRICTED JURISDICTION"),
SUBJECT TO CERTAIN LIMITED EXCEPTIONS.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO THE
LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF A SUBSCRIPTION FOR THE
PLACING SHARES.
Details of the Placing
Mirabaud Securities has today entered into an agreement with
Phorm Corporation Limited (the "Placing Agreement") under which,
subject to the conditions set out in that agreement, Mirabaud
Securities has agreed to use its reasonable endeavours to procure
subscribers for Placing Shares at the Placing Price with certain
institutional and other investors.
The Placing Shares will, when issued, rank pari passu in all
respects with the existing Ordinary Shares, including the right to
receive dividends and other distributions declared, made or paid
following Admission.
Application for admission to trading
Application will be made to the London Stock Exchange for
admission of the Placing Shares to trading on AIM. It is expected
that Admission will become effective and that dealings in the
Placing Shares will commence on AIM at 8.00 a.m. on 15 April
2014.
Participation in, and principal terms of, the Placing
Mirabaud Securities is arranging the Placing as placing agent
for and on behalf of the Company. Mirabaud Securities will
determine in its absolute discretion the extent of each Placee's
participation in the Placing, which will not necessarily be the
same for each Placee.
Each Placee will be required to pay to Mirabaud Securities, on
the Company's behalf, the Placing Price for each Placing Share
agreed to be acquired by it under the Placing in accordance with
the terms set out herein. Each Placee's obligation to acquire and
pay for Placing Shares under the Placing will be owed to Mirabaud
Securities and the Company. Each Placee has an immediate, separate,
irrevocable and binding obligation, owed to Mirabaud Securities, to
pay to it (or as it may direct) in cleared funds an amount equal to
the product of the Placing Price and the number of Placing Shares
such Placee has agreed to subscribe for. Each Placee will be deemed
to have read and understood this Appendix I in its entirety, to be
participating in the Placing upon the terms and conditions
contained in this Appendix I, and to be providing the
representations, warranties, agreements, acknowledgements and
undertakings, in each case as contained in this Appendix I. To the
fullest extent permitted by law and applicable FCA rules (the "FCA
Rules"), neither (i) Mirabaud Securities, (ii) any of its
directors, officers, employees or consultants, nor (iii) to the
extent not contained within (i) or (ii), any person connected with
Mirabaud Securities as defined in the FCA Rules ((i), (ii) and
(iii) being together "affiliates" and individually an "affiliate"),
shall have any liability to Placees or to any person other than the
Company in respect of the Placing.
Conditions of the Placing
The obligations of Mirabaud Securities under the Placing
Agreement are conditional on, amongst other things:
(a) the Company having complied with its obligations under the
Placing Agreement (to the extent that such obligations fall to be
performed prior to Admission);
(b) the passing of the necessary resolutions giving authority to
the Phorm Directors to allot and issue the Placing Shares at an
extraordinary general meeting of the Company convened for 14 April
2014; and
(c) Admission having occurred not later than 8.00 a.m. on 15
April 2014 or such later date as the Company and Mirabaud
Securities may agree, but in any event not later than 8.00 a.m. on
22 April 2014.
If any of the conditions contained in the Placing Agreement in
relation to the Placing Shares are not fulfilled or waived by
Mirabaud Securities, by the respective time or date where
specified, the Placing will not proceed and the Placee's rights and
obligations hereunder in relation to the Placing Shares shall cease
and terminate at such time and each Placee agrees that no claim can
be made by the Placee against the Company or Mirabaud Securities in
respect thereof.
Mirabaud Securities may, at its discretion and upon such terms
as it thinks fit, waive compliance by the Company with the whole or
any part of any of the Company's obligations in relation to the
conditions in the Placing Agreement. Any such extension or waiver
will not affect Placees' commitments as set out in this
Announcement.
None of Mirabaud Securities, the Company or any other person
shall have any liability to any Placee (or to any other person
whether acting on behalf of a Placee or otherwise) in respect of
any decision they may make as to whether or not to waive or to
extend the time and/or the date for the satisfaction of any
condition to the Placing nor for any decision they may make as to
the satisfaction of any condition or in respect of the Placing
generally, and by participating in the Placing each Placee agrees
that any such decision is within the absolute discretion of
Mirabaud Securities and (where applicable) the Company.
Termination of the Placing Agreement
Mirabaud Securities is entitled, at any time before Admission,
to terminate the Placing Agreement in relation to its obligations
in respect of the Placing Shares by giving notice to the Company in
certain limited circumstances. Such circumstances include, inter
alia, material breach by the Company of the terms of the Placing
Agreement or any warranty therein being untrue or incorrect in any
material respect, or on the occurrence of certain specified events
or of certain events of force majeure.
Upon such termination, the parties to the Placing Agreement
shall be released and discharged (except for any liability arising
before or in relation to such termination) from their respective
obligations under or pursuant to the Placing Agreement subject to
certain exceptions.
By participating in the Placing, Placees agree that the exercise
by Mirabaud Securities of any right of termination or other
discretion under the Placing Agreement shall be within the absolute
discretion of Mirabaud Securities and that it need not make any
reference to Placees and that it shall have no liability to Placees
whatsoever in connection with any such exercise or failure so to
exercise.
No prospectus
No offering document, prospectus or admission document has been
or will be submitted to be approved by the FCA in relation to the
Placing and Placees' commitments will be made solely on the basis
of the information contained in this Announcement (including its
Appendices) released by the Company 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 its Appendices) is
exclusively the responsibility of the Company and confirms that it
has neither received nor relied on any other information,
representation, warranty, or statement made by or on behalf of the
Group, Mirabaud Securities or any other person and none of Mirabaud
Securities nor the Company nor any other person 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 the Group in accepting a
participation in the Placing. Nothing in this paragraph shall
exclude the liability of any person for fraudulent
misrepresentation.
Registration and settlement
Settlement of transactions in the Placing Shares through
depositary interests following Admission will take place within the
system administered by Euroclear UK & Ireland Limited
("CREST"), subject to certain exceptions. The Company reserves the
right to require settlement for and delivery of the Placing Shares
(or a portion hereof) to Placees in certificated form if, in
Mirabaud Securities' opinion, delivery or settlement is not
possible or practicable within the CREST system or will not be
consistent with the regulatory requirements in the Placee's
jurisdiction.
Participation in the Placing is only available to persons who
are invited to participate in it by Mirabaud Securities.
A Placee's commitment to acquire a fixed number of Placing
Shares under the Placing will be agreed orally with Mirabaud
Securities. Such agreement will constitute a legally binding
commitment on such Placee's part to acquire that number of Placing
Shares at the Placing Price on the terms and conditions set out or
referred to in this Appendix I and subject to the Company's
Memorandum and Articles of Association.
After such agreement is entered into, each Placee allocated
Placing Shares in the Placing will be sent contract notes stating
the number of Placing Shares 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 Mirabaud Securities. Settlement should be through
Mirabaud Securities against CREST ID: 834, account designation:
CLEARING. For the avoidance of doubt, Placing allocations will be
booked with a trade date of 27 March 2014 and a settlement date of
15 April 2014.
The Company will deliver depositary interests in respect of the
Placing Shares to the CREST account operated by Mirabaud Securities
as agent for the Company and Mirabaud Securities 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 depositary interests in respect of the relevant
Placing Shares to that Placee against payment.
It is expected that settlement will take place on 15 April 2014,
being the date of Admission, on a delivery versus payment
basis.
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 Mirabaud Securities.
Each Placee is deemed to agree that, if it does not comply with
these obligations, the Company may sell any or all of the Placing
Shares allocated to that Placee on such Placee's behalf and retain
from the proceeds, for the Company'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 depositary interests in respect of 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) acknowledges, undertakes,
represents, warrants and agrees (as the case may be) to the Company
and Mirabaud Securities that it:
1. has read this Announcement, including its Appendices, in its entirety;
2. acknowledges and agrees that no offering document, prospectus
or admission document has been or will be prepared in connection
with the Placing and represents and warrants that it has not
received a prospectus, admission document or other offering
document in connection with the Placing or the Placing Shares;
3. acknowledges that the Ordinary Shares are admitted to trading
on AIM, and the Company is therefore required to publish certain
business and financial information in accordance with the rules and
practices of AIM (collectively, the "Exchange Information"), which
includes a description of the nature of the Company's business and
the Company's most recent balance sheet and profit and loss account
and that it is able to obtain or access such Exchange Information
without undue difficulty and is able to obtain access to such
information or comparable information concerning any other publicly
traded company without undue difficulty;
4. acknowledges that neither Mirabaud Securities nor the Company
nor any of their respective affiliates or any person acting on
behalf of any of them has provided, and will not provide, it with
any material regarding the Placing Shares or the Group other than
this Announcement; nor has it requested any of Mirabaud Securities,
the Company, any of their respective affiliates or any person
acting on behalf of any of them to provide it with any such
information;
5. acknowledges that (i) it and, if different, the beneficial
owner of the Placing Shares is not, and at the time the Placing
Shares are acquired will not be located in or be residents of a
Restricted Jurisdiction and (ii) the Placing Shares have not been
and will not be registered under the securities legislation of the
United States, Canada or Japan and, subject to certain exceptions,
may not be offered, sold, taken up, renounced or delivered or
transferred, directly or indirectly, in or into those jurisdictions
or any other jurisdiction where to do so would be unlawful;
6. acknowledges that the content of this Announcement is
exclusively the responsibility of the Company and that neither
Mirabaud Securities nor any person acting on its 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 the Company 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 subscribe for the Placing Shares is contained in this
Announcement and any information previously published by the
Company 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 Mirabaud
Securities or the Company and neither Mirabaud Securities nor the
Company 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 the
Company in deciding to participate in the Placing;
7. acknowledges that neither Mirabaud Securities nor any person
acting on behalf of it nor any of its affiliates has or shall have
any liability for any publicly available or filed information, or
any representation relating to the Group, provided that nothing in
this paragraph excludes the liability of any person for fraudulent
misrepresentation made by that person;
8. represents and warrants that neither it, nor the person
specified by it for registration as a 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);
9. 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
2000, the Terrorism Act 2006 and the Money Laundering Regulations
2007 (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;
10. if a financial intermediary, as that term is used in Article
3(2) of EU Directive 2003/71/EC (the "Prospectus Directive")
(including any relevant implementing measure in any member state),
represents and warrants that the Placing Shares subscribed for 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 Mirabaud Securities has been given to the proposed offer or
resale;
11. 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");
12. 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 (Directive 2003/71/EC) (including any
relevant implementing measure in any member state);
13. 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;
14. 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 and confirms that, to the extent
applicable, it is aware of its obligations in connection with the
Criminal Justice Act 1993;
15. represents and warrants that it is a person falling within
Article 19(5) and/or Article 49(2)(a) to (d) of the Financial
Services and Markets Act 2000 (Financial Promotion) Order 2005 or
is a person to whom this Announcement may otherwise be lawfully
communicated;
16. acknowledges that any offer of Placing Shares may only be
directed at persons in member states of the European Economic Area
who are "qualified investors" within the meaning of Article 2(1)(e)
of the Prospectus Directive and represents and agrees that it is
such a qualified investor;
17. understands that the Placing Shares have not been and will
not be registered under the Securities Act, or under the securities
legislation of, or with any securities regulatory authority of, any
state or other jurisdiction of the United States;
18. except as provided in paragraph 19 below, agrees, represents
and warrants that it is not a person located in the United States
and is eligible to participate in an "offshore transaction" as
defined in and in accordance with Regulation S and the Placing
Shares were not offered to it by means of "directed selling
efforts" as defined in Regulation S;
19. where it is a US person as defined in Regulation S, agrees,
represents and warrants that it is an "accredited investor", as
defined in Rule 501(a) under Regulation D, and is acquiring the
Placing Shares either for (i) its own account, (ii) for the account
of one or more "accredited investors" for which it is acting as
duly authorised agent or (iii) a discretionary account or accounts
as to which it has complete investment discretion and the authority
to make, and does make, the statements contained herein;
20. represents and warrants that it is acquiring the Placing
Shares for investment purposes only and not with a view to any
resale, distribution or other disposition of the Placing Shares in
violation of the Securities Act or any other U.S. federal or
applicable state securities laws;
21. understands that the Placing Shares may not be offered,
resold, pledged or otherwise transferred except (a) (i) in an
offshore transaction meeting the requirements of Rule 903 or Rule
904 of Regulation S; (ii) pursuant to an effective registration
statement under the Securities Act; or (iii) pursuant to an
available exemption from the registration requirements of the
Securities Act; and (b) in accordance with all applicable
securities laws of the states of the United States and any other
jurisdictions. Each Placee agrees to, and each subsequent holder is
required to, comply with, and notify any purchaser of the Placing
Shares from it of the resale restrictions referred to in this
Appendix I, if then applicable;
22. represents and warrants that it is entitled to subscribe for
Placing Shares under the laws of all relevant jurisdictions which
apply to it, and that its subscription of the Placing Shares will
be in compliance with applicable laws and regulations in the
jurisdiction of its residence, the residence of the Company, or
otherwise and that it has not taken any action or omitted to take
any action which will or may result in Mirabaud Securities, or the
Company or any of their respective affiliates or any person acting
on behalf of any of them acting in breach of the legal or
regulatory requirements of any territory in connection with the
Placing;
23. acknowledges and agrees that its purchase of the Placing
Shares does not trigger, in the jurisdiction in which it is
resident or located: (i) any obligation to prepare or file a
prospectus or similar document or any other report with respect to
such purchase; (ii) any disclosure or reporting obligation of the
Company; (iii) any registration or other obligation on the part of
the Company;
24. 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 subscribers or sold as Mirabaud Securities may in its
discretion determine and without liability to such Placee;
25. acknowledges that neither Mirabaud Securities, nor any of
its affiliates, nor any person acting on behalf of it, 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 Mirabaud Securities for the
purposes of the Placing and that Mirabaud Securities has no duties
or responsibilities to it for providing the protections afforded to
its clients 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;
26. 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 Mirabaud Securities
nor the Company will be responsible for any liability to stamp duty
or stamp duty reserve tax resulting from a failure to observe this
requirement;
27. acknowledges that these terms and conditions and any
agreements entered into by it pursuant to these terms and
conditions and any non-contractual obligations arising out of or in
connection with such agreements shall be governed by and construed
in accordance with the laws of England and Wales 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 the Company or
Mirabaud Securities 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;
28. acknowledges that the Company, Mirabaud Securities and their
affiliates will rely upon the truth and accuracy of the
representations, warranties and acknowledgements set forth herein
and which, together with its participation in the Placing, are
irrevocable and are not capable of termination or rescission by it
in any circumstances and it irrevocably authorises the Company and
Mirabaud Securities to produce this Announcement, pursuant to, in
connection with, or as may be required by any applicable law or
regulation, administrative or legal proceeding or official inquiry
with respect to the matters set forth herein;
29. agrees to indemnify and hold the Company, Mirabaud
Securities 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 I and further agrees that the
provisions of this Appendix I shall survive after completion of the
Placing;
30. acknowledges and agrees that time shall be of the essence as
regards obligations pursuant to its commitment to subscribe for
Placing Shares;
31. represents and warrants that it will acquire any Placing
Shares subscribed for by it for its account or for one or more
accounts as to each of which it exercises sole investment
discretion and it has full power to make the acknowledgements,
representations and agreements herein on behalf of each such
account;
32. acknowledges that its commitment to subscribe for Placing
Shares on the terms set out herein and in the relevant contract
notes 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 Company's conduct of the Placing. The
foregoing representations, warranties and confirmations are given
for the benefit of the Company and Mirabaud Securities. The
agreement to settle a Placee's subscription (and/or the
subscription 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 subscription by it and/or such
person direct from the Company for 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 the Company nor Mirabaud Securities 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
Mirabaud Securities accordingly;
33. understands that no action has been or will be taken by any
of the Company or Mirabaud Securities or any person acting on
behalf of the Company or Mirabaud Securities that would, or is
intended to, permit a public offer of the Placing Shares in any
country or jurisdiction where any such action for that purpose is
required;
34. in making any decision to subscribe for the Placing Shares,
confirms that it has knowledge and experience in financial,
business and international investment matters as is required to
evaluate the merits and risks of subscribing for the Placing
Shares. It further confirms that it is experienced in investing in
securities of this nature in this sector 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 further confirms that it relied on 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;
35. represents and warrants that it has (a) made its own
assessment and satisfied itself concerning legal, regulatory, tax,
business and financial considerations in connection herewith to the
extent it deems necessary; (b) had access to review publicly
available information concerning the Group that it considers
necessary or appropriate and sufficient in making an investment
decision; (c) reviewed such information as it believes is necessary
or appropriate in connection with its subscription of the Placing
Shares; and (d) made its investment decision based upon its own
judgment, due diligence and analysis and not upon any view
expressed or information provided by or on behalf of the Company or
Mirabaud Securities;
36. understands and agrees that it may not rely on any
investigation that Mirabaud Securities or any person acting on its
behalf may or may not have conducted with respect to the Company,
its Group, or the Placing and that the Company and Mirabaud
Securities have not made any representations to it, express or
implied, with respect to the merits of the Placing, the
subscription for the Placing Shares, or as to the condition,
financial or otherwise, of the Company, its Group, or as to any
other matter relating thereto, and nothing herein shall be
construed as a recommendation to it to subscribe for the Placing
Shares. It acknowledges and agrees that no information has been
prepared by Mirabaud Securities or the Company for the purposes of
this Placing; and
37. accordingly it acknowledges and agrees that it will not hold
Mirabaud Securities or any of its affiliates or any person acting
on its behalf responsible or liable for any misstatements in or
omission from any publicly available information relating to the
Group or information made available (whether in written or oral
form) as part of roadshow discussions with investors relating to
the Group (the "Information") and that neither Mirabaud Securities
nor any person acting on behalf of Mirabaud Securities, makes any
representation or warranty, express or implied, as to the truth,
accuracy or completeness of such Information or accepts any
responsibility for any of such Information.
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
United Kingdom by them or any other person on the subscription by
them of any Placing Shares or the agreement by them to subscribe
for any Placing Shares.
Each Placee and any person acting on behalf of each Placee
acknowledges and agrees that Mirabaud Securities or any of its
affiliates may, at its 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 Mirabaud Securities, any money held in an account with
Mirabaud Securities 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 FCA 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 Mirabaud
Securities' money in accordance with the client money rules and
will be used by Mirabaud Securities in the course of its own
business; and the Placee will rank only as a general creditor of
Mirabaud Securities.
All times and dates in this Announcement may be subject to
amendment. Mirabaud Securities shall notify the Placees and any
person acting on behalf of the Placees of any changes.
Past performance is no guide to future performance and persons
needing advice should consult an independent financial adviser.
APPENDIX II
DEFINITIONS
The following definitions apply throughout this announcement
unless otherwise stated or the context otherwise requires:
"Admission" admission of the Placing Shares
to trading on AIM becoming effective
in accordance with the AIM Rules;
"AIM" the AIM market operated by the
London Stock Exchange;
"AIM Rules" the London Stock Exchange's rules
and guidance notes contained
in its "AIM Rules for Companies"
publication relating to companies
whose securities are traded on
AIM, as amended from time to
time;
"Announcement" means this announcement (including
the appendices to this announcement);
"Company" or Phorm Corporation Limited, a
"Phorm" company incorporated in Singapore
with registered number 201219573K,
whose registered office is at
158 Cecil Street, #11-01, Singapore
069545;
"CREST" the computerised settlement system
(as defined in the CREST Regulations)
operated by Euroclear which facilitates
the transfer of title to shares
in uncertificated form;
"CREST Regulations" the Uncertificated Securities
Regulations 2001 (SI 2001/3755)
including any enactment or subordinate
legislation which amends or supersedes
those regulations or any such
enactment or subordinate legislation
for the time being in force;
"Euroclear" Euroclear UK & Ireland Limited,
a company incorporated in England
& Wales with registered number
02878738, being the operator
of CREST;
"FCA" the Financial Conduct Authority
in its capacity as the competent
authority for the purposes of
Part VI of FSMA;
"FSMA" the Financial Services and Markets
Act of 2000 (as amended);
"Group" the Company together with its
subsidiaries from time to time;
"London Stock London Stock Exchange plc;
Exchange"
"Mirabaud Securities" Mirabaud Securities LLP of 33
Grosvenor Place, London SW1X
7HY, the Company's broker;
"Ordinary Shares" ordinary shares of nil par value
each in the share capital of
the Company;
"Phorm Directors" the directors of the Company,
or any duly authorised committee
thereof;
"Placing" the conditional placing of the
Placing Shares at the Placing
Price by Mirabaud Securities
as agent for and on behalf of
the Company pursuant to the terms
of the Placing Agreement;
"Placing Agreement" the conditional agreement dated
27 March 2014 between (i) the
Company and (ii) Mirabaud Securities
relating to the Placing, further
details of which are set out
in this Announcement;
"Placing Price" 11 pence per Placing Share;
"Placing Shares" the 90,909,000 new Ordinary Shares
to be issued by the Company and
subscribed for pursuant to the
Placing;
"Regulation Regulation D as promulgated under
D" the Securities Act;
"Regulation Regulation S as promulgated under
S" the Securities Act;
"Securities the United States Securities
Act" Act of 1933, as amended;
"Shareholders" holders of Ordinary Shares, from
time to time;
"UK" or "United the United Kingdom of Great Britain
Kingdom" and Northern Ireland;
"uncertificated" recorded on the relevant register
or "in uncertificated of the share or security concerned
form" as being held in uncertificated
form in CREST and title to which,
by virtue of the CREST Regulations,
may be transferred by means of
CREST;
"United States" the United States of America,
or "US" its territories and possessions,
any state of the United States
of America and the district of
Columbia and all other areas
subject to its jurisdiction;
"US Person" bears the meaning ascribed to
such term by Regulation S; and
"GBP" pounds sterling, the lawful currency
of the UK from time to time.
-Ends-
This information is provided by RNS
The company news service from the London Stock Exchange
END
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