SINGAPORE--(Marketwired - Mar 27, 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HEREIN IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE OR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 respectivetime 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 bythe Company with the whole or any part
of any ofthe 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 ofthe Company and confirms that it has
neither received nor relied on any other information, representation,
warranty, or statement made by or on behalf ofthe 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 ofthe 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, forthe 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 tothe 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
notrequire 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 notand 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 northe 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
affiliateswill 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 holdthe 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 tothe
Company's conduct of the Placing. The foregoing representations,
warranties and confirmations are given for the benefit ofthe 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 fromthe 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 neitherthe 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 orotherwise, 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
holdMirabaud 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
withMirabaud 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 fromMirabaud Securities' money in accordance with
the client money rules and will be used by Mirabaud Securitiesin 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 company incorporated in"Phorm" 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 the Uncertificated
Securities Regulations 2001 (SI
Regulations" 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 Mirabaud Securities LLP of 33 Grosvenor Place,
London
Securities" SW1X 7HY, the Company's broker;"Ordinary ordinary
shares of nil par value each in the share
Shares" capital of the Company;"Phorm the directors of
the Company, or any duly authorised
Directors" 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 the conditional
agreement dated 27 March 2014 between
Agreement" (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 D" Regulation D as promulgated under the Securities
Act;"Regulation S" Regulation S as promulgated under the Securities
Act;"Securities Act" the United States Securities Act of 1933, as
amended;"Shareholders" holders of Ordinary Shares, from time to time;"UK"
or "United the United Kingdom of Great Britain and Northern
Kingdom" Ireland;"uncertificated" recorded on the relevant register
of the share or
or "in security concerned as being held in uncertificated
uncertificated form in CREST and title to which, by virtue of the
form" CREST Regulations, may be transferred by means of
CREST;"United States" the United States of America, its
territories and
or "US" 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-
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