RNS Number:0108Z
Mediasurface PLC
02 July 2007
Not for release, publication or distribution in or into the United States,
Australia, Canada or Japan.
This release is not an offer for sale of securities in the United States.
Securities may not be offered or sold in the United States absent registration
or an exemption from registration under the U.S. Securities Act of 1933, as
amended. The issuer of the shares has not registered, and does not intend to
register, any portion of the offering in the United States and does not intend
to conduct a public offering of its securities in the United States.
Mediasurface plc ("Mediasurface" or the "Company")
Acquisition of Immediacy Limited
and
Placing of 19,347,826 new Ordinary Shares
26 June 2007 - Mediasurface plc, the AIM listed Content Management Software
Author and Vendor, today announces its intention to acquire Immediacy Limited
("Immediacy") for consideration of approximately #5.6 million.
Highlights
* Mediasurface plc has conditionally agreed to acquire Immediacy for an
initial consideration of approximately #5 million plus deferred consideration of
#0.80 per pound of net assets in excess of #370,000.
* The Placing by KBC Peel Hunt will raise approximately #4.45 million in
addition to a #2 million term loan facility which the Company has secured. These
proceeds will be used to fund the cash element of the initial consideration,
defray the costs of the Placing and the Acquisition and strengthen the balance
sheet.
* Under the terms of the Placing Agreement, KBC Peel Hunt has agreed to use
its reasonable endeavours to procure subscribers for the Placing Shares at 23
pence per share.
* Immediacy develops, markets and implements Web Content Management software
designed specifically for - and marketed directly to - mid-sized organisations.
* The Directors believe that the acquisition of Immediacy has compelling
strategic and financial logic for both companies and represents an attractive
opportunity for Mediasurface to broaden its portfolio and acquire 206 support
paying customers.
* The principal benefits of the Acquisition:
o Broaden the Mediasurface product portfolio with the addition of a
successful mid-range content management technology and customer base
o Complementary solution that targets a segment of the web content
management market that is not currently addressed by Mediasurface
o Transferable technological skills
o Greater sales opportunities, both by enabling Mediasurface to
address a wider market and by promoting Immediacy in new
geographies in which Mediasurface is already established
o Increased profile and critical mass to better compete in the
content management market
* EGM to authorise the resolutions to allow the Directors to allot
the EGM Placing Shares to be held at the Company's registered offices at 9.00
a.m. on 23 July 2007.
Certain definitions apply throughout this announcement and your attention is
drawn to the table at the end of this announcement where these definitions are
set out in full.
Lawrence Flynn, Mediasurface CEO said:
"The acquisition of Immediacy will further accelerate our growth, completing the
range of our content management product portfolio and confirming our position as
a leading force in this expanding market.
"Immediacy is complementary to our existing products, providing a web content
management solution for mid-sized businesses thereby ensuring we have a
compelling proposition to all sizes and types of companies and organizations and
significantly increasing the marketplace that we can address. There is also a
strong cultural, technological and business fit between the two organisations
that will help us quickly integrate Immediacy and drive additional business
through the enlarged Mediasurface group."
For further information, please contact:
Mediasurface plc
Lawrence Flynn/CEO or David Deacon, CFO 01635 262000
KBC Peel Hunt
Richard Kauffer 020 7418 8900
Hansard Group
Adam Reynolds 020 7245 1100
Introduction
Mediasurface has conditionally agreed to acquire Immediacy Limited for initial
consideration of approximately #5.0 million plus deferred consideration of #0.80
per pound of Net Assets in Immediacy in excess of #370,000, which will be
determined by the preparation of completion accounts dated 31st May 2007. Of
the consideration, approximately #5.1 million will be payable in cash on
completion of the Acquisition, with the balance being satisfied by the issue of
approximately 2 million Consideration Shares at a share price equal to the
Placing Price. The Consideration Shares to be issued to the four major
shareholders (representing approximately 90% of the total number of
Consideration Shares to be issued) will be subject to a lock-in until 31
December 2007 and thereafter will be subject to trading exclusively through the
Company's brokers.
Reasons for and details of the Placing and use of proceeds
The Placing will raise approximately #4.45 million in addition to #2 million
term loan facility agreed with Lloyds TSB Bank plc. These proceeds will be used
to fund the cash element of the initial consideration due under the terms of the
Share Purchase Agreement, with the balance being used to defray the costs of the
Placing and the Acquisition and strengthen the balance sheet.
Under the terms of the Placing Agreement, KBC Peel Hunt, as agent for
Mediasurface, has agreed conditionally to use its reasonable endeavors to
procure subscribers for the Placing Shares at 23 pence per share.
The Placing Price of 23 pence per Placing Share is at a discount to the closing
middle market price of 23.25 pence per Ordinary Share on 25 June 2007, being the
last business day before announcement of the Placing, which the Directors
consider to be fair and reasonable given the size of the Placing.
The Placing Shares are not being offered to Shareholders on a pre-emptive basis
because the Board has concluded, having taken appropriate advice, that it was
not in the best interests of the Company to make such a pre-emptive offer due to
the time and cost involved and the necessity to complete the Acquisition
successfully in a timely manner.
The Placing will be effected in three stages:
* In order to protect the Company's potential eligibility for EIS status, the
EIS Placing Shares are being placed with investors who may seek relief under the
EIS legislation and are expected to be admitted to trading on AIM on 2 July
2007.
* The VCT and Non-Qualifying Placing Shares are being placed with VCT and
other investors and are expected to be admitted to trading on AIM one business
day later on 3 July 2007.
* The EGM Placing Shares are being placed with other investors and are
expected to be admitted to trading on AIM on 24 July 2007.
The Company offers no certainty with regard to the Company's suitability for and
qualification for VCT and EIS relief.
The EIS Placing is conditional, inter alia, on admission of the EIS Placing
Shares to trading on AIM having occurred but is not conditional on the admission
of the VCT and Non-Qualifying Placing Shares nor the EGM Placing Shares.
The VCT and Non-Qualifying Placing is conditional, inter alia, on admission of
the EIS Placing Shares to trading on AIM having occurred and also on admission
of the VCT and Non-Qualifying Placing Shares to trading on AIM occurring.
The EGM Placing is conditional, inter alia, on the resolutions to authorise the
Directors to allot the EGM Placing Shares being passed at the EGM and on
admission of the EIS Placing Shares and the VCT and Non-Qualifying Placing
Shares to trading on AIM having occurred.
The Web Content Management Market
The Immediacy solution is designed to meet the requirements of medium sized
businesses. Mediasurface's Morello and Pepperio target large, multinationals and
smaller businesses respectively. There is therefore clear differentiation in
the market positioning and functionality delivered by the extended Mediasurface
product portfolio.
Immediacy
Since Immediacy was founded in 1996, it has built a customer base including 206
support paying customers, mid-sized organisations from across the public and
private sector. It markets and implements its solution through a network of 43
active partners and its direct sales channel.
The Immediacy content management system (Immediacy CMS) focuses on making the
process of creating, publishing and managing content online, simple and
intuitive for non-technical users. As a result of its ease of use and rapid
deployment it provides a scalable content management system that is particularly
suited to medium-sized businesses.
The average licence and first year support revenue for an Immediacy project is
#27,000. Licence revenues account for 49% of company revenues, with consulting
and support accounting for 25% and 26% respectively.
In the year ended 28 February 2007, Immediacy generated revenues of #3.4
million, representing an increase of 42% over the previous year, and made a
profit before tax of #0.5 million. As at 28 February 2007, Immediacy had net
assets of #1.0 million. The annual value of Immediacy's support base is
currently #0.9m.
Morello from Mediasurface
Mediasurface also focuses on providing content management systems. Its Morello
content management solution has been developed specifically for multinational
and large organisations. It incorporates many enterprise-strength capabilities
not present in Immediacy that make it capable of managing hundreds of sites
simultaneously in different languages and in different geographies, yet
retaining ease of use and a strong business user focus. The average licence
revenue from a Morello project is #120,000 and has a similar consulting and
support ratio as Immediacy.
Reasons for Acquisition
The Directors believe that the acquisition of Immediacy has compelling strategic
and financial logic for both companies and represents an attractive opportunity
for Mediasurface to extend its portfolio, acquire approximately 206 new
customers and to accelerate its growth.
The principal benefits of the Acquisition are as follows:
* Extend product range with a complementary solution
Mediasurface currently has two products - Morello and Pepperio. Both are
designed to help organisations to build and run their web applications:
internet, extranet and intranet - Morello has been designed as an enterprise
strength solution for multinationals and larger organisations, "Pepperio",
Mediasurface's hosted website management tool, delivers an affordable solution
for smaller businesses.
"Immediacy CMS" has also been built to help companies maximise their website
presence, however it has been developed specifically for - and primarily targets
- mid-sized enterprises. Immediacy therefore complements the Mediasurface
product portfolio, fitting neatly between Morello and Pepperio, enabling
Mediasurface to deliver a comprehensive product set in which there is little
product overlap with solutions developed specifically for every profile of
business.
* Product we know in a market we understand
Immediacy operates in the same core market sector of web content management as
Mediasurface. Consequently the Mediasurface management team has a detailed
understanding of running a profitable business in this market, fully
understanding the end-user and partner requirements. This is expected to assist
greatly with the integration and ongoing management of Immediacy.
The Immediacy business also has a similar successful growth profile, and the
Directors believe that it has a similar corporate culture and product values,
which again is expected to assist in the ongoing integration of the business
much easier.
* Sales opportunities
The Directors believe that Mediasurface's ability to convert new business will
be enhanced by the added profile and greater financial security of operating as
a larger group. The Directors also believe that there is an opportunity for
incremental growth by promoting Immediacy in Europe, USA and Asia/Pacific
through Mediasurface's existing sales and support infrastructure in these
regions.
* Skills Sharing
As a result of the combination of the two businesses, the Directors expect to be
able to share key technical skills across the businesses.
EIS
The Directors believe that the Company will be a qualifying company for the
purposes of the EIS legislation; however they can offer no certainty in this
regard. The Company's advisers have made an application to HM Revenue & Customs
seeking provisional assurance that the proposed issue of the EIS Placing Shares
will be a qualifying investment for the purposes of EIS investors.
The continuing availability of EIS relief will be conditional, inter alia, on
the Company continuing to satisfy the requirements for a qualifying company
throughout the period of three years from the date of the investor making his
investment.
VCT Qualifying Holding Status
On the basis of the information provided, HM Revenue & Customs has given
provisional assurance that Mediasurface will comply with the requirements of
Chapter 4 of Part 6 of the Income Tax Act 2007 in respect of monies raised by a
VCT by an issue of shares or securities prior to 6th April 2006 and that the
Ordinary Shares will be eligible shares for the purposes of VCTs. The continuing
status of the VCT Shares as a qualifying holding for VCT purposes will be
conditional, inter alia, upon the Company and the VCT continuing to satisfy the
relevant requirements.
Neither the Company nor the Directors make any warranty or give any undertaking
that relief will be available in respect of any investment in the Placing
Shares, nor do they warrant or undertake that the Company will keep its
qualifying status throughout the relevant period or that, once given, such
relief will not be withdrawn.
Settlement and dealings
Separate applications will be made to the London Stock Exchange for the
Consideration Shares, the EIS Placing Shares, the VCT and Non-Qualifying Placing
Shares and the EGM Placing Shares to be admitted to trading on AIM. It is
expected that the EIS Placing Shares will become effective on 2 July 2007, the
Consideration Shares and VCT Placing Shares and Non-Qualifying Shares will
become effective on 3 July 2007 and the EGM Placing Shares will become
effective on 24 July 2007.
The Placing Shares and Consideration 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 following Admission.
The Placing has been structured this way to allow investment under the first
tranche, the EIS Placing Shares, to be eligible as qualifying investments under
EIS legislation.
Conditions to the Placing
The Placing is conditional, inter alia, upon:
* the Sale and Purchase Agreement becoming unconditional in all respects,
save for any conditions as to the Placing Agreement having become
unconditional or Admission having taken place;
* the EIS Placing is conditional on the Placing Agreement not being terminated
in accordance with its terms prior to Admission of the EIS Placing Shares
occurring;
* the VCT and Non-Qualifying Placing is also conditional on the Placing
Agreement not being terminated in accordance with its terms so far as it
relates to the VCT and Non-Qualifying Placing prior to Admission of the VCT
and Non-Qualifying Placing Shares occurring;
* each of the EIS Placing and the VCT and Non-Qualifying Placing are also
conditional on Admission of the EIS Placing Shares occurring by 2 July 2007
(or such later date as KBC Peel Hunt and the Company may agree being not
later than 7 August 2007); and
* the VCT and Non-Qualifying Placing is also conditional on Admission of the
VCT and Non-Qualifying Placing Shares occurring by 3 July 2007 (or such
later date as KBC Peel Hunt and the Company may agree being not later than
7 August 2007)
* the EGM Placing is conditional upon shareholder approval at the EGM of the
necessary resolution to allot and issue the EGM Placing Shares, Admission
of the EIS Placing Shares occurring by 2 July 2007 (or such later date as
KBC Peel Hunt and the Company may agree being not later than 7 August 2007),
Admission of the VCT and Non-Qualifying Placing Shares occurring by 3 July
2007 (or such later date as KBC Peel Hunt and the Company may agree being
not later than 7 August 2007) and on Admission of the EGM Placing Shares
occurring by 24 July 2007 (or such later date as KBC Peel Hunt and the
Company may agree being not later than 7 August 2007).
Extraordinary General Meeting
A notice convening the EGM to be held at 9.00 a.m. on 23 July 2007 will be sent
to Shareholders by 29 June 2007. At the EGM, a special resolution will be
proposed to authorise the Directors to allot up to 4,347,826 Ordinary Shares in
connection with the EGM Placing without having to make a pre-emptive offer to
Shareholders. The authority referred to above is in addition to the existing
authorities of the Directors to allot shares on a non pre-emptive basis.
Timetable
Admission and commencement of dealings in the EIS 8.00am on 2 July 2007
Placing Shares
Admission and commencement of dealings in the VCT 8.00am on 3 July 2007
and Non Qualifying Placing Shares
Latest time and date for receipt of Forms of Proxy 9.00 am on 19 July 2007
EGM 9.00am on 23 July 2007
Admission and commencement of dealings in the EGM 8.00am on 24 July 2007
Placing Shares
Statistics
Number of Existing Ordinary Shares 77,244,842
Approximate number of Consideration Shares to be issued 2,000,000
Number of Placing Shares to be issued 19,347,826
Enlarged Share Capital following the completion of
the Placing 98,592,668
Consideration Shares and Placing Shares as a percentage
of the Enlarged Share Capital 22.4%
APPENDIX 1
TERMS AND CONDITIONS OF THE PLACING
For KBC Placees only - Important Information
1. Eligible Participants
This Appendix, including the terms and conditions of the Placing set out below,
is directed only at persons who are FSMA Qualified Investors.
In this Appendix "you" or "KBC Placee" means any person who is or becomes
committed to subscribe for Placing Shares under the Placing pursuant to a
commitment given to KBC Peel Hunt acting as agent for the Company.
Members of the public are not eligible to take part in the Placing.
2. Overseas jurisdictions
The distribution of this announcement and the Placing and/or issue of ordinary
shares in certain other jurisdictions may be restricted by law. No action has
been taken by the Company or KBC Peel Hunt that would permit an offer of
ordinary shares or possession or distribution of this announcement or any other
offering or publicity material relating to such ordinary shares in any
jurisdiction where action for that purpose is required. FSMA Qualified
Investors who seek to participate in the Placing must inform themselves about
and observe any such restrictions. In particular, this announcement does not
constitute an offer to sell or issue or the solicitation of an offer to buy or
subscribe for ordinary shares in the capital of the Company in the United
States, Canada, Japan or Australia or in any other jurisdiction in which such
offer or solicitation is or would be unlawful. The Placing Shares have not been
and will not be registered under the US Securities Act or under the securities
laws of any State or other jurisdiction of the United States, and, subject to
certain exceptions, may not be offered or sold, resold or delivered, directly or
indirectly in or into the United States, or to, or for the account or benefit
of, any US persons (as defined in Regulation S under the US Securities Act). No
public offering of the Placing Shares is being made in the United States. No
money, securities or other consideration from any person inside the United
States is being solicited pursuant to this announcement or the Placing.
3. Placing
This Appendix gives details of the terms and conditions of, and the mechanics of
participation in, the Placing.
KBC Peel Hunt will arrange the Placing as agent for and on behalf of the
Company. KBC Peel Hunt will determine in its absolute discretion the extent of
each KBC Placee's participation in the Placing, which will not necessarily be
the same for each KBC Placee. No commissions will be paid to or by KBC Placees
in respect of their agreement to subscribe for any Placing Shares.
Each KBC Placee will be required to pay to KBC Peel Hunt, on the Company's
behalf, the Placing Price as the subscription sum for each Placing Share agreed
to be subscribed by it under the Placing in accordance with the terms set out in
this Appendix. Each KBC Placee's obligation to subscribe and pay for Placing
Shares under the Placing will be owed to each of the Company and KBC Peel Hunt.
Each KBC Placee will be deemed to have read this announcement in its entirety.
To the fullest extent permitted by law and applicable FSA rules, neither KBC
Peel Hunt nor any other KBC Person shall have any liability to KBC Placees or to
any person other than the Company in respect of the Placing.
4. Participation and settlement
Participation in the Placing is only available to persons who are invited to
participate in it by KBC Peel Hunt.
A KBC Placee's commitment to subscribe for a fixed number of Placing Shares
under the Placing will be agreed orally with KBC Peel Hunt. Such agreement will
constitute a legally binding commitment on your part to subscribe for that
number of Placing Shares at the Placing Price on the terms and conditions set
out or referred to in this Appendix and subject to the Company's memorandum and
articles of association. After such agreement is entered into a written
confirmation will be dispatched to you by KBC Peel Hunt confirming the number of
Placing Shares that you have agreed to subscribe, the aggregate amount you will
be required to pay for those Placing Shares and settlement instructions. It is
expected that such written confirmations will be despatched on the date of this
announcement, that the "trade date" for settlement purposes for the EIS Placing
Shares will be 27 June 2007, the "trade date" for settlement purposes for the
VCT and Non-Qualifying Placing Shares will be 27 June 2007, the "trade date" for
settlement purposes for the EGM Placing Shares will be 24 July 2007, the "
settlement date" will be 2 July 2007 for the EIS Placing Shares, 3 July 2007 for
the VCT and Non-Qualifying Placing Shares and 24 July 2007 for the EGM Placing
Shares.
A settlement instruction form will accompany each written confirmation and, on
receipt, should be completed and returned to Jamie Reynolds at KBC Peel Hunt by
fax on 020 7972 0112 by 3.00 p.m. on 27 June 2007.
Settlement of transactions in the Placing Shares (ISIN: GB00B1XYM75) will take
place within the CREST system, subject to certain exceptions, on a "delivery
versus payment" (or "DVP") basis. You should settle against CREST ID: 546. KBC
Peel Hunt reserves the right to require settlement for and delivery of the
Placing Shares to KBC Placees by such other means that it deems appropriate if
delivery or settlement is not possible or practicable within the CREST system
within the timetable set out in this announcement or would not be consistent
with the regulatory requirements in any KBC Placee's jurisdiction.
If Placing Shares are to be delivered to a custodian or settlement agent, please
ensure that the written confirmation is copied and delivered immediately to the
appropriate person within that organisation.
5. No Prospectus
No prospectus has been or will be submitted for approval by the FSA in relation
to the Placing or the Placing Shares. KBC Placees' commitments in respect of
Placing Shares will be made solely on the basis of the information contained in
this announcement and on the terms contained in it.
6. Placing Shares
The Placing Shares will, when issued, be credited as fully paid and will rank
pari passu in all respects with the existing issued ordinary shares.
Applications will be made for the admission of the EIS Placing Shares, the VCT
and Non-Qualifying Placing Shares and the EGM Placing Shares to trading on AIM.
It is expected that Admission of the EIS Placing Shares will take place, and
dealings in the EIS Placing Shares will commence, on 2 July 2007, that Admission
of the VCT and Non-Qualifying Placing Shares will take place, and dealings in
the VCT and Non-Qualifying Placing Shares will commence, on 3 July 2007 and that
the Admission of the EGM Placing Shares will take place, and dealings in the EGM
Placing Shares will commence on 24 July 2007.
7. Placing Agreement
KBC Peel Hunt has today entered into the Placing Agreement with the Company
under which KBC Peel Hunt has, on the terms and subject to the conditions set
out in the Placing Agreement, agreed to use its reasonable endeavours as agent
of the Company to procure subscribers for (i) the EIS Placing Shares (ii) the
VCT and Non-Qualifying Placing Shares, and (iii) the EGM Placing Shares in each
case at the Placing Price. The Placing is not being underwritten by KBC Peel
Hunt or any other person
8. Placing conditions
Each of the EIS Placing, the VCT and Non-Qualifying Placing and EGM Placing is
conditional, inter alia, on (a) the Placing Agreement not being terminated in
accordance with its terms prior to Admission of the EIS Placing Shares occurring
and, in respect of the VCT and Non-Qualifying Placing and EGM Placing only,
prior to Admission of the VCT and Non-Qualifying Placing Shares occurring and,
in respect of the EGM Placing only, prior to Admission of the EGM Placing Shares
occurring (b) EIS Admission taking place not later than 8.00 a.m. on 2 July 2007
(or such later date and time as the Company and KBC Peel Hunt may agree), and
(c) the Company having received VCT qualifying status from HM Revenue & Customs.
The VCT and Non-Qualifying Placing is also conditional, inter alia, on the
Admission of the VCT and Non-Qualifying Placing Shares taking place not later
than 8.00 a.m. on 3 July 2007 (or such later date and time as the Company and
KBC Peel Hunt may agree). The EGM Placing is further conditional upon passing
of the relevant resolution to allot and issue the EGM Placing Shares and
Admission of the EGM Placing Shares taking place not later than 8.00 a.m. on 24
July 2007 (or such later date and time as the Company and KBC Peel Hunt may
agree).
KBC Peel Hunt reserves the right (with the agreement of the Company) to waive or
extend the time and or date for the fulfilment of any of the conditions in the
Placing Agreement applicable to the EIS Placing and/or to the VCT and
Non-Qualifying Placing and/or the EGM Placing to a time no later than 8.00 am on
7 August 2007 ("the Long Stop Date").
If any condition in the Placing Agreement applicable to the EIS Placing is not
fulfilled or waived by KBC Peel Hunt by the relevant time, both the EIS Placing,
the VCT and Non-Qualifying Placing and the EGM Placing will lapse and your
rights and obligations pursuant to the Placing shall cease and terminate at such
time. If Admission of the EIS Placing Shares occurs but any condition in the
Placing Agreement applicable to the VCT and Non-Qualifying Placing is not
fulfilled or waived by KBC Peel Hunt by the relevant time, the VCT and
Non-Qualifying Placing will lapse and your rights and obligations pursuant to
the VCT and Non-Qualifying Placing shall cease and terminate at such time. If
Admission of the EIS Placing Shares and the VCT and Non-Qualifying Placing
Shares occurs but any condition in the Placing Agreement applicable to the EGM
Placing is not fulfilled or waived by KBC Peel Hunt by the relevant time, the
EGM Placing will lapse and your rights and obligations pursuant to the EGM
Placing shall cease and terminate at such time.
The Placing Agreement may be terminated by KBC Peel Hunt at any time prior to
Admission of the EIS Placing Shares , so far as it relates to the VCT and
Non-Qualifying Placing, at any time prior to Admission of the VCT and
Non-Qualifying Placing Shares and, so far as it relates to the EGM Placing, at
any time prior to Admission of the EGM Placing Shares in certain circumstances
including, inter alia, following a material breach of the Placing Agreement by
the Company or the occurrence of certain force majeure events. The exercise of
any right of termination pursuant to the Placing Agreement, any waiver of any
condition in the Placing Agreement and any decision by KBC Peel Hunt whether or
not to extend the time for satisfaction of any condition to the Placing
Agreement or otherwise in respect of the EIS Placing, VCT and Non-Qualifying
Placing or EGM Placing shall be within KBC Peel Hunt's absolute discretion. KBC
Peel Hunt shall have no liability to you in the event of any such termination,
waiver or extension or in respect of any decision whether to exercise any such
right of termination, waiver or extension.
9. Payment default
Your entitlement to receive any Placing Shares will be conditional on KBC Peel
Hunt's receipt of payment by the relevant time to be stated in the written
confirmation referred to above, or by such later time and date as KBC Peel Hunt
may in its absolute discretion determine. KBC Peel Hunt may, in its absolute
discretion, waive such condition, and shall not be liable to you in the event of
it deciding whether to waive or not to waive such condition.
If you fail to make such payment by the required time for any Placing Shares (1)
the Company may release itself (if it decides, at its absolute discretion, to
do so) and will be released from all obligations it may have to allot and/or
issue any such Placing Shares to you or at your direction which are then
unallotted and/or unissued, (2) the Company may exercise all rights of lien,
forfeiture and set-off over and in respect of any such Placing Shares to the
fullest extent permitted under its articles of association or otherwise by law
and to the extent that you then have any interest in or rights in respect of any
such shares, (3) the Company or, as applicable, KBC Peel Hunt may sell (and each
of them is irrevocably authorised by you to do so) all or any of such shares on
your behalf and then retain from the proceeds, for the account and benefit of
the Company or, where applicable, KBC Peel Hunt (i) any amount up to the total
amount due to it as, or in respect of, subscription monies, or as interest on
such monies, for any Placing Shares, (i) any amount required to cover any stamp
duty or stamp duty reserve tax arising on the sale, and (iii) any amount
required to cover dealing costs and/or commissions necessarily or reasonably
incurred by it in respect of such sale, and (4) you shall remain liable to the
Company and to KBC Peel Hunt for any loss which it may suffer as a result of it
(i) not receiving payment in full for such Placing Shares by the required time,
and/or (ii) the sale of any such Placing Shares to any other person at whatever
price and on whatever terms are actually obtained for such sale by or for it.
Interest may be charged in respect of payments not received by KBC Peel Hunt for
value by the required time referred to above at the rate of two percentage
points above the base rate of Barclays Bank plc.
10. KBC Placees' warranties and undertakings to the Company and KBC Peel Hunt
By agreeing with KBC Peel Hunt to subscribe for Placing Shares under the Placing
you irrevocably acknowledge and confirm and warrant and undertake to, and agree
with, each of the Company and KBC Peel Hunt (in its capacity as placing agent),
in each case as a fundamental term of your application for Placing Shares and of
the Company's obligation to allot and/or issue any Placing Shares to you or at
your direction, that:
(a) you agree to and accept all the terms set out in this
announcement;
(b) your rights and obligations in respect of any of the Placings
will terminate only in the circumstances described in this announcement and will
not be capable of rescission or termination by you in any circumstances;
(c) this announcement, which has been issued by the Company, is the
sole responsibility of the Company;
(d) you have not been, and will not be, given any warranty or
representation in relation to any Placing Shares or to the Company or to any
other member of its Group in connection with the Placing, other than by the
Company as included in this announcement;
(e) you have not relied on any representation or warranty in
reaching your decision to subscribe for Placing Shares under the Placing, save
as given or made by the Company as referred to in the previous paragraph;
(f) you are not a customer of KBC Peel Hunt in relation to the
Placing and KBC Peel Hunt is not acting for you in connection with the Placing
and will not be responsible to you in respect of the Placing for providing
protections afforded to its customers;
(g) you have not been, and will not be, given any warranty or
representation by any KBC Person in relation to any Placing Shares or the
Company or any other member of its Group;
(h) you will pay the full subscription amount as and when required
in respect of all Placing Shares allocated to you in accordance with such terms
and will do all things necessary on your part to ensure that payment for such
shares and their delivery to you or at your direction is completed in accordance
with the standing CREST instructions (or, where applicable, standing
certificated settlement instructions) that you have in place with KBC Peel Hunt
or put in place with KBC Peel Hunt with its agreement;
(i) you are entitled to subscribe for Placing Shares under the
laws of all relevant jurisdictions which apply to you and you have complied, and
will fully comply, with all such laws (including where applicable, the
Anti-Terrorism, Crime and Security Act 2001, the Proceeds of Crime Act 2002, and
the Money Laundering Regulations 2003) and have obtained all governmental and
other consents (if any) which may be required for the purpose of, or as a
consequence of, such subscription, and you will provide promptly to KBC Peel
Hunt such evidence, if any, as to the identity of any person which it may
request from you (for the purpose of its complying with such Regulations or
otherwise in connection with your participation in the Placing) in the form and
manner requested by KBC Peel Hunt on the basis that any failure by you to do so
may result in the number of Placing Shares that are to be allotted and issued to
you or at your direction pursuant to the Placing being reduced to such number,
or to nil, as KBC Peel Hunt may decide at its sole discretion;
(j) you have complied and will comply with all applicable
provisions of the FSMA with respect to anything done or to be done by you in
relation to any Placing Shares in, from or otherwise involving the United
Kingdom and you have not made or communicated or caused to be made or
communicated, and you will not make or communicate or cause to be made or
communicated, any "financial promotion" in relation to Placing Shares in
contravention of section 21 of FSMA;
(k) you are a FSMA Qualified Investor and you are a person at or to
whom any communication relating to the Company that is a "financial promotion",
as referred to in FSMA, may lawfully be issued, directed or otherwise
communicated without the need for such communication to be approved, made or
directed by an "authorised person" as referred to in FSMA;
(l) you are acting as principal only in respect of the Placing or,
if you are acting for any other person in respect of the Placing (1) you are
both an "authorised person" for the purposes of FSMA and a "qualified investor"
as defined at Article 2.1(e)(i) of Directive 2003/71/EC (known as the Prospectus
Directive) acting as agent for such person, and (2) such person is either (i) a
FSMA Qualified Investor or (ii) a "client" (as defined in section 86(2) of FSMA)
of yours that has engaged you to act as his agent on terms which enable you to
make decisions concerning the Placing or any other offers of transferable
securities on his behalf without reference to him;
(m) nothing has been done or will be done by you in relation to the
Placing or to any Placing Shares that has resulted or will result in any person
being required to publish a prospectus in relation to the Company or to any
Ordinary Shares in accordance with FSMA or the UK Prospectus Rules or in
accordance with any other laws applicable in any part of the European Union or
the European Economic Area;
(n) you are not, and are not acting in relation to the Placing as
nominee or agent for, a person who is or may be liable to stamp duty or stamp
duty reserve tax in respect of any agreement to acquire (or any acquisition of)
shares or other securities at a rate in excess of 0.5% (including, without
limitation, under sections 67, 70, 93 or 96 of the Finance Act 1986 concerning
depositary receipts and clearance services), and the allocation, allotment,
issue and/or delivery to you, or any person specified by you for registration as
holder, of Placing Shares will not give rise to a liability under any such
section;
(o) you will not treat any Placing Shares in any manner that would
contravene any legislation applicable in any territory or jurisdiction and no
aspect of your participation in the Placing will contravene any legislation
applicable in any territory or jurisdiction in any respect or cause the Company
or KBC Peel Hunt to contravene any such legislation in any respect;
(p) (applicable terms and expressions used in this paragraph have
the meanings that they have in Regulation S made under the US Securities Act)
(1) none of the Placing Shares has been or will be registered under the US
Securities Act, (2) none of the Placing Shares may be offered, sold, taken up or
delivered, directly or indirectly, into or within the United States except
pursuant to an exemption from, or in transactions not subject to, the
registration requirements of the US Securities Act, (3) you are not within the
United States and (unless you will be subscribing Placing Shares pursuant to an
exemption referred to above in this paragraph) you are not a US person, (4) you
have not offered, sold or delivered and will not offer sell or deliver any of
the Placing Shares to persons within the United States, directly or indirectly,
(5) neither you, your affiliates, nor any persons acting on your behalf, have
engaged or will engage in any directed selling efforts with respect to the
Placing Shares, (6) you will not be subscribing Placing Shares with a view to
resale in or into the United States, and (7) you will not distribute any
offering material relating to Placing Shares, directly or indirectly, in or into
the United States or to any persons resident in the United States;
(q) KBC Peel Hunt may (at its absolute discretion) satisfy its
obligations to procure Placees by itself agreeing to become a Placee in respect
of some or all of the Placing Shares or by nominating any other KBC Person or
any person associated with any KBC Person to do so or by allowing officers of
the Company and/or employees of Group companies to subscribe Placing Shares
under the Placing at the Placing Price;
(r) time is of the essence as regards your obligations under this
Appendix;
(s) this Appendix and any contract which may be entered into
between you and KBC Peel Hunt and/or the Company pursuant to it or the Placing
shall be governed by and construed in accordance with the laws of England, for
which purpose you submit to the exclusive jurisdiction of the courts of England
and Wales as regards any claim, dispute, or matter arising out of or relating to
this Appendix or such contract, except that each of the Company and KBC Peel
Hunt shall have the right to bring enforcement proceedings in respect of any
judgement obtained against you in the courts of England and Wales in the courts
of any other relevant jurisdiction; and
(t) nothing in this Appendix shall exclude any liability of any
person for fraud on its part. All times and dates in this announcement are
subject to amendment at the discretion of KBC Peel Hunt, except that in no
circumstances will the date scheduled for Admission be later than the Long Stop
Date. None of your rights or obligations in respect of the Placing is
conditional on any other person agreeing to subscribe for any Placing Shares
under the Placing and no failure by any other Placee to meet any of its
obligations in respect of the Placing shall affect any of your obligations in
respect of the Placing.
APPENDIX 2
DEFINITIONS
"Acquisition" the acquisition of the entire issued and to be issued share capital of
Immediacy Limited
"Admission" the admission to trading on AIM in accordance with Rule 6 of the AIM
Rules for Companies of the relevant Placing Shares becoming effective
"AIM" AIM, a market operated by the London Stock Exchange
"AIM Rules" the London Stock Exchange's rules for companies relating to AIM
entitled "AIM Rules for Companies"
"Board" the Company's board of directors
"Company" or "Mediasurface" Mediasurface Plc
"Consideration Shares" approximately 2,000,000 new Ordinary Shares to be issued as part of the
initial consideration in accordance with the terms of the Sale and
Purchase Agreement to the vendors of the entire issued share capital of
Immediacy Limited
"CREST" the system for paperless settlement of trades and holdings of
uncertificated shares administered and operated by CRESTCo Limited
"Directors" the directors of the Company
"EGM" the extraordinary general meeting of the Company convened for 9.00 a.m.
on 23 July 2007
"EGM Placing" the placing by KBC Peel Hunt of the EGM Placing Shares pursuant to the
Placing Agreement
"EGM Placing Shares" the 4,347,826 Ordinary Shares to be allotted and issued pursuant to the
Placing Agreement
"EIS" Enterprise Investment Scheme
"EIS Placing" the placing by KBC Peel Hunt of the EIS Placing Shares pursuant to the
Placing Agreement
"EIS Placing Shares" the new Ordinary Shares which are the subject of the Placing and
qualify for EIS tax relief
"Enlarged Share Capital" the Company's issued share capital immediately after the completion of
the Placing and the issue of the Consideration Shares
"Existing Ordinary Shares" 77,244,842 Ordinary Shares in issue on the date of this announcement
"FSA" the Financial Services Authority
"FSMA" the Financial Services and Markets Act 2000
"FSMA Qualified Investor" a person who is a "qualified investor" as referred to at section 86(7)
of FSMA and at or to whom any private communication relating to the
Company that is a "financial promotion" (as such term is used in
relation to FSMA) may lawfully be issued, directed or otherwise
communicated without the need for it to be approved, made or directed
by an "authorised person" as referred to in FSMA
"KBC Peel Hunt" KBC Peel Hunt Ltd
"KBC Person" any person being (i) KBC Peel Hunt, (ii) an undertaking which is a
subsidiary undertaking of KBC Peel Hunt, (iii) a parent undertaking of
KBC Peel Hunt or (other than KBC Peel Hunt) a subsidiary undertaking of
any such parent undertaking, or (iv) a director, officer, agent or
employee of any such person
"London Stock Exchange" London Stock Exchange plc
"Ordinary Shares" Ordinary shares of one pence each in the Company
"Placees" persons who agree to subscribe Placing Shares pursuant to the Placing,
with "KBC Placees" being Placees who agree to do so through KBC Peel
Hunt
"Placing" the proposed conditional placing of Placing Shares pursuant to the
Placing Agreement
"Placing Agreement" the conditional placing agreement relating to the Placing between the
Company and KBC Peel Hunt dated the same date as this announcement
"Placing Price" 23 pence per Placing Share
"Placing Shares" the EIS Placing Shares, VCT and Non-Qualifying Placing Shares and the
EGM Placing Shares
"Sale and Purchase Agreement" the sale and purchase agreement entered into on 26 June 2007 to effect
the Acquisition
"Shareholders" holders of Ordinary Shares
"UK" or "United Kingdom" the United Kingdom of Great Britain and Northern Ireland
"United States" the United States of America, its territories and possessions, any
State of the United States and the District of Columbia
"US Securities Act" the US Securities Act of 1933
"VCT" venture capital trust
"VCT and Non-Qualifying Placing the placing by KBC Peel Hunt of the VCT and Non-Qualifying Placing
Shares" Shares pursuant to the Placing Agreement
Forward Looking Statements
This announcement may contain forward-looking statements, including, without
limitation, statements containing the words "believes", "anticipates",
"expects", and similar expressions. Such forward-looking statements involve
unknown risks, uncertainties and other factors which may cause the actual
results, financial condition, performance or achievements of the Company, or
industry results, to be materially different from any future results,
performance or achievements expressed or implied by such forward-looking
statements. Given these uncertainties, prospective investors are cautioned not
to place any undue reliance on such forward-looking statements. The Company
disclaims any obligation to update any such forward-looking statements in this
announcement to reflect future events or developments.
The Placing Shares referred to in this announcement have not been and will not
be registered under the US Securities Act and may not be offered or sold in the
United States except pursuant to an exception from, or a transaction not subject
to, the requirements of the US Securities Act. There will be no public offer of
the Placing Shares in the United Kingdom, United States of America or elsewhere.
This information is provided by RNS
The company news service from the London Stock Exchange
END
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