Placing of New Ordinary Shares - 15-10-10
(“blinkx” or “the Company”)
Placing of new ordinary shares
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA OR JAPAN
blinkx plc proposed placing of up to 23,213,763 new ordinary shares
SAN FRANCISCO, CALIF.— Oct 15, 2010 — blinkx, the world’s largest and most advanced video search engine, today announces the intention to place (“Placing”) up to 23,213,763 new ordinary shares (“Placing Shares”) representing approximately 7.5 per cent. of blinkx’s existing issued share capital immediately prior to the Placing (and representing approximately 7.0% of the expected enlarged issued ordinary share capital of the Company).
The Placing will be conducted in accordance with the terms and conditions set out in the Appendix. The Placing will be effected by way of an accelerated bookbuilding to be managed by Citigroup Global Markets U.K. Equity Limited. (the “Manager”) The book will open with immediate effect. The timing of the closing of the book, pricing and allocations is at the absolute discretion of the Manager. The price at which the Placing Shares are to be placed (the “Placing Price”) and the number of Placing Shares will be agreed by blinkx with the Manager at the close of the accelerated bookbuilding period. Details of the Placing Price and the number of Placing Shares will be announced as soon as practicable after the close of the bookbuilding process.
The Placing is conditional upon, amongst other things, admission of the Placing Shares to AIM becoming effective and the Placing Agreement between the Company and the Manager not being terminated prior to Admission.
Background and reasons for the Placing
blinkx plc (LSE AIM: BLNX.L) is the world’s largest and most advanced video search engine, enhanced by $150M in R&D over 12 years and is now protected by 110 patents. blinkx’s TV and Video search index performs over 22 million searches every day and the company has partnered with over 720 media companies, including the BBC, AccuWeather and Internet Video Archive.
The Placing is being conducted to further strengthen blinkx’s balance sheet and to provide additional funding to support blinkx’s growth strategy.
Autonomy Corporation plc, the Company’s largest shareholder, intends to subscribe for shares in the Placing.
blinkx plc +44 (0)1223 488500
Suranga Chandratillake, Founder and CEO +1 (415) 655 1450
Frances Smith, Company Secretary
Citigroup Global Markets U.K. Equity Ltd +44 (0)207 986 4000
(NOMAD and Broker for blinkx plc)
Financial Dynamics +44 (0)20 7831 3113
blinkx plc (LSE AIM: BLNX.L) is the world’s largest and most advanced video search engine. Today, blinkx has indexed at least 35 million hours of audio, video, viral and TV content, and made it fully searchable and available on demand. blinkx’s founders set out to solve a significant challenge – as TV and user-generated content on the Web explode, keyword-based search technologies only scratch the surface. blinkx’s patented search technologies listen to – and even see – the Web, helping users enjoy a breadth and accuracy of search results not available elsewhere. In addition, blinkx powers the video search for many of the world’s most frequented sites. blinkx is based in San Francisco and London. More information is available at www.blinkx.com.
This announcement is for information only and, save as expressly set out herein, does not constitute an offer or invitation to underwrite, subscribe for or otherwise acquire or dispose of any securities or investment advice in any jurisdiction, including without limitation, the United Kingdom, the United States, Australia, Canada or Japan. Persons needing advice should consult an independent financial adviser.
This announcement has been issued by and is the sole responsibility of blinkx plc (the “Company”). Citigroup Global Markets U.K. Equity Limited (“Citi”), which is authorised and regulated in the United Kingdom by the Financial Services Authority, is acting for the Company and for no-one else in relation to the Placing, and will not be responsible to any other person for providing the protections afforded to each of its respective clients nor for providing advice in connection with the Placing. No representation or warranty, express or implied, is or will be made as to, or in relation to, and no responsibility or liability is or will be accepted by Citi or by any of its affiliates or agents as to or in relation to, the accuracy or completeness of this announcement or any other written or oral information made available to or publicly available to any interested party or its advisers, and any liability therefore is expressly disclaimed.
The distribution of this announcement and the placing of the Placing Shares as set out in this announcement in certain jurisdictions may be restricted by law. No action has been taken by the Company or Citi that would permit an offering of the Placing Shares or possession or distribution of this announcement or any other offering or publicity material relating to the Placing Shares in any jurisdiction where action for that purpose is required. Persons into whose possession this announcement comes are required by the Company and Citi to inform themselves about, and to observe, such restrictions. Any failure to comply with these restrictions may constitute a violation of the securities laws of any such jurisdiction.
This announcement is directed only at persons (i) having professional experience in matters relating to investments who fall within the definition of “investment professionals” in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order”) or (ii) who are high net worth entities falling within Article 49(2)(a) to (d) of the Order, and other persons to whom it may otherwise lawfully be communicated (all such persons together being referred to as “relevant persons”). This announcement must not be acted or relied on in the United Kingdom by persons who are not relevant persons.
In member states of the European Economic Area (“EEA”), this announcement is only addressed to and directed at persons who are ‘qualified investors’ within the meaning of Article 2(1)(e) of the Prospectus Directive (Directive 2003/71/EC) (the “Prospectus Directive”) (“Qualified Investors”).
The Placing Shares have not been, and will not be, registered under the US Securities Act of 1933, as amended (the “Securities Act”) or under the laws of any state or other jurisdiction of the United States and may not be offered, sold or transferred, directly or indirectly, within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws.
Subject to certain exceptions, this announcement does not constitute an offer to sell or issue or the solicitation of an offer to buy or acquire securities of the Company in the United States, Australia, Canada, South Africa or Japan or any jurisdiction in which such an offer or solicitation is unlawful. No money, securities or other consideration is being solicited and, if sent in response to the information herein, will not be accepted. There will be no public offer of any securities of the Company in the United States or elsewhere.
Any indication in this announcement of the price at which ordinary shares have been bought or sold in the past cannot be relied upon as a guide to future performance. No statement in this announcement is intended to be a profit or production forecast and no statement in this announcement should be interpreted to mean that earnings per share of the Company for the current or future financial years would necessarily match or exceed the historical published earnings per share of the Company.
This announcement contains (or may contain) certain forward-looking statements with respect to certain of blinkx plans and its current goals and expectations relating to its future financial condition and performance and which involve a number of risks and uncertainties. blinkx cautions readers that no forward-looking statement is a guarantee of future performance and that actual results could differ materially from those contained in the forward-looking statements. These forward-looking statements can be identified by the fact that they do not relate only to historical or current facts. Forward-looking statements sometimes use words such as ‘aim’, ‘anticipate’, ‘target’, ‘expect’, ‘estimate’, ‘intend’, ‘plan’, ‘goal’, ‘believe’, or other words of similar meaning. Examples of forward-looking statements include, among others, statements regarding blinkx future financial position, income growth, impairment charges, business strategy, projected levels of growth in its markets, projected costs, estimates of capital expenditure, and plans and objectives for future operations of blinkx and other statements that are not historical fact.
By their nature, forward-looking statements involve risk and uncertainty because they relate to future events and circumstances, including, but not limited to, UK domestic and global economic and business conditions, the effects of continued volatility in credit markets, market-related risks such as changes in interest rates and exchange rates, the policies and actions of governmental and regulatory authorities, changes in legislation, the further development of standards and interpretations under International Financial Reporting Standards (“IFRS”) applicable to past, current and future periods, evolving practices with regard to the interpretation and application of standards under IFRS, the outcome of pending and future litigation, the success of future acquisitions and other strategic transactions and the impact of competition - a number of which factors are beyond blinkx control. As a result, blinkx actual future results may differ materially from the plans, goals, and expectations set forth in blinkx forward-looking statements. Any forward-looking statements made herein by or on behalf of blinkx speak only as of the date they are made. Except as required by the FSA, AIM or applicable law, blinkx expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained in this announcement to reflect any changes in blinkx expectations with regard thereto or any changes in events, conditions or circumstances on which any such statement is based.
The price of shares and the income from them may go down as well as up and investors may not get back the full amount invested on disposal of the shares.
Neither the content of the Company’s website (or any other website) nor the content of any website accessible from hyperlinks on the Company’s website (or any other website) is incorporated into, or forms part of, this announcement.
Details of the placing agreement and of the placing shares
Citigroup Global Markets UK Equity Limited (“Citi”) and blinkx plc (“blinkx” or the “Company”) have today entered into a placing agreement under which, on the terms and subject to the conditions set out therein, Citi has agreed to use reasonable endeavours to procure placees for up to 23,213,763 new ordinary shares in the capital of blinkx of nominal value 1p at a price determined following completion of an accelerated bookbuild process (“the Bookbuild”) (the “Placing”). In accordance with the terms of the placing agreement and a subscription and transfer agreement between the Company, Capital Berlin (Jersey) Limited and Citi (the “Subscription and Transfer Agreement”), Citi has agreed, subject to agreement with the Company as to the number and price of the placing shares to be placed with placees, to underwrite the settlement risk in the event that any placees fail to take up their allocation of placing shares.
The placing shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing ordinary shares in blinkx, including the right to receive all dividends and other distributions declared, made or paid in respect of such ordinary shares after the date of admission of the placing shares.
The allotment and issue of the placing shares will be made by the Company to placees in consideration for the transfer to the Company of certain shares in a Jersey incorporated subsidiary of the Company by Citi.
Application for listing and admission to trading
Application will be made to London Stock Exchange plc for admission to trading of the placing shares on AIM, a market of London Stock Exchange plc (“AIM”) (“Admission”).
It is expected that Admission will become effective on or around 20 October 2010 and that dealings in the placing shares will commence at that time.
Citi will today commence the Bookbuild. This Appendix gives details of the terms and conditions of, and the mechanics of participation in, the Placing. No commissions will be paid to placees or by placees in respect of any placing shares. Citi and the Company shall be entitled to effect the Placing by such alternative method to the Bookbuild as they may, in their absolute discretion, determine.
Participation in, and principal terms of, the Placing
1.Citi is arranging the placing as Global Co-ordinator, nominated adviser, Bookrunner and agent of the Company.
2.Participation in the placing will only be available to persons who may lawfully be, and are, invited to participate by Citi. Citi and its affiliates are entitled to enter bids in the Bookbuild as principals.
3. The Bookbuild will establish a single price payable to Citi by all placees whose bids are successful. The placing price and the number of placing shares will be agreed between Citi and the Company following completion of the Bookbuild. The placing price and the number of placing shares will be announced on a Regulatory Information Service (“RIS”) following the completion of the Bookbuild (the “Pricing Announcement”).
4.To bid in the Bookbuild, placees should communicate their bid by telephone to their usual sales contact at Citi. Each bid should state the number of placing shares which the prospective placee wishes to acquire at either the placing price which is ultimately established by the Company and Citi or at prices up to a price limit specified in its bid. Bids may be scaled down by Citi on the basis referred to in paragraph 7 below. A bid in the Bookbuild will be made on the terms and subject to the conditions in this announcement and will be legally binding on the placee on behalf of which it is made and except with Citi’s consent will not be capable of variation or revocation after the time at which it is submitted. Each placee will also have an immediate, separate, irrevocable and binding obligation, owed to Citi, to pay 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 acquire and the Company has agreed to allot. Each placee’s obligations will be owed to Citi.
5.The Bookbuild is expected to close no later than 5:00p.m. (GMT) on 15 October 2010 but may be closed earlier or later at the sole discretion of Citi. The Company and Citi reserve the right to reduce or seek to increase the amount to be raised pursuant to the Placing, in their absolute discretion.
6.Each prospective placee’s allocation will be confirmed to such placee orally by Citi (as agent for the Company) following the close of the Placing, and a trade confirmation will be dispatched thereafter. Citi’s oral confirmation to such placee will constitute an irrevocable legally binding commitment upon such person (who will at that point become a placee) to acquire the number of placing shares allocated to it at the placing price on the terms and conditions set out in this Appendix and in accordance with the Company’s articles of association. All obligations under the Bookbuild and Placing will be subject to fulfilment of the conditions referred to below under “Conditions of the Placing” and to the placing not being terminated on the basis referred to below under “Right to terminate under the placing agreement”. By participating in the Bookbuild, each placee will agree that its rights and obligations in respect of the placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the placee.
7.Subject to paragraphs 4 and 5 above, Citi may choose to accept bids, either in whole or in part, on the basis of allocations determined at their discretion and may scale down any bids for this purpose on such basis as they may determine. Citi may also, notwithstanding paragraphs 4 and 5 above (i) allocate placing shares after the time of any initial allocation to any person submitting a bid after that time and (ii) allocate placing shares after the Bookbuild has closed to any person submitting a bid after that time.
8.Irrespective of the time at which a placee’s allocation is confirmed, settlement for all placing shares to be acquired pursuant to the Placing will be required to be made at the same time, on the basis explained below under “Registration and Settlement”.
9.To the fullest extent permissible by law, neither Citi nor any of its affiliates shall have any liability to placees (or to any other person whether acting on behalf of a placee or otherwise). In particular, neither Citi nor any of its affiliates shall have any liability (including to the extent permissible by law, any fiduciary duties) in respect of Citi’s conduct of the Bookbuild or of such alternative method of effecting the Placing as Citi and the Company may agree.
Conditions of the Placing
The obligations of Citi under the placing agreement in respect of the placing shares are conditional on, inter alia: the publication of certain announcements; the terms of subscription (detailing the number of placing shares and the placing price) having been executed and delivered in accordance with the placing agreement; the warranties of blinkx in the placing agreement being true and accurate; fulfilment by blinkx of its obligations; Admission taking place; allotment of the placing shares and delivery of certain agreed form documents by blinkx to Citi. Citi has discretion to waive compliance with certain conditions and/or agree an extension. If any of the conditions are not fulfilled or waived by Citi the placing agreement shall cease and determine and, subject to certain limited exceptions, no party to the placing agreement shall have any claim against any other party to the placing agreement.
blinkx has agreed with Citi that, for a period beginning on the date of this announcement and ending on the date which is 90 calendar days after the day on which the transactions effected pursuant to the placing agreement will be settled, otherwise than is contemplated by the placing agreement or this announcement and other than in respect of grants or exercises of options or share issues pursuant to the terms of the existing employee share schemes of the Company disclosed in any information publicly announced to any of the regulatory information services included within the list maintained on the London Stock Exchange’s website (a “Regulatory Information Service”) by or on behalf of blinkx prior to the date of this announcement, neither blinkx nor any person controlled by blinkx, nor any person acting on blinkx’s behalf, will, directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise transfer or dispose of any securities of the same class as the placing shares or any securities convertible into or exchangeable for securities of the same class as the placing shares or other instruments representing interests in securities of the same class as the placing shares or enter into any swap or other agreement or transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the shares, whether such swap or transaction is to be settled by delivery of shares or other securities, in cash or otherwise, in each case without the prior written consent of Citi.
Right to terminate under the placing agreement
Citi may at its absolute discretion by notice to the Company terminate the placing agreement at any time prior to Admission in the following circumstances:
1. the conditions set out in the placing agreement are not fulfilled or waived by the date specified therein (or such later time and/or date as the Company and Citi may agree);
2. there has been (i) a breach by blinkx of any of its representations or warranties contained in the placing agreement or (ii) any failure by the Company to perform certain undertakings in the placing agreement which would make it impracticable or inadvisable to proceed with the Placing;
3. if there has been any material adverse change;
4. if there has occurred:
(i) any suspension or material limitation in trading generally on AIM, the London Stock Exchange or the New York Stock Exchange;
(ii) any suspension or material limitation in trading of the Company’s ordinary shares on any exchange or in any over-the-counter market;
(iii) any material disruption of in securities settlement, payment or clearance services in the United Kingdom;
(iv) any moratorium on commercial banking activities is declared by United States Federal or New York State or United Kingdom authorities; or
(v) any outbreak or escalation of hostilities, or any change in financial markets, currency exchange rates or controls or any calamity or crisis that in the judgment of Citi is material and adverse and which, singly or together with any other event specified in this sub-clause makes it, in the judgment of Citi, impracticable or inadvisable to proceed with the Placing or Admission; and
5. if there is an insolvency event.
No offering document or prospectus has been or will be submitted to be approved by the FSA in relation to the Placing and placess’ commitments will be made solely on the basis of the information contained in this announcement (including this Appendix) released by blinkx today, and subject to the further terms set forth in the contract note to be provided to individual prospective placess. Each Placee, by accepting a participation in the Placing, agrees that the content of this announcement (including this Appendix) is exclusively the responsibility of blinkx and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of blinkx or Citi or any other person and none of blinkx or Citi nor any of their respective affiliates will be liable for any Placee’s decision to participate in the Placing based on any other information, representation, warranty or statement which the placess may have obtained or received. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of blinkx in accepting a participation in the Placing. Nothing in this paragraph shall exclude or limit the liability of any person for fraudulent misrepresentation by that person.
Registration and Settlement
Settlement of transactions in the placing shares (ISIN: GB00B1WBW239) following Admission will take place within the CREST system, subject to certain exceptions. blinkx reserves the right to require settlement for and delivery of the placing shares (or a portion thereof) to placees in certificated form if in Citi’s reasonable opinion delivery or settlement is not possible or practicable within the CREST system or would not be consistent with the regulatory requirements in the placee’s jurisdiction. Each placee allocated placing shares in the Placing will be sent a contract note stating the number of placing shares to be allocated to it at the placing price and settlement instructions. Each placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with the standing CREST or certificated settlement instructions that it has in place with Citi. blinkx will deliver the placing shares to a CREST account operated by Citi as blinkx’s agent and Citi will enter its delivery (DEL) instruction into the CREST system. The input to CREST by a placee of a matching or acceptance instruction will then allow delivery of the relevant placing shares to that placee against payment. It is expected that settlement will be on 20 October 2010 on a T + 3 basis in accordance with the instructions given to Citi. Interest is chargeable daily on payments not received from placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above LIBOR as determined by Citi. Each placee is deemed to agree that, if it does not comply with these obligations, Citi may sell any or all of the placing shares allocated to that placee on such placee’s behalf and retain from the proceeds, for Citi’s account and benefit, an amount equal to the aggregate amount owed by the placee plus any interest due. The relevant placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of such placing shares on such placee’s behalf. If placing shares are to be delivered to a custodian or settlement agent, placees should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation. Insofar as placing shares are registered in a placee’s name or that of its nominee or in the name of any person for whom a placee is contracting as agent or that of a nominee for such person, such placing shares should, subject as provided below, be so registered free from any liability to UK stamp duty or stamp duty reserve tax.
Representations and Warranties
By participating in the Placing each placee (and any person acting on such placee’s behalf):
1. represents and warrants that it has read and understood this announcement in its entirety and that its acquisition of placing shares is subject to and based upon all the terms, conditions, representations, warranties, acknowledgements, agreements and undertakings and other information contained herein;
2. acknowledges that no offering document or prospectus has been prepared in connection with the Placing and represents and warrants that it has not received a prospectus or other offering document in connection therewith;
3. acknowledges that the content of this announcement is exclusively the responsibility of the Company and that neither Citi 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 or subsequently published by or on behalf of the Company, including, without limitation, any information required to be published by the Company pursuant to applicable laws (the “Exchange Information”). Each placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such placee has relied in committing itself to acquire the placing shares is contained in this announcement and any information previously published by blinkx by notification to an RIS, such information being all that they deem necessary to make an investment decision in respect of the placing shares and that it has neither received nor relied on any other information given or representations, warranties or statements made by Citi or the Company and neither has it requested such information from Citi or the Company and neither Citi nor the Company will be liable for any placee’s decision to accept an invitation to participate in the Placing based on any information, representation or statement contained in this announcement or 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. None of Citi, the Company or any of their respective affiliates has made any representations to it, express or implied, with respect to the Company, the Placing and the placing shares or the accuracy, completeness or adequacy of the Exchange Information. Nothing in this paragraph or otherwise in this announcement excludes the liability of any person for fraudulent misrepresentation made by that person;
4. unless otherwise specifically agreed in writing with Citi, represents and warrants that neither it nor the beneficial owner of such placing shares will be a resident of Australia, Canada or Japan and acknowledges that the placing shares have not been and will not be registered under the securities legislation of Australia, Canada or Japan and, subject to certain exceptions, may not be offered, sold, or delivered or transferred, directly or indirectly, within those jurisdictions;
5. represents and warrants that the allotment or issue to it, or the person specified by it for registration as holder, of placing shares will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary receipts and clearance services) and that the placing shares are not being acquired in connection with arrangements to issue depositary receipts or to transfer placing shares into a clearance system;
6. if a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive (which means Directive 2003/71/EC and includes any relevant implementing measure in any member state) (the “Prospectus Directive”), represents and warrants that the placing shares purchased 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 other than qualified investors, or in circumstances in which the prior consent of Citi has been given to the offer or resale;
7. 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”);
8. represents and warrants that it has not offered or sold and will not offer or sell any placing shares to persons in the European Economic Area prior to Admission except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted in and which will not result in an offer to the public in any member state of the European Economic Area within the meaning of the Prospectus Directive (including any relevant implementing measure in any member state);
9. 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 the FSMA) relating to the placing shares in circumstances in which section 21(1) of the FSMA does not require approval of the communication by an authorised person;
10. represents and warrants that it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the placing shares in, from or otherwise involving, the United Kingdom;
11. if in a Member State of the European Economic Area, unless otherwise specifically agreed with Citi in writing, represents and warrants that it is a “qualified investor” within the meaning of the Prospectus Directive;
12. if in the UK, represents and warrants that it is a person (i) who has professional experience in matters relating to investments falling with Article 19(1) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order”); (ii) falling within Article 49(2)(A) to (D) (“High Net Worth Companies, Unincorporated Associations, etc”) of the Order; or (iii) to whom this announcement may otherwise be lawfully communicated;
13. represents and warrants that it and any person acting on its behalf is entitled to acquire the placing shares under the laws of all relevant jurisdictions which apply to it and that it has fully observed such laws and obtained all such governmental and other guarantees, permits, authorisations, approvals and consents which may be required thereafter and complied with all necessary formalities and that it has not taken any action or omitted to take any action which will or may result in Citi, the Company or any of their respective directors, officers, agents, employees or advisers acting in breach of the legal or regulatory requirements of any jurisdiction in connection with the Placing;
14. represents and warrants that it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to its participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this announcement) and will honour such obligations;
15. 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 acquirers or sold as Citi may in its absolute discretion determine and without liability to such placee;
16. acknowledges that neither Citi, nor any of its affiliates, nor any person acting on behalf of any of them, is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be treated for these purposes as a client of Citi and that Citi has no duties or responsibilities to it for providing the protections afforded to their clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the placing agreement nor for the exercise or performance of any of its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
17. acknowledges that these terms and conditions and any agreements entered into by it pursuant to these terms and conditions shall be governed by and construed in accordance with English law 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 Citi in any jurisdiction in which the relevant placee is incorporated or in which any of its securities have a quotation on a recognised stock exchange;
18. agrees that the Company, Citi and their respective affiliates and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and undertakings which are given to Citi on its own behalf and on behalf of the Company and are irrevocable; and
19. agrees to indemnify and hold the Company, Citi and their respective affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this Appendix and further agrees that the provisions of this Appendix shall survive after completion of the Placing.
The foregoing representations, warranties and confirmations are given for the benefit of blinkx as well as Citi.
Please also note that the agreement to allot and issue placing shares to placees (or the persons for whom placees are contracting as agent) free of stamp duty and stamp duty reserve tax in the UK relates only to their allotment and issue to placees, or such persons as they nominate as their agents, direct from the Company for the placing shares in question. Such agreement assumes that the placing shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer the placing shares into a clearance service and will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986. 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, each placee should seek its own advice and notify Citi accordingly. Neither the Company nor Citi are liable to pay any stamp duty or stamp duty reserve tax that arises in connection with arrangements to issue depositary receipts or to transfer the placing shares into a clearance service. Nor are the Company or Citi, liable to bear any transfer taxes that arise on a sale of placing shares subsequent to their acquisition by placees or for transfer taxes arising otherwise than under the laws of the United Kingdom. Each placee should, therefore, take its own advice as to whether any such transfer tax liability arises. Furthermore, each placee agrees to indemnify on an after-tax basis and hold Citi and/or the Company and their respective affiliates harmless from any and all interest, fines or penalties in relation to stamp duty, stamp duty reserve tax and all other similar duties or taxes to the extent that such interest, fines or penalties arise from the unreasonable default or delay of that placee or its agent.
When a placee or person acting on behalf of the placee is dealing with Citi, any money held in an account with Citi on behalf of the placee and/or any person acting on behalf of the placee will not be treated as client money within the meaning of the rules and regulations of the FSA made under the FSMA. The placee acknowledges that the money will not be subject to the protections conferred by the client money rules; as a consequence, this money will not be segregated from Citi money in accordance with the client money rules and will be used by Citi in the course of its own business and the placee will rank only as a general creditor of Citi.
All times and dates in this announcement are subject to amendment by Citi (in its absolute discretion).