Exhibit 4.10
FUTUREMEDIA PLC
SUBSCRIPTION AGREEMENT
----------------------
IMPORTANT NOTICE
The contents of this document have not been approved by an authorised person
(for the purposes of Section 21 of Financial Services and Markets Xxx 0000 (the
"Act")). Such approval is required by Section 21 of the Act unless an exemption
applies. Consequently this document is being made available only to persons who
are deemed sufficiently experienced and knowledgeable to understand the risks
involved in making an investment in the Company and as such fall within any of
Articles 19 (investment professionals), 43 (Members and creditors of certain
bodies corporate), 48 (certified high net worth individuals), 49 (high net worth
companies, unincorporated associations etc.), 50 (sophisticated investors) or 51
(associations of high net worth or sophisticated investors) of the Financial
Services and Markets Xxx 0000 (Financial Promotion) Order 2001 (SI 2001/1335)
(the "Order") or such other relevant exemption under which this Document may
lawfully be communicated as a financial promotion.
For the purposes of Articles 48 and 51 of the Order:
(i) This document is exempt from the general restriction (in Section 21 of the
Act) on the communication of invitations or inducements to engage in
investment activity on the grounds that it is made to a certified high net
worth individual, sophisticated investor or current shareholder.
(ii) The requirements that must be met for a recipient to qualify as a
certified high net worth individual are that the recipient:
(a) has a current certificate of high net worth in the form detailed in
Article 48(3) of the Order; and
(b) has previously (within the last 12 months) signed a statement in the
terms in Article 48(2)(b) of the Order.
(iii) The requirements that must be met for a recipient to qualify as a
sophisticated investor are that the recipient:
(a) has a current certificate from an authorised person in accordance
with Article 50(1)(a) of the Order; and
(b) has previously (within the last 12 months) signed a statement in the
terms in Article 50(1)(b) of the Order.
(iv) Reliance on this document for the purpose of investing in the Company may
expose the recipient to a significant risk of losing all of the monies
invested.
(v) Any person who is in any doubt about the investment to which this document
relates should consult an authorised person specialising in advising on
investments of this kind.
This document does not constitute a prospectus or an offer or invitation to the
public to acquire or subscribe for any shares or other securities in the Company
within the meaning of Regulation 6 of the Public Offers of Securities
Regulations 1995 (SI 1995/1537) and should not be reproduced or circulated.
Accordingly, the securities may not be offered or sold or re-offered or resold
to persons in the United Kingdom except to person of the kind described in
paragraphs 3 to 24 of Schedule 11 to the Act.
This document should not be considered as a recommendation by the shareholders,
the Company, or any of their respective subsidiaries, affiliates,
representatives, partners, directors, officers, employees, advisers or agents to
invest in the Company, and interested recipients are recommended to seek their
own independent financial, legal and other advice.
Recipients of this document in jurisdictions outside the UK should inform
themselves about and observe all applicable legal requirements in their
jurisdictions. In particular, the distribution of this document in certain
jurisdictions may be restricted by law and, accordingly, recipients represent
that they are able to receive this document without contravention of any
unfulfilled registration requirements or other legal restrictions in the
jurisdiction in which they reside or conduct business.
THE SECURITIES OFFERED PURSUANT TO THIS DOCUMENT HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES EXCEPT
PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR IN A TRANSACTION NOT SUBJECT TO SUCH REQUIREMENTS.
CONFIDENTIALITY STATEMENT
-------------------------
By accepting a copy of this document, the recipient acknowledges and agrees that
it is receiving confidential information that has not been made available to the
public. It agrees that it will not disclose, reproduce, circulate, or otherwise
make known to any other person the information contained herein, without the
prior written consent of the Company.
1
Futuremedia PLC
Xxxx Xxxxx
Xxxx Xxxxxx
Xxxxxxxx XX0 0XX
Gentlemen:
The undersigned understands that the Company is hereby making an offer
(the "Offer") of its Ordinary Shares, 1-1/9 xxxxx per share, of the Company (the
"Shares") at a purchase price of $0.76 per Share.
The Offer will expire on February 9, 2005 unless extended by the Company,
in its sole discretion (the "Expiration Date").
1. Subscription. Subject to the terms and conditions of this Agreement,
the undersigned hereby subscribes for the aggregate number of Shares set forth
on the signature page of this Agreement. Payment of the aggregate purchase price
is required at the time of delivery of this Agreement to the Company (or at such
late time as the Company may agree). The undersigned acknowledges that, in order
to subscribe, the undersigned must deliver, to the Company, prior to the
Expiration Date, one executed copy of this Agreement.
2. Risk Factors. The undersigned acknowledges and is aware that an
investment in the Company involves a substantial degree of risk and should be
regarded as highly speculative. As a result, the subscription for Shares should
be considered only if the undersigned can reasonably afford a loss of its entire
investment. The undersigned should carefully consider, among other things, the
risk factors set out in the Company's Annual Report on Form 20-F (the "20-F")
for the year-ended April 30, 2004 filed with the U.S. Securities and Exchange
Commission ("SEC") on September 30, 2004.
3. Acceptance of Subscription. It is understood and agreed that this
Agreement is subject to the following terms and conditions:
(a) Investments are not binding on the Company until accepted by the
Company.
(b) The undersigned hereby intends that his/her/its signature hereon
shall constitute an irrevocable subscription to the Company for the aggregate
amount of Shares described herein.
4. American Depositary Receipts. The Company's American Depositary Shares
("ADSs") trade on the Nasdaq SmallCap Market under the symbol FMDAY. Each ADS
represents the right to receive one Ordinary Share of the Company. ADSs are
evidenced by American Depositary Receipts ("ADRs"). ADSs evidenced by ADRs are
issued by the Bank of New York as Depositary (the "Depositary") of the Company's
ADR facility in accordance with the terms of a deposit agreement between the
Company and the Depositary. The Company shall amend the deposit agreement with
the Depositary to include the Shares as ADSs and/or to take all reasonably
necessary action to deliver to the undersigned ADRs evidencing such ADSs. The
Company shall bear all costs and expenses in connection with the issuance of
ADRs to the undersigned in connection with its investment in the Shares.
2
5. Representations and Warranties of the Undersigned. The undersigned
hereby represents and warrants to the Company as follows:
(a) The undersigned (i) has adequate means of providing for its
current needs and possible contingencies, and it has no need for liquidity of
its investment in the Company; (ii) has such knowledge and experience in
financial matters that the undersigned is capable of evaluating the relative
risks and merits of this investment; and (iii) understands that an investment in
the Shares is highly speculative and is able financially to bear the risk of
losing its entire investment.
(b) The address set forth on the signature page of this Agreement is
its true and correct business address, and it has no present intention of
changing its business location to any other jurisdiction.
(c) The undersigned has received and read and represents that it is
familiar with this Agreement.
(d) The undersigned, and its representatives, if any, have received
and reviewed copies of the following documents: (i) the Company's Annual Report
on Form 20-F for the fiscal year ended April 30 2004 and (ii) the Company's
press releases distributed since April 30, 2004. The undersigned acknowledges
that it has reviewed the information contained therein. It further acknowledges
that it has had the opportunity to ask representatives of the Company questions
about the Company's business and financial condition and that it has obtained
such information as it has requested to the extent it has deemed necessary to
permit it to fully evaluate the merits and risks of its investment in the
Company. Further, the undersigned has consulted with such other of its
investment and/or accounting and/or legal and/or tax advisors as it has deemed
necessary and appropriate in making its decision to subscribe for the Shares.
(e) If the undersigned is a corporation, partnership, trust, or
other entity, (i) it is authorised and qualified to become a shareholder of, and
authorised to make its investment in, the Company; (ii) it has not been formed
for the purpose of making an investment in the Company; and (iii) the person
signing this Agreement on behalf of such entity has been duly authorised by such
entity to do so.
(f) The undersigned is not relying on the Company or any
representation contained herein or in the documents referred to herein with
respect to the tax and economic effect of its investment in the Company.
(g) The undersigned understands (i) that it is the Company's intent
that all communications and other activities relating to this Agreement and the
transactions contemplated hereby are being carried out in compliance with the
Financial Services and Markets Xxx 0000 ("FSMA") and related secondary
legislation, including without limitation the Financial Services and Markets Xxx
0000 (Financial Promotion) Order 2001, SI 2001 No. 1335 ("Statutory Instrument
2001 No. 1335") and (ii) that the Company is relying certain exemptions in
Statutory Instrument 2001 No. 1335. The undersigned is either a Certified High
Net Worth Individual or a Certified Sophisticated Investor, or a current member
of the Company, as such terms are defined in Statutory Instrument 2001 No. 1335.
3
(h) The undersigned understands that the Shares have not been and
not expected to be registered under the United States Securities Act of 1933, as
amended (the "Act") . The Shares are being offered and sold in an "offshore
transaction" outside the United States in accordance with Rule 903 of Regulation
S ("Regulation S"), promulgated under the Act. The transferability of the Shares
is restricted as provided herein.
(i) At the time the offer to subscribe for the Shares was made, the
undersigned and all beneficial owners or subscribers for the Shares hereunder
were outside of the United States of America, Canada, Japan, the Republic of
Ireland and Australia. The undersigned further represents that the undersigned
and all such beneficial owners did not receive any offering documents, with
respect to the Shares, in the United States of America, Canada, Japan, the
Republic of Ireland or Australia.
(j) The Shares for which the undersigned hereby subscribes are being
acquired solely for its own account or for the account of beneficial owners that
the undersigned represents, and are not being purchased with a view to or for
distribution. It has no present plans to enter into any such contract,
undertaking, agreement or arrangement. In order to induce the Company to issue
the Shares subscribed for hereby to the undersigned, it is agreed that the
Company will have no obligation to recognise the ownership, beneficial or
otherwise, of such Shares by anyone but the undersigned and the beneficial
owners that the undersigned represents.
(k) The undersigned understands that Shares may be not transferred,
sold, assigned, hypothecated or otherwise disposed of, except: (a)(i) pursuant
to a registration statement, filed with and declared effective by the SEC, (ii)
in an offshore transaction in compliance with Regulation S or (iii) pursuant to
another available exemption from the registration requirements under the Act
upon the delivery of an opinion of counsel, certification and/or other
information satisfactory to the Company and (b) in compliance with all other
applicable laws.
(l) The undersigned agrees that, in order to ensure compliance with
applicable securities laws, the certificates or ADRs evidencing any Shares will
be held in escrow by the Company for a period of 40 days following the date of
receipt by the Company of payment in full for all Shares purchased hereunder
(the "Restricted Period"). The undersigned agrees not to sell, grant options
over, transfer, charge, pledge, hypothecate or otherwise dispose of the Shares
during the Restricted Period. The undersigned further agrees not to engage in
any hedging transactions or short sales with respect to the Shares during the
Restricted Period.
The foregoing representations and warranties are true and accurate
as of the date of delivery of this Agreement to the Company and shall survive
such delivery. If in any respect such representations and warranties shall not
be true and accurate prior to acceptance of this subscription by the Company,
the undersigned shall give written notice of such fact to the Company,
specifying which representations and warranties are not true and accurate and
the reasons therefor.
4
6. Delivery of Certificates; Transfer Agent Instructions. The Company will
hold in escrow, as described herein, either certificates or ADRs evidencing the
Shares without any restrictive legends affixed thereon (except to the extent
that any such restrictive legends may be required by The Bank of New York or any
successor depositary of the Company's ADR facility). The certificates or ADRs
will be issued in the name of the undersigned and will be held in escrow by the
Company during the Restricted Period. Upon the expiration of the Restricted
Period, the Company will deliver the certificates representing the Shares or the
ADRs to the undersigned.
7. Costs and expenses Incident to the Purchase. The Company shall bear all
costs and expenses incident to the issuance, sale and delivery of the Shares,
including, but not limited to, all legal fees; the preparation, printing and
delivery of shares certificates; and any cost and expense in connection with the
conversion of any of the Shares into ADRs. The Company shall not be obligated to
pay any commissions to any third parties or the undersigned in connection with
the issuance of the Shares pursuant to this Agreement except as otherwise
expressly agreed in writing by the Company.
8. Indemnification. The undersigned acknowledges that it understands the
meaning and legal consequences of the representations and warranties contained
herein, and hereby agrees to indemnify and hold harmless the Company, the
Company's officers and directors, and their respective agents, employees and
affiliates, from and against any and all losses, claims, damages or liabilities,
including reasonable solicitors' or attorneys' fees, due to or arising out of a
breach of any representation (s) or warranty(s) of the undersigned contained in
this Agreement.
9. Further Assurances. The undersigned hereby agrees to execute or sign
any and all other documents and/or take any and all such further actions as the
Company may reasonably request or require in connection with the transactions
contemplated by this Agreement.
10. No Waiver. Notwithstanding any of the representations, warranties,
acknowledgments or agreements made herein by the undersigned, the undersigned
does not thereby or in any other manner waive any rights granted to it under
U.S. federal or state securities laws, the laws of England and Wales or any
other jurisdiction.
11. Revocation. The undersigned acknowledges and agrees that its
subscription for the Shares made by the execution and delivery of this Agreement
by the undersigned is irrevocable.
12. Miscellaneous.
(a) All notices or other communications given or made hereunder
shall be in writing and shall be delivered or mailed by registered or certified
mail, return receipt requested, postage prepaid, to the undersigned at its
address set forth below and to Futuremedia Public Limited Company at Xxxx Xxxxx,
Xxxx Xxxxxx, Xxxxxxxx XX0 0XX, Attention: Xxxxx Xxxxxx.
(b) Notwithstanding the place where this Agreement may be executed
by any of the parties hereto, the parties expressly agree that all the terms and
provisions hereof shall be construed in accordance with and shall be governed by
the laws of England and Wales.
5
(c) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and may be amended only
by a writing executed by all parties.
(d) This Agreement shall be binding upon the legal representatives,
successors and assigns of all parties hereto.
(e) All terms used herein shall be deemed to include the masculine
and the Feminine and the singular and the plural as the context requires.
[Signature Page to Follow]
6
SIGNATURE PAGE
EXECUTED this 9th day of February, 2005
Number of Shares subscribed for: 65,789 Shares
Aggregate Purchase Price: $50,000
---------------------------- ----------------------------
(Signature of Subscriber) (Signature of Spouse, or
other joint tenant, if any)
---------------------------- ----------------------------
(Printed Name of Subscriber) (Printed Name of Spouse, or
other joint tenant, if any)
---------------------------- -----------------------------
---------------------------- -----------------------------
(Address) (Address)
Check Appropriate Space:
Individual Ownership
-------------
Joint Tenants with Right of Survivorship
------------- Tenants in Common
Other:
------------- -----------------------------
ACCEPTANCE
APPROVED AND ACCEPTED in accordance with the terms of this
Agreement on , 2005.
FUTUREMEDIA PLC
By:
---------------------------------------------------------
Name:
Title:
7
