Exhibit 4.5
FUTUREMEDIA PLC
SECURITIES SUBSCRIPTION AGREEMENT
IMPORTANT NOTICE
The contents of this document have not been approved by an authorized 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 in the United
Kingdom 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.
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"), OR UNDER THE SECURITIES LAWS OF ANY OTHER JURISDICTION, AND
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (OR IN A TRANSACTION NOT SUBJECT
TO SUCH REQUIREMENTS) AND IN COMPLIANCE WITH ALL OTHER APPLICABLE LAWS.
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CONFIDENTIALITY
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.
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Futuremedia Public Limited Company
Xxxxx Xxxxx, Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx
Xxxx Xxxxxx, XX00 0XX
Gentlemen:
The undersigned understands that the Company is hereby making an offer (the
"Offer") of up to an aggregate of 20,000,000 Ordinary Shares, 1-1/9 xxxxx per
share, of the Company (the "Shares") at a purchase price of not less than $0.10
per Ordinary share.
The Offer will expire on April 22, 2003 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 tenders this subscription for the purchase of the 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. The undersigned acknowledges that, in order to subscribe, the
undersigned must deliver, to the attention of Xxxxx Xxxxxx at 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")
filed with the U.S. Securities and Exchange Commission on November 15, 2002, a
copy of which is attached hereto as Exhibit A. In addition the undersigned
should consider the following factors relating to the Company:
Financial Condition and Liquidity. As of December 31, 2002, on
an unaudited basis, the Company had a working capital deficit of GBP628,000
($1,010,000), including GBP104,000 ($167,000) of cash. Net current liabilities
include an overdue balance of approximately GBP450,000 ($723,000) outstanding on
the Loan Stock Agreement 2002 between the Company and Waverton Holdings Limited.
The Company exchanged contracts in January 2003 for the sale
of its freehold property, with completion in two stages, the first at the end of
January 2003, and the second as and when the Company relocates to new premises.
The anticipated sale proceeds of this building, net of the loan from Waverton
Holdings Limited, which is secured against the premises, and any relocation
expenses incurred, will provide additional funds. The Company is evaluating an
offer of a mortgage from HSBC to provide bridging funds pending final
completion. The total sale price is expected to be GBP750,000 ($1,206,000),
approximately GBP130,000 ($209,000) below the carrying value of the property,
reflecting local market conditions.
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Based on the foregoing, there is a recognized and immediate
need to secure additional funding. There can be no assurances that the Company
will be successful securing additional funds. There is, therefore, substantial
doubt that the Company will be able to continue as a going concern.
Listing Maintenance Criteria for Nasdaq System. As disclosed
in the 20-F, the National Association of Securities Dealers, Inc., (the "NASD")
which administers Nasdaq, requires that, in order for a company's securities to
continue to be listed on the Nasdaq SmallCap Market, the company must maintain
either a minimum stockholder's equity $2,500,000, $35,000,000 in market
capitalization or net income of $500,000 in the most recently completed fiscal
year or in two of the last three most recently completed fiscal years. As of
December 31, 2002, the Company had stockholder's equity of $680,000 and a market
capitalization of $7.15 million. The Company had net loss for the financial year
ended April 30, 2002 of $2,944,000 and a net loss for the two prior fiscal
years.
The Company received a notice from Nasdaq dated December 3,
2002 indicating that the Company's continued listing on the Nasdaq SmallCap
Market was under review. Discussions with Nasdaq are ongoing regarding this
matter and copies of the above-referenced letter and subsequent correspondence
with Nasdaq are attached as Exhibit B hereto. There can be no assurances that
the Company will maintain its Nasdaq SmallCap Market listing. A failure to
maintain such listing could have a material adverse effect on the Company's
business and financial condition and on the liquidity and market value of the
Shares.
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 signature hereon shall
constitute an irrevocable subscription to the Company for the number 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. To the extent necessary, 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 purchaser ADRs evidencing
such ADSs. The Company shall bear all costs and expenses in connection with the
issuance of ADRs to the undersigned.
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.
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(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
copies of the following documents: (i) the Company's Annual Report on Form 20-F
for the fiscal year ended April 30 2002, attached hereto as Exhibit A; (ii)
(iii) the correspondence between the Company and Nasdaq regarding the Company's
continued listing on the Nasdaq SmallCap Market, attached hereto as composite
Exhibit B and (iii) the Company's Press Releases distributed since April 30,
2002, attached hereto as composite Exhibit C. 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 acquire 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. Unless another exemption is available, the
undersigned hereby represents and warrants that it 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.
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(h) The undersigned understands that the Shares have not been and
are not expected to be registered under the United States Securities Act of
1933, as amended (the "Act") or under the securities law of any other
jurisdiction. The Securities 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
Securities is restricted as provided herein.
(i) At the time the offer to buy the Shares was made, the
undersigned and all beneficial owners of the Shares purchased hereunder by the
undersigned on behalf of such persons 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 purchase of 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 sell
and 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 the Shares may not be
transferred, sold, assigned, hypothecated or otherwise disposed of, except:
(a)(i) pursuant to a registration statement, filed with and declared effective
by the Commission, (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 the Shares will
be held in escrow by Thomas, Eggar Verrall, Bowles, Solicitors of Chichester,
England (the "Escrow Agent"), for a minimum 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 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 therefore.
6. Delivery of Certificates; Transfer Agent Instructions.
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(a) The Company will cause to be placed in escrow, as described
herein, either certificates or ADRs evidencing the Shares being purchased
hereunder 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
Escrow Agent during the Restricted Period. Upon the expiration of the Restricted
Period, the Escrow Agent will deliver the certificates representing the Shares
or the ADRs to the undersigned.
(b) Notwithstanding anything contained herein to the contrary, the Company
and the undersigned hereby agree and acknowledge that the Escrow Agent is
holding the certificates or ADRs evidencing the Shares solely for administrative
convenience purposes only, and that no duty or obligation, direct or indirect,
whether affirmative or not, is hereby imposed, created or otherwise assumed or
undertaken by the Escrow Agent with respect thereto.
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 or issue any warrants or options 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 Xxxxx
Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx, Xxxx Xxxxxx, XX00 0XX, Attention: Xxxxx
Xxxxxx.
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(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 hereshall be construed in accordance with and shall be governed by
the laws of England and Wales.
(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]
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SIGNATURE PAGE
EXECUTED this 23 day of April, 2003.
Number of Shares subscribed for: 8,500,000 shares at U.S. $0.10 per Share.
Payable: One installment of $ 850,000 on signature.
/s/ Xxxx Xxxxxxxx
------------------------------------ -----------------------------------------------------
(Signature of Subscriber) (Signature of Spouse, or other joint tenant, if any)
Xxxx Xxxxxxxx
VD/Managing Director
Volito AB
------------------------------------- ------------------------------------------------------
(Print Name of Subscriber) (Printed Name of Spouse, or other joint tenant, if any)
Volito AB
Xxxxx Xxxxxxxxxxxxxx
000 00 Xxxxx - Xxxxxx (Xxxxxxx)
-------------------------------------- --------------------------------
(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
this Agreement on this 23 day of April, 2003.
FUTUREMEDIA PUBLIC LIMITED COMPANY
By: /s/ Xxxx Xxxxxxxxx
------------------------------------------
Xxxx Xxxxxxxxx, Chief Executive Officer
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Exhibit A
FORM 20-F FOR FISCAL YEAR ENDED APRIL 30, 2002
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Exhibit B
CORRESPONDENCE WITH NASDAQ REGARDING REVIEW OF COMPANY'S
NASDAQ SMALLCAP MARKET LISTING
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Exhibit C
PRESS RELEASES SINCE APRIL 30, 2002
May 16, 2002 Preliminary results Fiscal 2002 Filed under Form 6-k
May 31, 2002 C2W Acquisition Filed under Form 6-k
June 25, 2002 BT Conferencing goes live Filed under Form 6-k
December 10, 2002 Quarter 1 results, fiscal 2003 Filed under Form 6-k
December 12, 2002 Award of Syngenta contract Filed under Form 6-k
January 16, 2003 Half year results, fiscal 2003 Filed under Form 0-x
Xxxxxxx 00, 0000 Xxxxx Xxxxxxxx Filed under Form 6-k
January 28, 2003 Private Placement Filed under Form 6-k
March 11, 2003 Announcement re RDF To be Filed under Form 6-k
March 20, 2003 Award of BUPA contract To be Filed under Form 6-k
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