12 Aug 2010 07:00
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, SOUTH AFRICA OR ANY JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL
12 August 2010
DEVELOPMENT SECURITIES PLC
Result of Rights Issue
Development Securities PLC (the "Company") announces that the fully underwritten 5 for 12 Rights Issue announced on 22 July 2010 closed for acceptances at 11.00 am (London time) on 11 August 2010. The Company received valid acceptances in respect of 26,824,319 New Shares, representing approximately 74.54% of the total number of New Shares offered to Qualifying Shareholders pursuant to the Rights Issue.
It is expected that the New Shares in uncertificated form will be credited to CREST accounts by no later than 12 August 2010 and that definitive share certificates in respect of New Shares in certificated form will be despatched to shareholders by no later than 19 August 2010.
It is expected that the New Shares will commence trading, fully paid, on London Stock Exchange plc's main market for listed securities on 12 August 2010.
In accordance with their obligations as Joint Bookrunners in respect of the Rights Issue as set out in Part III of the prospectus dated 22 July 2010, Collins Stewart Europe Limited and Barclays Capital will endeavour to procure subscribers on the terms and conditions set out in the appendix to this announcement for the remaining 9,161,711 New Shares not validly taken up in the Rights Issue, failing which Collins Stewart Europe Limited and Barclays Capital, acting as Joint Underwriters, or sub-underwriters procured by them will subscribe for those New Shares. A further announcement as to the number of New Shares for which subscribers have been procured will be made in due course.
Any premium over the aggregate of the Issue Price of 250 pence per New Share and the expenses of procuring subscribers will be paid to Shareholders that have not taken up their entitlements, pro rata to such Shareholders' lapsed provisional allotments, provided that individual amounts of less than GBP5.00 will not be paid to such persons but will instead be paid to the Company.
Following completion of the Placing and the Rights Issue, the Company has 122,352,504 Ordinary Shares in issue as at today's date, to which an equal number of voting rights is attached. None of these Ordinary Shares is held in treasury. This figure may be used by shareholders as the denominator for the calculations by which they will determine whether they are required to notify their interest in, or a change to their interest in, the Company pursuant to the FSA's Disclosure and Transparency Rules.
For further information, please contact:
| Development Securities PLC | +44 (0)20 7828 4777 |
| Michael Marx (Chief Executive) |
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| Graham Prothero (Finance Director) |
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| Collins Stewart Europe Limited | +44 (0)20 7523 8350 |
| Mark Dickenson |
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| Bruce Garrow |
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| Barclays Capital | +44 (0)20 7623 2323 |
| Adam Welham |
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| Jim Renwick |
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| Rothschild | +44 (0)20 7280 5000 |
| Alex Midgen |
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| Nigel Himsworth |
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| The Communication Group plc | +44 (0)20 7630 1411 / + 44 (0) 7751087291 |
| Richard Evans |
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| Lucy Grimble |
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Capitalised terms defined in the Prospectus published on 22 July 2010 shall have the same meaning when used in this announcement to the extent not otherwise defined in this announcement. All references to times are to London times.
Disclaimer
This announcement is not a prospectus but an advertisement.
Barclays Capital, the investment banking division of Barclays Bank PLC, is authorised and regulated by the Financial Services Authority in the UK and is acting joint bookrunner and joint underwriter for Development Securities and no one else in connection with the Rights Issue and will not regard any other person (whether or not a recipient of this announcement) as a client in relation to the Rights Issue and will not be responsible to anyone other than Development Securities for providing the protections afforded to its clients, nor for providing advice in relation to the Rights Issue or any other matters referred to in this announcement.
Collins Stewart is authorised and regulated by the Financial Services Authority in the UK and is acting as joint financial adviser, joint bookrunner, sponsor, broker and joint underwriter for Development Securities and no one else in connection with the Rights Issue and will not regard any other person (whether or not a recipient of this announcement) as a client in relation to the Rights Issue and will not be responsible to anyone other than Development Securities for providing the protections afforded to its clients, nor for providing advice in relation to the Rights Issue or any other matters referred to in this announcement.
Rothschild is authorised and regulated by the Financial Services Authority in the UK and is acting as joint financial adviser for Development Securities and no one else in connection with the Rights Issue and will not regard any other person (whether or not a recipient of this announcement) as a client in relation to the Rights Issue and will not be responsible to anyone other than Development Securities for providing the protections afforded to its clients, nor for providing advice in relation to the Rights Issue or any other matters referred to in this announcement.
Apart from the responsibilities and liabilities, if any, which may be imposed on Barclays Capital, Collins Stewart or Rothschild by the FSMA, none of Barclays Capital, Collins Stewart or Rothschild accepts any responsibility whatsoever nor does it make any representation or warranty, express or implied, for or in respect of the contents of this announcement, including its accuracy, completeness or verification or regarding the legality of an investment in the, New Shares by an offeree or purchaser thereof under the laws applicable to such offeree or purchaser or for any other statement made or purported to be made by Barclays Capital, Collins Stewart or Rothschild, or on behalf of Barclays Capital, Collins Stewart or Rothschild behalf, in connection with the Company, the New Shares or Rights Issue, and nothing in this announcement is, or shall be relied upon as, a promise or representation in this respect, whether as to the past or future. Each of Barclays Capital, Collins Stewart and Rothschild accordingly disclaims to the fullest extent permitted by applicable law all and any responsibility and liability whether arising in tort, contract or otherwise which it might otherwise be found to have in respect of this announcement or any such statement.
No person has been authorised to give any information or make any representations other than those contained in this announcement and the Prospectus and, if given or made, such information or representations must not be relied upon as having been authorised by the Company, Barclays Capital, Collins Stewart or Rothschild. Subject to the Listing Rules, the Prospectus Rules and the Disclosure and Transparency Rules, there shall not, in any circumstances, be any implication that there has been no change in the affairs of Development Securities since the date of this announcement or that the information in it is correct as at any subsequent date. None of the Company, Barclays Capital, Collins Stewart, Rothschild or any other person accepts any responsibility, except as required by applicable law or regulation, to update any information in this announcement.
The New Shares have not been and will not be registered under the US Securities Act or under any securities laws of any state or other jurisdiction of the United States and may not be offered, sold, taken up, exercised, resold, renounced, transferred or delivered, directly or indirectly, in or into the United States except pursuant to an applicable exemption from, or in a transaction not subject to, the registration requirements of the US Securities Act and in compliance with any applicable securities laws of any state or other jurisdiction of the United States. There will be no public offer in the United States. The New Shares will not be registered under the securities laws of the Excluded Territories and may not be offered, sold, taken up, exercised, resold, renounced, transferred or delivered, directly or indirectly, in or into such jurisdictions except pursuant to an applicable exemption from and in compliance with any applicable securities laws. There will be no public offer in any Excluded Territory. No action has been taken by Development Securities, Barclays Capital, Collins Stewart or Rothschild that would permit an offer of the New Shares or rights thereto or possession or distribution of this announcement, the Provisional Allotment Letter, the Prospectus or any other offering or publicity material or in any jurisdiction where action for that purpose is required, other than in the United Kingdom.
The distribution of this announcement, the Prospectus, the Provisional Allotment Letter and/or the transfer of the New Shares into jurisdictions other than the UK may be restricted by law. Persons into whose possession this announcement or any such document comes should inform themselves about and observe any such restrictions. Any failure to comply with these restrictions may constitute a violation of the securities laws of any such jurisdictions. In particular, this announcement or any related document should not be distributed, forwarded to or transmitted in or into the United States or the Excluded Territories or into any other jurisdiction where the extension or availability of the Rights Issue would breach any applicable law.
The information in this announcement may not be distributed, forwarded to or transmitted in or into the United States, the Excluded Territories or in or into any other jurisdiction where the extension or availability of the Rights Issue would breach any applicable law.
No statement in this announcement is intended as a profit forecast or a profit estimate and no statement in this announcement should be interpreted to mean that earnings per share of Development Securities for the current or future financial years would necessarily match or exceed the historical published earnings per share of Development Securities.
Prices and values of, and income from, securities may go down as well as up and an investor may not get back the amount invested. It should be noted that past performance is no guide to future performance. Persons needing advice should consult an independent financial adviser.
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.
Cautionary note regarding forward-looking statements
This announcement contains "forward-looking statements", regarding the belief or current expectations of the Company, the Directors and other members of senior management about the Company's businesses and the transactions described in this announcement. Generally, words such as "may", "could", "will", "expect", "intend", "estimate", "anticipate", "believe", "plan", "seek", "continue" or similar expressions identify forward-looking statements.
Such forward-looking statements are not guarantees of future performance. Rather, they are based on current views and assumptions and involve known and unknown risks, uncertainties and other factors, many of which are outside the control of the Company and are difficult to predict, that may cause actual results to differ materially from any future results or developments expressed or implied
from the forward-looking statements.
These forward-looking statements speak only as at the date of this announcement. Except as required by the FSA, the London Stock Exchange, the Part VI Rules or applicable law, the Company does not have any obligation to update or revise publicly any forward-looking statement, whether as a result of new information, further events or otherwise. Except as required by the FSA, the London Stock Exchange, the Prospectus Directive, the Listing Rules, the Disclosure and Transparency Rules or any other applicable law, the Company expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any forward-looking statement contained herein to reflect any change in the Company's expectations with regard thereto or any change in events, conditions or circumstances on which any such statement is based. In light of these risks, uncertainties and assumptions, the events described in the forward-looking statements in this announcement may not occur.
You are advised to read this announcement and the Prospectus and the information incorporated by reference therein, in their entirety for a further discussion of the factors that could affect Development Securities' future performance and the industries in which the Group operates.
APPENDIX
TERMS AND CONDITIONS OF THE RUMP PLACING
IMPORTANT INFORMATION ON THE RUMP PLACING FOR INVITED PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING OF NEW SHARES NOT TAKEN UP OR DEEMED TAKEN UP IN THE RIGHTS ISSUE (THE "RUMP PLACING"). THIS DOCUMENT AND THE TERMS AND CONDITIONS SET OUT AND REFERRED TO HEREIN ARE DIRECTED ONLY AT PERSONS SELECTED BY COLLINS STEWART EUROPE LIMITED ("COLLINS STEWART") AND BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK PLC ("BARCAP") AND WHO ARE (A) PERSONS IN THE EUROPEAN UNION WHO ARE "QUALIFIED INVESTORS" AS DEFINED IN ARTICLE 2.1(E) OF DIRECTIVE 2003/71/EC (THE "PROSPECTUS DIRECTIVE"), WHICH INCLUDES LEGAL ENTITIES WHICH ARE REGULATED BY THE FINANCIAL SERVICES AUTHORITY OF THE UNITED KINGDOM (THE "FSA") OR ENTITIES WHICH ARE NOT SO REGULATED WHOSE CORPORATE PURPOSE IS SOLELY TO INVEST IN SECURITIES OR (B) "INVESTMENT PROFESSIONALS" FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "FPO") OR "HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS ETC" FALLING WITHIN ARTICLE 49(2)(A) to (D) OF THE FPO OR TO PERSONS TO WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS APPENDIX DOES NOT CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
Unless otherwise defined in this appendix, definitions used in this appendix shall have the meaning given to them in the "Definitions" section of this announcement.
The shares that are the subject of the Rump Placing (the "Rump Placing Shares") 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 state or other jurisdiction of the United States and may not be offered, sold, taken up, exercised, resold, renounced, transferred or delivered, directly or indirectly, in or into the United States except pursuant to an exemption from or in a transaction not subject to the registration requirements of the Securities Act. No public offering of the Rump Placing Shares is being made in the United States. The Rump Placing is being made outside the United States in offshore transactions (as defined in Regulation S under the Securities Act ("Regulation S")) meeting the requirements of Regulation S. Persons receiving this document (including custodians, nominees and trustees) must not forward, distribute, mail or otherwise transmit it in or into the United States or use the United States mails, directly or indirectly, in connection with the Rump Placing.
This announcement does not constitute an offer to sell or issue or a solicitation of an offer to buy or subscribe for Rump Placing Shares in any jurisdiction including, without limitation, the United States, Canada, Australia, South Africa or Japan or any other jurisdiction in which such offer or solicitation is or may be unlawful (a "Prohibited Jurisdiction"). This announcement and the information contained herein are not for publication or distribution, directly or indirectly, to persons in a Prohibited Jurisdiction unless permitted pursuant to an exemption under the relevant local law or regulation in any such jurisdiction.
The distribution of this announcement, the Rump Placing and/or issue of the Rump Placing Shares in certain jurisdictions may be restricted by law and/or regulation. No action has been taken by the Company, Collins Stewart, BarCap or any of their respective Affiliates (as defined below) that would permit an offer of the Rump Placing Shares or possession or distribution of this announcement or any other offering or publicity material relating to such Rump Placing Shares in any jurisdiction where action for that purpose is required. Persons receiving this announcement are required to inform themselves about and to observe any such restrictions.
Collins Stewart Europe Limited and Barclays Capital, the investment banking division of Barclays Bank PLC, which are authorised and regulated in the United Kingdom by the Financial Services Authority, are acting for Development Securities PLC and for no one else in connection with the Rump Placing and will not be responsible to anyone other than Development Securities PLC for providing the protections afforded to clients of Collins Stewart Europe Limited or Barclays Capital, the investment banking division of Barclays Bank PLC, or for affording advice in relation to the Rump Placing, or any other matters referred to herein.
By participating in the Rump Placing, each person who is invited to and who chooses to participate in the Rump Placing (a "Placee") by making or accepting an oral offer to take up Rump Placing Shares is deemed to have read and understood this announcement, including this appendix, in its entirety and to be making or accepting such offer on the terms and conditions, including this condition and providing the representations, warranties, undertakings, agreements and acknowledgements contained in this appendix.
In particular, each such Placee represents, warrants and acknowledges that it is:
(a) a Relevant Person and undertakes that it will acquire, hold manage or dispose of any Rump Placing Shares that are allocated to it for the purposes of its business; and
(b) outside of the United States and is subscribing for the Rump Placing Shares in an "offshore transaction" in reliance upon Regulation S.
Bookbuild
Commencing today, Collins Stewart and Barcap will be conducting an accelerated bookbuilding process (the "Bookbuilding Process") to determine demand for participation in the Rump Placing by Placees. This appendix gives details of the terms and conditions of, and the mechanics of participation in, the Rump Placing.
Participation in, and principal terms of, the Bookbuilding Process
Each of Collins Stewart, Barcap and their respective Affiliates is entitled to participate as a Placee in the Bookbuilding Process.
The Bookbuilding Process will establish a single price (the "Placing Price") payable to Collins Stewart or Barcap (as appropriate) by all Placees.
The Bookbuilding Process is expected to close not later than 3.00 p.m. London time on 12 August 2010, but may be closed earlier at the sole discretion of Collins Stewart and Barcap. A further announcement will be made following the close of the Bookbuilding Process detailing the Placing Price at which the Rump Placing Shares are being placed (the "Pricing Announcement"). Collins Stewart and Barcap may, in their respective sole discretions, accept bids that are received after the Bookbuilding Process has closed.
A bid in the Bookbuilding Process will be made on the terms and conditions in this appendix and will not be capable of variation or revocation after the close of the Bookbuilding Process.
A Placee who wishes to participate in the Bookbuilding Process should communicate its bid by telephone to its usual sales contact at Collins Stewart or BarCap. If successful, Collins Stewart or BarCap (as appropriate) will re-contact and confirm orally to Placees following the close of the Bookbuilding Process and the size of their respective allocations (a "Placing Commitment") and a trade confirmation (a "Confirmed Commitment Letter") will be dispatched as soon as possible thereafter. Collins Stewart's or Barcap's (as the case may be) oral confirmation of the size of Placing Commitments and each Placee's oral commitments to accept the same will constitute a legally binding agreement pursuant to which each such Placee will be required to accept the number of Rump Placing Shares comprised in its Placing Commitment at the Placing Price set out in the Pricing Announcement and otherwise on the terms and subject to the conditions set out herein.
Collins Stewart and BarCap reserve the right to scale back the number of Rump Placing Shares to be subscribed by any Placee in the event of an oversubscription under the Rump Placing. Collins Stewart and BarCap also reserve the right not to accept offers to subscribe for Rump Placing Shares or to accept such offers in part rather than in whole. The acceptance of offers shall be at the absolute discretion of Collins Stewart and BarCap. Collins Stewart and BarCap shall be entitled to effect the Rump Placing by such alternative method to the Bookbuilding Process as they shall in their sole discretions determine. To the fullest extent permissible by law, neither Collins Stewart nor BarCap, any holding company of either of them, nor any subsidiary, branch or affiliate of Collins Stewart or Barcap (each an "Affiliate") nor any person acting on their behalf shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither Collins Stewart nor BarCap, nor any Affiliate thereof nor any person acting on their behalf shall have any liability in respect of the conduct of the Bookbuilding Process or of such alternative method of effecting the Rump Placing as Collins Stewart and BarCap may determine. No commissions will be paid to Placees or by Placees in respect of any Rump Placing Shares.
Each Placee's obligations will be owed to the Company, Collins Stewart and BarCap. Following the oral confirmation referred to above, each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to Collins Stewart or BarCap (depending upon which of Collins Stewart or BarCap has confirmed orally such Placee's Placing Commitment to it), to pay to Collins Stewart or BarCap (as appropriate) (or as Collins Stewart or BarCap (as appropriate) may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Rump Placing Shares such Placee has agreed to acquire.
Details of the Underwriting Agreement and the Rump Placing Shares
The Company has entered into an underwriting agreement (the "Underwriting Agreement") with Collins Stewart and BarCap, under which Collins Stewart and BarCap each have, as agents for the Company, subject to the terms set out therein, agreed, amongst other things, to use their respective reasonable endeavours procure Placees for the Rump Placing Shares.
To the extent that Collins Stewart and/or BarCap do not procure persons to take up the Rump Placing Shares, Collins Stewart and/or BarCap and/or sub-underwriters shall acquire such shares.
The Rump Placing Shares will, when issued and fully paid, rank in full for all dividends declared after the Record Date other than the 2010 Interim Dividend and otherwise pari passu in all respects with the Existing Shares.
Collins Stewart and BarCap shall not have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision they may make as to whether or not to exercise any discretion or power under the Underwriting Agreement or to waive or to extend the time and/or date for the satisfaction of any condition in the Underwriting Agreement or in respect of the Rump Placing generally.
By participating in the Rump Placing, each Placee agrees that its rights and obligations hereunder will not be capable of rescission or termination by the Placee after the oral confirmation referred to under "Participation in, and principal terms of, the Bookbuilding Process" above.
Prospectus
The Prospectus was published in connection with the Rights Issue and was approved by the UK Listing Authority. A Placee may only rely on the information contained in the Prospectus in deciding whether or not to participate in the Rump Placing.
Each Placee, by accepting a participation in the Rump Placing, agrees that this announcement is not, and is not intended to be, a prospectus or constitute an offer to sell, or a solicitation of an offer to subscribe for, the securities being issued in connection with the Rump Placing.
Each Placee, by accepting a participation in the Rump Placing, agrees that the content of this announcement and the Prospectus is exclusively the responsibility of the Company and the persons stated therein as accepting responsibility for the announcement and the Prospectus and confirms to Collins Stewart, BarCap and the Company that other than the Prospectus and this announcement it has neither received nor relied on any information, representation, warranty or statement made by or on behalf of Collins Stewart or BarCap (other than the amount of its Placing Commitment in the oral confirmation given to Placees and the Confirmed Commitment Letter), any of its Affiliates, the Company, any of its affiliates, any persons acting on their behalf or any other person and neither Collins Stewart, BarCap nor any of their Affiliates, nor the Company nor any of its affiliates nor any persons acting on their behalf, nor any other person will be liable for the decision of any Placee to participate in the Rump Placing based on any other information, representation, warranty or statement which the Placee may have obtained or received (regardless of whether or not such information, representation, warranty or statement was given or made by or on behalf of any such persons). By participating in the Rump Placing, each Placee acknowledges to and agrees with Collins Stewart and BarCap for themselves and as agents for the Company that, except in relation to the information contained in this announcement and the Prospectus, it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Rump Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
Registration and settlement
Settlement of transactions in the Rump Placing Shares (ISIN GB0002668464) will take place within the CREST system, using the DVP mechanism, subject to certain exceptions. Collins Stewart and BarCap each reserve the right to require settlement for and delivery of the Rump Placing Shares to Placees by such other means that they respectively deem necessary, 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 the Placee's jurisdiction.
Each Placee allocated Rump Placing Shares in the Rump Placing will be sent a Confirmed Commitment Letter stating the number of Rump Placing Shares allocated to it, the Placing Price, the aggregate amount owed by such Placee to Collins Stewart or BarCap (as the case may be) and settlement instructions. Placees should settle against CREST ID: 288 in the case of settlement to Collins Stewart and against CREST ID: 598 in the case of settlement to BarCap. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions which it has in place with Collins Stewart or BarCap (as appropriate).
It is expected that settlement of the Rump Placing will be on 16 August 2010 on a T+2 basis in accordance with the instructions set out in the Confirmed Commitment Letter.
Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out in this appendix at the rate of 2 percentage points above the base rate of Barclays Bank PLC.
Each Placee is deemed to agree that if it does not comply with these obligations, Collins Stewart or BarCap may sell any or all of the Rump Placing Shares allocated to such Placee on such Placee's behalf and retain from the proceeds, for its own account and profit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The Placee will, however, remain liable for any shortfall between the aggregate amount owed by such Placee and the net proceeds of sale of the Rump Placing Shares allocated to it and it 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 its Rump Placing Shares on its behalf.
If Rump Placing Shares are to be delivered to a custodian or settlement agent of a Placee, the relevant Placee should ensure that its Confirmed Commitment Letter is copied and delivered immediately to the relevant person within that organisation.
Insofar as Rump Placing Shares are registered in the name of a Placee or that of its nominee or in the name of any person for whom the Placee is contracting as agent or that of a nominee for such person, such Rump Placing Shares will, subject as provided below, be so registered free from any liability to PTM levy, stamp duty or stamp duty reserve tax. If there are any circumstances in which any other stamp duty or stamp duty reserve tax is payable in respect of the issue of the Rump Placing Shares, none of Collins Stewart, BarCap nor the Company shall be responsible for the payment thereof. Placees will not be entitled to receive any fee or commission in connection with the Rump Placing.
Representations, Warranties, Acknowledgements and Undertakings by Placees
By participating in the Rump Placing, each Placee (and any person acting on such Placee's behalf):
1. represents and warrants that it has read and understood this announcement (including this appendix) and the Prospectus in their entirety and acknowledges that its participation in the Placing will be governed by the terms of this appendix and the Prospectus;
2. (i) acknowledges that its acceptance of its Placing Commitment and its participation in the Rump Placing are not by way of acceptance of the public offer to be made in the Prospectus and Provisional Allotment Letters but are by way of a collateral contract and as such section 87Q of the FSMA does not entitle it to withdraw from any such commitments or participation if the Company publishes a supplementary prospectus in connection with the Rights Issue; and (ii) irrevocably undertakes to Collins Stewart, BarCap and the Company that if at any time it becomes entitled pursuant to section 87Q of the FSMA to withdraw its Placing Commitment or otherwise not to acquire the Rump Placing Shares in the Rump Placing upon the terms and conditions of this appendix, it will forthwith re-confirm to Collins Stewart or BarCap (as appropriate) its Placing Commitment on the terms in this appendix and its acceptance by completing and returning to Collins Stewart or BarCap (as appropriate) a further Form of Confirmation in respect of the full Placing Commitment referred to in the Form(s) of Confirmation returned by it before such withdrawal rights arose.
3. agrees to indemnify on an after-tax basis and hold harmless each of the Company, Collins Stewart, BarCap, their respective Affiliates and any person acting on their behalf 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 Rump Placing and the Rights Issue;
4. acknowledges that the Rump Placing Shares will be admitted to the Official List of the UK Listing Authority, and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the FSA (collectively, the "Exchange Information") and that the Placee is able to obtain or access the Exchange Information without undue difficulty;
5. acknowledges that neither Collins Stewart, BarCap nor any of their Affiliates nor any person acting on their behalf has provided, and will not provide it, with any material or information regarding the Rump Placing Shares or the Company; nor has it requested Collins Stewart, BarCap any of their Affiliates or any person acting on their behalf to provide it with any such material or information;
6. acknowledges that the content of this announcement and the Prospectus is exclusively the responsibility of the Company and the persons stated therein as accepting responsibility for this announcement and the Prospectus (respectively) and that neither Collins Stewart, BarCap nor any of their Affiliates nor any person acting on their behalf will be responsible for or shall have any liability for any information, representation or statement relating to the Company contained in this announcement or the Prospectus or any information previously published by or on behalf of the Company and neither Collins Stewart, BarCap nor any of their Affiliates nor any person acting on their behalf will be liable for any Placee's decision to participate in the Rump Placing based on any information, representation or statement contained in this announcement or the Prospectus or otherwise. Each Placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing to subscribe for the Rump Placing Shares is contained in this announcement or the Prospectus and any Exchange Information, such information being all that it deems necessary to make an investment decision in respect of the Rump Placing Shares, and that it has neither received nor relied on any other information given or representations, warranties or statements made by any of Collins Stewart, Barcap, the Company, their affiliates or any person acting on their behalf and that none of such persons will be responsible or liable for any Placee's decision to participate in the Rump Placing based on any other information, representation, warranty or statement. Each Placee further represents, warrants and agrees that it has relied on its own investigation with respect to the Rump Placing Shares and the Company in connection with its decision to subscribe for the Rump Placing Shares and acknowledges that it is not relying on any investigation that Collins Stewart, Barcap any of their Affiliates or any person acting on their behalf may have conducted with respect to the Rump Placing Shares or the Company and none of such persons has made any representations to it, express or implied, with respect thereto;
7. acknowledges that it has not relied on any information relating to the Company contained in any research reports prepared by Collins Stewart, BarCap, their Affiliates or any person acting on their behalf and understands that (i) none of Collins Stewart, BarCap, any of their Affiliates nor any person acting on their behalf has or shall have any liability for public information or any representation; (ii) none of Collins Stewart, BarCap, any of their Affiliates nor any person acting on their behalf has or shall have any liability for any additional information that has otherwise been made available to such Placee, whether at the date of publication, the date of this document or otherwise; and that (iii) none of Collins Stewart, BarCap, any of their Affiliates nor any person acting on their behalf makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of such information, whether at the date of publication, the date of this document or otherwise;
8. represents and warrants that (i) it is entitled to acquire the Rump Placing Shares under the laws and regulations of all relevant jurisdictions which apply to it; (ii) it has fully observed such laws and regulations and obtained all such governmental and other guarantees and other consents and authorities which may be required thereunder and complied with all necessary formalities; (iii) it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to participation in the Placing in respect of the Rump Placing Shares and which its Placing Commitment entitles it 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 appendix) and will honour such obligations; (iv) it has paid any issue, transfer or other taxes due in connection with its participation in any territory and (v) it has not taken any action which will or may result in the Company, Collins Stewart, BarCap, any of their affiliates or any person acting on their behalf being in breach of the legal and/or regulatory requirements of any territory in connection with the Rump Placing or the Rights Issue;
9. represents and warrants that the issue to the Placee, or the person specified by the Placee for registration as holder, of Rump 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 Rump Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer Rump Placing Shares into a clearance system;
10. represents and warrants that it understands that the Rump Placing Shares have not been and will not be registered under the Securities Act or under the securities laws of any state or other jurisdiction of the United States (as defined below) and that the Company has not been and will not be registered as an "investment company" under the United States Investment Company Act of 1940, as amended;
11. represents and warrants that neither it nor its Affiliates nor any person acting on its or their behalf have engaged or will engage in any "general solicitation" or "general advertising" (within the meaning of Regulation D under the Securities Act)" or "directed selling efforts" (within the meaning of Regulation S) with respect to the Rump Placing Shares;
12. represents and warrants that it is, or at the time the Rump Placing Shares are acquired, it will be, (a) the beneficial owner of such Rump Placing Shares and is neither a person located in the United States (within the meaning of Regulation S) nor is it acquiring the Rump Placing Shares on behalf of a person in the United States and (b) acquiring the Rump Placing Shares in an offshore transaction (as defined in Regulation S) and it will not offer or sell, directly or indirectly, any of the Rump Placing Shares in the United States except in accordance with Regulation S or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act;
13. represents and warrants that it will not distribute, forward, transfer or otherwise transmit the Prospectus or this announcement (including electronic copies thereof), to any person within the United States;
14. represents and warrants that, if it is a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, the Rump Placing Shares purchased by it in the Rump Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in a Member State of the European Economic Area which has implemented the Prospectus Directive other than qualified investors, or in circumstances in which the prior consent of Collins Stewart or BarCap has been given to the offer or resale;
15. represents and warrants that it has not offered or sold and will not offer or sell any Rump Placing Shares to persons in the United Kingdom prior to Admission except to "qualified investors" as defined in section 86(7) of FSMA;
16. represents and warrants that it has not offered or sold and will not offer or sell any Rump 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 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;
17. represents and warrants that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) relating to the Rump Placing Shares in circumstances in which it is permitted to do so pursuant to section 21 of FSMA;
18. represents and warrants that it has complied and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Rump Placing Shares in, from or otherwise involving the United Kingdom;
19. represents and warrants that it has complied with its obligations in connection with money laundering and terrorist financing under the Criminal Justice Act 1993, the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Anti-terrorism Crime and Security Act 2001 and the Money Laundering Regulations (2007) (together the "Regulations") and, if it is making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations;
20. represents and warrants that it is (a) a person falling within Article 19(5) of the FPO or (b) a person falling within Article 49(2)(a) to (d) of the FPO and undertakes that it will acquire, hold, manage or dispose of any Rump Placing Shares that are allocated to it for the purposes of its business;
21. represents and warrants that it is a qualified investor as defined in section 86(7) of FSMA, being a person falling within Article 2.1(e)(i), (ii) or (iii) of the Prospectus Directive;
22. undertakes that it (and any person acting on its behalf) will pay for the Rump Placing Shares to be acquired by it in accordance with this appendix on the due time and date set out herein, failing which the relevant Rump Placing Shares may be placed with other persons or sold as Collins Stewart or BarCap may, in their absolute discretions, determine and it will remain liable for any shortfall between the net proceeds of such sale and the amount owed by such Placee in respect of its Placing Commitment and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties due pursuant to the terms set out or referred to in this appendix) which may arise upon the sale of such Placee's Rump Placing Shares on its behalf;
23. acknowledges that none of Collins Stewart, BarCap, any of their affiliates nor any person acting on their behalf is making any recommendations to it or advising it regarding the suitability or merits of any transaction it may enter into in connection with the Rump Placing or the Rights Issue, and acknowledges that neither Collins Stewart, BarCap, any of their Affiliates nor any person acting on their behalf has any duties or responsibilities to it for providing advice in relation to the Rump Placing or the Rights Issue or in respect of any representations, warranties, undertakings or indemnities contained in the Underwriting Agreement or for the exercise or performance of any of Collins Stewart's and/or BarCap's rights and obligations thereunder, including any right to waive or vary any condition or exercise any termination right contained therein;
24. undertakes that (i) the person whom it specifies for registration as holder of the Rump Placing Shares will be (a) the Placee or (b) the Placee's nominee, as the case may be, (ii) neither Collins Stewart, BarCap nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax resulting from a failure to observe this requirement and (iii) the Placee and any person acting on its behalf agrees to indemnify the Company, Collins Stewart and BarCap in respect of the same and acquire the Rump Placing Shares on the basis that the same will be allotted to the CREST stock account of Collins Stewart which will hold them as settlement agent as nominee for the Placees (or transfer them to BarCap to hold as settlement agent as nominee for the Placees procured by BarCap) until settlement in accordance with its standing settlement instructions with payment for the Rump Placing Shares being made simultaneously upon receipt of the Rump Placing Shares in the Placee's stock account on a delivery versus payment basis;
25. acknowledges that any agreements entered into by it pursuant to these terms and conditions and any non-contractual obligations arising out of or in connection with such agreements shall be governed by and construed in accordance with the laws of England and 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 Rump Placing Shares (together with any interest chargeable thereon) may be taken by the Company, BarCap or Collins Stewart 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;
26. acknowledges that it irrevocably appoints any director of Collins Stewart or BarCap as its agent for the purposes of executing and delivering to the Company and/or its registrars any documents on its behalf necessary to enable it to be registered as the holder of any of the Rump Placing Shares agreed to be taken up by it under the Rump Placing;
27. represents and warrants that it is not a resident of any Excluded Territory and acknowledges that the Rump Placing Shares have not been and will not be registered nor will a prospectus be cleared in respect of the same under the securities legislation of any Excluded Territories and, subject to certain exceptions, may not be offered, sold, taken up, renounced, delivered or transferred, directly or indirectly, within any Excluded Territories;
28. represents and warrants that any person who confirms to Collins Stewart or BarCap on behalf of a Placee an agreement to subscribe for Rump Placing Shares and/or who authorises Collins Stewart or BarCap to notify the Placee's name to the Company's registrar, has authority to do so on behalf of the Placee;
29. acknowledges that the agreement to settle each Placee's Placing Commitment (and/or the commitment of a person for whom it is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the issue to it and/or such person direct from the Company for the Rump Placing Shares in question. Such agreement assumes that the Rump Placing Shares are not being acquired in connection with the arrangements to issue depositary receipts or to transfer the Rump Placing Shares into a clearance service. If there were any such arrangements, or the settlement related to other dealing in the Rump Placing Shares, stamp duty or stamp duty reserve tax may be payable, for which neither the Company nor Collins Stewart nor BarCap will be responsible for its payment. If this is the case, the relevant Placee should take its own advice and notify Collins Stewart or BarCap (as appropriate) accordingly. In addition, Placees should note that they will be liable for any capital duty, stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the acquisition by them of any Rump Placing Shares or the agreement by them to acquire any Rump Placing Shares;
30. acknowledges that the Rump Placing Shares will be issued and/or transferred subject to the terms and conditions set out in this announcement and otherwise as stated in the Prospectus;
31. acknowledges that when a Placee or any person acting on behalf of the Placee is dealing with Collins Stewart or BarCap any money held in an account with Collins Stewart or BarCap 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 relevant rules and regulations of the FSA. 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 Collins Stewart or BarCap money (as appropriate) in accordance with the client money rules and will be used by Collins Stewart or BarCap (as the case may be) in the course of its business; and the Placee will rank only as a general creditor of Collins Stewart or BarCap (as the case may be);
32. acknowledges and agrees that the Company, BarCap, Collins Stewart, their respective Affiliates and any person acting on their behalf will rely upon the representations, warranties, undertakings, agreements and acknowledgements set out in this appendix and, if relevant, in the investor letter, and agrees to notify the Company, BarCap and Collins Stewart promptly in writing if any of its representations, warranties, undertakings, agreements or acknowledgements cease to be accurate and complete;
33. agrees to indemnify, on an after-tax basis, and hold the Company, Collins Stewart, BarCap 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 Rump Placing;
34. acknowledges that until 40 days after the commencement of the Rights Issue or procurement by Collins Stewart or BarCap of acquirers of the Rump Placing Shares not taken up, an offer or sale of Rump Placing Shares within the United States by any dealer (whether or not participating in the Rump Placing) may violate the registration requirements of the Securities Act if such offer or sale is made otherwise than in accordance with Rule 144A under the Securities Act;
35. acknowledges that Collins Stewart, BarCap and any of its Affiliates may become a Placee or may nominate any connected or associated person to do so; and
36. acknowledges that the basis of allocation will be determined by Collins Stewart and BarCap at their absolute discretion. The right is reserved to reject in whole or in part and/or scale back any participation in the Rump Placing.
The acknowledgements, agreements, undertakings, representations and warranties referred to above are given to each of the Company, BarCap and Collins Stewart (for their own benefit and, where relevant, the benefit of their Affiliates and any person acting on their behalf) and are irrevocable.
No UK stamp duty or stamp duty reserve tax should be payable to the extent that the Rump Placing Shares are issued or transferred (as the case may be) into CREST to, or to the nominee of, a Placee who holds those shares beneficially (and not as agent or nominee for any other person) within the CREST system and registered in the name of such Placee or such Placee's nominee.
Any arrangements to issue or transfer the Rump Placing Shares into a depositary receipts system or a clearance service or to hold the Rump Placing Shares as agent or nominee of a person to whom a depositary receipt may be issued or who will hold the Rump Placing Shares in a clearance service, or any arrangements subsequently to transfer the Rump Placing Shares, may give rise to stamp duty and/or stamp duty reserve tax, for which neither the Company nor Collins Stewart nor BarCap will be responsible and the Placee to whom (or on behalf of whom, or in respect of the person for whom it is participating in the Rump Placing as an agent or nominee) the allocation, allotment, issue or delivery of Rump Placing Shares has given rise to such stamp duty or stamp duty reserve tax undertakes to pay such stamp duty or stamp duty reserve tax forthwith and to indemnify on an after-tax basis and to hold harmless the Company, Collins Stewart and BarCap in the event that any of the Company and/or Collins Stewart and/or BarCap has incurred any such liability to stamp duty or stamp duty reserve tax.
In addition, Placees should note that they will be liable for any capital duty, stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the acquisition by them of any Rump Placing Shares or the agreement by them to acquire any Rump Placing Shares.
All times and dates in this appendix may be subject to amendment. Collins Stewart or BarCap will notify the Placees and any person acting on behalf of the Placees of any such changes.
This appendix has been issued by the Company and is the sole responsibility of the Company.
The rights and remedies of Collins Stewart, BarCap and the Company under these terms and conditions are in addition to any rights and remedies which would otherwise be available to each of them and the exercise or partial exercise or partial exercise of one will not prevent the exercise of others.
Each Placee may be asked to disclose in writing or orally to Collins Stewart and/or Barcap:
(a) if he is an individual, his nationality; or
(b) if he is a discretionary fund manager, the jurisdiction in which the funds are managed or owned.
DEFINITIONS
| 2010 Interim Dividend | the interim dividend declared on 22 July 2010 |
| BarCap | Barclays Capital, the investment banking division of Barclays Bank PLC, of 5 The North Colonnade, Canary Wharf, London E14 4BB |
| Collins Stewart | Collins Stewart Europe Limited of 88 Wood Street, London EC2V 7QR |
| Company | Development Securities PLC, a company incorporated under the laws of England and Wales (registered under no. 1528784), with its registered office at Portland House, Bressenden Place, London SW1E 5DS |
| CREST | the relevant system, as defined in the CREST Regulations (in respect of which Euroclear UK is the operator as defined in the CREST Regulations) |
| CREST Regulations or Regulations | the Uncertificated Securities Regulations 2001 (SI 2001/3755), as amended |
| EU or European Union | the European Union |
| Euroclear UK | Euroclear UK & Ireland Limited, the operator of CREST |
| European Economic Area | the European Union, Iceland, Norway and Liechtenstein |
| Excluded Territories and, each, an Excluded Territory | Australia, Canada, Japan, South Africa and any other jurisdiction where the extension or availability of the Rights Issue (or any transaction contemplated thereby and any activity carried out in connection therewith) would breach applicable law |
| Existing Shares | the Ordinary Shares in issue as at the date of this announcement |
| Financial Services Authority or FSA | the Financial Services Authority of the UK |
| FSMA | the Financial Services and Markets Act 2000, as amended |
| New Shares | Ordinary Shares to be allotted and issued pursuant to the Rights Issue |
| Official List | the Official List of the FSA pursuant to Part VI of the FSMA |
| Ordinary Shares or Shares | the ordinary shares of £0.50 each in the share capital of the Company |
| Prospectus | the prospectus published by the Company on 22 July 2010 in connection, inter alia, with the Rights Issue |
| Rights Issue | the issue by way of rights of New Shares on the basis described in the Prospectus |
| stock account | an account within a member account in CREST to which a holding of a particular share or other security in CREST is credited |
| subsidiary | as defined in section 1159 of the Companies Act 2006 |
| UK Listing Authority | the FSA in its capacity as the competent authority for the purposes of Part VI of the FSMA and in the exercise of its functions in respect of the admission to the Official List otherwise than in accordance with Part VI of the FSMA |
| uncertificated or in uncertificated form | recorded on the relevant register of the share or security concerned as being held in uncertificated form in CREST and title to which, by virtue of the CREST Regulations, may be transferred by means of CREST |
| Underwriting Agreement | the underwriting agreement dated 22 July 2010 between the Company, Barclays Capital and Collins Stewart relating to, inter alia, the Rights Issue as further described in the Prospectus |
| US or United States | the United States of America, its territories and possessions, any state of the United States and the District of Columbia |