EXHIBIT 99.2
DATED: 14 August 1998
(1) TELEWEST COMMUNICATIONS PLC
(2) TELEWEST COMMUNICATIONS HOLDINGS LIMITED
(3) COMCAST UK CABLE PARTNERS LIMITED
(4) NTL INCORPORATED
Agreement in respect of the rights of first refusal
relating to Birmingham Cable and Cable London
THIS AGREEMENT is made on 14 August 1998
BETWEEN:
(1) TELEWEST COMMUNICATIONS PLC (registered number 298307) whose registered
office is at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
("Telewest");
(2) TELEWEST COMMUNICATIONS HOLDINGS LIMITED (registered number 02982404) whose
registered office is at Genesis Business Park as aforesaid ("TCHL");
(3) COMCAST UK CABLE PARTNERS LIMITED whose registered office is at ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ West, ▇▇▇▇▇▇▇▇, ▇▇ 11, Bermuda ("CUKCP"); and
(4) NTL INCORPORATED whose principal place of business is at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("NTL").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 The following words and expressions where used in this Agreement have the
meanings given to them below:-
"acceptance period" as defined in clause 4.2;
"Acquisition" the acquisition of shares in Cable London upon CL Completion
pursuant to clause 4.6;
"Amalgamation" the proposed amalgamation to be made between NTL (Bermuda)
Limited and CUKCP pursuant to the Agreement and Plan of
Amalgamation dated 4 February 1998 between NTL (1), NTL
(Bermuda) Limited (2) and CUKCP (3), as such agreement may
be amended or restructured, or any similar business
combination involving CUKCP and NTL or their affiliates;
"Approvals" (a) the purchaser (as defined in clause 4.5) receiving
written confirmation from the Secretary of
State for Trade and Industry ("DTI") and from the
Independent Television Commission ("ITC"), in terms
reasonably satisfactory to the purchaser, to the effect that
the Acquisition will not lead to the revocation of any
licenses (issued pursuant to the Cable and Broadcasting ▇▇▇
▇▇▇▇ or the Broadcasting ▇▇▇ ▇▇▇▇ (as amended)) or the
revocation of any of the telecommunications or wireless
telegraphy licenses issued by the DTI pursuant to the
Telecommunications ▇▇▇ ▇▇▇▇ or the Wireless ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ or 1998 which are held by Cable London and any of its
subsidiary undertakings;
(b) the Office of Fair Trading having indicated to the
purchaser, in terms reasonably satisfactory to the
purchaser, either that the Acquisition does not qualify for
investigation by the Monopolies and Mergers Commission
pursuant to the Fair Trading Act 1973 or that the Secretary
of State for Trade and Industry has decided not to refer the
Acquisition to the Monopolies and Mergers Commission; and
(c) CIBC consenting, in terms reasonably satisfactory to the
purchaser, to (i) the Acquisition (ii) the capitalisation
referred to in clause 4.7 (unless the CL Loans and Fees are
to be assigned), (iii) the release of the shares in Cable
London to be sold by the vendor pursuant to the Acquisition
from the security granted to CIBC over such shares and the
termination of any deed of subordination between the vendor
and CIBC and (iv) the assignment of the CL Loans and Fees to
the purchaser, in each case with effect from CL Completion
(unless the CL Loans and Fees are to be capitalized pursuant
to Clause 4.7);
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"BC Completion" the performance of the obligations to complete the sale and
purchase of the Joint BC Shares and such other interest (if
any) which CUKCP has in any other shares in Birmingham Cable
in accordance with clause 2;
"BC Consultant
Agreement" the Consultant Agreement for Operational Assistance dated 25
April 1990 between Birmingham Cable (1) Birmingham Cable
Limited (2) and Comcast UK Consulting Inc. (formerly Comcast
BV Inc.) (3) as amended by a Supplemental Agreement dated 8
April 1994 between Birmingham Cable (1), Birmingham Cable
Limited (2) and Comcast UK Consulting Inc. (3);
"BC Loans and Fees" the subordinated loans (including interest) and fees due to
CUKCP and Comcast UK Consulting Inc. from Birmingham Cable
and its subsidiary undertakings;
"BC Management
Agreement" the Management Agreement dated 25 April 1990 between
Birmingham Cable (1), Birmingham Cable Limited (2), US West
International Holdings Inc. (3) and Comcast Cablevision of
Birmingham Inc. (4) as novated pursuant to the Assignment
Agreement dated 27 August 1990 between Birmingham Cable (1),
Birmingham Cable Limited (2), US West International Holdings
Inc. (3), Comcast Cablevision of Birmingham Inc. (4), US
West Cable Communications Limited (5) and Comcast UK
Consulting Inc. (6) and the Assignment and Amendment
Agreement dated 5 August 1992 between Birmingham Cable (1),
Birmingham Cable Limited (2), US West Cable Communications
Limited (3), Comcast UK Consulting Inc. (4) and TeleWest
Communications Group Limited (5);
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"BC Offer Notice" the offer notice despatched by the board of directors of
Birmingham Cable pursuant to Article 59(D) of the Articles
of Association of Birmingham Cable following the receipt by
Birmingham Cable of a transfer notice from General Cable PLC
dated August 1998;
"Birmingham Cable" Birmingham Cable Corporation Limited (registered number
2170379);
"Birmingham Link
Agreement" the Agreement concerning Birmingham- Croyden Link dated
February 13, 1993 between National Transcommunications
Limited and Birmingham Cable;
"Business Day" a weekday (other than a Saturday) on which clearing banks
are ordinarily open for business in both the City of London
and New York;
"Cable London" Cable London PLC (registered number 01794264);
"CIBC" Canadian Imperial Bank of Commerce (as agent and security
trustee under the terms of the 170 million pounds sterling
credit facility in favor of Cable London);
"CL Completion" the performance of the obligations to complete the sale and
purchase of shares in Cable London in accordance with clause
4;
"CL Loans and Fees" the subordinated loans (including interest thereon) and fees
due to the vendor and MediaOne Cable Communications (if the
vendor is Telewest) and Comcast UK Consulting Inc. (if the
vendor is CUKCP) and any of their respective subsidiaries
and parent undertakings from Cable London and its subsidiary
undertakings;
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"Co-ownership
Agreement" the Co-ownership Agreement dated 12 March 1990 originally
between US West International Holdings Inc. (1) and Comcast
Cablevision of Birmingham Inc. (2) as subsequently amended,
supplemented and novated, it being acknowledged by the
parties to this Agreement that the parties to the
Co-ownership Agreement are now TCHL and CUKCP;
"CUKCP Consultant
Agreement" the Consultant Agreement for Operational Assistance dated 17
August 1989 between Cable London (1) and Comcast Corporation
(2), as subsequently assigned to Comcast UK Consulting Inc.
(for so long as it remained a subsidiary of Comcast
Corporation) pursuant to an Assignment Agreement dated 14
September 1990 between Comcast Corporation (1), Comcast UK
Consulting Inc. (2), Cable London (3) and Cable Camden
Limited, Cable Enfield Limited, Cable ▇▇▇▇▇▇▇ & Islington
Limited and Cable Haringey Limited (4);
"Equalisation Deed" the Equalisation Deed dated 17 July 1996 between Telewest
(1) and CUKCP (2);
"GC Shares" the 22,958,319 ordinary shares of 1 pound sterling each in
Birmingham Cable registered in the name of General Cable
PLC;
"Joint BC Shares" the 28,060,167 ordinary shares of 1 pound sterling each in
Birmingham Cable registered in the joint names of TCHL and
CUKCP;
"offer" as defined in clause 4.1;
"offer notice" as defined in clause 4.1;
"prescribed period" the period of 90 calendar days after the expiry of the
acceptance period or, if an appropriate election is made
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pursuant to sub-clause 4.5.2 to extend such period, the
period ending up to 90 calendar days after the Long Stop
Date (as defined in clause 4.5.2);
"purchaser" as defined in clause 4.5;
"Shoot-out Period" the period commencing on the date which is the earlier of
(i) six calendar months after (x) the date of completion of
the Amalgamation or (y) if earlier, 31 December 1998 and
(ii) the earlier of (a) the date on which a public
announcement is made of a firm intention to make a
recommended offer for the ordinary shares of Telewest (other
than those owned or contracted to be acquired by the offeror
or persons acting in concert with the offeror) or of a
merger between NTL and a third party (being a person which
prior to such merger is not a member of the same group as
NTL) where NTL is not the surviving entity whether or not,
in either case, subject to the satisfaction of any
pre-conditions and (b) completion of any such offer or
merger whether or not recommended, and ending at midnight on
the date which is three calendar months thereafter (both
dates inclusive);
"Subscription
Agreements" (a) the subscription agreement dated 4 May 1989 between
Birmingham Cable (1) and US West International Holdings Inc.
(2);
(b) the BCC Subscription Agreement dated 31 May 1989 between
Birmingham Cable (1), US West International Holdings Inc.
(2), Compagnie Generale des Eaux (3), The Cable Corporation
Limited (4) and The Standard Life Assurance Company (5);
(c) the Supplemental Subscription Agreement dated 16 March
1990 between Birmingham Cable (1), US West International
Holdings Inc. (2), Compagnie Generale des Eaux (3), The
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Cable Corporation Limited (4), The Standard Life Assurance
Company (5), Comcast Cablevision of Birmingham Inc. (6) and
General Cable Limited (7);
(d) the Second Supplemental Subscription Agreement dated 16
March 1990 between Birmingham Cable (1), US West
International Holdings Inc. (2), Compagnie Generale des Eaux
(3), The Cable Corporation Limited (4), The Standard Life
Assurance Company (5), Comcast Cablevision of Birmingham
Inc. (6) and General Cable Limited (7);
(e) the Third Supplemental Subscription Agreement dated 12
May 1992 between Birmingham Cable (1), US West International
Holdings Inc. (2), Compagnie Generale des Eaux (3), The
Cable Corporation Limited (4), The Standard Life Assurance
Company (5), Comcast Cablevision of Birmingham Inc. (6),
General Cable Limited (7) and US West Cable Programming
Corporation (8);
(f) the Agreement dated 30 March 1994 between General Cable
Limited (1), Compagnie Generale des Eaux (2), TCI/US West
Communications Inc. (3), US West International Holdings Inc.
(4), United Artists Cable Television International Holdings
Inc. (5), CUKCP (6), Comcast Corporation (7), The Cable
Corporation Limited (8), Birmingham Cable (9), Birmingham
Cable Limited (10) and The Standard Life Assurance Company
(11); and
(g) the Novation Agreement dated 21 November 1994 between
General Cable PLC (1), Compagnie Generale des Eaux (2),
TCI/US West Cable Communications Inc. (3), US West
International Holdings Inc. (4), United Artists Cable
Television International Holdings Inc. (5), CUKCP (6),
Comcast
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Corporation (7), Comcast Cablevision of Birmingham Inc. (8),
The Cable Corporation Limited (9), Birmingham Limited (10),
Birmingham Cable Limited (11), The Standard Life Assurance
Company (12), TCHL (13) and Telewest Communications plc(14);
"Sum" as defined in clause 4.1;
"Telewest
Consultant
Agreement" the Consultant Agreement for Technical Assistance between
Cable London (1) and MediaOne Cable Communications Limited
(2);
"vendor" as defined in clause 4.5.
1.2 Where used in this Agreement, the terms "subsidiary undertaking", "parent
undertaking" and "director" shall have the meanings respectively attributed to
them by the Companies ▇▇▇ ▇▇▇▇ (as amended).
1.3 The headings used in this Agreement are for convenience only and shall not
affect its meaning.
1.4 References to a clause or schedule are (unless otherwise stated) to a clause
of or schedule to this Agreement.
1.5 Words importing one gender shall (where appropriate) include any other
gender and words importing the singular shall (where appropriate) include the
plural and vice versa.
1.6 References in this Agreement to times and dates are references to times and
dates prevailing in London.
2. SALE OF JOINT BC SHARES
2.1 CUKCP shall sell or procure to be sold and Telewest shall purchase:
2.1.1 CUKCP's interest in the Joint BC Shares with full title guarantee and
such other interest (if any) which CUKCP has in any other shares in
Birmingham Cable;
2.1.2 CUKCP's right to, and interest in, the BC Loans and Fees;
in each case, upon and subject to the terms and conditions of this
Agreement.
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2.2 CUKCP shall procure that Telewest shall acquire CUKCP's interest in the
Joint BC Shares and such other interest (if any) which CUKCP has in any other
shares in Birmingham Cable free from all liens, charges and encumbrances and any
other third party rights whatsoever and together with all rights now or
hereafter attaching to them.
2.3 The consideration for the sale and purchase of CUKCP's interest in the Joint
BC Shares and such other interest (if any) which CUKCP has in any other shares
in Birmingham Cable shall be the sum of 125,000,000 pounds sterling and
5,000,000 pounds sterling (or 2,500,000 pounds sterling if the Amalgamation does
not occur on or prior to BC Completion with a further 2,500,000 pounds sterling
to be paid forthwith on the Amalgamation being completed) in respect of CUKCP's
interest in the BC Loans and Fees, which consideration shall be payable in cash.
2.4 BC Completion
2.4.1 BC Completion shall take place at the offices of Freshfields, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ immediately prior to the Amalgamation being
completed or, if the Amalgamation occurs before 16 October 1998, on
16 October 1998 PROVIDED THAT if the Amalgamation has not taken place by 31
December 1998, BC Completion shall occur on 31 December 1998. Each of CUKCP
and NTL undertakes to give to Telewest not less than 5 days prior notice of
the date on which the Amalgamation is expected to be completed provided
that the Amalgamation shall not be completed prior to such date. Where BC
Completion is to take place immediately prior to the Amalgamation, BC
Completion shall take place in escrow at the offices of Freshfields as
aforesaid on the Business Day immediately prior to the expected date of the
Amalgamation when each of CUKCP and Telewest shall deliver the documents to
be provided by it pursuant to Clause 2.5 to the other's solicitors and
Telewest shall telegraphically transfer the consideration due by it
pursuant to sub-clause 2.5.2.1 to CUKCP's solicitors. Such documents and
monies shall be held to the order of the deliveror pending satisfaction of
the escrow. The sole escrow condition shall be the Amalgamation being
completed when the documents shall be dated and the documents and monies
automatically released from the escrow to the order of the holder of such
documents and monies. If the escrow condition is not satisfied within two
Business Days of such delivery, the documents and
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monies (together with any interest accrued thereon) shall be returned to
the deliverors.
2.4.2 CUKCP agrees with Telewest that between the date of this Agreement
and BC Completion it shall not, except with the prior written consent of
Telewest:
2.4.2.1 sell, transfer, assign, grant options over, dispose of, or
otherwise deal in any manner whatsoever with the legal title to, or
the beneficial ownership of, or any other interest in, any shares in
Birmingham Cable beneficially owned by it or any loans due to it
(other than as contemplated by this Agreement);
2.4.2.2 demand repayment of any of the loans or accrued consulting
fees due to it or any of its subsidiary or parent undertakings by
Birmingham Cable or any of its subsidiary undertakings or the payment
of interest thereon (other than as contemplated by this Agreement);
and
2.4.2.3 enter into any agreement to do any of the foregoing in
relation to such shares in Birmingham Cable (other than as aforesaid).
2.5 On BC Completion:
2.5.1 CUKCP shall deliver to Telewest (subject to the right of Telewest to
waive any such requirement):
2.5.1.1 a stock transfer form duly executed by CUKCP only transferring
the Joint BC Shares to Telewest (subject to TCHL executing the same in
its capacity as a joint transferor);
2.5.1.2 resignation letters executed as deeds in a form reasonably
acceptable to Telewest from ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ resigning as
directors of Birmingham Cable with effect from BC Completion without
any compensation for loss of office and waiving any other claims which
they may have in their capacity as directors against Birmingham Cable;
2.5.1.3 an agreement in the form set out in Schedule 1 to this
Agreement duly executed by Comcast UK Consulting Inc.;
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2.5.1.4 a letter duly signed by CUKCP consenting to Telewest (or, if
so directed by Telewest, TCHL) being registered as the sole holder of
the Joint BC Shares for the purposes of Article 67(C) of Birmingham
Cable's Articles of Association;
2.5.1.5 an assignment in a form reasonably acceptable to Telewest duly
executed by CUKCP and Comcast UK Consulting Inc. assigning their
respective rights and interests in the BC Loans and Fees to Telewest
conditional upon Telewest entering into a deed of subordination in a
form reasonably acceptable to Chemical Investment Bank Limited
("Chemical") and providing to Chemical such evidence as is required by
clause 12.1(b) of the 175 million pounds sterling Revolving Credit
Facility Agreement dated 15 February 1995 in favor of Birmingham Cable
Limited;
2.5.2 Telewest shall (subject to the right of CUKCP to waive any such
requirement):
2.5.2.1 procure the telegraphic transfer of 130,000,000 pounds
sterling (or, if the Amalgamation does not occur on or prior to BC
Completion, 127,500,000 pounds sterling) in cleared funds to an
account specified by CUKCP, receipt of which shall discharge Telewest
from its obligation to pay the consideration for CUKCP's interest in
the Joint BC Shares, such other interest (if any) which CUKCP has in
any other shares in Birmingham Cable and the BC Loans and Fees;
2.5.2.2 deliver to CUKCP the counterpart of the agreement referred to
in sub-clause 2.5.1.3 duly executed by all of the parties to that
agreement (other than Comcast UK Consulting Inc.); and
2.5.2.3 if required by CUKCP, deliver to CUKCP or, if so directed, to
Chemical Investment Bank Limited, the deed of subordination and
evidence referred to in sub-clause 2.5.1.5 duly executed by Telewest.
2.6 Subject to CUKCP complying with its obligations under sub-clause 2.5.1, each
of CUKCP, Telewest and TCHL hereby agrees that the sale of CUKCP's interest in
the Joint BC Shares to Telewest (or TCHL) pursuant to clauses 2.1 to 2.5
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(inclusive) shall supersede the provisions of section 5 of the Co-ownership
Agreement which would otherwise apply as a result of the Amalgamation being
implemented.
2.7 Each of CUKCP and TCHL hereby (i) waives any claims and rights it may have
as at the date of this Agreement against the other or any of its subsidiary or
parent undertakings as of the date of this Agreement and (ii) agrees that with
effect from BC Completion, the Co-ownership Agreement shall forthwith terminate
without any liability for any of the parties to that Agreement.
2.8 Each of Telewest and TCHL undertakes that with effect from BC Completion, it
shall procure that CUKCP and its parent and subsidiary undertakings are released
from all past, present and future obligations under the Subscription Agreements.
2.9 Promptly following the signing of this Agreement, each of CUKCP and TCHL
shall inform the appraiser appointed under the Co-ownership Agreement of the
settlement reached under this Agreement and CUKCP and TCHL shall each use its
best endeavors to ensure that the appraisal process under such agreement is
terminated as soon as practicable. Any fees and expenses incurred in such
appraisal process shall be payable by CUKCP.
2.10 CUKCP hereby agrees to exercise all voting rights and other powers
available to it and to procure that those persons nominated by it as directors
of Birmingham Cable will vote and act in a manner so as to assist TCHL complying
with its obligations under sub-clause 2.5.2.
2.11 Following BC Completion, Telewest undertakes to CUKCP to use all reasonable
endeavors to obtain the release of CUKCP and its subsidiary and parent
undertakings as at the date of this Agreement from all guarantees, indemnities,
counter-indemnities and letters of comfort of any nature whatsoever (together
the "Guarantees") given to any third party by CUKCP or any of its subsidiary or
parent undertakings as at the date of this Agreement in respect of any liability
or obligation of Birmingham Cable or any of its subsidiary undertakings and
pending such release, to indemnify CUKCP (for itself and as agent for its
subsidiary and parent undertakings as at the date of this Agreement ) against
all amounts paid by any of them to any third party pursuant to any such
Guarantees arising after BC Completion. Telewest undertakes to CUKCP (for itself
and as agent for its
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subsidiary and parent undertakings as at the date of this Agreement) that it
will pay any amounts properly due and payable under the Guarantees as and when
the same shall come due.
2.12 If the Amalgamation is completed, NTL agrees that Birmingham Cable may
terminate the Birmingham Link Agreement by giving six months prior written
notice such notice to be served at any time on or after January 1, 2000.
Accordingly, NTL agrees that it shall, and shall procure that National
Transcommunications Limited shall, agree to an appropriate amendment to the
Birmingham Link Agreement to enable such termination in the event that the
Amalgamation occurs and CUKCP receives all sums due to it under clause 2.3.
3. SALE OF GC SHARES
3.1 CUKCP hereby agrees to exercise all voting rights and other powers available
to it and to procure that those persons nominated by it as directors of
Birmingham Cable will vote and act in a manner so as to ensure (so far as it is
within its power to do so) the BC Offer Notice is withdrawn and the pre-emption
procedure commenced by such notice is terminated as soon as practicable after
the signing of this Agreement.
3.2 In the event that such BC Offer Notice is not withdrawn and/or the
pre-emption procedure is not terminated, CUKCP (a) waives any objection it may
have to the BC Offer Notice or the transfer notice issued by General Cable plc
in connection with the BC Offer Notice, whether under Article 59 or Article 67
of Birmingham Cable's Articles of Association, or otherwise; (b) undertakes not
to acquire any GC Shares under the pre-emption provisions set out in Article 59
of Birmingham Cable's Articles of Association pursuant to the BC Offer Notice
(save as required to do so by TCHL to enable TCHL and CUKCP (at the expense of
TCHL and not CUKCP) to take up TCHL's rights under such pre-emption provisions);
and (c) hereby waives all and any rights it may have in any such shares acquired
by TCHL (whether jointly with CUKCP or otherwise) under the Co-ownership
Agreement and/or the Articles of Association of Birmingham Cable by virtue of
the operation of such pre-emption provisions (or otherwise).
3.3 CUKCP and NTL hereby agree (a) to waive all and any rights, claims and
potential claims each may have in relation to the takeover of General Cable PLC
by Telewest under the Co-ownership Agreement (and, in particular, clause 4.4
thereof) and (b) to waive all and any rights, claims and
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potential claims arising under the Co-ownership Agreement, the Articles of
Association of Birmingham Cable and/or the Articles of Association of Cable
London in relation to such takeover whether by virtue of any change of control
of TCHL and/or Telewest or otherwise.
3.4 CUKCP and NTL agrees to the provisions contained in this clause 3 in
consideration for Telewest and TCHL agreeing to the other provisions of this
Agreement.
4. CABLE LONDON SHOOT-OUT
4.1 At any time during the Shoot-out Period CUKCP may give notice and not later
than the end of the Shoot-out Period CUKCP shall give notice (an "offer notice")
to Telewest offering to sell to Telewest all of the shares in Cable London which
are or will at CL Completion be owned by CUKCP (including any shares issued to
CUKCP pursuant to clause 4.7) and all of the rights and interests of CUKCP and
its subsidiary undertakings in the CL Loans and Fees for the cash sum certain
(not to be calculated by reference to a formula) (the "Sum") specified in the
offer notice on the terms and conditions set out in this clause 4 (the "offer").
If CUKCP fails to give the offer notice prior to the end of the Shoot-out
Period, then CUKCP shall be deemed to have delivered an offer notice for a sum
equal to 100 million pounds sterling. At any time after the date of a public
announcement by CUKCP and NTL that the Amalgamation will not become effective
but prior to 31 December 1998, CUKCP shall have the right to give a notice to
Telewest electing to participate in the procedure specified in this clause 4.
Where this applies, for the purposes of this clause 4 and the definition of the
"Shoot-out Period" the date of such notice shall be substituted for the date on
which the Amalgamation is completed.
4.2 Telewest shall have a period of 30 calendar days ("the acceptance period")
commencing with and including the date of service of the offer notice and
expiring at the close of business on the twenty-ninth calendar day thereafter in
which to accept or decline the offer by notice to CUKCP.
4.3 If Telewest accepts the offer by notice given within the acceptance period,
CUKCP shall sell, and procure that its subsidiary undertakings shall sell,
subject to and conditional upon the Approvals being obtained or waived by
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Telewest, to Telewest with full title guarantee free from all liens, charges and
encumbrances (save as provided in sub-clause 4.6.2.2) and any other third party
rights whatsoever and with all rights then or thereafter attaching thereto and
Telewest shall purchase from CUKCP or any of its subsidiary undertakings all of
the shares in the capital of Cable London owned or to be owned, or in which
CUKCP has an interest, at CL Completion by CUKCP or its subsidiary undertakings
(including any shares issued to CUKCP pursuant to clause 4.7) and from CUKCP and
its subsidiary undertakings their respective rights and interests in the CL
Loans and Fees at the Sum specified in the offer notice.
4.4 If Telewest declines the offer by notice given within the acceptance period,
or no notice is given by Telewest within the acceptance period, Telewest shall
sell, and procure that its subsidiary undertakings and MediaOne Cable
Communications Limited shall sell, subject to and conditional upon the Approvals
being obtained or waivedby CUKCP, to CUKCP with full title guarantee free from
all liens, charges and encumbrances (save as provided in sub-clause 4.6.2.2) and
any other third party rights whatsoever and with all rights then or thereafter
attaching thereto and CUKCP shall purchase from Telewest or any of its
subsidiary undertakings all of the shares in the capital of Cable London owned
and to be owned, or in which Telewest has an interest, at CL Completion by
Telewest or its subsidiary undertakings (including any shares issued to Telewest
pursuant to clause 4.7) and from Telewest and its subsidiary undertakings their
respective rights and interests in the CL Loans and Fees, at the Sum specified
in the offer notice.
4.5 __________...
4.5.1 If either Telewest or CUKCP ("the purchaser") becomes obliged or
agrees under the terms of clauses 4.3 or 4.4 to purchase the shares in
Cable London which are owned by the other ("the vendor"), the sale of such
shares ("the CL Sale Shares") shall be completed on such date as the
purchaser may (subject as provided herein) specify on giving not less than
ten Business Days' prior notice to the vendor (provided that at CL
Completion all of the Approvals have been obtained or, to the extent
permitted, waived by the purchaser).
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4.5.2 If CL Completion has not occurred within 90 calendar days after the
end of the acceptance period ("the Long Stop Date"), the purchaser shall
cease to be entitled to purchase the CL Sale Shares and the CL Loans and
Fees unless it shall have elected, by notice in writing to the vendor prior
to such date to delay the date of CL Completion by a period of up to a
further 90 calendar days from the Long Stop Date. If the purchaser
exercises such option, it shall pay to the vendor at CL Completion an
amount equal to 5% of the Sum for every 30 calendar days (or part thereof)
by which the date for CL Completion is extended from the Long Stop Date up
to a maximum of 90 days. If the CL Sale Shares have not been purchased by
the end of the prescribed period, the purchaser shall cease to be entitled
to purchase the CL Sale Shares or the CL Loan and Fees and thereafter
(subject to clauses 4.5.3 and 4.5.4) the vendor shall have the option (to
be exercised and completed within 60 days) to purchase the CL Sale Shares
and the CL Loans and Fees from the purchaser for an amount equal to 70
percent of the Sum and this shall be the only remedy of the vendor for any
failure by the purchaser to acquire the CL Sale Shares and CL Loans and
Fees. If the vendor exercises this option, it shall give to the purchaser
not less than 10 Business Days' prior notice of the date of CL Completion.
4.5.3 If the purchaser is prohibited from acquiring the CL Sale Shares
solely because it is unable to obtain either of the Approvals referred to
in paragraphs (a) and (b) of the definition of "Approvals" by the expiry of
the prescribed period and the purchaser elects not to waive such Approvals,
the vendor shall have the option (to be exercised and completed within 60
days) to purchase the CL Sale Shares from the purchaser for the Sum. If the
vendor exercises this option, it shall give to the purchaser not less than
10 Business Days' prior notice of the date of CL Completion.
4.5.4 If the purchaser is unable to acquire the CL Sale Shares because it
is unable to obtain the Approval referred to in paragraph (c) of the
definition of "Approvals" by the expiry of the prescribed period, then
(subject to the provisions of clause 4.7) the provisions of clauses 4.1 to
16
4.8 (inclusive) shall cease to apply (without prejudice to any breaches of
such clauses prior to such date).
4.6 At CL Completion:
4.6.1 the vendor shall deliver to the purchaser:
4.6.1.1 a duly executed transfer of the shares in Cable London owned
by the vendor as at CL Completion (including any shares issued to the
vendor pursuant to clause 4.7) together with the share certificates
relating to such shares;
4.6.1.2 resignation letters executed as deeds in a form reasonably
acceptable to the purchaser from those directors of Cable London
appointed by the vendor resigning as directors of Cable London and its
subsidiary undertakings with effect from CL Completion without any
compensation for loss of office and waiving any other claims
whatsoever against Cable London;
4.6.1.3 if the Amalgamation shall not previously have been completed,
an agreement in a form reasonably satisfactory to the purchaser duly
executed by CUKCP (if CUKCP is the vendor) or MediaOne Cable
Communications Ltd. (if Telewest is the seller) terminating the CUKCP
Consultant Agreement (if CUKCP is the vendor) or the Telewest
Consultant Agreement (if Telewest is the seller) with effect from CL
Completion without any liability or obligations upon either party to
that Agreement (and, in the case of the termination of the CUKCP
Consultant Agreement, upon Comcast Corporation) other than for accrued
fees;
4.6.1.4 if CUKCP is the vendor, an agreement in a form reasonably
acceptable to Telewest, duly executed by CUKCP terminating the
Equalisation Deed with effect from CL Completion;
4.6.1.5 if Telewest is the vendor, an agreement in a form reasonably
acceptable to CUKCP, terminating all of the provisions of the
Equalisation Deed other than those contained in clauses 1, 4.1, 4.3, 7
and 10 to 14 (inclusive); and
17
4.6.1.6 unless the CL Loans and Fees are to be capitalized under
clause 4.7, an assignment in a form reasonably acceptable to the
purchaser duly executed by the vendor and MediaOne Cable
Communications Limited (if Telewest is the seller) and, where
appropriate, any of their respective subsidiary or parent undertakings
assigning their respective rights and interests in the CL Loans and
Fees to the purchaser;
4.6.2 the purchaser shall:
4.6.2.1 procure the telegraphic transfer of the Sum (or such lesser
amount in accordance with clause 4) in cleared funds to such account
as the vendor shall specify and any further amount payable to the
vendor pursuant to sub-clause 4.5.1;
4.6.2.2 if required by the vendor, deliver to the vendor or, if so
directed, to CIBC, a mortgage and deed of subordination in a form
reasonably acceptable to CIBC duly executed by the purchaser, together
with a legal opinion in a form reasonably acceptable to CIBC
confirming the capacity of the purchaser to enter into such documents
and that the purchaser's obligations thereunder are legal, valid and
binding and enforceable in accordance with their terms;
4.6.2.3 deliver to the vendor the counterparts of the agreements
referred to in sub-clauses 4.6.1.3, 4.6.1.4 or 4.6.1.5 (as
appropriate) and 4.6.1.6 duly executed by Cable London (in the case of
the document referred to in sub-clause 4.6.1.3) and the vendor (in the
case of the documents referred to in sub-clauses 4.6.1.4, 4.6.1.5 and
4.6.1.6).
4.7 Each of CUKCP and Telewest agrees that if a capitalization will result in
the Approval contained in paragraph (c) of the definition of "Approvals" being
obtained, or if requested by the proposed buyer of the CL Sale Shares, it shall,
conditional upon the consent of CIBC being obtained, exercise all voting rights
and other powers of control available to it, and procure that each director of
18
Cable London appointed by it will vote and act in a manner, so as to procure
that all loans and fees outstanding from the vendor (or any subsidiary or parent
undertaking of the vendor) (as defined in clause 4.5) including any interest on
such loans immediately prior to CL Completion are capitalised into ordinary
shares of 1 pound sterling each in Cable London immediately prior to or at CL
Completion.
4.8 Each of Telewest and CUKCP undertakes and agrees that prior to CL Completion
it shall exercise all rights and comply with all obligations which it may have
under the Equalisation Deed so as to ensure that any shares in Cable London
which are registered in the name of the other but held as nominee for it shall
be transferred to it.
4.9 The purchaser may waive any of the Approvals (other than the one referred to
in paragraph (c) of the definition of Approvals). Each of the parties agrees to
use best endeavours to procure that the Approvals are obtained following service
of an offer notice and shall cooperate and procure that Cable London and its
subsidiary undertakings shall cooperate to obtain the Approvals. In particular,
each of the parties agrees to take such action as CIBC may reasonably require in
order to obtain the Approval referred to in paragraph (c) of the definition of
Approvals.
4.10 The purchaser undertakes that with effect from CL Completion it shall
procure that the vendor and its parent and subsidiary undertakings as at the
date of this Agreement are released from all past, present and future
obligations under the Agreement dated 10 July 1989 between Cable London (1), US
West International Holdings (2), Comcast Corporation (3), ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
(4), ▇▇▇▇▇▇▇ ▇▇▇ (5), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (6) and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ (7).
4.11 Each of Telewest and CUKCP undertakes to the other that between the date of
this Agreement and the expiry of the Shoot-out Period it shall not and shall
procure that none of its subsidiary or parent undertakings shall, except with
the prior written consent of the other:-
4.11.1 sell, transfer, assign, grant options over, dispose of, or otherwise
deal in any manner whatsoever with the legal title to, or the beneficial
ownership of, or any other interest in, any shares in Cable London owned by
it or any loans due to it (other than as contemplated by this Agreement or
the Equalisation Deed);
19
4.11.2 demand repayment of any of the loans or accrued consultancy fees due
to it or any of its subsidiary or parent undertakings by Cable London or
any of its subsidiary undertakings or the payment of interest thereon
(other than as contemplated by this Agreement);
4.11.3 enter into any agreement to do any of the foregoing in relation to
such shares in Cable London (other than as aforesaid).
4.12 Each of Telewest and CUKCP agrees that it will consult with the other
following the expiry of the acceptance period and will take such action as the
purchaser may reasonably request, at the expense of the purchaser, in order to
minimise the payment of stamp duty on the transfer of any shares or the
assignment of any loans at CL Completion.
4.13 The vendor agrees with the purchaser that it shall exercise all voting
rights and other powers available to it and shall procure that each director of
Cable London appointed by it will act and vote in a manner so as not to prevent
the purchaser complying with its obligations under sub-clause 4.6.2.
4.14 Following CL Completion, the purchaser undertakes to the vendor to use all
reasonable endeavors to obtain the release of the vendor and its subsidiary and
parent undertakings as of the date of this Agreement from all guarantees,
indemnities, counter-indemnities and letters of comfort of any nature whatsoever
(together, the "Guarantees") given in relation to any liability or obligation of
Cable London or any of its subsidiary undertakings and pending such release, to
indemnify the vendor (for itself and as agent for its parent and subsidiary
undertakings) against all amounts paid by it (or any of them) to any third party
pursuant to any such Guarantees arising after CL Completion. The purchaser
further undertakes to the vendor (for itself and as agent for its subsidiary and
parent undertakings) that it will pay any amounts properly due and payable under
the Guarantees as and when the same fall due.
4.15 If CUKCP is the purchaser, Telewest undertakes to CUKCP, at the expense of
CUKCP, that it shall cooperate, shall exercise all voting rights and other
powers of control available to it and shall procure that each director of Cable
London appointed by it will act and vote in a manner, so as (i) to procure, if
so requested by CUKCP, that Cable London and its subsidiary undertakings are
acquired by CUKCP
20
pursuant to the Acquisition free from all indebtedness (being indebtedness which
is accounted for as such for the purposes of US GAAP) at CL Completion and (ii)
to enable CUKCP to refinance the existing 170 million pounds sterling facility
in favour of Cable London with effect from, or immediately prior to, CL
Completion.
5. CABLE LONDON HOUSEKEEPING
5.1 Each of Telewest and CUKCP hereby agrees that as soon as reasonably
practicable after the date of this Agreement and in any event prior to 31 August
1998, it shall exercise all voting rights and other powers of control available
to it, and shall procure that each director of Cable London appointed by it will
act and vote in a manner, so as to procure that:-
5.1.1 immediately following the Amalgamation being implemented, the CUKCP
Consultant Agreement and the Telewest Consultant Agreement are terminated
without any liability for any of the parties to those agreements and that
each of Telewest and CUKCP waives any claims and rights it may have against
the other or any of its subsidiary or parent undertakings with respect to
those agreements as of the date of this Agreement;
5.1.2 immediately following the Amalgamation being implemented, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇ are appointed as
directors of Cable London and ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ resign as
directors of Cable London without any compensation for loss of office;
5.1.3 the special resolution set out in Schedule 2 is duly passed.
5.2 Each of Telewest and CUKCP hereby agrees that immediately following the
Amalgamation being implemented, the following persons shall be treated as having
been appointed by it as its Nominated Directors (as defined in Cable London's
Articles of Association) and shall give notice of such fact to Cable London:-
Telewest ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
CUKCP ▇▇▇▇▇▇▇ ▇▇▇▇▇
21
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
5.3 Notwithstanding the Articles of Association of Cable London, CUKCP and
Telewest shall ensure that its Nominated Directors (as defined in such Articles)
do not claim any travelling, hotel and other expenses incurred by such directors
in connection with their duties.
6. TELEWEST GUARANTEE
6.1 In consideration of CUKCP entering into this Agreement with TCHL and
Telewest at the request of Telewest, Telewest hereby irrevocably and
unconditionally, as primary obligor, undertakes and guarantees the full, prompt
and complete performance by TCHL of all its obligations under this Agreement and
the due and punctual payment of all sums now or subsequently payable by TCHL to
CUKCP under this Agreement when the same shall become due and undertakes with
CUKCP that if TCHL shall default in the payment of any sum under this Agreement,
Telewest shall forthwith on demand by CUKCP pay such sum to CUKCP.
6.2 The guarantee contained in clause 6.1 is a continuing guarantee and shall
remain in force until all the obligations of TCHL under this Agreement have been
fully performed and all sums payable by TCHL have been fully paid.
6.3 The obligations of Telewest shall not be affected by any act, omission,
matter or thing which, but for this provision, might operate to release or
otherwise exonerate Telewest from its obligations or affect such obligations,
including without limitation and whether or not known to Telewest:-
6.3.1 any time, indulgence, waiver or consent at any time given to TCHL or
any other person;
6.3.2 any compromise or release of or abstention from perfecting or
enforcing any right or remedy against TCHL or any other person;
6.3.3 any legal limitation, disability, incapacity or other circumstance
relating to TCHL or any other person or any amendment to or variation of
the terms of this Agreement or any other document referred to in this
Agreement; and
6.3.4 any irregularity, unenforceability or invalidity of any obligations
of TCHL under this Agreement or the dissolution, amalgamation,
reconstruction or insolvency of TCHL.
22
6.4 The guarantee contained in clause 6.1 may be enforced by CUKCP without CUKCP
first taking any steps or proceedings against TCHL.
6.5 All payments to be made by Telewest shall be made in full, without set-off
or counterclaim and without any deduction whatsoever except to the extent
required by law.
6.6 The obligations of Telewest under this clause 6 shall not take effect until,
and are conditional upon, Telewest exercising its rights under clause 11.10.
7. NTL GUARANTEE
7.1 In consideration of TCHL and Telewest entering into this Agreement with
CUKCP and NTL at the request of NTL, NTL hereby irrevocably and unconditionally,
as primary obligor, undertakes and guarantees, the full, prompt and complete
performance by CUKCP of all its obligations under this Agreement and the due and
punctual payment of all sums now or subsequently payable by CUKCP to TCHL under
this Agreement when the same shall become due and undertakes with TCHL that if
CUKCP shall default in the payment of any sum under this Agreement, NTL shall
forthwith on demand by TCHL pay such sum to TCHL.
7.2 The guarantee contained in clause 7.1 is a continuing guarantee and shall
remain in force until all the obligations of CUKCP under this Agreement have
been fully performed and all sums payable by CUKCP have been fully paid.
7.3 The obligations of NTL shall not be affected by any act, omission, matter or
thing which, but for this provision, might operate to release or otherwise
exonerate NTL from its obligations or affect such obligations, including without
limitation and whether or not known to NTL:-
7.3.1 any time, indulgence, waiver or consent at any time given to CUKCP or
any other person;
7.3.2 any compromise or release of or abstention from perfecting or
enforcing any right or remedy against CUKCP or any other person;
7.3.3 any legal limitation, disability, incapacity or other circumstance
relating to CUKCP or any other person or any amendment to or variation of
the terms of
23
this Agreement or any other document referred to in this Agreement; and
7.3.4 any irregularity, unenforceability or invalidity of any obligations
of CUKCP under this Agreement or the dissolution, amalgamation,
reconstruction or insolvency of CUKCP.
7.4 The guarantee contained in clause 7.1 may be enforced by TCHL or Telewest
without TCHL or Telewest first taking any steps or proceedings against CUKCP.
7.5 All payments to be made by NTL shall be made in full, without set-off or
counterclaim and without any deduction whatsoever except to the extent required
by law.
7.6 The obligations of NTL under this clause 7 shall not take effect until, and
are conditional upon, the completion of the Amalgamation.
8. NOTICES
8.1 Any notice, consent, request, approval or other communication (a "Notice")
to be given or made under this Agreement shall be in writing and signed by or on
behalf of the person giving it and shall be irrevocable without the written
consent of the party or parties on whom it is served.
8.2 Any Notice may only be served:
8.2.1 personally by giving it to any director or the secretary of the party
to be served;
8.2.2 by leaving it at, or sending it by prepaid first class post (or by
prepaid first class airmail if from one country to another country) to the
address of the party to be served which is referred to in clause 8.4 or if
another address shall have been notified to all the other parties for the
purposes of this clause 8 by notice given in accordance with this clause
8.2, then to the address of such party which shall have been so notified,
for which purpose the latest notification shall supersede all previous
notifications;
8.2.3 by sending it by facsimile transmission to the number for the party
to whom it is to be sent which is referred to in clause 8.4 or if another
number shall have been notified to all the other parties for the
24
purposes of this clause 8 by notice given in accordance with this clause
8.2, then to the number of such party which shall have been so notified,
for which purpose the latest notification shall supersede all previous
notifications.
8.3 A Notice shall be deemed served as follows:
8.3.1 in the case of personal service, at the time of such service;
8.3.2 in the case of leaving the notice at the relevant address, at the
time of leaving it there;
8.3.3 in the case of service by post, on the second Business Day (or the
fourth Business Day if sent by airmail) following the day on which it was
posted and in proving such service it shall be sufficient to prove that the
notice was properly addressed, stamped and posted in the United Kingdom;
and
8.3.4 in the case of service by facsimile transmission, at the time of
transmission.
8.4 If to Telewest or TCHL: Address for service:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No: ▇▇▇▇▇ ▇▇▇▇▇▇
For the attention of: ▇▇▇▇▇▇▇▇ ▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax No.: ▇▇▇▇▇ ▇▇▇▇▇▇
Freshfields
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ IHS
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of:
▇▇▇▇▇ ▇'▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇
and
25
▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to CUKCP: Address for service:
Comcast UK Cable Partners Limited
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
For the attention of: Company Secretary
With a copy to:-
NTL Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (USA)
Fax No: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
NTL Incorporated
▇▇/▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of: ▇▇▇▇ ▇▇▇▇▇, Esq.
Comcast Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
For the attention of: General Counsel
▇▇▇▇▇ & Overy
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No.: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and
26
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Esq.
If to NTL:
NTL Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (USA)
Fax No: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
With a copy to:
NTL Incorporated
▇▇/▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of: ▇▇▇▇ ▇▇▇▇▇, Esq.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Esq.
9. COSTS
Each party shall be responsible for its own costs and expenses in connection
with the preparation and implementation of this Agreement except where expressly
stated otherwise.
10. ANNOUNCEMENTS
None of the parties to this Agreement shall, without the prior written consent
of the others, make any announcement or statement to the press or to any third
party relating to the contents of this Agreement (a "Relevant Announcement"),
otherwise than where such announcement or statement is required by law or by any
governmental, regulatory or statutory body or by any securities exchange on
which the
27
securities of the relevant party or any of its parent undertakings are, or are
to be, listed or traded (including, without limitation, the London Stock
Exchange and the Nasdaq Stock Market's National Market) or is necessary in order
to obtain the Approvals.
11. GENERAL
11.1 No failure or delay by any party or time or indulgence given by it in or
before exercising any remedy or right under or in relation to this Agreement
shall operate as a waiver of the same nor shall any single or partial exercise
of any remedy or right preclude any further exercise of the same or the exercise
of any other remedy or right.
11.2 No waiver by any party of any requirement of this Agreement or of any
remedy or right under this Agreement shall have effect unless given by notice in
writing signed by such party. No waiver of any particular breach of the
provisions of this Agreement shall operate as a waiver of any repetition of such
breach.
11.3 Any release, waiver or compromise or any other arrangement which any party
gives or enters into with any other party to this Agreement in connection with
this Agreement shall not affect any right or remedy of the first-mentioned party
as regards any other party's liabilities under or in relation to this Agreement
and such other party shall continue to be bound by this Agreement as if it had
been the sole contracting party.
11.4 Time shall be of the essence of this Agreement, both as regards the dates
and periods specifically mentioned and as to any dates and periods which may by
agreement in writing between the parties be substituted for any of them.
11.5 This Agreement may be executed in two or more counterparts and execution by
each of the parties of any one of such counterparts will constitute due
execution of this Agreement.
11.6 Rights under this Agreement may not be assigned other than by operation of
law. It is acknowledged by the parties that upon implementation of the
Amalgamation, CUKCP will be subsumed into NTL (Bermuda) Limited and that
accordingly thereafter references herein to CUKCP shall be deemed to be
references to the amalgamated company arising from the amalgamation of NTL
(Bermuda) Limited and CUKCP.
28
11.7 Save as expressly provided in this Agreement, all representations,
warranties and conditions, express or implied and whether statutory or otherwise
are to the extent permitted by law, excluded from, and in relation to, the sale
of any shares pursuant to this Agreement PROVIDED THAT nothing in this clause
11.7 shall purport to exclude liability for fraudulent misrepresentation.
11.8 NTL consents to CUKCP entering into this Agreement.
11.9 Each of CUKCP and Telewest undertakes to the other at the expense of the
other to do or procure to be done all such further acts and things, and execute
or procure the execution of all such other documents (so far as is within its
power so to do) as the other may from time to time reasonably require, for the
purpose of giving to the other the full benefit of all of the provisions of this
Agreement.
11.10 Telewest may, at its option by notice to CUKCP at any time prior to BC
Completion, substitute TCHL as the purchaser of the Joint BC Shares, any other
interest of CUKCP in any other shares in Birmingham Cable and the BC Loans and
Fees and to satisfy the consideration payable in respect thereof. If such option
is exercized, the guarantee in clause 6 shall become effective.
12. APPLICABLE LAW AND JURISDICTION; SERVICE OF PROCESS
12.1 This Agreement shall be governed by and construed in accordance with the
laws of England.
12.2 The parties irrevocably submit to the exclusive jurisdiction of the Courts
of England and Wales in respect of any claim, dispute or difference arising out
of or in connection with this Agreement.
12.3 CUKCP and NTL shall at all times maintain an agent for service of process
and any other documents in proceedings in England or any other proceedings in
connection with this Agreement. For CUKCP such agent shall be Fleetside Legal
Representatives Services Limited, ▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ and for NTL such
agent shall be NTL Groups Limited, Bristol House, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ and any writ, judgment or other notice of legal process shall be
sufficiently served on CUKCP and NTL if delivered to such agent at its address
for the time being (and, in the case of NTL, marked for the attention of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇). Each of CUKCP and NTL undertakes not to revoke the
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authority of the agent appointed by it. Notwithstanding the aforesaid, if CUKCP
or NTL shall revoke any such appointment or such appointment shall cease and if,
for any reason, TCHL requests CUKCP or NTL to do so, CUKCP or NTL (as the case
may be) shall promptly appoint another such agent with an address in England and
advise TCHL thereof. If following such a request CUKCP or NTL (as the case may
be) fails to appoint another agent, TCHL shall be entitled to appoint one on
behalf of CUKCP or NTL (as the case may be).
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SCHEDULE 1
We refer to the Agreement in respect of the rights of first refusal relating to
Birmingham Cable and Cable London dated 14 August 1998 (the "Agreement").
Words and expressions defined in the Agreement have the same meaning when used
herein.
In consideration of the mutual promises contained therein, we hereby agree to
terminate the BC Consultant Agreement and the BC Management Agreement with
effect from BC Completion without any liability to any party thereto (save for
accrued fees and expenses or claims arising after the date of the Agreement) and
we hereby waive all present and future claims and rights we may have against
each other under such agreements.
_________________________
For and on behalf of Comcast UK Consulting Inc.
_________________________
For and on behalf of Birmingham Cable Corporation Limited
_________________________
For and on behalf of Birmingham Cable Limited
_________________________
For and on behalf of Telewest Communications Group Limited
_________________________
For and on behalf of Media One Cable Communications Limited
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SCHEDULE 2
SPECIAL RESOLUTION
THAT, pursuant to section 9 of the Companies ▇▇▇ ▇▇▇▇, the Articles of
Association of the Company be altered with immediate effect by:-
(a) adding the following words to the end of the last sentence of Article
15(C):-
"PROVIDED THAT the amalgamation of Comcast UK Cable Partners Limited
and NTL (Bermuda) Limited (or any other subsidiary of NTL Incorporated
) shall be deemed not to result in a change of control of Comcast UK
Cable Partners Limited or any subsidiary or parent undertaking of
Comcast UK Cable Partners Limited and provided further that the
provisions of the first two sentences of this article 15(c) shall not
be capable of applying to any change in control such as is mentioned
in the first sentence of this article 15(c) which occurs at any time
during the "Shoot-out Period" as such expression is defined in an
agreement dated 14th August 1998 between (1) Telewest Communications
plc, (2) Telewest Communications Holdings Limited, (3) Comcast UK
Cable Partners Limited and (4) NTL Incorporated, a copy of which has
been deposited with the Company prior to the adoption of this
amendment to these articles."
(b) replacing all references to "Comcast" in Article 17 with references to
Comcast UK Cable Partners Limited;
(c) replacing Article 24(A) with the following new article:
"24(A) Unless and until otherwise agreed by each Significant Investor,
the number of Directors shall be not less than two and not more than
six."
(d) (i) replacing in article 24(C)(a), the words "one Director ("Nominated
Director") with the words "up to three Directors (each a "Nominated
Director")" and the words "him" and "his" with the words "them" and
"their"; and
32
(ii) replacing in Article 24(c)(b), the words "remove the" with the
words "remove any"; and
(e) adding to Article 24, after article 24(D), the following new article:
"24(E) Notwithstanding any other provisions of these Articles, the
quorum for the transaction of any business at any meeting of the
Directors shall be at least one Nominated Director appointed by each
Significant Investor."; and
(f) amending Article 33 by replacing the words "such number of Significant
Investors as hold (directly or indirectly), either individually or
together" with the words "each Significant Investor as holds (directly or
indirectly)".
33
AS WITNESS this Agreement has been executed on the date first stated above.
SIGNED by )
for and on behalf of )
TELEWEST COMMUNICATIONS PLC ) /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
SIGNED by )
for and on behalf of )
TELEWEST COMMUNICATIONS )
HOLDINGS LIMITED ) /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
SIGNED by )
for and on behalf of )
COMCAST UK CABLE PARTNERS LIMITED ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------
SIGNED by )
for and on behalf of )
NTL INCORPORATED ) /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
34