Exhibit G
MEDIAONE INTERNATIONAL HOLDINGS, INC.
MEDIAONE UK CABLE, INC and MEDIAONE CABLE PARTNERSHIP HOLDINGS, INC.
TELE-COMMUNICATIONS INTERNATIONAL, INC.
UNITED ARTISTS PROGRAMMING-EUROPE, INC.
▇▇▇ COMMUNICATIONS, INC.
COX U.K. COMMUNICATIONS, LP
SBC INTERNATIONAL, INC.
SOUTHWESTERN ▇▇▇▇ INTERNATIONAL HOLDINGS (UK-1) CORPORATION
TELEWEST COMMUNICATIONS plc
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AMENDED AND RESTATED RELATIONSHIP AGREEMENT
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▇▇▇▇▇▇▇▇ CHANCE
CONTENTS
CLAUSE PAGE
1. INTERPRETATION............................................................2
2. CONDITIONS...............................................................13
3. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS.............................15
4. DIRECTORS................................................................15
5. CLOSING..................................................................17
6. MATTERS REQUIRING CONSENT................................................19
7. VOTING AGREEMENT AMONG TINTA GROUP AND U S WEST GROUP....................20
8. RESTRICTIONS ON TRANSFERS BY TINTA GROUP AND U S WEST GROUP..............21
9. RIGHTS OF FIRST OFFER, RIGHTS OF FIRST REFUSAL AND CHANGE OF
CONTROL..................................................................22
10. SPECIFIC RIGHTS OF SHAREHOLDER GROUPS TO MAINTAIN OWNERSHIP
LEVEL....................................................................27
11. GENERAL RIGHTS OF SHAREHOLDER GROUPS TO MAINTAIN OWNERSHIP
LEVEL....................................................................30
12. NON-COMPETITION..........................................................31
13. SCOPE OF COMPANY BUSINESS................................................35
14. CONTRACTUAL RESTRICTIONS.................................................35
15. INDEMNIFICATIONS.........................................................35
16. GAIN RECOGNITION CONSENT REQUIREMENTS....................................37
17. CITY CODE ON TAKEOVERS AND MERGERS.......................................38
18. CONFIDENTIALITY..........................................................38
19. JOINT AND SEVERAL LIABILITY FOR CONTROLLED AFFILIATES....................38
20. TERM.....................................................................38
21. TERMINATION OF 1994 AND 1995 AGREEMENTS..................................38
22. COMPETITION..............................................................39
23. COSTS....................................................................39
24. FURTHER ASSURANCE........................................................39
25. GENERAL..................................................................39
26. ASSIGNMENT...............................................................40
27. NOTICES..................................................................40
28. GOVERNING LAW AND JURISDICTION...........................................42
29. COUNTERPARTS.............................................................43
SCHEDULE 1 - CONTRACTUAL RESTRICTIONS........................................44
SCHEDULE 2 - DEED OF ADHERENCE...............................................45
SCHEDULE 3 - PROVISIONS PRESERVED FROM THE OLD RELATIONSHIP AGREEMENT........46
Agreed form documents:
1. Announcement
2. New Articles
3. TW Holdings Operating Agreement
THIS AGREEMENT is made as of 15 April 1998
BETWEEN:
(1) MEDIAONE INTERNATIONAL HOLDINGS, INC. (previously known as US WEST
International Holdings Inc.), a company incorporated in Delaware, USA whose
principal place of business is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ("MediaOne Holdings");
(2) MEDIAONE UK CABLE, INC. (previously known as US WEST UK Cable Inc.) and
MEDIAONE CABLE PARTNERSHIP HOLDINGS, INC. (previously known as US WEST
Cable Partnership Holdings Inc.), each being a company incorporated in
Delaware, USA whose principal place of business is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("MediaOne UK" and "MediaOne Cable"
respectively );
(3) TELE-COMMUNICATIONS INTERNATIONAL, INC., a company incorporated in
Delaware, USA whose principal place of business is ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("TINTA");
(4) UNITED ARTISTS PROGRAMMING-EUROPE, INC., a company incorporated in
Colorado, USA whose principal place of business is ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("UAP-E ");
(5) ▇▇▇ COMMUNICATIONS, INC., a company incorporated in Delaware, USA whose
principal place of business is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ("Cox");
(6) COX U.K. COMMUNICATIONS, L.P., a limited partnership incorporated in
Delaware, USA whose principal place of business is c/o The Corporation
Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("CUK");
(7) SBC INTERNATIONAL, INC., a company incorporated in Delaware, USA whose
principal place of business is #2 ▇▇▇▇'▇ Way, Suite 222, Corporate Commons,
New Castle, Delaware 19720, USA ("SBCI");
(8) SOUTHWESTERN ▇▇▇▇ INTERNATIONAL HOLDINGS (UK-1) CORPORATION, a company
incorporated in Delaware, USA whose principal place of business is #2
▇▇▇▇'▇ Way, Suite 222, Corporate Commons, New Castle, Delaware 19720, USA
("SBIHUK-1"); and
(9) TELEWEST COMMUNICATIONS plc, a company incorporated in England and Wales
(registered no. 2983307), whose registered office is at Genesis Business
▇▇▇▇, ▇▇▇▇▇▇ Drive, Woking, Surrey ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ (the "Company").
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WHEREAS:
(A) The parties to this Agreement entered into an agreement dated 15 April 1998
in substantially the same form as this Agreement (the "Original
Agreement");
(B) The parties have agreed that a number of amendments should be made to the
Original Agreement, which amendments are incorporated in this Agreement;
and
(C) The parties have agreed that this Agreement shall replace the Original
Agreement in all respects with effect from 15 April 1998.
THE PARTIES AGREE as follows:
1. INTERPRETATION
1.1 In this Agreement, unless indicated to the contrary:
"Act" means the Companies ▇▇▇ ▇▇▇▇ (as amended);
"Affiliate" means with respect to any Person, any other Person
directly or indirectly Controlling, directly or
indirectly Controlled by or under direct or
indirect common Control with such Person;
"ADS" means an American Depository Share representing
Ordinary Shares;
"Announcement" means the announcement in the agreed form of
the Company's firm intention to make the Offer;
"Assumptions" means the assumptions that (a) all options over
shares in the capital of General Cable plc have
been exercised during the Offer; (b) the Offer
has been accepted in full and all Ordinary
Shares required to be issued as consideration
under the Offer have been issued; (c) all the
Ordinary Shares proposed to be issued under the
Telewest Open Offer have been issued and TW
Holdings owns all the Ordinary Shares which
TINTA, MediaOne Holdings and their Affiliates
are entitled to subscribe under the Telewest
Open Offer or required to subscribe or procure
subscribers for under the Subscription
Agreement; (d) all options outstanding on the
Issue Date over shares in the capital of the
Company which are exercisable in accordance
with their terms prior to 31 December 1999 have
been exercised; and (e) neither TINTA, MediaOne
Holdings nor any of their respective Affiliates
has disposed of any
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interest in any Ordinary Shares or Preference
Share in issue on the date of this Agreement;
"Board" means the board of directors of the Company;
"business day" means any day other than a Saturday or Sunday
or a public holiday in the State of Colorado,
the State of Delaware or England and Wales;
"Cable Telephony" means any voice or data telecommunications
transmission service which operates in whole or in
part by cable links to subscribers' premises, is
interconnected at some point to a public switched
network and is intended to serve customers in the
United Kingdom;
"Cable Television" means any service provided to customers on a
subscription or pay-per-view basis which sends
sounds or visual images or both by means of
cable, radio or microwave transmission systems
for television reception at two or more
locations, whether sent for simultaneous
reception or at different times in response to
subscribers' requests, including without
limitation video on demand and other
interactive services and other entertainment,
telecommunications and information services
proposed to be offered by the Company, as
described in the Disclosure Documents;
"Change in Control" means with respect to MediaOne Holdings and its
Affiliates (other than MediaOne) or TINTA and
its Affiliates (other than TCI), the
acquisition (whether by merger, consolidation,
sale, assignment, lease, transfer or otherwise,
in one transaction or any related series of
transactions) of beneficial ownership by any
Person (other than pursuant to a distribution
in specie, spin off, share dividend, demerger
or similar transaction and other than, with
respect to beneficial ownership of equity
interests in TINTA or any of its Affiliates, by
TINTA or any of its Affiliates and, with
respect to beneficial ownership of equity
interests in MediaOne Holdings or any of its
Affiliates, by MediaOne Holdings or any of its
Affiliates) of equity interests in TINTA and/or
any of its Affiliates (other than TCI) or
MediaOne Holdings and/or any of its Affiliates
(other than MediaOne), as the case may be, as a
result of which such Person has
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the power, directly or indirectly, to direct the
voting and disposition of Ordinary Shares held by
TINTA and its Affiliates or MediaOne Holdings and
its Affiliates, as the case may be, representing
at least 15 per cent. of the outstanding Ordinary
Shares of the Company. A Change in Control shall
be deemed voluntary if it is the result of a
transaction agreed to by TINTA or any of its
Affiliates or by MediaOne Holdings or any of its
Affiliates, as the case may be. A Change in
Control shall be deemed involuntary if it is the
result of actions by Persons (other than TINTA or
any of its Affiliates or MediaOne Holdings or any
of its Affiliates, as the case may be) taken
without the agreement or consent of TINTA or any
of its Affiliates or of MediaOne Holdings or any
of its Affiliates, as the case may be;
"Closing Price" means the sale price for Ordinary Shares (i)
with respect to Ordinary Shares to be offered
on the London Stock Exchange, the sale price
which appears on the relevant Reuters Screen
for the Company as of 11:00 a.m. (London time)
on a Trading Day, provided that if such
Ordinary Shares do not appear on such Reuters
Screen or such Reuters Screen is temporarily
unavailable, the sale price with respect to the
Ordinary Shares will be the last reported sale
price which appears in the Official List of the
London Stock Exchange on a Trading Day and (ii)
with respect to Ordinary Shares to be offered
on the New York Stock Exchange in the form of
ADSs the last reported sale price on a Trading
Day or, in case no such sale takes place on
such day, the average of the reported closing
bid and asked prices as reported on the New
York Stock Exchange Composite Tape, or, if such
sales are not so reported, the reported last
sale price or, if no such sale takes place on
such day, the average of the reported closing
bid and asked prices on the principal national
securities exchange on which the ADSs are
listed or admitted to trading, or if not listed
or admitted to trading on any national
securities exchange, on the NASDAQ National
Market System ("NASDAQ"), or if the ADSs are
not quoted on such National Market System, the
average of the closing bid and asked prices in
the over-the-counter market
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as furnished by any New York Stock Exchange
member firm selected by the Board for that
purpose;
"Control" means with respect to any Person, the
possession, directly or indirectly, by another
Person of the power to direct or cause the
direction of the management or policies of such
Person, whether through equity ownership, by
contract or otherwise, but a Person shall not
be deemed to Control another Person solely by
virtue of any veto rights granted to it as a
minority equity owner or by virtue of super
majority voting rights and the words
"Controlled" and "Controlling" shall be
construed accordingly;
"Controlled Affiliate" means with respect to any Person, any Affiliate
of such Person which is under the Control of
such Person provided that each of Flextech plc,
At Home Corporation, Princes Holdings Limited
and MPC shall not be treated as a Controlled
Affiliate of the TINTA Group or the MediaOne
Group and TWE shall not be treated as a
Controlled Affiliate of the MediaOne Group and
for the purposes of this definition, any Person
in which both Cox or one or more of its
Affiliates and SBCI or one or more of its
Affiliates own equity interests shall be deemed
a Controlled Affiliate of each of Cox and SBCI
if (i) the aggregate of such equity interests
would be sufficient, if owned by one Person, to
confer Control of such Person on the Person
owning such equity interests and (ii) Cox or
its Affiliates and SBCI or its Affiliates have
entered into binding arrangements regarding the
exercise of voting rights in such equity
interests or have otherwise agreed in writing
to co-operate so as to direct the management or
policies of such Person;
"Controlling Shareholder" has the same meaning as in paragraph 3.12 of
Chapter 3 of the Listing Rules;
"Co-operation Agreement" means the co-operation agreement dated 3 October
1995 and entered into between the Company/Old
Telewest, Cox, CUK, SBCI, SBIHUK-1 and SBIHUK-2;
"Cox Group" means Cox and its Affiliates from time to time
or any Person or group of Persons within the
meaning
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given to the expression "Cox Group" in the New
Articles;
"Cox Shareholder" means CUK (whilst it is a member of the Cox
Group and a Shareholder) and/or any Shareholder
who is a member of the Cox Group for the time
being;
"Director" means a director of the Company;
"Disclosure Documents" means the prospectus, registration statement and
listing particulars filed, distributed or used in
connection with Old Telewest's initial public
offering of Ordinary Shares in 1994 or in
connection with the Company's acquisition of SBC
CableComms and Old Telewest in 1995;
"Fair Market Value" means as to any property, the price at which a
willing seller would sell and a willing buyer
would buy such property having full knowledge of
the facts, in an arm's length transaction without
time constraints, and without being under any
compulsion to buy or sell;
"Fixed Wireless Telephony" means a telecommunication service consisting of
the conveyance of messages through the agency of
Wireless Telegraphy (as defined in the United
Kingdom Wireless Telegraphy Act 1949) to or from
any Applicable Cable System (as defined in the
relevant telecommunications license) operated by
the Company or an Affiliate under a
Telecommunications License (as defined in the IPO
Documents) held by it or an Affiliate directly
from or to any apparatus designed or adapted to be
capable of being used while in motion, provided
that such service would not involve the operation
of a network capable of handing calls off from
radio or cell site to cell site;
"Fully Diluted Ordinary means, at any time, the Ordinary Shares in
Shares" issue at such time and the Ordinary Shares
which would be in issue if all options and rights
outstanding for the time being to subscribe for
Ordinary Shares or securities convertible into or
exchangeable for Ordinary Shares were exercisable
and had been exercised and the relevant Ordinary
Shares and securities issued and all securities
convertible into or
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exchangeable for Ordinary Shares in issue (or
assumed to be in issue) at such time were
convertible or exchangeable and had been converted
or exchanged and the relevant Ordinary Shares
issued;
"General Cable" means General Cable PLC;
"Group System" means any Cable Television or Cable Telephony
system in which the Company has a direct or
indirect ownership interest from time to time;
"Independent Directors" means those Directors who are not designated by
the TINTA Group or the MediaOne Group in
accordance with Article 72 of the New Articles and
are not partners, officers or employees of, and do
not have a material consultancy with, the TINTA
Group or the MediaOne Group;
"IPO Documents" means the prospectus, registration statement and
listing particulars filed, distributed or used in
connection with Old Telewest's initial public
offering of Ordinary Shares in 1994;
"Issue Date" means such date as is agreed in writing between
the Company, TINTA, MediaOne and Cox and, failing
agreement, the day falling 14 days after the later
of the first closing date of the Offer and the
date the Offer becomes or is declared wholly
unconditional (or if not a business day, the next
preceding day);
"MediaOne" means MediaOne, Inc., a Delaware corporation (to
be renamed MediaOne Group, Inc.);
"MediaOne Cable
Conversion Shares" means a number of Preference Shares equal to the
product of the number of TW Holdings Conversion
Shares multiplied by the number of Preference
Shares held by MediaOne Cable and divided by the
total number of TW Holdings Preference Shares, any
fraction being rounded up;
"MediaOne Group" means MediaOne Holdings and its Affiliates
from time to time or any Person or group of
Persons within the meaning given to the expression
"MediaOne Group" in the New Articles;
"MediaOne Shareholder" means each of MediaOne UK and MediaOne Cable
(whilst it is a member of the MediaOne Group and a
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Shareholder) and/or any Shareholder who is a
member of the MediaOne Group for the time being;
"MediaOne UK Conversion
Shares" means a number of Preference Shares equal to the
product of the number of TW Holdings Conversion
Shares multiplied by the number of Preference
Shares held by MediaOne UK and divided by the
total number of TW Holdings Preference Shares, any
fraction being rounded up;
"MPC" means Mercury Personal Communications, a
partnership doing business as "One-2-One";
"New Articles" means the articles of association to be adopted by
the Company in the agreed form with effect from
the date on which the Offer becomes or is declared
wholly unconditional;
"1994 Agreements" means the Old Shareholders Agreement and the Old
Relationship Agreement;
"1995 Agreements" means the Co-operation Agreement and the Share
Dealing Agreement;
"Offer" means the proposed general offer to be made by or
on behalf of the Company for the entire issued and
to be issued share capital of General Cable in the
terms described in the Announcement or on such
revised terms as each of MediaOne Holdings, TINTA
and Cox may agree by notice to the Company;
"Offer Documents" means the offer documents and circulars
to be sent to shareholders of the Company and/or
General Cable and the disclosure documents
incorporating UK listing particulars and US proxy
solicitation materials to be published in
connection with the Offer and the Telewest Open
Offer;
"Old Relationship
Agreement" means the relationship agreement entered into as
of 22 November 1994 by and among Old Telewest,
TINTA, MediaOne Holdings and the parties to the
Old Shareholders' Agreement as amended by an
agreement between the same parties as of 19 June
1995 and as further supplemented by an agreement
between the same parties and the Company dated 3
October 1995;
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"Old Shareholders
Agreement" means the shareholders' agreement dated as of 22
November 1994 by and between United Artists Cable
Television UK Holdings, Inc., UAP-E, MediaOne UK
and MediaOne Cable as amended by an agreement
between the same parties dated 19 June 1995 and
supplemented by a further agreement between the
same parties, Old Telewest and the Company dated 3
October 1995;
"Old Telewest" means Telewest Communications Cable Limited, a
company incorporated in England and Wales
(registered no. 2883742) whose registered office
is at Genesis Business ▇▇▇▇, ▇▇▇▇▇▇ Drive, Woking,
Surrey ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇;
"Ordinary Share" means an ordinary share, 10p par value, of the
Company, including any such share represented by
an ADS, and wherever this Agreement requires or
permits the calculation of a number or percentage
of Ordinary Shares in issue held by any
Shareholder or Shareholder Group such number or
percentage shall include the Pro Rata Shares of
that Shareholder or Shareholder Group and, except
in the case of clause 10.3, the Ordinary Shares
into which any Preference Shares are convertible
for the time being (ignoring any prohibition or
restriction on the conversion thereof);
"Ownership Interest" means, with respect to each Person owning an
interest in TW Holdings, all of the interests of
such Person in TW Holdings (including, without
limitation, an interest in the profits and losses
of TW Holdings, a capital account interest in TW
Holdings and all other rights and obligations of
such Person under the TW Holdings Operating
Agreement);
"Percentage Ownership" has the meaning given to that expression in
clause 10.1;
"Permitted Demerger" means a distribution in specie, share
dividend, spin off, demerger or similar
transaction resulting in one or more Affiliates of
the transferor owning 80 per cent. or more of the
Ordinary Shares owned by the transferor
immediately prior to such transaction;
"Person" means an individual, corporation, general or
limited partnership, limited or unlimited
liability company,
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trust, association, unincorporated organisation,
government or any authority, agency or body
thereof, or other entity;
"Preference Share" means a convertible preference share, 10p par
value, of the Company;
"Private Transfer" means the Transfer of Shares by a Shareholder in a
negotiated transaction, rather than through a
brokerage transaction effected on a national
securities exchange, NASDAQ or the London Stock
Exchange;
"Pro Rata Shares" means, with respect to any Shareholder Group at
any time, the number of Ordinary Shares held by TW
Holdings attributable to such Shareholder Group
being:
(a) in the case of the MediaOne Group and the
TINTA Group, the product rounded to the
nearest whole number of (x) the sum of the
number of Ordinary Shares owned by TW Holdings
less the number of such shares in which
another Shareholder Group has a beneficial
interest as of such time, multiplied by (y)
the aggregate percentage Ownership Interest in
TW Holdings, expressed as a decimal, held by
members of such Shareholder Group as at such
time; and
(b) in the case of the Cox Group, the Ordinary
Shares owned by TW Holdings in which any
member of the Cox Group has a beneficial
interest;
"Public Transfer" means the Transfer of Shares by a Shareholder
through a brokerage transaction effected on a
national securities exchange, NASDAQ or the London
Stock Exchange, including a Private Transfer to a
broker in anticipation of a Public Transfer to be
effected by that broker;
"Qualifying Group" has the meaning given to that expression in
clause 10.1;
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"Relevant Person" means a director, officer or employee of any of
TINTA, MediaOne Holdings, SBCI or Cox or their
respective Affiliates;
"Required Consent" has the meaning given to that expression in
clause 6.2;
"SBC Group" means SBCI and its Affiliates from time to time;
"SBC Shareholder" means SBIHUK-1 (whilst it is a member of the SBC
Group and a Shareholder) and/or any Shareholder
who is a member of the SBC Group for the time
being;
"SBIHUK-2" Southwestern ▇▇▇▇ International Holdings (UK-2)
Corporation (which has merged with and into
SBIHUK-1);
"Share Dealing
Agreement" means the share dealing agreement dated 3 October
1995 and made between Cox, CUK, SBCI, ▇▇▇▇▇▇-▇,
▇▇▇▇▇▇-▇, TINTA, MediaOne Holdings and the
Company/Old Telewest;
"Shareholders" means each of MediaOne UK, MediaOne Cable, UAP-E,
CUK and SBIHUK-1 and each Person who acquires
Shares and becomes a party to this Agreement by
completing, executing and delivering a deed of
adherence in accordance with clause 26.2, for so
long as it holds any Shares or owns any Shares
and remains a party to this Agreement;
"Shareholder Group" means any of the Cox Group, the SBCI Group, the
TINTA Group or the MediaOne Group;
"Shares" means the Ordinary Shares and the Preference
Shares;
"Subscription Agreement" means the subscription agreement of
today's date between TINTA, MediaOne, Cox and the
Company relating to the Telewest Open Offer;
"TCI" means Tele-Communications, Inc., a Delaware
corporation;
"Telewest Group" means the Company and every Person Controlled by
the Company;
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"Telewest Open Offer" means the open offer proposed to be
made on behalf of the Company in connection with
the Offer as more particularly described in the
Subscription Agreement;
"TINTA Group" TINTA and its Affiliates from time to time
or any Person or group of Persons within the
meaning given to the expression "TINTA Group" in
the New Articles;
"TINTA Shareholder" means UAP-E (whilst a member of the TINTA Group
and a Shareholder) and/or any Shareholder who is
a member of the TINTA Group for the time being;
"Trading Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday other than a day on which
securities are not traded on the applicable
exchange or market;
"Transfer" means, in relation to any Shares, to sell, assign,
pledge, grant a security interest in, or otherwise
dispose of such shares or any legal or beneficial
interest therein or agree to do any of the
foregoing;
"TWE" means Time Warner Entertainment Company, L.P.;
"TW Holdings" means TW Holdings, L.L.C., a Colorado limited
liability company;
"TW Holdings Conversion
Shares" has the meaning given to that expression in
clause 5.2.5;
"TW Holdings Operating
Agreement" means the amended and restated operating agreement
of TW Holdings to be entered into in the agreed
form;
"TW Holdings Preference
Shares" means the Preference Shares held by MediaOne
Cable, MediaOne UK and UAP-E and owned by TW
Holdings at the date hereof;
"UAP-E Conversion
Shares" means a number of Preference Shares equal to the
product of the number of TW Holdings Conversion
Shares multiplied by the number of Preference
Shares held by UAP-E and divided by the total
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number of TW Holdings Preference Shares, any
fraction being rounded up;
"United Kingdom" means England, Wales, Scotland and Northern
or "UK" Ireland, as their territories and boundaries
exist on the Issue Date;
"Wireless means any voice or data telecommunications
Telephony" transmission service which operates by means
of radiowave, microwave, cellular or other similar
technology as part of a licensed mobile
communications system or personal communications
network.
1.2 In this Agreement unless indicated to the contrary, a reference to:
1.2.1 a document in the "agreed form" is a reference to a document in a form
approved and for the purposes of identification signed by or on behalf
of each party;
1.2.2 a statutory provision includes a reference to the statutory provision
as modified or re-enacted or both from time to time whether before or
after the date of this Agreement and any subordinate legislation made
under the statutory provision whether before or after the date of this
Agreement;
1.2.3 a Person includes a reference to that Person's legal personal
representatives, successors and lawful assigns;
1.2.4 a clause or schedule, unless the context otherwise requires, is a
reference to a clause of or schedule to this Agreement; and
1.2.5 a document is a reference to that document as from time to time
supplemented or varied.
1.3 The headings in this Agreement do not affect its interpretation.
2. CONDITIONS
2.1 The provisions of this Agreement (other than this clause 2 and clauses
5.1(a) and (c) and 15 and those provisions relevant to the
interpretation or enforcement of clauses 2, 5.1(a) and (c), 5.5 and 15)
are conditional upon the following conditions being satisfied, or
waived by notice by each of MediaOne Holdings, TINTA and Cox to the
Company:
2.1.1 the publication of the Announcement through the Regulatory News Service
of the London Stock Exchange on the date of this Agreement (or such
later time and/or date as MediaOne Holdings, TINTA and Cox may agree in
writing); and
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2.1.2 the formal document containing the Offer having been posted to holders
of General Cable shares by 30 June 1998 (or such later time and/or date
as MediaOne Holdings, TINTA and Cox may agree in writing) and the Offer
being declared unconditional in all respects on or before 15 September
1998.
2.2 The Company agrees with MediaOne Holdings, TINTA and Cox not to declare
the Offer unconditional unless the Resolutions (as defined in the
Subscription Agreement), including the following shareholders
resolutions have been passed at a duly convened and held general
meeting of the Company on or before 15 September 1998 and such
resolutions remain in full force and effect:
2.2.1 to approve this Agreement in accordance with Chapter 11 of the Listing
Rules of the London Stock Exchange;
2.2.2 to increase the Company's ordinary share capital and for a period of
five years to authorise the Directors under section 80 of the Companies
▇▇▇ ▇▇▇▇ to allot Ordinary Shares and to the extent necessary to
disapply section 89 of the Companies ▇▇▇ ▇▇▇▇ to allow for the
consummation of the Telewest Open Offer and the Offer and the issue of
Ordinary Shares upon the exercise, conversion or exchange of the
options, rights and securities (other than issued Ordinary Shares)
comprised in the Fully Diluted Ordinary Shares; and
2.2.3 to adopt the New Articles.
2.3 If at any time any party becomes aware of a fact or circumstance that
might prevent a condition set out in clause 2.1 being satisfied, it
shall immediately inform the other parties.
2.4 If a condition set out in clause 2.1 has not been satisfied or waived
in accordance with clause 2.1 on or before 29 September 1998 or becomes
incapable of satisfaction or the Offer lapses or is withdrawn, this
Agreement shall terminate and each party's further rights and
obligations shall cease upon such termination, provided that
termination shall not affect a party's accrued rights and obligations
at the date of termination.
2.5 Each party shall use all reasonable endeavours to facilitate the
preparation, filing and circulation of all documents required by
applicable laws and competent authorities to be prepared, filed and
circulated by the Company or General Cable in connection with the Offer
and the Telewest Open Offer (including the provision to the Company of
information relating to its Shareholder Group that is reasonably
requested by the Company for inclusion therein).
2.6 SBCI and SBIHUK-1 undertake to MediaOne Holdings, TINTA and Cox that
they shall not, and shall procure that their Affiliates will not, take
up any rights under the Telewest Open Offer or otherwise acquire any
Shares or any interest in any Shares prior to the Issue Date.
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3. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
Each party represents, warrants and undertakes to each other party
(other than a member of the same Shareholder Group), as of the date of
execution of this Agreement, as follows:
3.1 it is duly organised or formed, validly existing and in good standing
under the laws of its jurisdiction of incorporation or formation;
3.2 it has full power and authority to conduct its business as currently
conducted, to execute and deliver this Agreement and to carry out the
transactions contemplated by this Agreement and the execution, delivery
and performance by it of this Agreement and the consummation by it of
the transactions contemplated by this Agreement have been duly
authorised by all necessary corporate or partnership action;
3.3 the obligations expressed to be undertaken by it under this Agreement
are legal, valid and binding upon it, except as validity, binding
effect and the enforceability may be subject to or limited by
bankruptcy, insolvency, reorganisation, moratorium and other similar
laws relating to or affecting the rights of creditors generally, and
subject to general principles of equity, regardless of whether
considered in a proceeding at law or in equity;
3.4 the execution and delivery of this Agreement by it and compliance by it
with the provisions of this Agreement will not violate, result in any
breach of, constitute a default under or require a consent or waiver
under its certificate of incorporation, articles of incorporation,
bylaws, memorandum and articles of association, operating agreement or
partnership agreement, as the case may be, or any indenture, lease,
agreement or instrument to which it is a party or by which it or any of
its property may be bound, or under any decree, judgment, order,
statute, legal principle, rule or regulation applicable to it, other
than any violation, breach or default that would not have an adverse
effect on the performance by it of the terms of this Agreement;
3.5 it has obtained, made or given all material authorisations, orders,
approvals, consents, registrations, filings and notices required to be
obtained, made or given by it from, with or to any Person with respect
to entering into this Agreement.
4. DIRECTORS
4.1 As at the date hereof the Board comprises:
▇.▇. ▇▇▇▇ (Chairman) (appointed by MediaOne)
A.W.P Stenham (Deputy Chairman)
▇.▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (acting Chief Executive)
▇.▇. ▇▇▇▇▇▇▇ (Finance Director)
Lord Borrie QC
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S. Brett (appointed by TINTA)
▇. ▇▇▇▇▇ (appointed by TINTA)
▇.▇. ▇▇▇▇▇▇▇ (appointed by Cox)
▇.▇. ▇▇▇▇▇▇ (appointed by SBCI)
4.2 The Company shall convene a meeting of the Board to be held upon the
Offer becoming or being declared unconditional in all respects at which
the parties shall use all reasonable endeavours, subject to the
agreement of terms, to ensure that a resolution is passed to appoint an
executive director of General Cable nominated by General Cable as an
executive Director.
4.3 Any Director appointed by the Cox Group to the Board in accordance with
article 72.4 of the New Articles shall, if not a director, officer or
employee of Cox or an Affiliate of Cox, not be appointed until Cox
shall have received the prior written consent of the Board to such
appointment (such consent not to be unreasonably withheld or delayed).
4.4 Any Director appointed by the SBC Group to the Board in accordance with
article 72.3 of the New Articles shall, if not a director, officer or
employee of SBCI or an Affiliate of SBCI, not be appointed until SBCI
shall have received the prior written consent of the Board to such
appointment (such consent not to be unreasonably withheld or delayed).
4.5 Notwithstanding the right of the TINTA Group to appoint a director to
the Audit Committee in accordance with article 97 of the New Articles
it hereby agrees with the Company that it will not do so whilst the Cox
Group and the SBC Group have the right to so appoint a director to the
Audit Committee.
4.6 For so long as the TINTA Group foregoes its right to appoint a director
to the Audit Committee in accordance with article 97 of the New
Articles, the Company hereby agrees with the TINTA Group that it will
allow the TINTA Group to appoint an observer to the Audit Committee in
the same manner as the Cox Group and the SBC Group have the right to so
appoint an observer to Committees pursuant to article 97 of the New
Articles.
4.7 The Directors other than the MediaOne Designated Directors or the TINTA
Designated Directors or the Cox Designated Director or the SBC
Designated Director or the CGE Designated Director (each as defined in
the New Articles) shall be appointed by the board or the Company in
general meeting provided that each such appointee shall be a person
reasonably acceptable to the MediaOne Designated Directors for so long
as the MediaOne Group is a Qualifying Group and the TINTA Designated
Directors for so long as the TINTA Group is a Qualifying Group.
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5. CLOSING
5.1 The Company shall (a) not issue any Ordinary Shares to the General
Cable shareholders pursuant to the Offer prior to the Issue Date, (b)
issue on the Issue Date those Ordinary Shares due to be allotted to
General Cable shareholders from whom valid acceptances are received on
or before the date when the Offer is declared wholly unconditional,
after the conversion of the Preference Shares in accordance with clause
5.2 and after the allotment and issue of all the Ordinary Shares
offered under the Telewest Open Offer (other than any Ordinary Shares
not subscribed for by any party in accordance with the Subscription
Agreement), and (c) not increase the Fully Diluted Ordinary Share
capital prior to the Issue Date otherwise than pursuant to the Telewest
Open Offer, the Offer or the Subscription Agreement.
5.2 Not later than the day preceding the Issue Date the Company shall
calculate and notify MediaOne Holdings, TINTA and Cox of:
5.2.1 the number of Ordinary Shares TW Holdings, MediaOne Holdings, TINTA and
their Affiliates will hold on the Issue Date on the basis of the
Assumptions (before any conversions pursuant to clauses 5.3 and 5.4
below and before any transfer of Ordinary Shares by Cox to TW Holdings)
(the "Basic TW Holdings Shares");
5.2.2 the number of Ordinary Shares which will represent 50.1 per cent.
of all of the Ordinary Shares in issue on the Issue Date on the basis
of the Assumptions (before any of the conversions pursuant to clauses
5.3 and 5.4 below and before any transfer of Ordinary Shares by Cox to
TW Holdings) (the "Basic 50.1 per cent. Shares");
5.2.3 the number of Ordinary Shares which CUK will hold on the Issue Date on
the basis of the Assumptions (before any of conversions pursuant to
clauses 5.3 and 5.4 below and before any transfer of Ordinary Shares by
Cox to TW Holdings) (the "Basic Cox Shares");
5.2.4 (if the Basic 50.1 per cent. Shares exceed the sum of the Basic TW
Holdings Shares and the Basic Cox Shares) the number of Preference
Shares (if any) required to be converted on the Issue Date (the "First
Conversion Shares"), being the number required to ensure that TW
Holdings and CUK will own 50.1 per cent. of the Telewest Ordinary
Shares in issue on the basis of the Assumptions and on the basis of the
First Conversion Shares having been converted;
5.2.5 if applicable, the allocation of the First Conversion Shares between TW
Holdings (the "TW Holdings Conversion Shares") and CUK (the "Cox
Conversion Shares") on the basis that:
(a) if it would be possible for a number of Preference Shares
owned by TW Holdings equal to the number of First Conversion
Shares to be converted on behalf of TW Holdings whilst leaving
TW Holdings owning 50.1 per cent. of the Preference Shares
remaining in issue, the TW Holdings Conversion Shares shall
equal all the First Conversion Shares; and
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(b) otherwise the First Conversion Shares shall be allocated
between TW Holdings and CUK so that following conversion of
the TW Holdings Conversion Shares and the Cox Conversion
Shares TW Holdings will own exactly 50.1 per cent. of the
Preference Shares remaining in issue;
5.2.6 the number of MediaOne Cable Conversion Shares, MediaOne UK Conversion
Shares and the UAP-E Conversion Shares; and
5.2.7 the number of Ordinary Shares which CUK has agreed with TW Holdings,
MediaOne Holdings and TINTA to transfer to TW Holdings before the
issue of Ordinary Shares to General Cable shareholders in accordance
with clause 5.1(b) (the "Cox Transfer Shares"), in the case of there
being no First Conversion Shares being the number by which the Basic
50.1 per cent. Shares exceed the Basic TW Holdings Shares and in the
case of there being First Conversion Shares being the sum of the Basic
Cox Shares plus the Cox Conversion Shares (if any).
5.3 If any First Conversion Shares are allocated to TW Holdings in
accordance with clause 5.2.5, each of MediaOne UK, MediaOne Cable and
UAP-E hereby exercises its right to convert the MediaOne UK Conversion
Shares, MediaOne Cable Conversion Shares and UAP-E Conversion Shares
respectively and the Company shall convert such shares on the Issue
Date (which shall be the "conversion date" for such shares for the
purposes of the New Articles) before the issue of the Ordinary Shares
to General Cable shareholders in accordance with clause 5.1(b) and
after the allotment and issue of all the Ordinary Shares offered under
the Telewest Open Offer (other than any Ordinary Shares not subscribed
for by any party in accordance with the Subscription Agreement), and
article 4.7 of the New Articles shall not apply to such conversion.
5.4 CUK hereby exercises its right to convert the Cox Conversion Shares and
the Company shall convert such shares on the Issue Date (which shall be
the "conversion date" for such shares for the purposes of the New
Articles) before the issue of the Ordinary Shares to General Cable
shareholders in accordance with clause 5.1(b) and after the allotment
and issue of all the Ordinary Shares offered under the Telewest Open
Offer (other than any Ordinary Shares not subscribed for by any party
in accordance with the Subscription Agreement), and article 4.7 of the
New Articles shall not apply to such conversion.
5.5 If at any time any holder or holders of Preference Shares exercise(s)
its or their right to convert any number of Preference Shares on a
particular conversion date each Shareholder within the MediaOne Group,
the TINTA Group and the Cox Group shall be treated as having exercised
its right to convert its entire holding of Preference Shares for the
time being on the same conversion date. Article 4.7 of the New Articles
shall apply to such conversions accordingly and all the Preference
Shares converted on such date shall be converted simultaneously.
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5.6 The Company shall use all reasonable efforts to ensure that all the
Ordinary Shares arising from conversion of the Preference Shares are
admitted to the Official List by the London Stock Exchange.
6. MATTERS REQUIRING CONSENT
6.1 For so long as the MediaOne Group or the TINTA Group hold 15 per cent.
or more of the Ordinary Shares in issue for the time being and from
time to time (ignoring any Ordinary Shares issued after the date hereof
pursuant to or for the purposes of share options), the Company shall
not and shall procure that none of its subsidiary undertakings will do,
or agree to do, any of the following things without the Required
Consent and no Shareholder shall knowingly acquiesce in the doing
thereof without the Required Consent:
6.1.1 any material acquisition or disposal outside the ordinary course of the
business of the Telewest Group, and for these purposes an acquisition
or disposal shall be deemed material and outside the ordinary course of
the business of the Telewest Group if it represents a class 2
transaction under the Listing Rules of the London Stock Exchange or the
Company intends in any event to announce the acquisition or disposal;
6.1.2 incur any borrowings or indebtedness in the nature of borrowings after
(otherwise than under a facility or agreement entered into before)
this Agreement becomes unconditional which when aggregated with any
borrowings or indebtedness in the nature of borrowings of the Telewest
Group so incurred and outstanding at the time being (ignoring
intra-group borrowings and indebtedness and borrowings or indebtedness
under any facility or agreement for which the Required Consent has
already been obtained) exceeds (pound)50 million or, after this
Agreement becomes unconditional, grant any security interests in any
assets which, when aggregated with other assets of the Telewest Group
over which security interests are granted after this Agreement becomes
unconditional (ignoring any security interests for which the Required
Consent has already been obtained), together have a Fair Market Value
of (pound)50 million or more, or agree to any material amendment,
supplement or variation of the terms of any borrowings, indebtedness
in the nature of borrowings or security interests;
6.1.3 allot or issue any shares or securities convertible into or
exchangeable for shares or grant any options or rights to subscribe
for shares or any such securities (other than the issue of Ordinary
Shares pursuant to clause 10 and pursuant to the Telewest Open Offer
and the Offer and the conversion of Preference Shares and any issue of
shares pursuant to the exercise of any option (to the extent required
under its terms to be met by an issue of new shares rather than a
transfer of existing shares) or the conversion or exchange of any
security granted or issued prior to today's date or with the Required
Consent after the date on which this Agreement becomes unconditional);
6.1.4 appoint or remove the Chief Executive Officer of the Company; or
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6.1.5 increase the number of Directors holding office for the time being
beyond 14.
6.2 For the purposes of clause 6.1, "Required Consent" means prior consent
by notice to the Company from:
6.2.1 the MediaOne Group, for so long as the MediaOne Group holds or owns in
aggregate 15 per cent. or more of the Ordinary Shares in issue for the
time being; and
6.2.2 the TINTA Group, for so long as the TINTA Group holds or owns in
aggregate 15 per cent. or more of the Ordinary Shares in issue for the
time being.
7. VOTING AGREEMENT AMONG TINTA GROUP AND U S WEST GROUP
7.1 Subject to clause 7.3 the MediaOne Shareholders and the TINTA
Shareholders undertake to one another that they shall exercise the
voting rights attached to the Ordinary Shares owned by them and shall
cause the Directors nominated by them to vote (subject to their
fiduciary duties as Directors of the Company) in all matters in such
manner as shall be agreed upon by the TINTA Shareholders and the
MediaOne Shareholders provided that if the TINTA Shareholders or the
MediaOne Shareholders (or the directors nominated by them respectively)
have a conflict of interest in any matter, they shall abstain and the
others may vote on such matter as they deem appropriate.
7.2 If the TINTA Shareholders and the MediaOne Shareholders cannot agree on
any matter within a period of 10 days after the matter is first
presented for decision, the matter in dispute shall be referred to the
Chief Executive Officers of the ultimate parent companies of the TINTA
Shareholders and the MediaOne Shareholders (or other representatives
designated by each of such Shareholder Groups) and the decision of such
officers shall be final and binding. If those officers cannot agree on
any matter presented to them prior to the earlier of the date the vote
is to be taken or five days after the matter is first submitted to
them, voting shall occur in such manner that would be most likely to
continue the status quo, without materially increasing the Company's
financial obligations or materially deviating from its approved budget
and business plan.
7.3 Clauses 7.1 and 7.2 shall cease to apply if after 31 December 1999 the
TINTA Group or the MediaOne Group so elect by notice given to the other
following the disposal by the other after the date hereof of more than
43 million Ordinary Shares (through one or more transactions) otherwise
than to an Affiliate or pursuant to a Permitted Demerger or a transfer
permitted by clause 8.3.2.
7.4 Subject to clause 7.8, each TINTA Shareholder and MediaOne Shareholder
shall exercise its voting rights attached to the Ordinary Shares owned
by it (and its rights under the TW Holdings Operating Agreement in
respect of the voting rights attached to the Ordinary Shares held by TW
Holdings) and shall make reasonable efforts to ensure that (subject to
their fiduciary duties) its appointees on the Board conduct themselves,
in such a way that:
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7.4.1 the terms of this Agreement are implemented in full; and
7.4.2 no amendments to the New Articles shall be effected which would be
contrary to the maintenance of the Company's independence from the
TINTA Group and the MediaOne Group.
7.5 Subject to clause 7.8, each TINTA Shareholder and MediaOne Shareholder
agrees with the Company not to use its voting rights attached to the
Ordinary Shares owned by it (other than its rights arising under
article 72 of the New Articles) (and to exercise its rights under the
TW Holdings Operating Agreement in respect of the voting rights
attached to the Ordinary Shares held by TW Holdings) to vote in favour
of the appointment of a person to the Board who is an employee, partner
or officer of, or has a material consultancy with, any member of the
TINTA Group or the MediaOne Group.
7.6 Subject to clause 7.8, if any transaction, arrangement or agreement (or
amendment thereto) to which the Telewest Group is a party or proposes
to be a party gives rise to a conflict between the interests of the
TINTA Group or the MediaOne Group and the interests of the Telewest
Group, the prior approval of the Board consisting solely of the
Independent Directors and the Directors appointed by the MediaOne Group
(in the case of an arrangement with the TINTA Group) or by the TINTA
Group (in the case of an arrangement with the MediaOne Group) shall be
required before the Telewest Group can proceed with the transaction,
arrangement or agreement (or amendment thereto), as the case may be.
7.7 Subject to clause 7.8, any transactions, agreements or arrangements
(including trading arrangements) between any member of the TINTA Group
or the MediaOne Group and the Telewest Group shall be at arm's length
on a normal commercial basis and will be subject to the prior approval
of the Board consisting solely of Independent Directors and the
Directors appointed by the MediaOne Group (in the case of an
arrangement with the TINTA Group) or by the TINTA Group (in the case of
an arrangement with the MediaOne Group).
7.8 Clauses 7.4, 7.5, 7.6 and 7.7 shall only apply for so long as the
MediaOne Group and the TINTA Group continue to be the Controlling
Shareholder of the Company.
8. RESTRICTIONS ON TRANSFERS BY TINTA GROUP AND U S WEST GROUP
8.1 Subject to clause 8.3, the MediaOne Shareholders undertake to TINTA
that the MediaOne Group shall not Transfer any Shares to any Person on
or before 31 December 1999.
8.2 Subject to clause 8.3, the TINTA Shareholder undertakes to MediaOne
Holdings that the TINTA Group shall not Transfer any Shares to any
Person on or before 31 December 1999.
8.3 The restrictions contained in clauses 8.1 and 8.2 shall not apply:
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8.3.1 to the Transfer of Shares to an Affiliate of the transferor if such
Affiliate first complies with clause 26.2 (and for such purpose an
entity jointly controlled by the TINTA Group and the MediaOne Group
shall be deemed an Affiliate of each such Group); or
8.3.2 to the Transfer of Shares with the written consent of the TINTA Group
(in the case of a Transfer by the MediaOne Group) or the MediaOne Group
(in the case of a Transfer by the TINTA Group) provided that such
Shareholder Group approves (in its sole discretion) the identity of the
transferee and, if the transferee becomes a member of the MediaOne
Group or the TINTA Group, the transferee first complies with clause
26.2; or
8.3.3 to the Transfer of Ordinary Shares pursuant to a Permitted Demerger.
8.4 Any attempted Transfer of Shares contrary to the requirements of this
clause 8 shall be void and as such shall not be registered by the
Company.
9. RIGHTS OF FIRST OFFER, RIGHTS OF FIRST REFUSAL AND CHANGE OF CONTROL
9.1 TCI and MediaOne rights of first offer
9.1.1 Clauses 9.1.2 to 9.1.7 shall not apply:
(a) to any Public Transfer by the ▇▇▇ Group or the SBC Group;
(b) to any Transfer of shares or other equity in a holding
company of the Shareholder where the Shares remain
Controlled by the ▇▇▇ Group or the SBC Group (as the case
may be);
(c) to any Transfer of shares to a transferee who is a member of
the same Shareholder Group as the transferor or, in the case
of a Transfer by the SBC Group, is a member of the ▇▇▇ Group
or, in the case of a Transfer by the ▇▇▇ Group, is a member
of the SBC Group and who, prior to the Transfer taking
effect, duly completes, executes and delivers to the Company
a deed of adherence in the form set out in Schedule 2;
(d) to any Transfer accepting a third party offer for all the
shares of the Company (including giving an irrevocable
undertaking to accept such an offer);
(e) to any Transfer selling shares to a bona fide third party
offeror for all the Shares of the Company; or
(f) to any Transfer pursuant to an offer by either the SBC Group
or the ▇▇▇ Group for all the shares of the Company, but shall
apply to all Transfers including, without limitation,
involuntary Transfers such as a Transfer pursuant to a
foreclosure sale and Transfers of any shares or other
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equity in a holding company of the Shareholder whereby the Shares cease
to be Controlled by the SBC Group or the ▇▇▇ Group (as the case may be)
or whereby the SBC Group or the ▇▇▇ Group (as the case may be) dispose
of any Person of which the Shares directly or indirectly held by such
Person represent 50 per cent. or more of the assets of such Person.
9.1.2 If at any time the ▇▇▇ Group or the SBC Group (as relevant, the
"Seller") have decided to Transfer all (or some) of its Shares ("Sale
Shares") other than to any Person in accordance with clause 9.1.1, the
Seller shall first give a written notice ("Sale Notice") to the Board
on behalf of the Company and to TINTA and MediaOne Holdings (each of
TINTA and MediaOne Holdings being a "Relevant Purchaser"). The Seller
and each Relevant Purchaser shall meet and shall enter into good faith
negotiations and use their best efforts to agree a price at which, and
the proportions in which, all of the Sale Shares will be sold to all
or some of them. If the Seller and the Relevant Purchasers are not
able to agree any such price and proportions within a period of 30
days after the date of the Sale Notice, the Seller shall be entitled,
within 5 days after the expiry of such period, to serve a further
written notice (a "Transfer Notice") on the Relevant Purchasers,
inviting the Relevant Purchasers to offer to purchase or procure the
purchase of all of the Sale Shares as provided below in clause 9.1.3.
9.1.3 The Relevant Purchasers shall have the right to offer to purchase or
procure the purchase of all of the Sale Shares (in such proportions as
may be agreed between them) by giving notice to the Seller within 20
days of receipt of the Transfer Notice (the "Acceptance Period") which
notice (the "Offer Notice") shall specify the price (the "Offer
Price") at which, and the proportions in which, they are prepared to
purchase or procure the purchase of all the Sale Shares. The Relevant
Purchasers shall not be entitled to give separate Offer Notices and
any such separate Offer Notices received shall be deemed to be invalid.
9.1.4 On receipt of an Offer Notice in respect of the Sale Shares, the Seller
shall within 10 days after the Acceptance Period serve a written notice
on each Relevant Purchaser either unconditionally accepting or
unconditionally refusing the offer comprised therein.
9.1.5 If the Seller accepts the offer contained in any Offer Notice pursuant
to clause 9.1.3:
(a) subject to sub-paragraph (b) the Relevant Purchasers shall
become bound (in the proportions specified in the Offer
Notice) to purchase or procure the purchase of, and the Seller
shall become bound to sell all of, the Sale Shares at the
Offer Price; and
(b) completion of the sale and purchase of the Sale Shares shall
take place in accordance with clause 9.4.
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9.1.6 If:
(a) following service of a Transfer Notice pursuant to clause
9.1.2 the Relevant Purchasers do not serve a valid Offer
Notice in respect of all of the Sale Shares; or
(b) the Seller does not accept the offer contained in any Offer
Notice pursuant to clause 9.1.3; or
(c) the Relevant Purchasers have not completed the purchase of
the Sale Shares in accordance with clause 9.4, the Seller shall be
entitled to Transfer the Sale Shares to one or more third party
purchasers (the "Third Party Purchasers") at any price (in a case
within paragraph (a) or (c) above) or at a price being not less than
the Offer Price which was not accepted (in a case within paragraph (b)
above) provided that in each such case the Transfer shall be completed
(subject to registration) within a period of 90 days after the date of
the Transfer Notice. For such purposes, in respect of any Preference
Shares comprising Sale Shares closing will be deemed to have taken
place upon the delivery to the registrars for the time being of the
Company by a Third Party Purchaser of a valid conversion notice in
accordance with article 4.6 of the New Articles.
9.1.7 If the Seller is unable to complete (or procure the completion of) the
Transfer of the Sale Shares to a Third Party Purchaser within the
period specified in clause 9.1.6 it shall not be entitled to transfer
any of the Sale Shares to a Third Party Purchaser otherwise than in
accordance with the foregoing provisions of this clause 9.1 following
service of a further Transfer Notice or Sale Notice as relevant.
9.2 Rights of first refusal between the TINTA Group and the MediaOne
Group
9.2.1 Clauses 9.2.2 to 9.2.7 shall not apply to any Transfer by a Shareholder
to an Affiliate of that Shareholder or to any Transfers pursuant to a
Permitted Demerger (provided that any transferee who is or becomes a
member of the same Shareholder Group as the transferor, first duly
completes, executes and delivers to the Company a deed of adherence in
the form set out in Schedule 2).
9.2.2 Subject to clause 9.2.1, a TINTA Shareholder or MediaOne Shareholder
desiring to make a Transfer of Shares (the "Seller") shall first make
a written offer (the "Offer") to sell such Shares to the MediaOne
Group or the TINTA Group respectively (the "Relevant Purchaser") on
the same terms and conditions on which the Seller proposes to Transfer
the Shares. If the proposed Transfer is a Public Transfer, the Seller
shall give notice to the Relevant Purchaser stating the number of
Shares it proposes to Transfer and that such Shares will be sold to
the Relevant Purchaser at a price per Share equal to the average of
the Closing Prices for six Trading Days comprising the three Trading
Days prior to and including the date that any notice is sent pursuant
to clause 9.2.3 and the three Trading Days following the date of such
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notice. If the proposed Transfer is a Private Transfer, such offer
shall state the price and the other terms and conditions of the
proposed Transfer and shall be accompanied by a copy of the offer from
the proposed transferee. The price as so determined or stated in the
Seller's notice shall be the "Offer Price". The foregoing
notwithstanding, the Seller may withdraw the Offer without liability to
the Relevant Purchaser hereunder if the Offer Price, determined with
respect to any Public Transfer, is less than 90 per cent. of the
Closing Price on the date of the Offer (or if such date is not a
Trading Day, on the immediately preceding Trading Day).
9.2.3 The Relevant Purchaser shall have the right for a period of 30 days
after receipt of the Offer to elect to purchase all, but not less than
all, of the Shares offered at the Offer Price (less, in case of a
proposed Public Transfer, any underwriting or sales commission or
discount that would have been paid in the proposed Public Transfer) by
giving written notice of acceptance to the Seller within that period.
If the Relevant Purchaser does not elect to purchase all the Shares
offered, the Seller may Transfer the offered Shares pursuant to the
terms disclosed under clause 9.2.2 which, in the case of a Private
Transfer, shall be at a price equal to or greater than the Offer
Price. If the offered Shares are not Transferred within 90 days after
the Relevant Purchaser's option period expires, a new offer shall be
made to the Relevant Purchaser before any Transfer is made.
9.2.4 If in the case of a Private Transfer, a third party's offer involves
consideration other than immediate payment of cash at closing, the
Relevant Purchaser may pay the Fair Market Value of such other
consideration, as determined by agreement between the Seller and the
Relevant Purchaser, in cash. If they cannot agree on such cash
equivalent within seven days after the Relevant Purchaser gives notice
of its election to purchase the offered Shares, the Relevant Purchaser
may, by written notice to the Seller, initiate appraisal proceedings
under clause 9.2.5 for determination of the Fair Market Value of such
consideration. The Fair Market Value shall be determined without
regard to income tax consequences to the Seller as a result of
receiving cash in lieu of other consideration. Once the Fair Market
Value is determined, (i) the Relevant Purchaser, in its sole
discretion, may elect either to purchase the Shares in cash by giving
notice of such election to the Seller within 10 days after receipt of
the appraiser's decision or to withdraw its acceptance of the Offer,
and (ii) the Seller may in its sole discretion withdraw the Offer
provided that in such case it may not Transfer such Shares pursuant to
the proposed Private Transfer.
9.2.5 Any appraisal of the Fair Market Value of consideration shall be made
by an appraiser jointly appointed by the TINTA Group and the MediaOne
Group to make such determination. If the parties fail to agree on an
appraiser within 20 days after receipt of the notice requiring or
permitting an appraisal of Fair Market Value, each of the TINTA Group
and the MediaOne Group shall appoint one appraiser, which shall be an
investment banking firm of national repute. The two appraisers so
selected shall each make an appraisal of Fair Market Value within 30
days after their selection. If such determinations vary by 20 per
cent. or more of the higher determination, the two appraisers shall
select a third appraiser with similar
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qualifications which shall make its determination of such Fair Market
Value within 30 days after its selection. Such third appraiser shall
not be informed of or otherwise consider the appraisals of the other
two in reaching its determination. The Fair Market Value shall be the
average of the two closest values if three appraisals are made or, if
the determinations of the first two appraisers vary by 20 per cent. or
less of the higher of such two determinations, the average of those two
determinations. If any Shareholder Group fails to appoint an appraiser
as required hereunder, the other Shareholder Group may refer the matter
to the American Arbitration Association, which shall promptly appoint
an appraiser hereunder on behalf of the Shareholder Group failing to
make such appointment. Appraisers appointed under this clause 9.2.5
shall act as experts and not as arbitrators and, absent fraud or
manifest error, the determination of an appraiser or appraisers
hereunder shall be binding on the parties.
9.3 Change in Control of TINTA or MediaOne
If at any time there is an involuntary Change in Control with respect
to MediaOne Holdings and its Affiliates or TINTA and its Affiliates,
MediaOne Holdings and its Affiliates or TINTA and its Affiliates, as
the case may be, experiencing the Change in Control (the "Subject
Group") shall give notice to the other group (the "Responding Group")
promptly after the Subject Group becomes aware of the Change in
Control. If at any time a Subject Group experiences a voluntary Change
in Control, the Subject Group shall give notice to the Responding Group
promptly after the terms of the Change in Control are set forth in a
binding agreement. The Responding Group must within 30 days after its
receipt of such notice give notice to the Subject Group either (a)
consenting to the Change in Control or (b) stating the price at which
the Responding Group is willing to sell all of its Shares to the
Subject Group or to buy all of the Subject Group's Shares (the "Quoted
Price"). Failure to give notice of such election within the time
permitted shall be deemed consent to the Change in Control. If the
Responding Group notifies the Subject Group that it does not consent to
the Change in Control, the Subject Group must, within 30 days after its
receipt of the Responding Group's notice, give notice to the Responding
Group of its election to sell all of its Shares to the Responding Group
or to buy all of the Responding Group's Shares, in either case at the
Quoted Price.
9.4 General transfer provisions
9.4.1 The closing of the purchase of any Shares by the TINTA Group or the
MediaOne Group pursuant to clauses 9.1, 9.2 or 9.3 shall take place at
the Company's principal offices:
(a) in the case of clause 9.1, within 60 days after agreement of
the price and proportions in which the Sale Shares can be
transferred by the Seller pursuant to clause 9.1.2 or within
30 days after acceptance ("Acceptance") by the Seller of the
offer contained in any Offer Notice pursuant to clause 9.1.3;
and
(b) in the case of clauses 9.2 and 9.3 on a day specified by the
purchaser (other than a Saturday, Sunday or day on which
banking institutions in New York
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are required by law to be closed) which is no more than 90
days after the day of exercise of the relevant purchase
option,
or, if later, the date on which all necessary consents to such Transfer
by governmental authorities shall have been obtained which, in the case
of clause 9.1, shall be no later than 30 days from the date of
Acceptance. At the closing the Seller shall deliver certificates
representing the Shares to be sold free and clear of any lien, charge
or encumbrance, duly endorsed or accompanied by stock transfers
executed in blank, and such other documents as may be reasonably
necessary to effectuate the sale. The Seller shall give customary
representations and warranties regarding the title of such shares to
the Relevant Purchaser(s). The purchase price (to the extent payable in
cash) shall be paid in cash in immediately available funds.
9.4.2 The Relevant Purchaser may rescind its notice of acceptance given
pursuant to clause 9.2.3 at any time on or prior to the thirtieth day
following the date on which such notice is given (but not thereafter)
if (i) prior to the date of such notice of acceptance the Relevant
Purchaser had sought in good faith a waiver from the Panel with
respect to the application of any provision of Rule 9 of the City Code
on Take-overs and Mergers which absent such waiver would require the
Relevant Purchaser to offer to purchase all of the outstanding
Ordinary Shares, and (ii) such waiver or any shareholder approval
required by the Panel has been denied (or has not been granted as of
the last day of such rescission period) provided that if the Relevant
Purchaser so rescinds its acceptance, the 90 day period referred to in
clause 9.4.1(b) shall be extended by the number of days between the
date of such acceptance and the date of rescission.
9.4.3 Notwithstanding any other provision of this clause 9, no Person may
Transfer any Shares unless it has complied with all applicable legal
requirements, including without limitation applicable United States
federal and state securities laws. Upon the exercise by a Person of
any right to acquire Shares hereunder, the parties shall use
commercially reasonable efforts to obtain any necessary consents or
approvals of any governmental authorities or other third parties
necessary to promptly effect such Transfer.
10. SPECIFIC RIGHTS OF SHAREHOLDER GROUPS TO MAINTAIN OWNERSHIP LEVEL
10.1 The following definitions are used in this clause 10: "15 Per Cent.
Group" means each of the following Shareholder Groups: (a) the TINTA
Group, for so long as the TINTA Group holds 15 per
cent. or more of the Ordinary Shares in issue for the time
being and from time to time (ignoring any Ordinary Shares
issued after the date hereof pursuant to or for the purposes
of share options); and
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(b) the MediaOne Group, for so long as the MediaOne Group holds 15
per cent. or more of the Ordinary Shares in issue for the time
being and from time to time (ignoring any Ordinary Shares
issued after the date hereof pursuant to or for the purposes
of share options);
"Percentage Ownership" means:
(a) in relation to each 15 Per Cent. Group, issued Ordinary
Shares representing 15 per cent. of the Fully Diluted
Ordinary Shares; and
(b) in relation to each 7.5 Per Cent. Group, issued Ordinary
Shares representing 7.5 per cent. of the Fully Diluted
Ordinary Shares;
"Qualifying Group" means a 15 Per Cent. Group or a 7.5 Per Cent. Group;
"Qualifying Shareholder" means a Shareholder within a Qualifying Group;
"Rights Issue" means an offering of Ordinary Shares or securities
convertible into Ordinary Shares or carrying the right to vote at
general meetings of the Company's shareholders (whether by way of a
rights issue, open offer or otherwise) to holders of Ordinary Shares in
the capital of the Company in proportion (as nearly as may be) to their
existing holdings of Ordinary Shares but subject to the Directors
having a right to make such exclusions or other arrangements in
connection with the offer as they deem necessary or expedient: (a) to
deal with equity securities representing fractional entitlements; and
(b) provided that such exclusions or arrangements do not affect
any Shareholder Group, to deal with legal or practical
problems under the laws of, or the requirements of any
recognised regulatory body or any stock exchange in, any
territory;
"7.5 Per Cent. Group" means:
(a) each of the TINTA Group and the MediaOne Group for so long as
such group holds 7.5 per cent. or more but less than 15 per
cent. of the Ordinary Shares in issue for the time being and
from time to time (ignoring any Ordinary Shares issued after
the date hereof pursuant to or for the purposes of share
options); and
(b) the ▇▇▇ Group for so long as the ▇▇▇ Group holds 7.5 per cent.
or more of the Ordinary Shares in issue for the time being and
from time to time (ignoring any Ordinary Shares issued after
the date hereof pursuant to or for the purposes of share
options).
10.2 Subject to clause 6.1.3, the Company shall give notice to each
Qualifying Shareholder of any proposed issuance (other than a Rights
Issue) of Ordinary Shares or of securities convertible into or
exchangeable for Ordinary Shares or carrying the right
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to vote at general meetings of the Company's shareholders which would
(assuming the conversion or exchange of any such convertible securities
into or for Ordinary Shares) reduce the number of Ordinary Shares owned
by a Qualifying Group below its Percentage Ownership (a "Dilutive
Issue").
10.3 Without prejudice to clause 10.4, while (a) TW Holdings holds or owns
50.1 per cent. or more of the Ordinary Shares in issue for the time
being and from time to time, or (b) the MediaOne Group and the TINTA
Group together hold or own 50.1 per cent. or more of the Ordinary
Shares in issue for the time being and from time to time the MediaOne
Shareholders and the TINTA Shareholders (the "MediaOne/TINTA
Shareholders") shall have the option to subscribe for that number of
Ordinary Shares necessary to permit TW Holdings (in the case of (a)
above) and the MediaOne/TINTA Shareholders (in the case of (b) above)
to maintain ownership of sufficient issued Ordinary Shares in aggregate
as will represent 50.1 per cent. of the Fully Diluted Ordinary Shares
immediately following a Dilutive Issue assuming that the Qualifying
Shareholders exercise their options under clause 10.4 in full. Each
MediaOne/TINTA Shareholder shall, within 15 days after receipt of a
notice from the Company to the effect that all conditions to such
issuance have been satisfied, notify the Company whether, and to what
extent, it wishes to exercise such option and whether it would like to
subscribe any surplus Ordinary Shares under option but not taken up in
accordance with this clause. If any Ordinary Shares under option under
this clause in respect of a particular Dilutive Issue are not taken up
in accordance with this clause the Company shall allocate such excess
shares to those MediaOne/TINTA Shareholders who requested additional
Ordinary Shares and in case of competition for such shares, pro rata to
their existing holdings of Ordinary Shares.
10.4 The Qualifying Shareholders within each Qualifying Group shall have the
option to subscribe for that number of new Ordinary Shares (in such
proportions as they may agree and otherwise among them pro rata
according to their respective shareholdings) necessary to permit their
Qualifying Group to maintain ownership of sufficient Ordinary Shares to
maintain its Percentage Ownership immediately following a Dilutive
Issue assuming and provided that such Qualifying Shareholder exercised
its option (if any) under clause 10.3 in full. Each Qualifying
Shareholder shall, within 15 days after receipt of notice from the
Company to the effect that all conditions to such issuance have been
satisfied, notify the Company whether, and to what extent, it wishes to
exercise such option, which may be exercised in full or in part.
10.5 Prior to exercising their rights under clause 10.4 the MediaOne Group
and the TINTA Group agree with each other to consult each other and, if
the exercise of their rights to the desired extent may have
implications under Rule 9 of the City Code on Takeovers and Mergers, to
consult the Panel. If within 10 days of receipt of notice from the
Company to the effect that all conditions to the proposed issuance have
been satisfied the Panel has not granted or has denied a waiver of all
requirements under Rule 9 for the TINTA Group or the MediaOne Group to
make a mandatory offer as a result of the exercise of their rights
under clause 10.4 or any shareholder approval required by the Panel has
not been granted or has been denied and both the MediaOne Group and
-29-
the TINTA Group wish to exercise their rights under clause 10.4 to an
extent which in aggregate would trigger the requirement for a mandatory
offer under Rule 9, unless TINTA and MediaOne Holdings otherwise agree,
the TINTA Group and the MediaOne Group shall exercise their rights
under clause 10.4 only to the maximum extent practicable without
triggering any requirement under Rule 9 for a mandatory offer and, in
case of competition, pro rata to their then existing holdings of
Ordinary Shares.
10.6 Any shares subscribed for by a Qualifying Shareholder pursuant to
clause 10.3 or 10.4 shall be subscribed for in cash at a price per
share equal to the average Closing Price for the 10 consecutive Trading
Days ending on the Trading Day immediately preceding the date of the
Dilutive Issue. Such Ordinary Shares shall be issued immediately before
the Dilutive Issue which gave rise to the option described in this
clause 10.
10.7 The Company will seek statutory authority to allot Ordinary Shares
(pursuant to section 80 of the Act) and for the disapplication of the
statutory pre-emption rights (pursuant to section 95 of the Act) for a
period of five years and hereby agrees to use its reasonable endeavours
to renew any and every such statutory authority to allot and for the
disapplication of the pre-emption rights thereafter for so long as the
Company is obligated by the anti-dilution provision of this clause 10.
The Company further undertakes that it shall only increase the Fully
Diluted Ordinary Shares if thereafter there is sufficient authorised
but unissued share capital for the Company to comply with its
obligations pursuant to this clause 10 and also only if there are
outstanding and valid a statutory authority to allot (pursuant to
section 80 of the Act) and a disapplication of the statutory preemption
rights (pursuant to section 95 of the Act) in respect of sufficient
Ordinary Shares for the Company to comply with its obligations under
this clause. The Shareholders undertake to each other and to the
Company to vote in favour of any such proposed resolutions.
10.8 The Company shall use all reasonable efforts to ensure that all
Ordinary Shares issued pursuant to this clause 10 are admitted to the
Official List by the London Stock Exchange.
11. GENERAL RIGHTS OF SHAREHOLDER GROUPS TO MAINTAIN OWNERSHIP LEVEL
The Company agrees to use its best efforts, consistent with the
interests of shareholders generally, to ensure that any issuance of
Shares is done in a manner that provides each Shareholder Group with an
opportunity to acquire additional Shares in amounts necessary from time
to time to enable them to maintain their percentage Ordinary Share
ownership in the Company. The Company shall apply for all such Ordinary
Shares to be admitted to the Official List by the London Stock
Exchange.
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12. NON-COMPETITION
12.1 Subject to clauses 12.5 and 12.6, MediaOne Holdings undertakes to the
Company that (unless the Company, by a vote of directors other than
those appointed by the MediaOne Shareholders consents) it will procure
that neither MediaOne nor any of its Controlled Affiliates shall, so
long as the MediaOne Shareholders have the right to appoint two
directors to the Board and for a period of one year after the MediaOne
Shareholders cease to have such right:
12.1.1 own directly assets comprising Cable Telephony and Cable Television
systems in the United Kingdom (excluding in respect of terrestrial TV)
other than through its relationship with the Company and the Company's
Affiliates; or
12.1.2 acquire an equity interest in any Person (other than the Company, TWE,
Flextech plc, MPC or their Controlled Affiliates) if (a) at the time
of such acquisition such Person directly or indirectly through one or
more Controlled Affiliates owns any Cable Telephony or Cable
Television systems in the UK (excluding in respect of terrestrial TV),
unless immediately prior to such acquisition the acquiror and its
Controlled Affiliates owned more than 10 per cent. of the outstanding
equity interests in such Person, or (b) such acquisition of equity
interests is being made pursuant to an agreement or arrangement in
which the proceeds of the issuance of such equity interest would be
used to acquire or invest in a Cable Telephony or Cable Television
system in the UK (excluding in respect of terrestrial TV).
12.2 Subject to clauses 12.5 and 12.6, TINTA undertakes to the Company that
(unless the Company, by a vote of directors other than those appointed
by the TINTA Shareholders consents) it will procure that neither TCI
nor any of its Controlled Affiliates shall, so long as the TINTA
Shareholders have the right to appoint two directors to the Board and
for a period of one year after the TINTA Shareholders cease to have
such right:
12.2.1 own directly assets comprising Cable Telephony and Cable Television
systems in the United Kingdom (excluding in respect of terrestrial TV)
other than through its relationship with the Company and the Company's
Affiliates; or
12.2.2 acquire an equity interest in any Person (other than the Company,
Flextech plc, MPC, At Home Corporation, Princes Holdings Limited or
their Controlled Affiliates) if (a) at the time of such acquisition
such Person directly or indirectly through one or more Controlled
Affiliates owns any Cable Telephony or Cable Television systems in the
UK (excluding in respect of terrestrial TV), unless immediately prior
to such acquisition the acquiror and its Controlled Affiliates owned
more than 10 per cent. of the outstanding equity interests in such
Person, or (b) such acquisition of equity interests is being made
pursuant to an agreement or arrangement in which the proceeds of the
issuance of such equity interest would be used to acquire or invest in
a Cable Telephony or Cable Television system in the UK (excluding in
respect of terrestrial TV).
-31-
12.3 Subject to clauses 12.5 and 12.6, Cox undertakes to the Company that
(unless the Company, by a vote of directors other than those appointed
by Cox consents) neither Cox nor any of its Controlled Affiliates
shall, so long as the Cox Group has the right to appoint a director to
the Board and for a period of one year after the Cox Group ceases to
have such right:
12.3.1 own directly assets comprising Cable Telephony and Cable Television
systems in the United Kingdom (excluding in respect of terrestrial TV)
other than through its relationship with the Company and the Company's
Affiliates; or
12.3.2 acquire an equity interest in any Person (other than the Company,
Flextech plc, At Home Corporation, or their Controlled Affiliates) if
(a) at the time of such acquisition such Person directly or indirectly
through one or more Controlled Affiliates owns any Cable Telephony or
Cable Television systems in the UK (excluding in respect of terrestrial
TV), unless immediately prior to such acquisition the acquiror and its
Controlled Affiliates owned more than 10 per cent. of the outstanding
equity interests in such Person or (b) such acquisition of equity
interests is being made pursuant to an agreement or arrangement in
which the proceeds of the issuance of such equity interest would be
used to acquire or invest in a Cable Telephony or Cable Television
system in the UK (excluding in respect of terrestrial TV).
12.4 Subject to clauses 12.5 and 12.6, SBCI undertakes to the Company that
(unless the Company, by a vote of directors other than those appointed
by SBCI consents) neither SBCI nor any of its Controlled Affiliates
shall, so long as the SBC Group has the right to appoint a director to
the Board and for a period of one year after the SBC Group ceases to
have such right:
12.4.1 own directly assets comprising Cable Telephony and Cable Television
systems in the United Kingdom (excluding in respect of terrestrial TV)
other than through its relationship with the Company and the Company's
Affiliates; or
12.4.2 acquire an equity interest in any Person (other than the Company or
its Controlled Affiliates) if (a) at the time of such acquisition such
Person directly or indirectly through one or more Controlled Affiliates
owns any Cable Telephony or Cable Television systems in the UK
(excluding in respect of terrestrial TV), unless immediately prior to
such acquisition the acquiror and its Controlled Affiliates owned more
than 10 per cent. of the outstanding equity interests in such Person,
or (b) such acquisition of equity interests is being made pursuant to
an agreement or arrangement in which the proceeds of the issuance of
such equity interest would be used to acquire or invest in a Cable
Telephony or Cable Television system in the UK (excluding in respect
of terrestrial TV).
12.5 Notwithstanding the restrictions set forth in clauses 12.1, 12.2, 12.3
and 12.4 MediaOne Holdings, MediaOne, TCI, TINTA, SBCI, Cox and their
respective Controlled Affiliates (each a "Relevant Investor") may
acquire and subsequently own assets comprising Cable Television or
Cable Telephony systems in the UK if, prior to the Relevant Investor
acquiring such assets, it first offers the opportunity to
-32-
the Company, stating the terms on which the opportunity is available.
The Company shall within 30 days after receipt of such notice give
notice to the Relevant Investor stating whether it wishes to undertake
such opportunity and failure to do so shall be deemed rejection of the
right to undertake the opportunity. The directors appointed by the
Shareholder Group of which the Relevant Investor is a member ("Relevant
Investor Group") shall not vote with respect to any decision by the
Company whether to pursue an opportunity offered by the Relevant
Investor Group, and if the Relevant Investor Group votes as a
shareholder against any means of funding the pursuit of such
opportunity which requires shareholder approval (other than a guarantee
or similar agreement that would impose an obligation on the Relevant
Investor Group), the Relevant Investor Group shall not pursue the
opportunity independently. In the event that the Company notifies the
Relevant Investor that it does not wish to undertake such opportunity
then within a further 180 days of such notification the Relevant
Investor may take all necessary actions to enter into agreements
relating to such opportunity (on terms no more favourable than those
offered to the Company) and to the extent the Relevant Investor does
not do so then before entering into such agreements after the expiry of
such 180 day period it must first re-offer the opportunity to the
Company on the terms set out herein. Except as stated herein, MediaOne,
MediaOne Holdings, TCI, TINTA, SBCI, Cox and their Controlled
Affiliates shall be free to pursue any other business opportunity
anywhere in the world.
12.6 Nothing contained in this clause 12 shall prohibit or otherwise
restrict MediaOne, MediaOne Holdings, TCI, TINTA, SBCI or Cox or their
respective Affiliates from:
12.6.1 owning or acquiring 10 per cent. or less of the outstanding equity of a
Person that engages in Cable Television or Cable Telephony in the
United Kingdom;
12.6.2 owning or acquiring an interest in any Person engaged in (a) Wireless
Telephony, (b) billing, validation or call authorisation service and
related or ancillary services for use by any provider of
telecommunications services, or (c) any subscriber voice or data
telecommunications transmission service that interconnects a Group
System with any other telecommunications networks outside the licensed
territory of any Group System, but does not compete with a Group
System for Cable Telephony customers;
12.6.3 directly or indirectly providing any subscriber voice or data
telecommunications transmission service (including but not limited to
Wireless Telephony) that operates only in part by cable links to
subscribers' premises (except in respect of the interconnection of such
service to cable links which serve customers in the licensed territory
of any Group System, but the ability to engage in such service outside
of such interconnection shall not be restricted);
12.6.4 owning or acquiring, directly or indirectly, an interest in any Person
that provides, or is providing, programming or content services in the
United Kingdom; or
12.6.5 acquiring an interest in any Person whose annual gross revenues from
Cable Television and Cable Telephony in the United Kingdom in its most
recently
-33-
completed fiscal year prior to the acquisition constituted 20 per cent.
or less of its total annual gross revenues; provided that if any of
MediaOne Holdings, TINTA, SBCI, Cox or their respective Controlled
Affiliates acquires in accordance with this clause 12.6.5 after the
date hereof a Controlling interest in any Person (other than Flextech
plc, TWE or MPC or their Controlled Affiliates) which owns Cable
Television or Cable Telephony assets in the United Kingdom, the Company
shall have the option (subject to third party rights and any
contractual restrictions) so long as clause 12.1, 12.2, 12.3 or 12.4,
as the case may be, is applicable to the acquiror's Shareholder Group,
to acquire the interest in the Cable Television and Cable Telephony
assets in the United Kingdom of that Person for the Fair Market Value
thereof payable in cash, provided that (a) the option must be
exercised, if at all, by the Company by giving written notice to the
Relevant Investor within 30 days after the Relevant Investor gives
notice to the Company of the existence of such opportunity and closed
within 120 days after the date of the notice of exercise and (b) the
Relevant Investor acquiring such interest shall not vote on any
decision whether to exercise the option granted in this clause 12.6.5.
12.7 Each of the exceptions set forth in clauses 12.6.1 through 12.6.5 is
separately applicable and independent of any of the other exceptions.
12.8 Whenever the Fair Market Value of any transaction or interest is
required to be determined hereunder, the Relevant Investor and the
Company may upon notice require that Fair Market Value determination be
made by an appraiser jointly appointed by the Relevant Investor and the
Company. If the Relevant Investor and the Company fail to agree on an
appraiser within 20 days after receipt of the notice requiring an
appraisal of Fair Market Value, they shall each appoint one appraiser,
which shall be an investment banking firm of national repute in the UK.
The two appraisers so selected shall each make an appraisal of Fair
Market Value within 30 days after their selection. If such
determinations vary by 20 per cent. or more of the higher
determination, the two appraisers shall select a third appraiser with
similar qualifications which shall make its determination of such Fair
Market Value within 30 days after its selection. Such third appraiser
shall not be informed of or otherwise consider the appraisals of the
other two in reaching its determination. The Fair Market Value shall be
the average of the two closest values if three appraisals are made or,
if the determinations of the first two appraisers vary by less than 20
per cent. of the higher of such two determinations, the average of
those two determinations. If any party fails to appoint an appraiser as
required hereunder, the other party may refer the matter to the
American Arbitration Association, which shall promptly appoint an
appraiser hereunder on behalf of the party failing to make such
appointment. The 30-day period specified in clause 12.6.5 above shall
be suspended pending final determination of Fair Market Value.
Appraisers appointed under this clause shall act as experts and not as
arbitrators and, absent fraud or manifest error, the determination of
an appraiser hereunder shall be binding on the parties.
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13. SCOPE OF COMPANY BUSINESS
Subject to clause 14, the Company agrees with each of the MediaOne
Group and the TINTA Group, for so long as it is a Qualifying Group that
the business of the Company and its Controlled Affiliates shall be
limited to providing Cable Television, Cable Telephony services and
Wireless Telephony services in the United Kingdom and all matters
incidental thereto, including television programming in the United
Kingdom incidental to the Company's Cable Television business in the
United Kingdom (collectively, "Company Business"), and such other
businesses as such Shareholder Group shall approve by written consent.
The Company shall not own or acquire an equity interest in any Person
that engages in a business other than those in which the Company is
permitted to engage pursuant to this clause 13. Neither the Company nor
any of its Affiliates shall use the "Telewest" ▇▇▇▇ (or any ▇▇▇▇
confusingly similar to it) outside of the UK and the TINTA
Shareholders, the MediaOne Shareholders and their respective Affiliates
shall not use the "Telewest" ▇▇▇▇ (or any ▇▇▇▇ confusingly similar to
it) within the UK.
14. CONTRACTUAL RESTRICTIONS
14.1 The Company undertakes to the MediaOne Group that so long as the
MediaOne Shareholders own more than 5 per cent. of the Company's issued
Ordinary Shares and so long as the contractual restrictions described
in Part I of Schedule 1 remain in effect, the Company will not
knowingly take or omit to take (and will not permit its Controlled
Affiliates to take or omit to take) any action that could cause a
breach or violation of the contractual restrictions (as such exist on
the date hereof) described in Part I of Schedule 1, and also undertakes
to the TINTA Group that for so long as the TINTA Shareholders own more
than 5 per cent. of the Company's issued Ordinary Shares and so long as
the contractual restrictions described in Part II of Schedule 1 remain
in effect, that the Company will not knowingly take or omit to take
(and will not permit its Controlled Affiliates to take or omit to take)
any action that could cause a breach or violation of the contractual
restrictions (as such exist on the date hereof) described in Part II of
Schedule 1.
14.2 Notwithstanding anything in this Agreement to the contrary, the Company
may (i) engage in the business of Fixed Wireless Telephony services,
(ii) sell Wireless Telephony services solely as a distributor or
retailer of such services through a contractual relationship with one
or more owners of any Wireless Telephony business, including but not
limited to MPC, provided that the Company does not have any ownership
interest in and does not operate such Wireless Telephony business, and
(iii) the Company may jointly invest with MPC in mobile radio voice
telephony networks to be constructed by MPC or its Affiliates.
15. INDEMNIFICATIONS
15.1 The Company shall indemnify and hold harmless each of TINTA, MediaOne
Holdings, SBCI and Cox for themselves and as trustees for their
respective Affiliates and each Relevant Person from and against any
costs, damages, liabilities and
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obligations (including but not limited to attorneys' fees and payment
of any settlement or judgment) arising out of any claim, action or
proceeding relating to the Offer Documents, except those matters as to
which such Person or one of its Affiliates has specifically agreed to
indemnify the Company pursuant to this clause 15. If the
indemnification in this clause 15 is at any time legally or
procedurally unavailable to any Person, the Company shall contribute to
the amount paid or payable by such Person on account of such claim,
action or proceeding an amount equal to the amount the Company
otherwise would be required to pay that Person as indemnification under
this clause 15.
15.2 The TINTA Shareholders shall indemnify and hold harmless the Company
and its directors, officers and employees for the time being and from
time to time from and against any costs, damages, liabilities and
obligations (including but not limited to attorneys' fees and payment
of any settlement or judgment) arising out of any claim, action or
proceeding (including any claim by any other Shareholder pursuant to
this clause 15) relating to any portion of the Offer Documents provided
by the TINTA Group in writing for use in the Offer Documents and/or
arising from any failure by the TINTA Group to provide all the
information required to be disclosed in relation to the TINTA Group in
the Offer Documents. If the indemnification provided in this clause
15.2 is at any time legally or procedurally unavailable to any person,
the TINTA Shareholders shall contribute to the amount paid or payable
by such Person on account of such claim, action or proceedings an
amount equal to amount they otherwise would be required to pay that
Person as indemnification under this clause 15.2.
15.3 The MediaOne Shareholders shall indemnify and hold harmless the Company
and its directors, officers and employees for the time being and from
time to time from and against any costs, damages, liabilities and
obligations (including but not limited to attorneys' fees and payment
of any settlement or judgment) arising out of any claim, action or
proceeding (including any claim by any other Shareholder pursuant to
this clause 15) relating to any portion of the Offer Documents provided
by the MediaOne Group in writing for use in the Offer Documents and/or
arising from any failure by the MediaOne Group to provide all the
information required to be disclosed in relation to the MediaOne Group
in the Offer Documents. If the indemnification provided in this clause
15.3 is at any time legally or procedurally unavailable to any Person,
the MediaOne Shareholders shall contribute to the amount paid or
payable by such Person on account of such claim, action or proceeding
an amount equal to that amount they otherwise would be required to pay
that Person as indemnification under this clause 15.3.
15.4 The SBC Shareholders shall indemnify and hold harmless the Company and
its directors, officers and employees for the time being and from time
to time from and against any costs, damages, liabilities and
obligations (including but not limited to attorneys' fees and payment
of any settlement or judgment) arising out of any claim, action or
proceeding (including any claim by any other Shareholder pursuant to
this clause 15) relating to any portion of the Offer Documents provided
by the SBC
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Group in writing for use in the Offer Documents and/or arising from any
failure by the SBC Group to provide all the information required to be
disclosed in relation to the SBC Group in the Offer Documents. If the
indemnification provided in this clause 15.4 is at any time legally or
procedurally unavailable to any Person, the SBC Shareholders shall
contribute to the amount paid or payable by such Person on account of
such claim, action or proceeding an amount equal to that amount they
otherwise would be required to pay that Person as indemnification under
this clause 15.4.
15.5 The Cox Shareholders shall indemnify and hold harmless the Company and
its directors, officers and employees for the time being and from time
to time from and against any costs, damages, liabilities and
obligations (including but not limited to attorneys' fees and payment
of any settlement or judgment) arising out of any claim, action or
proceeding (including any claim by any other Shareholder pursuant to
this clause 15) relating to any portion of the Offer Documents provided
by the Cox Group in writing for use in the Offer Documents and/or
arising from any failure by the Cox Group to provide all the
information required to be disclosed in relation to the Cox Group in
the Offer Documents. If the indemnification provided in this clause
15.5 is at any time legally or procedurally unavailable to any Person,
the Cox Shareholders shall contribute to the amount paid or payable by
such Person on account of such claim, action or proceeding an amount
equal to that amount they otherwise would be required to pay that
Person as indemnification under this clause 15.5.
15.6 The Company covenants with and undertakes to each of Cox and CUK that
it will indemnify and keep each of them indemnified from and against
all stamp duty, stamp duty reserve tax and related interest, penalties
and costs arising out of or in connection with the transfer from TW
Holdings to CUK of any Ordinary Shares transferred to TW Holdings from
CUK ("Tax"). The Company shall pay to CUK in cleared funds an amount
equal to any Tax paid by CUK within 5 working days of CUK's demand for
the same.
15.7 Each Shareholder Group and the Company shall act reasonably to mitigate
any loss or liability in respect of which it claims indemnity under
this Clause 15.
16. GAIN RECOGNITION CONSENT REQUIREMENTS
The Company covenants to each of the MediaOne Group, the TINTA Group,
the Cox Group and the SBC Group that for so long as (i) they each own
or (ii) the SBC Group and the Cox Group in aggregate own or (ii) the
MediaOne Group and the TINTA Group in aggregate own at least 7.5 per
cent. of the Ordinary Shares in issue the Company will not and will
procure that no member of the Telewest Group will, (i) without the
written consent of such Shareholder Group, dispose of assets (including
securities of an Affiliate of the Company) in one transaction or a
series of related transactions within any 18 month period having a Fair
Market Value of (pound)20,000,000 or more if, in the judgment of such
Shareholder Group, the disposition could require it to recognise gain
under the Gain Recognition Agreements between it and the US Internal
Revenue Service or (ii) in the case of MediaOne and the TINTA Group,
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dispose of or reorganise any interest in or Control of any member of
the Telewest Group intra-group or acquire any equity interest in a
Person not Affiliated with the Company immediately prior to such
acquisition if the effect of any such disposition, reorganisation or
acquisition would be to create an intermediate holding Person within
the Telewest Group. The Company shall be entitled to conclusively rely
on notice from any of MediaOne Holdings, TINTA, Cox or SBCI (as the
case may be) as to any consent given by their respective Shareholder
Groups.
17. CITY CODE ON TAKEOVERS AND MERGERS
If any Shareholder Group takes any action which causes another
Shareholder Group or Groups to be under an obligation pursuant to Rule
9 of the City Code on Takeovers and Mergers (the "Code"), the
Shareholder Group which takes such action shall fulfil all the
obligations of such other Shareholder Group or Groups (but not the
Company) thereunder and shall pay all consideration and expenses
attributable to such Shareholder Group or Groups in connection
therewith.
18. CONFIDENTIALITY
Save as required by law or any regulatory authority, each Shareholder
shall keep confidential, and shall procure that all members of its
Shareholder Group will keep confidential, any confidential information
of the Telewest Group which is or has been given to it by or on behalf
of the Telewest Group unless the information is already in the public
domain other than through the default of the Shareholder or a member of
its Shareholder Group in complying with this clause.
19. JOINT AND SEVERAL LIABILITY FOR CONTROLLED AFFILIATES
MediaOne Holdings, TINTA, SBCI and Cox shall each be jointly and
severally liable with their respective Controlled Affiliates for any
and all of the obligations and liabilities of their respective
Controlled Affiliates under this Agreement.
20. TERM
This Agreement shall continue whilst any party hereto retains any
rights and/or obligations hereunder and shall terminate forthwith (in
relation to a party no longer having any rights and/or obligations)
upon that ceasing to be the case.
21. TERMINATION OF 1994 AND 1995 AGREEMENTS
21.1 This Agreement supersedes the 1994 Agreements and the 1995 Agreements
and each parties' further rights and obligations thereunder shall cease
upon this Agreement becoming unconditional provided that (a) the
parties' rights and obligations accrued thereunder prior to such time
shall not be affected, and (b) if pursuant to clause 2.4 (having become
unconditional) this Agreement is terminated, the 1994 Agreements and
the 1995 Agreements shall revive as if no termination of those
agreements had occurred pursuant to this clause.
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21.2 The Company, the MediaOne Group and the TINTA Group shall comply with
the provisions of Schedule 3 in place of clauses 16(b) and (c) and 17
of the Old Relationship Agreement.
21.3 Clause 3.6 of the Old Shareholders Agreement, clause 18 of the Old
Relationship Agreement and clause 6 of the Co-operation Agreement shall
not apply in relation to the issue or conversion of any Shares pursuant
to the Offer, the Telewest Open Offer, this Agreement or the
Subscription Agreement.
22. COMPETITION
No provision of this Agreement, or of an agreement or arrangement of
which it forms part, by virtue of which this Agreement, or an agreement
or arrangement of which it forms part, is subject to registration under
the Restrictive Trade Practices Acts 1976 and 1977, takes effect until
the day after the date on which particulars have been furnished to the
Director General of Fair Trading in accordance with those Acts.
23. COSTS
Each party shall pay its own costs relating to the negotiation,
preparation, execution and performance by it of this Agreement and of
each document referred to in it.
24. FURTHER ASSURANCE
The parties agree that they shall execute and deliver any other
documents and instruments, and take any other actions reasonably
requested by another party necessary or appropriate to give effect to
this Agreement.
25. GENERAL
25.1 Whenever in this Agreement action by a Shareholder Group is required or
permitted, that action shall be deemed taken if approved by members of
that Shareholder Group owning a majority of the total number of Shares
owned by all the members of that Shareholder Group.
25.2 A variation of this Agreement is valid only if it is in writing and
signed by or on behalf of each party.
25.3 The parties agree that each party would be irreparably damaged if any
party failed to perform any obligation under this Agreement, and that
such party would not have an adequate remedy at law for money damages
in such event. Accordingly, each party hereto will be entitled to
specific performance and injunctive and other equitable relief to
enforce the performance of this Agreement. This provision is without
prejudice to any other rights that such party may have under this
Agreement, at law or in equity.
25.4 The failure to exercise or delay in exercising a right or remedy
provided by this Agreement or by law does not constitute a waiver of
the right or remedy or a waiver of
-39-
other rights or remedies. No single or partial exercise of a right or
remedy provided by this Agreement or by law prevents further exercise
of the right or remedy or the exercise of another right or remedy.
25.5 The rights and remedies contained in this Agreement are cumulative and
not exclusive of rights or remedies provided by law.
25.6 The invalidity or unenforceability of any provision of this Agreement
in any jurisdiction shall not affect the validity or enforceability of
the remainder of this Agreement in that jurisdiction or the validity
on enforceability of this Agreement, including such provision, in any
other jurisdiction.
25.7 Each date, time or period referred to in this Agreement is of the
essence. If the parties agree in writing to vary a date, time or
period, the varied date, time or period is of the essence.
26. ASSIGNMENT
26.1 A party may not assign or transfer or purport to assign a right or
obligation under this Agreement without having first obtained the
written consent of the other parties.
26.2 The benefit of the rights of a Shareholder (subject to the burden of
the obligations of a Shareholder) under this Agreement shall be
afforded to a transferee who is or becomes a member of the same
Shareholders Group as the transferor provided that the transferee duly
completes, executes and delivers to the Company a deed of adherence in
the form set out in Schedule 2.
27. NOTICES
27.1 Any notice under this Agreement shall be in writing and signed by or on
behalf of the party giving it and may be served by leaving it or
sending it by fax, prepaid recorded delivery or registered post (and
air mail if overseas) to the address and for the attention of the party
receiving it set out in clause 27.2 or as otherwise notified under this
Agreement. In the absence of evidence of earlier receipt, any notice so
served shall be deemed to have been received:
(a) if delivered personally, when left at the relevant address;
(b) if sent by mail other than air mail, 48 hours after posting it;
(c) if sent by air mail, 96 hours after posting it;
(d) if sent by fax, on receipt of confirmation of its transmission.
27.2 The current addresses of the parties for the purpose of clause 27.1 are
set out below. These may be altered by the parties by notice to the
other parties at any time:
MediaOne Holdings ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
MediaOne UK Englewood
-40-
MediaOne Cable: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
For the attention of: General Counsel
Fax: ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
TINTA ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇: ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
For the attention of: ▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Company: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For the attention of: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇▇ ▇▇▇▇▇▇
SBCI #2 ▇▇▇▇'▇ Way
SBIHUK-1: Suite ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
For the attention of: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President and Secretary
Fax: ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Cox ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
For the attention of: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
In the case of
Cox and CUK, with
copy (which shall
not constitute service
of notice) to: Olswang
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For the attention of: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
In the case of SBCI
-41-
and SBIHUK-1, with
copy (which shall not
constitute service of
notice) to: Bird & Bird
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For the attention of: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
28. GOVERNING LAW AND JURISDICTION
28.1 This Agreement is governed by and shall be construed in accordance with
English law.
28.2 The courts of England have exclusive jurisdiction to hear and decide
any suit, action or proceedings, and to settle any disputes, which may
arise out of or in connection with this Agreement (respectively,
"Proceedings" and "Disputes") and, for these purposes, each party
irrevocably submits to the jurisdiction of the courts of England.
28.3 Each party irrevocably waives any objection which it might at any time
have to the courts of England being nominated as the forum to hear and
decide any Proceedings and to settle any Disputes and agrees not to
claim that the courts of England are not a convenient or appropriate
forum.
28.4 Process by which any Proceedings are begun in England may be served on
any party by being delivered in accordance with clause 27 or may be
served on the parties without addresses in England (as set out in
clause 27.2 above) by being delivered to the agents at the addresses
indicated below (or such other agent or address as the party in
question may notify to the other parties):
MediaOne Holdings, ▇▇▇▇▇▇▇▇ Chance Secretaries Limited
MediaOne UK, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
MediaOne Cable: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For the attention of: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇/
▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
TINTA Grays Inn Secretaries Limited
UAP-E: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
For the attention of: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇
▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
-42-
SBCI, Bird & Bird
SBIHUK-1: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For the attention of: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Cox Olswang
CUK: ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For the attention of: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Nothing contained in this clause 28.4 affects the right to serve
process in another manner permitted by law.
29. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which when executed and delivered is an original, but all the
counterparts together constitute the same document.
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SCHEDULE 1
CONTRACTUAL RESTRICTIONS
Part I
(a) In certain agreements that established a partnership to
operate the One 2 One mobile radio voice network, MediaOne
has agreed to certain contractual restrictions which provide
that neither MediaOne nor its Affiliates (including the
Company) will directly or indirectly carry on or have a
shareholding or other economic interest in a person which
carries on or has applied for a license to carry on, as all
or part of its business the activity of running a mobile
radio voice telephony network for the provision of
telecommunication services to the general public within any
part of the UK. So long as MediaOne owns an equity interest in
the One 2 One partnership or any successor to the One 2 One
partnership (including the current partnership after admission
of one or more new partners) in excess of the minimum interest
specified in the One 2 One agreement as of the date of this
Agreement, such contractual restrictions contained in any
agreements governing the business of a successor to the One 2
One partnership (including the current partnership after
admission of one or more new partners) shall become part of
this Schedule 1 provided that such restrictions are not
broader in scope than those in effect on the date of this
Agreement. (b) MediaOne has agreed that MediaOne and certain
of its affiliates will not compete with Time Warner
Entertainment Company, L.P. ("TWE") in certain businesses, and
that they will offer TWE a right of first refusal in certain
circumstances, as disclosed in the IPO Documents.
Part II
(a) Flextech plc has a right of first refusal with respect to
participation in English-language programming business in the
United Kingdom and Europe under certain circumstances
described in the IPO Documents.
(b) In an agreement relating to the establishment of a joint
venture between BBC Worldwide and Flextech plc for the
establishment and broadcast of television programme services
in the United Kingdom, TINTA has agreed that it will not
itself, and that it will procure that no company of which it
has voting control will, acquire an interest in excess of 20
per cent. of the issued share capital of a company which owns
a commercial broadcast television channel which competes with
one or more of the channels to be established under such joint
venture.
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SCHEDULE 2
DEED OF ADHERENCE
THIS DEED OF ADHERENCE is made on [ ] 199[ ] BY [ ] of [ ] ("the Covenantor")
in favour of the persons whose names are set out in the schedule to this Deed
and is supplemental to the Relationship Agreement dated 15 1998 made by (1)
MediaOne International Holdings, Inc., (2) MediaOne UK Cable, Inc and MediaOne
Cable Partnership Holdings, Inc., (3) TeleCommunications International, Inc.,
(4) United Artists Programming-Europe, Inc., (5) ▇▇▇ Communications, Inc., (6)
Cox U.K. Communications, LP, (7) SBC International, Inc., (8) Southwestern ▇▇▇▇
International Holdings (UK-1) Corporation and (9) Telewest Communications plc
(the "Relationship Agreement").
THIS DEED WITNESSES as follows:
1. The Covenantor confirms that it has been given and read a copy of the
Relationship Agreement and covenants with each person named in the
schedule to this Deed to perform and be bound by all the terms of the
Relationship Agreement as if the Covenantor were a party to the
Relationship Agreement as a Shareholder.
2. This Deed is governed by English law.
IN WITNESS WHEREOF this Deed has been executed by the Covenantor and is intended
to be and is hereby delivered on the date first above written.
SCHEDULE
[Parties to Relationship Agreement including those who have executed earlier
deeds of adherence].
-45-
SCHEDULE 3
PROVISIONS PRESERVED FROM THE OLD RELATIONSHIP AGREEMENT
1. Costs Relating to Telewest Interests
The Company undertakes to reimburse TINTA (for itself and on behalf of
TCI and its Affiliates) and MediaOne Holdings (for itself and on behalf
of MediaOne and its Affiliates) for all losses, damages, costs,
liabilities, deficiencies, claims, suits, proceedings, demands,
judgments, assessments, fines, interest, penalties, costs and expenses
(including, without limitation, settlement costs and legal, accounting,
experts' and other fees, costs and expenses) (but excluding taxes)
based upon, arising out of or associated with (i) the ownership of the
Telewest Interests prior to, on or following the Public Offering, (ii)
the dissolution and liquidation of the UCs and obligations and
liabilities of the UCs arising prior to, upon or subsequent to their
dissolution relating to the ownership and operation of the Telewest
Interests and (iii) the TCI Investors and the MediaOne Investors having
been members of the UCs.
2. Taxation Costs Relating to Telewest Interests.
The Company undertakes to reimburse TINTA (for itself and on behalf of
TCI and its Affiliates) and MediaOne Holdings (for itself and on behalf
of MediaOne and its Affiliates) for all liabilities for taxes which
they incur and which arise in respect of the operation of the
businesses carried on by the Telewest Interests prior to or following
the Public Offering including (but not limited to) Value Added Tax,
income tax levied pursuant to the Pay as You Earn Regulations and
income tax levied pursuant to the Income Tax (Sub-Contractors in the
Construction Industry) Regulations and excluding (for the avoidance of
doubt) any tax liabilities in respect of which TINTA or MediaOne
Holdings have agreed to indemnify Old Telewest under the Tax Deed.
3. Limitations on Reimbursement and Payment Obligations. No reimbursement
or payment due pursuant to clauses 1, 2 or 4 or arising out of any
breach or violation of the Old Relationship Agreement or the Related
Agreements shall be made unless the aggregate amount payable by that
party on account of all such matters exceeds (pound)10,000, and if such
amount is exceeded all payments and reimbursements shall be paid by
that party in full.
4. Indemnifications
(a) The Company undertakes to indemnify and hold harmless TINTA
(for itself and on behalf of TCI and its Affiliates) and
MediaOne Holdings (for itself and on behalf of MediaOne and
its Affiliates) from and against any costs, damages,
liabilities and obligations (including but not limited to
attorneys' fees and payment of any settlement or judgment)
arising out of any claim, action or proceeding relating to
the IPO Documents and the Contemplated Transactions, except
those matters as to which the Investors specifically
-46-
made a representation or warranty to Old Telewest or agreed
specifically to reimburse Old Telewest. If the indemnification
provided in this clause 4(a) is at any time legally or
procedurally unavailable to any Person, the Company shall
contribute to the amount paid or payable by such Person on
account of such claim, action or proceeding an amount equal to
the amount the Company otherwise would be required to pay that
Person as indemnification under this clause 4(a). (b) TINTA
and UAP-E undertake to indemnify and hold harmless the Company
from and against any costs, damages, liabilities and
obligations (including but not limited to attorneys' fees and
payment of any settlement or judgment) arising out of any
claim, action or proceeding relating to any portion of the IPO
Documents provided by the TCI Investors in writing for use in
the IPO Documents. If the indemnification provided in this
clause 4(b) is at any time legally or procedurally unavailable
to any Person, TINTA and UAP-E shall contribute to the amount
paid or payable by such Person on account of such claim,
action or proceeding an amount equal to the amount TINTA and
UAP-E otherwise would be required to pay that Person as
indemnification under this clause 4(b).
(c) MediaOne Holdings and the MediaOne Investors undertake to
indemnify and hold harmless the Company from and against any
costs, damages, liabilities and obligations (including but
not limited to attorneys' fees and payment of any settlement
or judgment) arising out of any claim, action or proceeding
relating to any portion of the IPO Documents provided by the
MediaOne Investors in writing for use in the IPO Documents. If
the indemnification provided in this clause 4(c) is at any
time legally or procedurally unavailable to any Person, the
MediaOne Investors shall contribute to the amount paid or
payable by such Person on account of such claim, action or
proceeding an amount equal to the amount the MediaOne
Investors otherwise would be required to pay that Person as
indemnification under this clause 4(c).
5. Definitions
Set out below are the definitions of the defined terms which are only
used in this Agreement in Schedule 3 above (which are accurate as at 22
November 1994 being the date of the Old Relationship Agreement):
"Contemplated Transactions" means the transactions contemplated by the
Old Relationship Agreement and the Related Agreements, including the
transfer by the MediaOne Investors and the TCI Investors of the
Telewest Interests to the UCs;
"MediaOne Investors" means MediaOne UK and MediaOne Cable.
"Public Offering" means the public offering in 1994 of Ordinary Shares
for sale to the public;
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"Related Agreements" means the following agreements entered into on
the date of the Old Relationship Agreement (22 November 1994):
(a) Technology Licensing Agreements between (i) Old Telewest
and TINTA, and (ii) Old Telewest and MediaOne Holdings;
(b) Trademark Licensing Agreements between (i) Old Telewest and
MediaOne, and (ii) Old Telewest and TCI;
(c) Secondment Agreements between (i) Old Telewest and TCI, and
(ii) Old Telewest and an Affiliate of the MediaOne Investors;
(d) Tax Deed between Old Telewest, TINTA and MediaOne Holdings;
and
(e) Registration Rights Agreements between (i) Old Telewest and
the TCI Investors and (ii) Old Telewest and the MediaOne
Investors.
"Tax Deed" means deed of indemnity against taxation entered into by Old
Telewest, TINTA and MediaOne Holdings dated 22 November 1994; "TCI
Investors" means UAP-E and United Artists Cable Television UK Holdings,
Inc.;
"Telewest Interests" means the interests owned by the TCI Investors and
the MediaOne Investors in the following partnerships, which were
engaged in the Cable Television and Cable Telephony businesses in the
UK on the date of the Old Relationship Agreement:
(a) TCI/MediaOne Cable Communications Group;
(b) Avon Cable Limited Partnership;
(c) Edinburgh Cable Limited Partnership;
(d) Estuaries Cable Limited Partnership;
(e) United Cable (London South) Limited Partnership;
(f) Tyneside Cable Limited Partnership; and
(g) Cotswolds Cable Limited Partnership.
"UCs" means Theseus No.1 (to whom the TCI Investors contributed their
Telewest Interests on 21 November 1994) and Theseus No.2 (to whom the
MediaOne Investors contributed their Telewest Interests on 21 November
1994).
AS WITNESS this Agreement has been executed by the duly authorised
representatives of the parties the day and year first before written.
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SIGNED by )
for and on behalf of MEDIAONE )
INTERNATIONAL HOLDINGS, INC. )
SIGNED by )
for and on behalf of MEDIAONE )
UK CABLE, INC. )
SIGNED by )
for and on behalf of MEDIAONE CABLE )
PARTNERSHIP HOLDINGS, INC. )
SIGNED by )
for and on behalf of )
TELE-COMMUNICATIONS )
INTERNATIONAL, INC. )
SIGNED by )
for and on behalf of UNITED ARTISTS)
PROGRAMMING-EUROPE, INC )
SIGNED by )
for and on behalf of )
▇▇▇ COMMUNICATIONS, INC. )
SIGNED by )
for and on behalf of )
COX U.K. COMMUNICATIONS L.P. )
by ▇▇▇ CABLE INTERNATIONAL, INC., )
its general partner )
-49-
SIGNED by )
for and on behalf of )
SBC INTERNATIONAL, INC. )
SIGNED by )
for and on behalf of )
SOUTHWESTERN ▇▇▇▇ INTERNATIONAL )
HOLDINGS (UK-1) CORPORATION )
SIGNED by )
for and on behalf of )
TELEWEST COMMUNICATIONS plc)
-50-