SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): August 14, 1998
COMCAST UK CABLE PARTNERS LIMITED
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(Exact name of registrant as specified in its charter)
Bermuda 0-24792 Not applicable
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(State or Other (Commission File (IRS Employer
Jurisdiction of Number) Identification No.)
Incorporation)
Clarendon House, 2 Church Street West
Hamilton, HM 11, Bermuda
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (441) 295-5950
ITEM 5. Other Events.
On August 14, 1998, Comcast UK Cable Partners Limited ("Comcast UK")
entered into an agreement (the "Telewest Agreement") with Telewest
Communications plc ("Telewest") and NTL Incorporated ("NTL") relating to
Comcast UK's ownership interests in Birmingham Cable Corporation Limited
("Birmingham Cable"), Comcast UK's and Telewest's respective ownership
interests in Cable London plc ("Cable London") and certain other related
matters.
Pursuant to the Telewest Agreement, Comcast UK has agreed to sell its
27.5% ownership interest in Birmingham Cable to Telewest for UK Pound
Sterling125 million, plus UK Pound Sterling5 million for certain subordinated
debt and fees owed to Comcast UK, and Comcast UK and Telewest have resolved
their differences regarding the operations of the terms of the Co-Ownership
Agreement between them as principal shareholders of Birmingham Cable and the
Articles of Association of Birmingham Cable. Comcast UK and Telewest have
also agreed within a certain time period to rationalize their joint ownership
of Cable London pursuant to an agreed procedure. Generally between six and
nine months after the Amalgamation (as defined below), Comcast UK (or NTL
following the Amalgamation) will notify Telewest of the price at which it is
willing to sell its 50% ownership interest in Cable London to Telewest.
Following such notification, Telewest at its option will be required at that
price to either purchase Comcast UK's 50% ownership interest in Cable London
or sell its 50% ownership interest in Cable London to Comcast UK (or NTL).
The arrangements with Telewest are not dependent upon the consummation
of Comcast UK's amalgamation (the "Amalgamation") with a wholly-owned
subsidiary of NTL. As a result of the Telewest Agreement, the status of
Comcast UK's ownership interest in Cable London has been resolved for purposes
of the Amalgamation and, assuming consummation of the sale of Comcast UK's
ownership interest in Birmingham Cable to Telewest immediately prior to the
Amalgamation, Comcast UK shareholders will receive in the Amalgamation 0.3745
shares of NTL common stock for each Comcast UK share.
In connection with the Telewest Agreement, Comcast UK, NTL and NTL
(Bermuda) Limited have entered into Amendment No. 2 (the "Amendment") to the
Agreement and Plan of Amalgamation dated as of February 4, 1998, extending the
termination date for the Amalgamation from October 5, 1998 to November 4, 1998.
On August 17, 1998, Comcast UK and NTL issued a press release (the
"Press Release") announcing the Telewest Agreement and the Amendment.
Attached hereto as Exhibits 2.1, 2.2 and 99.1, respectively, are copies of the
Telewest Agreement, the Amendment and the Press Release. The foregoing
descriptions are qualified in their entirety by reference to the full text of
such exhibits.
ITEM 7(c). Exhibits.
Exhibit No. Description
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2.1 Agreement dated August 14, 1998 among Telewest
Communications plc, Telewest Communications Holdings
Limited, Comcast UK Cable Partners Limited and NTL
Incorporated.
2.2 Amendment No. 2 dated August 14, 1998 to Agreement and
Plan of Amalgamation dated as of February 4, 1998 among
NTL Incorporated, NTL (Bermuda) Limited and Comcast UK
Cable Partners Limited.
99.1 Press Release dated August 17, 1998 from Comcast UK
Cable Partners Limited and NTL Incorporated.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
COMCAST UK CABLE PARTNERS LIMITED
Dated: August 19, 1998 By: /s/ Arthur R. Block
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Arthur R. Block
Vice President and
Senior Deputy General Counsel
INDEX TO EXHIBITS
Exhibit No. Description
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2.1 Agreement dated August 14, 1998 among Telewest
Communications plc, Telewest Communications Holdings
Limited, Comcast UK Cable Partners Limited and NTL
Incorporated.
2.2 Amendment No. 2 dated August 14, 1998 to Agreement and
Plan of Amalgamation dated as of February 4, 1998 among NTL
Incorporated, NTL (Bermuda) Limited and Comcast UK Cable
Partners Limited.
99.1 Press Release dated August 17, 1998 from Comcast UK Cable
Partners Limited and NTL Incorporated.
Exhibit 2.1
DATED: 14 August 1998
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(1) TELEWEST COMMUNICATIONS PLC
(2) TELEWEST COMMUNICATIONS HOLDINGS LIMITED
(3) COMCAST UK CABLE PARTNERS LIMITED
(4) NTL INCORPORATED
Agreement in respect of the rights of first refusal
relating to Birmingham Cable and Cable London
THIS AGREEMENT is made on 14 August 1998
BETWEEN:
(1) TELEWEST COMMUNICATIONS PLC (registered number 298307) whose
registered office is at Genesis Business Park, Albert Drive,
Woking, Surrey GU21 5RW ("Telewest");
(2) TELEWEST COMMUNICATIONS HOLDINGS LIMITED (registered number
02982404) whose registered office is at Genesis Business Park as
aforesaid ("TCHL");
(3) COMCAST UK CABLE PARTNERS LIMITED whose registered office is at
Clarendon House, 2 Church Street West, Hamilton, HM 11, Bermuda
("CUKCP"); and
(4) NTL INCORPORATED whose principal place of business is at 110 East
59th Street, New York, New York 10022, USA ("NTL").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 The following words and expressions where used in this Agreement
have the meanings given to them below:-
"acceptance period" as defined in clause 4.2;
"Acquisition" the acquisition of shares in Cable London upon
CL Completion pursuant to clause 4.6;
"Amalgamation" the proposed amalgamation to be made between
NTL (Bermuda) Limited and CUKCP pursuant to
the Agreement and Plan of Amalgamation dated 4
February 1998 between NTL (1), NTL (Bermuda)
Limited (2) and CUKCP (3), as such agreement
may be amended or restructured, or any similar
business combination involving CUKCP and NTL or
their affiliates;
"Approvals" (a) the purchaser (as defined in clause 4.5)
receiving written confirmation from the
Secretary of State for Trade and Industry
("DTI") and from the Independent Television
Commission ("ITC"), in terms reasonably
satisfactory to the purchaser, to the effect
that the OPAcquisition will not lead to the
revocation of any licenses (issued pursuant to
the Cable and Broadcasting Act 1984 or the
Broadcasting Act 1990 (as amended)) or the
revocation of any of the telecommunications or
wireless telegraphy licenses issued by the DTI
pursuant to the Telecommunications Act 1984 or
the Wireless Telegraphy Act 1949 or 1998 which
are held by Cable London and any of its
subsidiary undertakings;
(b) the Office of Fair Trading having
indicated to the purchaser, in terms
reasonably satisfactory to the purchaser,
either that the Acquisition does not qualify
for investigation by the Monopolies and
Mergers Commission pursuant to the Fair
Trading Act 1973 or that the Secretary of
State for Trade and Industry has decided not to
refer the Acquisition to the Monopolies and
Mergers Commission; and
(c) CIBC consenting, in terms reasonably
satisfactory to the purchaser, to (i) the
Acquisition (ii) the capitalisation referred
to in clause 4.7 (unless the CL Loans and Fees
are to be assigned), (iii) the release of the
shares in Cable London to be sold by the
vendor pursuant to the Acquisition from the
security granted to CIBC over such shares and
the termination of any deed of subordination
between the vendor and CIBC and (iv) the
assignment of the CL Loans and Fees to the
purchaser, in each case with effect from CL
Completion (unless the CL Loans and Fees are
to be capitalized pursuant to Clause 4.7);
"BC Completion" the performance of the obligations to complete
the sale and purchase of the Joint BC Shares
and such other interest (if any) which CUKCP
has in any other shares in Birmingham Cable
in accordance with clause 2;
"BC Consultant
Agreement" the Consultant Agreement for Operational
Assistance dated 25 April 1990 between
Birmingham Cable (1) Birmingham Cable Limited
(2) and Comcast UK Consulting Inc. (formerly
Comcast BV Inc.) (3) as amended by a
Supplemental Agreement dated 8 April 1994
between Birmingham Cable (1), Birmingham Cable
Limited (2) and Comcast UK Consulting Inc. (3);
"BC Loans and Fees" the subordinated loans (including interest)
and fees due to CUKCP and Comcast UK
Consulting Inc. from Birmingham Cable and its
subsidiary undertakings;
"BC Management
Agreement" the Management Agreement dated 25 April 1990
between Birmingham Cable (1), Birmingham Cable
Limited (2), US West International Holdings
Inc. (3) and Comcast Cablevision of Birmingham
Inc. (4) as novated pursuant to the Assignment
Agreement dated 27 August 1990 between
Birmingham Cable (1), Birmingham Cable Limited
(2), US West International Holdings Inc. (3),
Comcast Cablevision of Birmingham Inc. (4), US
West Cable Communications Limited (5) and
Comcast UK Consulting Inc. (6) and the
Assignment and Amendment Agreement dated 5
August 1992 between Birmingham Cable (1),
Birmingham Cable Limited (2), US West Cable
Communications Limited (3), Comcast UK
Consulting Inc. (4) and TeleWest
Communications Group Limited (5);
"BC Offer Notice" the offer notice despatched by the board of
directors of Birmingham Cable pursuant to
Article 59(D) of the Articles of Association
of Birmingham Cable following the receipt by
Birmingham Cable of a transfer notice from
General Cable PLC dated August 1998;
"Birmingham Cable" Birmingham Cable Corporation Limited
(registered number 2170379);
"Birmingham Link
Agreement" the Agreement concerning Birmingham-
Croyden Link dated February 13, 1993 between
National Transcommunications Limited and
Birmingham Cable;
"Business Day" a weekday (other than a Saturday) on which
clearing banks are ordinarily open for
business in both the City of London and New
York;
"Cable London" Cable London PLC (registered number 01794264);
"CIBC" Canadian Imperial Bank of Commerce (as agent
and security trustee under the terms of the
Pound Sterling170 million credit facility in
favor of Cable London);
"CL Completion" the performance of the obligations to complete
the sale and purchase of shares in Cable
London in accordance with clause 4;
"CL Loans and Fees" the subordinated loans (including interest
thereon) and fees due to the vendor and
MediaOne Cable Communications (if the vendor
is Telewest) and Comcast UK Consulting Inc.
(if the vendor is CUKCP) and any of their
respective subsidiaries and parent
undertakings from Cable London and its
subsidiary undertakings;
"Co-ownership
Agreement" the Co-ownership Agreement dated 12 March 1990
originally between US West International
Holdings Inc. (1) and Comcast Cablevision of
Birmingham Inc. (2) as subsequently amended,
supplemented and novated, it being
acknowledged by the parties to this Agreement
that the parties to the Co-ownership Agreement
are now TCHL and CUKCP;
"CUKCP Consultant
Agreement" the Consultant Agreement for Operational
Assistance dated 17 August 1989 between Cable
London (1) and Comcast Corporation (2), as
subsequently assigned to Comcast UK Consulting
Inc. (for so long as it remained a subsidiary
of Comcast Corporation) pursuant to an
Assignment Agreement dated 14 September 1990
between Comcast Corporation (1), Comcast UK
Consulting Inc. (2), Cable London (3) and
Cable Camden Limited, Cable Enfield Limited,
Cable Hackney & Islington Limited and Cable
Haringey Limited (4);
"Equalisation Deed" the Equalisation Deed dated 17 July 1996
between Telewest (1) and CUKCP (2);
"GC Shares" the 22,958,319 ordinary shares of Pound
Sterling1 each in Birmingham Cable registered
in the name of General Cable PLC;
"Joint BC Shares" the 28,060,167 ordinary shares of Pound
Sterling1 each in Birmingham Cable registered
in the joint names of TCHL and CUKCP;
"offer" as defined in clause 4.1;
"offer notice" as defined in clause 4.1;
"prescribed period" the period of 90 calendar days after the
expiry of the acceptance period or, if an
appropriate election is made pursuant to
sub-clause 4.5.2 to extend such period, the
period ending up to 90 calendar days after the
Long Stop Date (as defined in clause 4.5.2);
"purchaser" as defined in clause 4.5;
"Shoot-out Period" the period commencing on the date which is the
earlier of (i) six calendar months after (x)
the date of completion of the Amalgamation or
(y) if earlier, 31 December 1998 and (ii) the
earlier of (a) the date on which a public
announcement is made of a firm intention to
make a recommended offer for the ordinary
shares of Telewest (other than those owned or
contracted to be acquired by the offeror or
persons acting in concert with the offeror) or
of a merger between NTL and a third party
(being a person which prior to such merger is
not a member of the same group as NTL) where
NTL is not the surviving entity whether or
not, in either case, subject to the
satisfaction of any pre-conditions and (b)
completion of any such offer or merger whether
or not recommended, and ending at midnight on
the date which is three calendar months
thereafter (both dates inclusive);
"Subscription
Agreements" (a) the subscription agreement dated 4 May
1989 between Birmingham Cable (1) and US West
International Holdings Inc. (2);
(b) the BCC Subscription Agreement dated 31
May 1989 between Birmingham Cable (1), US West
International Holdings Inc. (2), Compagnie
Generale des Eaux (3), The Cable Corporation
Limited (4) and The Standard Life Assurance
Company (5);
(c) the Supplemental Subscription Agreement
dated 16 March 1990 between Birmingham Cable
(1), US West International Holdings Inc. (2),
Compagnie Generale des Eaux (3), The Cable
Corporation Limited (4), The Standard Life
Assurance Company (5), Comcast Cablevision of
Birmingham Inc. (6) and General Cable Limited
(7);
(d) the Second Supplemental Subscription
Agreement dated 16 March 1990 between
Birmingham Cable (1), US West International
Holdings Inc. (2), Compagnie Generale des Eaux
(3), The Cable Corporation Limited (4), The
Standard Life Assurance Company (5), Comcast
Cablevision of Birmingham Inc. (6) and General
Cable Limited (7);
(e) the Third Supplemental Subscription
Agreement dated 12 May 1992 between Birmingham
Cable (1), US West International Holdings Inc.
(2), Compagnie Generale des Eaux (3), The
Cable Corporation Limited (4), The Standard
Life Assurance Company (5), Comcast
Cablevision of Birmingham Inc. (6), General
Cable Limited (7) and US West Cable
Programming Corporation (8);
(f) the Agreement dated 30 March 1994 between
General Cable Limited (1), Compagnie Generale
des Eaux (2), TCI/US West Communications Inc.
(3), US West International Holdings Inc. (4),
United Artists Cable Television International
Holdings Inc. (5), CUKCP (6), Comcast
Corporation (7), The Cable Corporation Limited
(8), Birmingham Cable (9), Birmingham Cable
Limited (10) and The Standard Life Assurance
Company (11); and
(g) the Novation Agreement dated 21 November
1994 between General Cable PLC (1), Compagnie
Generale des Eaux (2), TCI/US West Cable
Communications Inc. (3), US West International
Holdings Inc. (4), United Artists Cable
Television International Holdings Inc. (5),
CUKCP (6), Comcast Corporation (7), Comcast
Cablevision of Birmingham Inc. (8), The Cable
Corporation Limited (9), Birmingham Limited
(10), Birmingham Cable Limited (11), The
Standard Life Assurance Company (12), TCHL
(13) and Telewest Communications plc(14);
"Sum" as defined in clause 4.1;
"Telewest Consultant
Agreement" the Consultant Agreement for Technical
Assistance between Cable London (1) and
MediaOne Cable Communications Limited (2);
"vendor" as defined in clause 4.5.
1.2 Where used in this Agreement, the terms "subsidiary undertaking",
"parent undertaking" and "director" shall have the meanings respectively
attributed to them by the Companies Act 1985 (as amended).
1.3 The headings used in this Agreement are for convenience only and
shall not affect its meaning.
1.4 References to a clause or schedule are (unless otherwise stated)
to a clause of or schedule to this Agreement.
1.5 Words importing one gender shall (where appropriate) include any
other gender and words importing the singular shall (where appropriate)
include the plural and vice versa.
1.6 References in this Agreement to times and dates are references to
times and dates prevailing in London.
2. SALE OF JOINT BC SHARES
2.1 CUKCP shall sell or procure to be sold and Telewest shall purchase:
2.1.1 CUKCP's interest in the Joint BC Shares with full title
guarantee and such other interest (if any) which CUKCP has in any
other shares in Birmingham Cable;
2.1.2 CUKCP's right to, and interest in, the BC Loans and Fees;
in each case, upon and subject to the terms and conditions of this
Agreement.
2.2 CUKCP shall procure that Telewest shall acquire CUKCP's interest
in the Joint BC Shares and such other interest (if any) which CUKCP has in any
other shares in Birmingham Cable free from all liens, charges and encumbrances
and any other third party rights whatsoever and together with all rights now
or hereafter attaching to them.
2.3 The consideration for the sale and purchase of CUKCP's interest in
the Joint BC Shares and such other interest (if any) which CUKCP has in any
other shares in Birmingham Cable shall be the sum of Pound
Sterling125,000,000 and Pound Sterling5,000,000 (or Pound Sterling2,500,000
if the Amalgamation does not occur on or prior to BC Completion with a further
Pound Sterling2,500,000 to be paid forthwith on the Amalgamation being
completed) in respect of CUKCP's interest in the BC Loans and Fees, which
consideration shall be payable in cash.
2.4 BC Completion
2.4.1 BC Completion shall take place at the offices of
Freshfields, 65 Fleet Street, London EC4 immediately prior to the
Amalgamation being completed or, if the Amalgamation occurs before
16 October 1998, on 16 October 1998 PROVIDED THAT if the
Amalgamation has not taken place by 31 December 1998, BC Completion
shall occur on 31 December 1998. Each of CUKCP and NTL undertakes
to give to Telewest not less than 5 days prior notice of the date
on which the Amalgamation is expected to be completed provided
that the Amalgamation shall not be completed prior to such date.
Where BC Completion is to take place immediately prior to the
Amalgamation, BC Completion shall take place in escrow at the
offices of Freshfields as aforesaid on the Business Day
immediately prior to the expected date of the Amalgamation when
each of CUKCP and Telewest shall deliver the documents to be
provided by it pursuant to Clause 2.5 to the other's solicitors
and Telewest shall telegraphically transfer the consideration due
by it pursuant to sub-clause 2.5.2.1 to CUKCP's solicitors. Such
documents and monies shall be held to the order of the deliveror
pending satisfaction of the escrow. The sole escrow condition
shall be the Amalgamation being completed when the documents shall
be dated and the documents and monies automatically released from
the escrow to the order of the holder of such documents and
monies. If the escrow condition is not satisfied within two
Business Days of such delivery, the documents and monies
(together with any interest accrued thereon) shall be returned to
the deliverors.
2.4.2 CUKCP agrees with Telewest that between the date of this
Agreement and BC Completion it shall not, except with the prior
written consent of Telewest:
2.4.2.1 sell, transfer, assign, grant options over, dispose
of, or otherwise deal in any manner whatsoever with the
legal title to, or the beneficial ownership of, or any other
interest in, any shares in Birmingham Cable beneficially
owned by it or any loans due to it (other than as
contemplated by this Agreement);
2.4.2.2 demand repayment of any of the loans or accrued
consulting fees due to it or any of its subsidiary or parent
undertakings by Birmingham Cable or any of its subsidiary
undertakings or the payment of interest thereon (other than
as contemplated by this Agreement); and
2.4.2.3 enter into any agreement to do any of the foregoing
in relation to such shares in Birmingham Cable (other than
as aforesaid).
2.5 On BC Completion:
2.5.1 CUKCP shall deliver to Telewest (subject to the right of
Telewest to waive any such requirement):
2.5.1.1 a stock transfer form duly executed by CUKCP only
transferring the Joint BC Shares to Telewest (subject to
TCHL executing the same in its capacity as a joint
transferor);
2.5.1.2 resignation letters executed as deeds in a form
reasonably acceptable to Telewest from Ronald Lawley and
Gary Mizga resigning as directors of Birmingham Cable with
effect from BC Completion without any compensation for loss
of office and waiving any other claims which they may have
in their capacity as directors against Birmingham Cable;
2.5.1.3 an agreement in the form set out in Schedule 1 to
this Agreement duly executed by Comcast UK Consulting Inc.;
2.5.1.4 a letter duly signed by CUKCP consenting to
Telewest (or, if so directed by Telewest, TCHL) being
registered as the sole holder of the Joint BC Shares for the
purposes of Article 67(C) of Birmingham Cable's Articles of
Association;
2.5.1.5 an assignment in a form reasonably acceptable to
Telewest duly executed by CUKCP and Comcast UK Consulting
Inc. assigning their respective rights and interests in the
BC Loans and Fees to Telewest conditional upon Telewest
entering into a deed of subordination in a form reasonably
acceptable to Chemical Investment Bank Limited ("Chemical")
and providing to Chemical such evidence as is required by
clause 12.1(b) of the Pound Sterling175 million Revolving
Credit Facility Agreement dated 15 February 1995 in favor of
Birmingham Cable Limited;
2.5.2 Telewest shall (subject to the right of CUKCP to waive any such
requirement):
2.5.2.1 procure the telegraphic transfer of Pound
Sterling130,000,000 (or, if the Amalgamation does not occur
on or prior to BC Completion, Pound Sterling127,500,000)
in cleared funds to an account specified by CUKCP, receipt
of which shall discharge Telewest from its obligation to pay
the consideration for CUKCP's interest in the Joint BC
Shares, such other interest (if any) which CUKCP has in any
other shares in Birmingham Cable and the BC Loans and Fees;
2.5.2.2 deliver to CUKCP the counterpart of the agreement
referred to in sub-clause 2.5.1.3 duly executed by all of
the parties to that agreement (other than Comcast UK
Consulting Inc.); and
2.5.2.3 if required by CUKCP, deliver to CUKCP or, if so
directed, to Chemical Investment Bank Limited, the deed of
subordination and evidence referred to in sub-clause 2.5.1.5
duly executed by Telewest.
2.6 Subject to CUKCP complying with its obligations under sub-clause 2.5.1,
each of CUKCP, Telewest and TCHL hereby agrees that the sale of CUKCP's
interest in the Joint BC Shares to Telewest (or TCHL) pursuant to clauses 2.1
to 2.5 (inclusive) shall supersede the provisions of section 5 of the
Co-ownership Agreement which would otherwise apply as a result of the
Amalgamation being implemented.
2.7 Each of CUKCP and TCHL hereby (i) waives any claims and rights it may
have as at the date of this Agreement against the other or any of its
subsidiary or parent undertakings as of the date of this Agreement and (ii)
agrees that with effect from BC Completion, the Co-ownership Agreement shall
forthwith terminate without any liability for any of the parties to that
Agreement.
2.8 Each of Telewest and TCHL undertakes that with effect from BC Completion,
it shall procure that CUKCP and its parent and subsidiary undertakings are
released from all past, present and future obligations under the Subscription
Agreements.
2.9 Promptly following the signing of this Agreement, each of CUKCP and TCHL
shall inform the appraiser appointed under the Co-ownership Agreement of the
settlement reached under this Agreement and CUKCP and TCHL shall each use its
best endeavors to ensure that the appraisal process under such agreement is
terminated as soon as practicable. Any fees and expenses incurred in such
appraisal process shall be payable by CUKCP.
2.10 CUKCP hereby agrees to exercise all voting rights and other powers
available to it and to procure that those persons nominated by it as directors
of Birmingham Cable will vote and act in a manner so as to assist TCHL
complying with its obligations under sub-clause 2.5.2.
2.11 Following BC Completion, Telewest undertakes to CUKCP to use all
reasonable endeavors to obtain the release of CUKCP and its subsidiary and
parent undertakings as at the date of this Agreement from all guarantees,
indemnities, counter-indemnities and letters of comfort of any nature
whatsoever (together the "Guarantees") given to any third party by CUKCP or
any of its subsidiary or parent undertakings as at the date of this Agreement
in respect of any liability or obligation of Birmingham Cable or any of its
subsidiary undertakings and pending such release, to indemnify CUKCP (for
itself and as agent for its subsidiary and parent undertakings as at the date
of this Agreement ) against all amounts paid by any of them to any third party
pursuant to any such Guarantees arising after BC Completion. Telewest
undertakes to CUKCP (for itself and as agent for its subsidiary and parent
undertakings as at the date of this Agreement) that it will pay any amounts
properly due and payable under the Guarantees as and when the same shall come
due.
2.12 If the Amalgamation is completed, NTL agrees that Birmingham Cable may
terminate the Birmingham Link Agreement by giving six months prior written
notice such notice to be served at any time on or after January 1, 2000.
Accordingly, NTL agrees that it shall, and shall procure that National
Transcommunications Limited shall, agree to an appropriate amendment to the
Birmingham Link Agreement to enable such termination in the event that the
Amalgamation occurs and CUKCP receives all sums due to it under clause 2.3.
3. SALE OF GC SHARES
3.1 CUKCP hereby agrees to exercise all voting rights and other powers
available to it and to procure that those persons nominated by it as directors
of Birmingham Cable will vote and act in a manner so as to ensure (so far as it
is within its power to do so) the BC Offer Notice is withdrawn and the
pre-emption procedure commenced by such notice is terminated as soon as
practicable after the signing of this Agreement.
3.2 In the event that such BC Offer Notice is not withdrawn and/or the
pre-emption procedure is not terminated, CUKCP (a) waives any objection it may
have to the BC Offer Notice or the transfer notice issued by General Cable plc
in connection with the BC Offer Notice, whether under Article 59 or Article 67
of Birmingham Cable's Articles of Association, or otherwise; (b) undertakes
not to acquire any GC Shares under the pre-emption provisions set out in
Article 59 of Birmingham Cable's Articles of Association pursuant to the BC
Offer Notice (save as required to do so by TCHL to enable TCHL and CUKCP (at
the expense of TCHL and not CUKCP) to take up TCHL's rights under such
pre-emption provisions); and (c) hereby waives all and any rights it may have
in any such shares acquired by TCHL (whether jointly with CUKCP or otherwise)
under the Co-ownership Agreement and/or the Articles of Association of
Birmingham Cable by virtue of the operation of such pre-emption provisions (or
otherwise).
3.3 CUKCP and NTL hereby agree (a) to waive all and any rights, claims and
potential claims each may have in relation to the takeover of General Cable
PLC by Telewest under the Co-ownership Agreement (and, in particular, clause
4.4 thereof) and (b) to waive all and any rights, claims and potential claims
arising under the Co-ownership Agreement, the Articles of Association of
Birmingham Cable and/or the Articles of Association of Cable London in
relation to such takeover whether by virtue of any change of control of TCHL
and/or Telewest or otherwise.
3.4 CUKCP and NTL agrees to the provisions contained in this clause 3 in
consideration for Telewest and TCHL agreeing to the other provisions of this
Agreement.
4. CABLE LONDON SHOOT-OUT
4.1 At any time during the Shoot-out Period CUKCP may give notice and not
later than the end of the Shoot-out Period CUKCP shall give notice (an "offer
notice") to Telewest offering to sell to Telewest all of the shares in Cable
London which are or will at CL Completion be owned by CUKCP (including any
shares issued to CUKCP pursuant to clause 4.7) and all of the rights and
interests of CUKCP and its subsidiary undertakings in the CL Loans and Fees
for the cash sum certain (not to be calculated by reference to a formula) (the
"Sum") specified in the offer notice on the terms and conditions set out in
this clause 4 (the "offer"). If CUKCP fails to give the offer notice prior to
the end of the Shoot-out Period, then CUKCP shall be deemed to have delivered
an offer notice for a sum equal to Pound Sterling100 million. At any time
after the date of a public announcement by CUKCP and NTL that the Amalgamation
will not become effective but prior to 31 December 1998, CUKCP shall have the
right to give a notice to Telewest electing to participate in the procedure
specified in this clause 4. Where this applies, for the purposes of this
clause 4 and the definition of the "Shoot-out Period" the date of such notice
shall be substituted for the date on which the Amalgamation is completed.
4.2 Telewest shall have a period of 30 calendar days ("the acceptance
period") commencing with and including the date of service of the offer notice
and expiring at the close of business on the twenty-ninth calendar day
thereafter in which to accept or decline the offer by notice to CUKCP.
4.3 If Telewest accepts the offer by notice given within the acceptance
period, CUKCP shall sell, and procure that its subsidiary undertakings shall
sell, subject to and conditional upon the Approvals being obtained or waived by
Telewest, to Telewest with full title guarantee free from all liens, charges
and encumbrances (save as provided in sub-clause 4.6.2.2) and any other third
party rights whatsoever and with all rights then or thereafter attaching
thereto and Telewest shall purchase from CUKCP or any of its subsidiary
undertakings all of the shares in the capital of Cable London owned or to be
owned, or in which CUKCP has an interest, at CL Completion by CUKCP or its
subsidiary undertakings (including any shares issued to CUKCP pursuant to
clause 4.7) and from CUKCP and its subsidiary undertakings their respective
rights and interests in the CL Loans and Fees at the Sum specified in the
offer notice.
4.4 If Telewest declines the offer by notice given within the acceptance
period, or no notice is given by Telewest within the acceptance period,
Telewest shall sell, and procure that its subsidiary undertakings and MediaOne
Cable Communications Limited shall sell, subject to and conditional upon the
Approvals being obtained or waivedby CUKCP, to CUKCP with full title guarantee
free from all liens, charges and encumbrances (save as provided in sub-clause
4.6.2.2) and any other third party rights whatsoever and with all rights then
or thereafter attaching thereto and CUKCP shall purchase from Telewest or any
of its subsidiary undertakings all of the shares in the capital of Cable
London owned and to be owned, or in which Telewest has an interest, at CL
Completion by Telewest or its subsidiary undertakings (including any shares
issued to Telewest pursuant to clause 4.7) and from Telewest and its subsidiary
undertakings their respective rights and interests in the CL Loans and Fees,
at the Sum specified in the offer notice.
4.5 __________...
4.5.1 If either Telewest or CUKCP ("the purchaser") becomes
obliged or agrees under the terms of clauses 4.3 or 4.4 to
purchase the shares in Cable London which are owned by the
other ("the vendor"), the sale of such shares ("the CL Sale
Shares") shall be completed on such date as the purchaser
may (subject as provided herein) specify on giving not less
than ten Business Days' prior notice to the vendor (provided
that at CL Completion all of the Approvals have been obtained
or, to the extent permitted, waived by the purchaser).
4.5.2 If CL Completion has not occurred within 90 calendar
days after the end of the acceptance period ("the Long Stop
Date"), the purchaser shall cease to be entitled to purchase
the CL Sale Shares and the CL Loans and Fees unless it shall
have elected, by notice in writing to the vendor prior to
such date to delay the date of CL Completion by a period of
up to a further 90 calendar days from the Long Stop Date.
If the purchaser exercises such option, it shall pay to the
vendor at CL Completion an amount equal to 5% of the Sum for
every 30 calendar days (or part thereof) by which the date
for CL Completion is extended from the Long Stop Date up to
a maximum of 90 days. If the CL Sale Shares have not been
purchased by the end of the prescribed period, the purchaser
shall cease to be entitled to purchase the CL Sale Shares or
the CL Loan and Fees and thereafter (subject to clauses
4.5.3 and 4.5.4) the vendor shall have the option (to be
exercised and completed within 60 days) to purchase the CL
Sale Shares and the CL Loans and Fees from the purchaser for
an amount equal to 70 percent of the Sum and this shall be
the only remedy of the vendor for any failure by the
purchaser to acquire the CL Sale Shares and CL Loans and
Fees. If the vendor exercises this option, it shall give to
the purchaser not less than 10 Business Days' prior notice
of the date of CL Completion.
4.5.3 If the purchaser is prohibited from acquiring the CL
Sale Shares solely because it is unable to obtain either of
the Approvals referred to in paragraphs (a) and (b) of the
definition of "Approvals" by the expiry of the prescribed
period and the purchaser elects not to waive such Approvals,
the vendor shall have the option (to be exercised and
completed within 60 days) to purchase the CL Sale Shares
from the purchaser for the Sum. If the vendor exercises
this option, it shall give to the purchaser not less than 10
Business Days' prior notice of the date of CL Completion.
4.5.4 If the purchaser is unable to acquire the CL Sale
Shares because it is unable to obtain the Approval referred
to in paragraph (c) of the definition of "Approvals" by the
expiry of the prescribed period, then (subject to the
provisions of clause 4.7) the provisions of clauses 4.1 to
4.8 (inclusive) shall cease to apply (without prejudice to
any breaches of such clauses prior to such date).
4.6 At CL Completion:
4.6.1 the vendor shall deliver to the purchaser:
4.6.1.1 a duly executed transfer of the shares in Cable
London owned by the vendor as at CL Completion (including
any shares issued to the vendor pursuant to clause 4.7)
together with the share certificates relating to such shares;
4.6.1.2 resignation letters executed as deeds in a form
reasonably acceptable to the purchaser from those directors
of Cable London appointed by the vendor resigning as
directors of Cable London and its subsidiary undertakings
with effect from CL Completion without any compensation for
loss of office and waiving any other claims whatsoever
against Cable London;
4.6.1.3 if the Amalgamation shall not previously have been
completed, an agreement in a form reasonably satisfactory to
the purchaser duly executed by CUKCP (if CUKCP is the
vendor) or MediaOne Cable Communications Ltd. (if Telewest is
the seller) terminating the CUKCP Consultant Agreement (if
CUKCP is the vendor) or the Telewest Consultant Agreement
(if Telewest is the seller) with effect from CL Completion
without any liability or obligations upon either party to
that Agreement (and, in the case of the termination of the
CUKCP Consultant Agreement, upon Comcast Corporation) other
than for accrued fees;
4.6.1.4 if CUKCP is the vendor, an agreement in a form
reasonably acceptable to Telewest, duly executed by CUKCP
terminating the Equalisation Deed with effect from CL
Completion;
4.6.1.5 if Telewest is the vendor, an agreement in a form
reasonably acceptable to CUKCP, terminating all of the
provisions of the Equalisation Deed other than those
contained in clauses 1, 4.1, 4.3, 7 and 10 to 14 (inclusive);
and
4.6.1.6 unless the CL Loans and Fees are to be capitalized
under clause 4.7, an assignment in a form reasonably
acceptable to the purchaser duly executed by the vendor and
MediaOne Cable Communications Limited (if Telewest is the
seller) and, where appropriate, any of their respective
subsidiary or parent undertakings assigning their respective
rights and interests in the CL Loans and Fees to the
purchaser;
4.6.2 the purchaser shall:
4.6.2.1 procure the telegraphic transfer of the Sum
(or such lesser amount in accordance with clause 4) in
cleared funds to such account as the vendor shall
specify and any further amount payable to the vendor
pursuant to sub-clause 4.5.1;
4.6.2.2 if required by the vendor, deliver to the
vendor or, if so directed, to CIBC, a mortgage and
deed of subordination in a form reasonably acceptable
to CIBC duly executed by the purchaser, together with
a legal opinion in a form reasonably acceptable to
CIBC confirming the capacity of the purchaser to enter
into such documents and that the purchaser's
obligations thereunder are legal, valid and binding
and enforceable in accordance with their terms;
4.6.2.3 deliver to the vendor the counterparts of the
agreements referred to in sub-clauses 4.6.1.3, 4.6.1.4
or 4.6.1.5 (as appropriate) and 4.6.1.6 duly executed
by Cable London (in the case of the document referred
to in sub-clause 4.6.1.3) and the vendor (in the case
of the documents referred to in sub-clauses 4.6.1.4,
4.6.1.5 and 4.6.1.6).
4.7 Each of CUKCP and Telewest agrees that if a capitalization will
result in the Approval contained in paragraph (c) of the definition of
"Approvals" being obtained, or if requested by the proposed buyer of the CL
Sale Shares, it shall, conditional upon the consent of CIBC being obtained,
exercise all voting rights and other powers of control available to it, and
procure that each director of Cable London appointed by it will vote and act
in a manner, so as to procure that all loans and fees outstanding from the
vendor (or any subsidiary or parent undertaking of the vendor) (as defined in
clause 4.5) including any interest on such loans immediately prior to CL
Completion are capitalised into ordinary shares of Pound Sterling1 each in
Cable London immediately prior to or at CL Completion.
4.8 Each of Telewest and CUKCP undertakes and agrees that prior to CL
Completion it shall exercise all rights and comply with all obligations which
it may have under the Equalisation Deed so as to ensure that any shares in
Cable London which are registered in the name of the other but held as nominee
for it shall be transferred to it.
4.9 The purchaser may waive any of the Approvals (other than the one referred
to in paragraph (c) of the definition of Approvals). Each of the parties
agrees to use best endeavours to procure that the Approvals are obtained
following service of an offer notice and shall cooperate and procure that
Cable London and its subsidiary undertakings shall cooperate to obtain the
Approvals. In particular, each of the parties agrees to take such action as
CIBC may reasonably require in order to obtain the Approval referred to in
paragraph (c) of the definition of Approvals.
4.10 The purchaser undertakes that with effect from CL Completion it shall
procure that the vendor and its parent and subsidiary undertakings as at the
date of this Agreement are released from all past, present and future
obligations under the Agreement dated 10 July 1989 between Cable London (1),
US West International Holdings (2), Comcast Corporation (3), Jerold Samuel
Nathan (4), Malcolm Gee (5), Sally Margaret Davids (6) and Stephen Michael
Kirk (7).
4.11 Each of Telewest and CUKCP undertakes to the other that between the date
of this Agreement and the expiry of the Shoot-out Period it shall not and
shall procure that none of its subsidiary or parent undertakings shall, except
with the prior written consent of the other:-
4.11.1 sell, transfer, assign, grant options over, dispose of, or
otherwise deal in any manner whatsoever with the legal title to,
or the beneficial ownership of, or any other interest in, any
shares in Cable London owned by it or any loans due to it (other
than as contemplated by this Agreement or the Equalisation Deed);
4.11.2 demand repayment of any of the loans or accrued
consultancy fees due to it or any of its subsidiary or parent
undertakings by Cable London or any of its subsidiary undertakings
or the payment of interest thereon (other than as contemplated by
this Agreement);
4.11.3 enter into any agreement to do any of the foregoing in
relation to such shares in Cable London (other than as aforesaid).
4.12 Each of Telewest and CUKCP agrees that it will consult with the other
following the expiry of the acceptance period and will take such action as the
purchaser may reasonably request, at the expense of the purchaser, in order to
minimise the payment of stamp duty on the transfer of any shares or the
assignment of any loans at CL Completion.
4.13 The vendor agrees with the purchaser that it shall exercise all voting
rights and other powers available to it and shall procure that each director
of Cable London appointed by it will act and vote in a manner so as not to
prevent the purchaser complying with its obligations under sub-clause 4.6.2.
4.14 Following CL Completion, the purchaser undertakes to the vendor to use
all reasonable endeavors to obtain the release of the vendor and its
subsidiary and parent undertakings as of the date of this Agreement from all
guarantees, indemnities, counter-indemnities and letters of comfort of any
nature whatsoever (together, the "Guarantees") given in relation to any
liability or obligation of Cable London or any of its subsidiary undertakings
and pending such release, to indemnify the vendor (for itself and as agent for
its parent and subsidiary undertakings) against all amounts paid by it (or any
of them) to any third party pursuant to any such Guarantees arising after CL
Completion. The purchaser further undertakes to the vendor (for itself and as
agent for its subsidiary and parent undertakings) that it will pay any amounts
properly due and payable under the Guarantees as and when the same fall due.
4.15 If CUKCP is the purchaser, Telewest undertakes to CUKCP, at the expense
of CUKCP, that it shall cooperate, shall exercise all voting rights and other
powers of control available to it and shall procure that each director of
Cable London appointed by it will act and vote in a manner, so as (i) to
procure, if so requested by CUKCP, that Cable London and its subsidiary
undertakings are acquired by CUKCP pursuant to the Acquisition free from all
indebtedness (being indebtedness which is accounted for as such for the
purposes of US GAAP) at CL Completion and (ii) to enable CUKCP to refinance
the existing Pound Sterling170 million facility in favour of Cable London
with effect from, or immediately prior to, CL Completion.
5. CABLE LONDON HOUSEKEEPING
5.1 Each of Telewest and CUKCP hereby agrees that as soon as reasonably
practicable after the date of this Agreement and in any event prior to 31
August 1998, it shall exercise all voting rights and other powers of
control available to it, and shall procure that each director of Cable
London appointed by it will act and vote in a manner, so as to procure
that:-
5.1.1 immediately following the Amalgamation being implemented,
the CUKCP Consultant Agreement and the Telewest Consultant
Agreement are terminated without any liability for any of the
parties to those agreements and that each of Telewest and CUKCP
waives any claims and rights it may have against the other or any
of its subsidiary or parent undertakings with respect to those
agreements as of the date of this Agreement;
5.1.2 immediately following the Amalgamation being implemented,
George Blumenthal, Barclay Knapp, Leigh Wood and Mark Wynn are
appointed as directors of Cable London and Gary Mizga and Ronald
Lawley resign as directors of Cable London without any
compensation for loss of office;
5.1.3 the special resolution set out in Schedule 2 is duly passed.
5.2 Each of Telewest and CUKCP hereby agrees that immediately following the
Amalgamation being implemented, the following persons shall be treated as
having been appointed by it as its Nominated Directors (as defined in Cable
London's Articles of Association) and shall give notice of such fact to Cable
London:-
Telewest Charles Burdick
David Van Valkenburg
Mark Wynn
CUKCP Barclay Knapp
Leigh Wood
George Blumenthal
5.3 Notwithstanding the Articles of Association of Cable London, CUKCP and
Telewest shall ensure that its Nominated Directors (as defined in such
Articles) do not claim any travelling, hotel and other expenses incurred by
such directors in connection with their duties.
6. TELEWEST GUARANTEE
6.1 In consideration of CUKCP entering into this Agreement with TCHL and
Telewest at the request of Telewest, Telewest hereby irrevocably and
unconditionally, as primary obligor, undertakes and guarantees the full,
prompt and complete performance by TCHL of all its obligations under this
Agreement and the due and punctual payment of all sums now or subsequently
payable by TCHL to CUKCP under this Agreement when the same shall become due
and undertakes with CUKCP that if TCHL shall default in the payment of any sum
under this Agreement, Telewest shall forthwith on demand by CUKCP pay such sum
to CUKCP.
6.2 The guarantee contained in clause 6.1 is a continuing guarantee and shall
remain in force until all the obligations of TCHL under this Agreement have
been fully performed and all sums payable by TCHL have been fully paid.
6.3 The obligations of Telewest shall not be affected by any act, omission,
matter or thing which, but for this provision, might operate to release or
otherwise exonerate Telewest from its obligations or affect such obligations,
including without limitation and whether or not known to Telewest:-
6.3.1 any time, indulgence, waiver or consent at any time given
to TCHL or any other person;
6.3.2 any compromise or release of or abstention from perfecting
or enforcing any right or remedy against TCHL or any other person;
6.3.3 any legal limitation, disability, incapacity or other
circumstance relating to TCHL or any other person or any
amendment to or variation of the terms of this Agreement or any
other document referred to in this Agreement; and
6.3.4 any irregularity, unenforceability or invalidity of any
obligations of TCHL under this Agreement or the dissolution,
amalgamation, reconstruction or insolvency of TCHL.
6.4 The guarantee contained in clause 6.1 may be enforced by CUKCP without
CUKCP first taking any steps or proceedings against TCHL.
6.5 All payments to be made by Telewest shall be made in full, without
set-off or counterclaim and without any deduction whatsoever except to the
extent required by law.
6.6 The obligations of Telewest under this clause 6 shall not take effect
until, and are conditional upon, Telewest exercising its rights under clause
11.10.
7. NTL GUARANTEE
7.1 In consideration of TCHL and Telewest entering into this Agreement with
CUKCP and NTL at the request of NTL, NTL hereby irrevocably and
unconditionally, as primary obligor, undertakes and guarantees, the full,
prompt and complete performance by CUKCP of all its obligations under this
Agreement and the due and punctual payment of all sums now or subsequently
payable by CUKCP to TCHL under this Agreement when the same shall become
due and undertakes with TCHL that if CUKCP shall default in the payment of
any sum under this Agreement, NTL shall forthwith on demand by TCHL pay
such sum to TCHL.
7.2 The guarantee contained in clause 7.1 is a continuing guarantee and
shall remain in force until all the obligations of CUKCP under this
Agreement have been fully performed and all sums payable by CUKCP have been
fully paid.
7.3 The obligations of NTL shall not be affected by any act, omission,
matter or thing which, but for this provision, might operate to release or
otherwise exonerate NTL from its obligations or affect such obligations,
including without limitation and whether or not known to NTL:-
7.3.1 any time, indulgence, waiver or consent at any time given
to CUKCP or any other person;
7.3.2 any compromise or release of or abstention from perfecting
or enforcing any right or remedy against CUKCP or any other
person;
7.3.3 any legal limitation, disability, incapacity or other
circumstance relating to CUKCP or any other person or any
amendment to or variation of the terms of this Agreement or any
other document referred to in this Agreement; and
7.3.4 any irregularity, unenforceability or invalidity of any
obligations of CUKCP under this Agreement or the dissolution,
amalgamation, reconstruction or insolvency of CUKCP.
7.4 The guarantee contained in clause 7.1 may be enforced by TCHL or Telewest
without TCHL or Telewest first taking any steps or proceedings against CUKCP.
7.5 All payments to be made by NTL shall be made in full, without set-off or
counterclaim and without any deduction whatsoever except to the extent
required by law.
7.6 The obligations of NTL under this clause 7 shall not take effect until,
and are conditional upon, the completion of the Amalgamation.
8. NOTICES
8.1 Any notice, consent, request, approval or other communication (a
"Notice") to be given or made under this Agreement shall be in writing and
signed by or on behalf of the person giving it and shall be irrevocable
without the written consent of the party or parties on whom it is served.
8.2 Any Notice may only be served:
8.2.1 personally by giving it to any director or the secretary of
the party to be served;
8.2.2 by leaving it at, or sending it by prepaid first class post
(or by prepaid first class airmail if from one country to another
country) to the address of the party to be served which is
referred to in clause 8.4 or if another address shall have been
notified to all the other parties for the purposes of this clause
8 by notice given in accordance with this clause 8.2, then to the
address of such party which shall have been so notified, for which
purpose the latest notification shall supersede all previous
notifications;
8.2.3 by sending it by facsimile transmission to the number for
the party to whom it is to be sent which is referred to in clause
8.4 or if another number shall have been notified to all the other
parties for the purposes of this clause 8 by notice given in
accordance with this clause 8.2, then to the number of such party
which shall have been so notified, for which purpose the latest
notification shall supersede all previous notifications.
8.3 A Notice shall be deemed served as follows:
8.3.1 in the case of personal service, at the time of such
service;
8.3.2 in the case of leaving the notice at the relevant address,
at the time of leaving it there;
8.3.3 in the case of service by post, on the second Business Day
(or the fourth Business Day if sent by airmail) following the day
on which it was posted and in proving such service it shall be
sufficient to prove that the notice was properly addressed,
stamped and posted in the United Kingdom; and
8.3.4 in the case of service by facsimile transmission, at the
time of transmission.
8.4 If to Telewest or TCHL: Address for service:
Genesis Business Park
Albert Drive
Woking
Surrey GU21 5RW
Fax No: 01483 295165
For the attention of: Victoria Hull
With a copy to:
Charles Burdick
Fax No.: 01483 295278
Freshfields
65 Fleet Street
London EC4Y IHS
Fax No: 0171 832 7001
For the attention of:
Barry O'Brien and Ben Spiers
and
Weil Gotshal & Manges
One South Place
London EC2
Fax No: 0171 903 0990
For the attention of: David Lefkowitz
and
Michael Brady
If to CUKCP: Address for service:
Comcast UK Cable Partners Limited
Clarendon House
2 Church Street West
Hamilton, HM11, Bermuda
Fax No.: (441) 292-4720
For the attention of: Company Secretary
With a copy to:-
NTL Incorporated
110 East 59th Street
26th Floor
New York, NY 10022 (USA)
Fax No: 001 212 906 8497
For the attention of: Richard Lubasch, Esq.
NTL Incorporated
63/65 Petty France
London SW1H 9EU
Fax No: 0171 227 8719
For the attention of: John Gregg, Esq.
Comcast Corporation
1500 Market Street
Philadelphia, Pennsylvania 19102
Fax No.: (215) 981-7794
For the attention of: General Counsel
Allen & Overy
One New Change
London EC4W 9QQ
Fax No.: 0171 330 9999
For the attention of: Michael Scargill
and
Travers Smith Braithwaite
10 Snow Hill
London EC1A 2AL
Fax No: 0171 236 3728
For the attention of:
Spencer Summerfield Esq.
If to NTL:
NTL Incorporated
110 East 59th Street - 26th Floor
New York, NY 10022 (USA)
Fax No: 001 212 906 8497
For the attention of: Richard Lubasch, Esq.
With a copy to:
NTL Incorporated
63/65 Petty France
London SW1H 9EU
Fax No: 0171 227 8719
For the attention of: John Gregg, Esq.
and
Travers Smith Braithwaite
10 Snow Hill
London EC1A 2AL
Fax No: 0171 236 3728
For the attention of:
Spencer Summerfield Esq.
9. COSTS
Each party shall be responsible for its own costs and expenses in connection
with the preparation and implementation of this Agreement except where
expressly stated otherwise.
10. ANNOUNCEMENTS
None of the parties to this Agreement shall, without the prior written consent
of the others, make any announcement or statement to the press or to any third
party relating to the contents of this Agreement (a "Relevant Announcement"),
otherwise than where such announcement or statement is required by law or by
any governmental, regulatory or statutory body or by any securities exchange
on which the securities of the relevant party or any of its parent
undertakings are, or are to be, listed or traded (including, without
limitation, the London Stock Exchange and the Nasdaq Stock Market's National
Market) or is necessary in order to obtain the Approvals.
11. GENERAL
11.1 No failure or delay by any party or time or indulgence given by it in or
before exercising any remedy or right under or in relation to this Agreement
shall operate as a waiver of the same nor shall any single or partial exercise
of any remedy or right preclude any further exercise of the same or the
exercise of any other remedy or right.
11.2 No waiver by any party of any requirement of this Agreement or of any
remedy or right under this Agreement shall have effect unless given by notice
in writing signed by such party. No waiver of any particular breach of the
provisions of this Agreement shall operate as a waiver of any repetition of
such breach.
11.3 Any release, waiver or compromise or any other arrangement which any
party gives or enters into with any other party to this Agreement in
connection with this Agreement shall not affect any right or remedy of the
first-mentioned party as regards any other party's liabilities under or in
relation to this Agreement and such other party shall continue to be bound by
this Agreement as if it had been the sole contracting party.
11.4 Time shall be of the essence of this Agreement, both as regards the
dates and periods specifically mentioned and as to any dates and periods which
may by agreement in writing between the parties be substituted for any of them.
11.5 This Agreement may be executed in two or more counterparts and execution
by each of the parties of any one of such counterparts will constitute due
execution of this Agreement.
11.6 Rights under this Agreement may not be assigned other than by operation
of law. It is acknowledged by the parties that upon implementation of the
Amalgamation, CUKCP will be subsumed into NTL (Bermuda) Limited and that
accordingly thereafter references herein to CUKCP shall be deemed to be
references to the amalgamated company arising from the amalgamation of NTL
(Bermuda) Limited and CUKCP.
11.7 Save as expressly provided in this Agreement, all representations,
warranties and conditions, express or implied and whether statutory or
otherwise are to the extent permitted by law, excluded from, and in relation
to, the sale of any shares pursuant to this Agreement PROVIDED THAT nothing in
this clause 11.7 shall purport to exclude liability for fraudulent
misrepresentation.
11.8 NTL consents to CUKCP entering into this Agreement.
11.9 Each of CUKCP and Telewest undertakes to the other at the expense of
the other to do or procure to be done all such further acts and things, and
execute or procure the execution of all such other documents (so far as is
within its power so to do) as the other may from time to time reasonably
require, for the purpose of giving to the other the full benefit of all of the
provisions of this Agreement.
11.10 Telewest may, at its option by notice to CUKCP at any time prior to BC
Completion, substitute TCHL as the purchaser of the Joint BC Shares, any other
interest of CUKCP in any other shares in Birmingham Cable and the BC Loans and
Fees and to satisfy the consideration payable in respect thereof. If such
option is exercized, the guarantee in clause 6 shall become effective.
12. APPLICABLE LAW AND JURISDICTION; SERVICE OF PROCESS
12.1 This Agreement shall be governed by and construed in accordance with the
laws of England.
12.2 The parties irrevocably submit to the exclusive jurisdiction of the
Courts of England and Wales in respect of any claim, dispute or difference
arising out of or in connection with this Agreement.
12.3 CUKCP and NTL shall at all times maintain an agent for service of
process and any other documents in proceedings in England or any other
proceedings in connection with this Agreement. For CUKCP such agent shall be
Fleetside Legal Representatives Services Limited, 9 Cheapside, London EC2V 6AD
and for NTL such agent shall be NTL Groups Limited, Bristol House, 1 Lakeside
Road, Farmborough, Hants GU14 6XP and any writ, judgment or other notice of
legal process shall be sufficiently served on CUKCP and NTL if delivered to
such agent at its address for the time being (and, in the case of NTL, marked
for the attention of Robert McKenzie/Richard Lubasch). Each of CUKCP and NTL
undertakes not to revoke the authority of the agent appointed by it.
Notwithstanding the aforesaid, if CUKCP or NTL shall revoke any such
appointment or such appointment shall cease and if, for any reason, TCHL
requests CUKCP or NTL to do so, CUKCP or NTL (as the case may be) shall
promptly appoint another such agent with an address in England and advise TCHL
thereof. If following such a request CUKCP or NTL (as the case may be) fails
to appoint another agent, TCHL shall be entitled to appoint one on behalf of
CUKCP or NTL (as the case may be).
SCHEDULE 1
We refer to the Agreement in respect of the rights of first refusal relating
to Birmingham Cable and Cable London dated 14 August 1998 (the "Agreement").
Words and expressions defined in the Agreement have the same meaning when used
herein.
In consideration of the mutual promises contained therein, we hereby agree to
terminate the BC Consultant Agreement and the BC Management Agreement with
effect from BC Completion without any liability to any party thereto (save for
accrued fees and expenses or claims arising after the date of the Agreement)
and we hereby waive all present and future claims and rights we may have
against each other under such agreements.
- ----------------------------
For and on behalf of Comcast UK Consulting Inc.
- ----------------------------
For and on behalf of Birmingham Cable Corporation Limited
- ----------------------------
For and on behalf of Birmingham Cable Limited
- ----------------------------
For and on behalf of Telewest Communications Group Limited
- ----------------------------
For and on behalf of Media One Cable Communications Limited
SCHEDULE 2
SPECIAL RESOLUTION
THAT, pursuant to section 9 of the Companies Act 1985, the Articles of
Association of the Company be altered with immediate effect by:-
(a) adding the following words to the end of the last sentence of
Article 15(C):-
"PROVIDED THAT the amalgamation of Comcast UK Cable Partners
Limited and NTL (Bermuda) Limited (or any other subsidiary
of NTL Incorporated ) shall be deemed not to result in a
change of control of Comcast UK Cable Partners Limited or
any subsidiary or parent undertaking of Comcast UK Cable
Partners Limited and provided further that the provisions of
the first two sentences of this article 15(c) shall not be
capable of applying to any change in control such as is
mentioned in the first sentence of this article 15(c) which
occurs at any time during the "Shoot-out Period" as such
expression is defined in an agreement dated 14th August 1998
between (1) Telewest Communications plc, (2) Telewest
Communications Holdings Limited, (3) Comcast UK Cable
Partners Limited and (4) NTL Incorporated, a copy of which
has been deposited with the Company prior to the adoption of
this amendment to these articles."
(b) replacing all references to "Comcast" in Article 17 with
references to Comcast UK Cable Partners Limited;
(c) replacing Article 24(A) with the following new article:
"24(A) Unless and until otherwise agreed by each
Significant Investor, the number of Directors shall be not
less than two and not more than six."
(d) (i) replacing in article 24(C)(a), the words "one Director
("Nominated Director") with the words "up to three
Directors (each a "Nominated Director")" and the words
"him" and "his" with the words "them" and "their"; and
(ii) replacing in Article 24(c)(b), the words "remove the"
with the words "remove any"; and
(e) adding to Article 24, after article 24(D), the following new
article:
"24(E) Notwithstanding any other provisions of these
Articles, the quorum for the transaction of any business at
any meeting of the Directors shall be at least one Nominated
Director appointed by each Significant Investor."; and
(f) amending Article 33 by replacing the words "such number of
Significant Investors as hold (directly or indirectly), either
individually or together" with the words "each Significant Investor
as holds (directly or indirectly)".
AS WITNESS this Agreement has been executed on the date first stated above.
SIGNED by )
for and on behalf of )
TELEWEST COMMUNICATIONS PLC ) /Charles J. Burdick
----------------------
SIGNED by )
for and on behalf of )
TELEWEST COMMUNICATIONS )
HOLDINGS LIMITED ) /Charles J. Burdick
----------------------
SIGNED by )
for and on behalf of )
COMCAST UK CABLE PARTNERS LIMITED ) /Kenneth Mikalauskas
----------------------
SIGNED by )
for and on behalf of )
NTL INCORPORATED ) /John F. Gregg
----------------------
Exhibit 2.2
AMENDMENT NO. 2 TO
AGREEMENT AND PLAN OF AMALGAMATION
Amendment No. 2 dated as of August 14, 1998 (the "Amendment") to
the Agreement and Plan of Amalgamation dated as of February 4, 1998, as
amended (the "Amalgamation Agreement"), among NTL Incorporated ("NTL"), NTL
(Bermuda) Limited ("Sub") and Comcast UK Cable Partners Limited ("Partners").
W I T N E S S E T H:
WHEREAS, the parties hereto have previously entered into the
Amalgamation Agreement;
WHEREAS, concurrent herewith, NTL and Partners are entering into
an agreement dated August 14, 1998 (the "TeleWest Agreement") with TeleWest
Communications Plc and TeleWest Communications Holdings Limited relating to
Birmingham Cable and Cable London; and
WHEREAS, the parties hereto now desire to amend and supplement
certain provisions of the Amalgamation Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 7.1(b)(i) of the Amalgamation Agreement is hereby
amended in its entirety to read as follows:
(i) if the Amalgamation shall not have been
consummated by November 4, 1998 (the "End Date"), provided,
however, that (x) if there shall occur at any time subsequent to
September 4, 1998 and prior to November 4, 1998 any Restraint
prohibiting, delaying or restricting the Partners Stockholders
Meeting, the voting of shares by Comcast Corporation in favor of
the Amalgamation or the consummation of the Amalgamation, the End
Date shall be extended to December 31, 1998, (y) if, as of
November 4, 1998, the Required Consents of the bondholders of
Partners shall not have been obtained, the End Date shall be
extended to December 31, 1998, and (z) the right to terminate
this Agreement pursuant to this Section 7.1(b)(i) shall not be
available to any party whose failure to perform any of its
obligations under this Agreement results in the failure of the
Amalgamation to be consummated by such time; provided, however,
that this Agreement may be extended not more than 30 days (but in
no event to a date later than December 4, 1998) by either party
by written notice to the other party if the Amalgamation shall
not have been consummated as a direct result of NTL or Partners
having failed to receive all regulatory approvals required to be
obtained with respect to the Amalgamation.
2. Section 5.5 and Section 5.16 of the Amalgamation Agreement
are hereby amended by deleting the phrase "reasonable best efforts" each
place it appears in such Sections and replacing it with the phrase "best
efforts". Notwithstanding the provisions of Section 5.5, the parties agree
that it shall not be a breach of any party's obligations thereunder if,
prior to October 14, 1998, the conditions to closing set forth in Article
VI have been satisfied and the Closing does not take place until October
14, 1998 in order to permit BC Completion (as defined in the TeleWest
Agreement) to take place contemporaneously with the Closing.
3. Section 6.2(d) of the Amalgamation Agreement is hereby
amended by deleting the number "180" and replacing it with the number
"150".
4. NTL and Sub hereby expressly consent to the TeleWest
Agreement and the transactions contemplated thereby and, for purposes of
Section 8.6 of the Amalgamation Agreement, the TeleWest Agreement is hereby
deemed to be a document referred to in the Amalgamation Agreement. It is
expressly understood that if the Amalgamation is not consummated, Partners
shall be entitled to exercise all of its rights under the TeleWest
Agreement without any obligation of any kind to NTL.
5. As a result of the entering into of the TeleWest Agreement,
the parties agree that (i) the Rights of First Refusal relating to
Birmingham Cable have been "Resolved"; provided that if, as of the Closing,
the BC Completion shall not have taken place or shall not be taking place
contemporaneously with the Closing, the Rights of First Refusal relating to
Birmingham Cable shall be deemed to be "Unresolved", and (ii) the Rights of
First Refusal relating to Cable London have been "Resolved".
6. Unless otherwise specifically defined herein, each term
used herein which is defined in the Amalgamation Agreement shall have the
meaning assigned to such term in the Amalgamation Agreement. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each similar
reference contained in the Amalgamation Agreement shall from and after the
date hereof refer to the Amalgamation Agreement as amended hereby.
7. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to
the principles of conflict of laws thereof.
8. This Amendment may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Amendment shall become effective as of the date hereof.
9. Except as amended hereby, all of the terms of the
Amalgamation Agreement shall remain and continue in full force and effect
and are hereby confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of
the day and year first above written.
NTL INCORPORATED
By: /s/ John Gregg
--------------------------------------
Name: John Gregg
Title: Managing Director, Corporate
Development
NTL (BERMUDA) LIMITED
By: /s/ Richard J. Lubasch
--------------------------------------
Name: Richard J. Lubasch
Title: Vice President
COMCAST UK CABLE PARTNERS LIMITED
By: /s/ Ken Mikalauskas
--------------------------------------
Name: Ken Mikalauskas
Title: Vice President, Finance
Exhibit 99.1
FOR IMMEDIATE RELEASE
COMCAST UK CABLE PARTNERS AND
NTL INCORPORATED ANNOUNCE AGREEMENT
WITH TELEWEST PLC REGARDING
BIRMINGHAM CABLE AND CABLE LONDON
New York, NY; Philadelphia, PA - August 17, 1998 -- NTL Incorporated (NASDAQ:
NTLI; EASDAQ:NTLI.ed) and Comcast UK Cable Partners Limited (NASDAQ:CMCAF)
announced today that Comcast UK and NTL have entered into an agreement (the
"Telewest Agreement") with Telewest Communications plc ("Telewest") relating
to Comcast UK's ownership interests in Birmingham Cable Corporation Limited,
Comcast UK's and Telewest's respective ownership interests in Cable London plc
and certain other related matters.
Pursuant to the Telewest Agreement, Comcast UK has agreed to sell its 27.5%
ownership interest in Birmingham Cable to Telewest for UK Pound Sterling125
million, plus UK Pound Sterling5 million for certain subordinated debt and
fees owed to Comcast UK, and Comcast UK and Telewest have resolved their
differences regarding the operations of the terms of the Co-Ownership
Agreement between them as principal shareholders of Birmingham Cable and the
Articles of Association of Birmingham Cable. Comcast UK and Telewest have
also agreed within a certain time period to rationalize their joint ownership
of Cable London pursuant to an agreed procedure. Generally between six and
nine months after the Amalgamation, Comcast UK (or NTL following the
Amalgamation) will notify Telewest of the price at which it is willing to sell
its 50% ownership interest in Cable London to Telewest. Following such
notification, Telewest at its option will be required at that price to either
purchase Comcast UK's 50% ownership interest in Cable London or sell its 50%
ownership interest in Cable London to Comcast UK (or NTL).
The arrangements with Telewest are not dependent upon the consummation of
Comcast UK's amalgamation (the "Amalgamation") with a wholly-owned subsidiary
of NTL.
As a result of the Telewest Agreement, the status of Comcast UK's ownership
interest in Cable London has been resolved for purposes of the Amalgamation
and, assuming consummation of the sale of Comcast UK's ownership interest in
Birmingham Cable to Telewest immediately prior to the Amalgamation, Comcast UK
shareholders will receive in the Amalgamation 0.3745 shares of NTL common
stock for each Comcast UK share.
In connection with the Telewest Agreement, Comcast UK and NTL have agreed to
extend the termination date for the Amalgamation from October 5, 1998 to
November 4, 1998.
* * * *
For further information contact:
At Comcast: John R. Alchin, Senior Vice President and Treasurer at (215)
981-7503 or Kenneth Mikalauskas, Vice President-Finance at (215) 981-7541.
At NTL:
In the US: John F. Gregg, Managing Director - Corporate Development; Michael
A. Peterson, Director - Corporate Development; or Richard J. Lubasch, Senior
Vice-President - General Counsel each at (212) 906-8440.
In the UK: Alison Smith, Group Communications 01252-402662 or via e-mail at
[email protected]
