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EXHIBIT (1)
27 JANUARY 2000
TELEWEST COMMUNICATIONS PLC
UNITED ARTISTS EUROPEAN HOLDINGS LIMITED
LIBERTY MEDIA INTERNATIONAL, INC.
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IRREVOCABLE AND EXCLUSIVITY
AGREEMENT
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THIS AGREEMENT is made on 27 January 2000
BETWEEN
TELEWEST COMMUNICATIONS PLC whose registered office is at Genesis Business Park,
Albert Drive, Woking, Surrey GU21 5RW (TELEWEST);
UNITED ARTISTS EUROPEAN HOLDINGS LIMITED whose registered office is at 4th
Floor, The Quadrangle, Imperial Square, Cheltenham GL50 1YX (UAE); and
LIBERTY MEDIA INTERNATIONAL, INC. a company incorporated in Delaware whose
principal place of business is at 9197 South Peoria Street, Englewood, Colorado
80112, USA (LIBERTY INTERNATIONAL).
WHEREAS
(A) Telewest is considering making a recommended offer for Flextech plc
(FLEXTECH) (the POSSIBLE OFFER).
(B) Telewest and Flextech have on 16 December 1999 entered into a merger
agreement (the MERGER AGREEMENT).
(C) If Telewest (or any of its subsidiary undertakings) makes a recommended
offer for Flextech in all material respects on the terms and, in all material
respects, subject to the conditions and containing the merger terms set out in
the press announcement to be issued by Telewest and Flextech in the form
appended to this agreement as Appendix 1 (the PRESS ANNOUNCEMENT) and containing
(in all material respects) the further terms set out in Schedule 1 to this
Agreement and which the Panel on Takeovers and Mergers (the PANEL) determines
complies with the terms of the note to the Panel dated 24 January 2000 appended
to this agreement as Appendix 2 (the Offer), Liberty International and UAE have
irrevocably undertaken to accept such Offer and not to withdraw such acceptance
subject to the terms and conditions set out herein.
IT IS AGREED AS FOLLOWS:
IRREVOCABLE COMMITMENT BY LIBERTY INTERNATIONAL AND UAE
1.1 UAE hereby warrants and undertakes to Telewest that it is the sole
registered holder and the sole beneficial owner of 57,889,032 ordinary shares of
10p each and 1 special voting share of 10p in the capital of Flextech (the
LIBERTY SHARES) and that it holds these Liberty Shares free of any lien, charge,
option, equity or encumbrance and that it has full power and authority to enter
into this undertaking and to accept the Offer in respect of the Liberty Shares.
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1.2 Until such time as the undertakings in this clause 1 and in clause 2
terminate in accordance with clause 3.2, (the RELEVANT PERIOD), Liberty
International shall not and shall procure that each member of the Liberty
International Group (being Liberty International and its subsidiary undertakings
as defined in the Companies Act 1985) shall not:
(a) sell, transfer, charge, encumber, grant any option over or otherwise
dispose of, or grant any rights over (including voting rights), any
Liberty Shares or any other shares or securities in Flextech issued or
unconditionally allotted to any member of the Liberty International
Group or otherwise acquired by any member of the Liberty International
Group before then (FURTHER LIBERTY SHARES) other than pursuant to its
or their acceptance of the Offer;
(b) accept any other offer in respect of any shares or securities referred
to in sub-clause 1.2(a) (whether it is conditional or unconditional and
irrespective of the means by which it is implemented);
(c) (other than pursuant to the Offer) enter into any agreement or
arrangement or permit any agreement or arrangement to be entered into
or incur any obligation or permit any obligation to arise:
(i) to do any of the acts referred to in sub-clause 1.2(a) or (b);
(ii) in relation to the Liberty Shares or any Further Liberty
Shares (including any derivatives referenced to any such
securities); or
(iii) which, in relation to the Liberty Shares or any Further
Liberty Shares, would or might restrict or impede any member
of the Liberty International Group accepting the Offer,
and for the avoidance of doubt, references in this clause 1.2 to any
agreement, arrangement or obligation includes any agreement,
arrangement or obligation whether or not legally binding or subject to
any condition or which is to take effect if the Offer closes or lapses
or if this undertaking ceases to be binding or following any other
event; or
(d) purchase, sell or otherwise deal in any shares or other securities of
Flextech or any interest therein (including any derivatives referenced
to any such securities).
1.3 UAE undertakes that:
(a) if a formal document containing the Offer (the OFFER DOCUMENT) is
posted, it shall accept the Offer in respect of 41,690,950 Liberty
Shares (the LIBERTY ACCEPTED SHARES) in accordance with the procedure
for acceptance set out in the Offer Document not later than seven days
after posting of the Offer Document;
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(b) subject to clause 1.7, although the terms of the Offer will confer a
right of withdrawal on accepting shareholders, it shall not withdraw or
procure the withdrawal of any acceptances of the Offer unless either
(i) following the issue of a Trigger Notice (as defined in Schedule 1)
and the delivery of Representation Letters (as defined in clause 1.5(a)
in accordance with clause 1.5(a)), a Tax Opinion (as defined below) is
not obtained despite the reasonable efforts of Liberty International
and UAE and the Liberty Confirmation Letter is served on Telewest or
(ii) Telewest does not declare the Offer unconditional in all respects
in accordance with clause 1.5(c) or (iii) the Representation Letters
are not delivered by 9.00 a.m. on the Opinion Date or the
representations therein are inaccurate in any respect during the
remainder of the Initial Offer Period or (iv) the TCGA Clearance is not
obtained by 9.00 a.m. London time on the Opinion Date; and
(c) the Liberty Shares and any Further Liberty Shares in respect of which
the Offer is accepted shall be acquired free of any lien, charge,
option, equity or encumbrance and together with all rights of any
nature attaching to those shares (save the special voting rights
attaching to the special voting share which falls away on the signing
of this Agreement) including the right to all dividends declared or
paid after the date of the release of the Press Announcement.
1.4 Liberty International undertakes that:
(a) if the Offer Document is posted, it shall accept or procure the
acceptance of the Offer in respect of any Further Liberty Shares in
accordance with the procedure for acceptance set out in the Offer
Document not later than the later of (i) five days after the date it or
the relevant member of the Liberty International Group becomes the
registered holder of the Further Liberty Shares and (ii) seven days
after the posting of the Offer Document PROVIDED THAT it shall not be
obliged to make or procure such acceptance if and to the extent that as
a result of so doing the ordinary shares in Flextech held by members of
the Liberty International Group taken together (excluding the Liberty
Accepted Shares) would represent less than 10.1% of the ordinary share
capital of Flextech on a fully diluted basis (including the Liberty
Accepted Shares);
(b) subject to clause 1.7, although the terms of the Offer will confer a
right of withdrawal on accepting shareholders, it shall not withdraw,
and shall procure that no other member of the Liberty International
Group shall withdraw, any acceptances of the Offer unless either (i)
following the issue of a Trigger Notice (as defined in Schedule 1) and
the delivery of Representation Letters (as defined in clause 1.5(a) in
accordance with clause 1.5(a)) a Tax Opinion (as defined below) is not
obtained despite the reasonable efforts of Liberty International and
UAE and the Liberty Confirmation Letter is served on Telewest or (ii)
Telewest does not
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declare the Offer unconditional in all respects in accordance with
clause 1.5(c) or (iii) the Representation Letters are not delivered by
9.00 a.m. London time on the Opinion Date or the representations
therein are inaccurate in any respect during the remainder of the
Initial Offer Period or (iv) the TCGA Clearance is not obtained by 9.00
a.m. London time on the Opinion Date; and
(c) the Liberty Shares and any Further Liberty Shares held by any member of
the Liberty International Group in respect of which the Offer is
accepted shall be acquired free of any lien, charge, option, equity or
encumbrance and together with all rights of any nature attaching to
those shares (save the special voting rights attaching to the special
voting share which fall away on the signing of this Agreement)
including the right to all dividends declared or paid after the date of
the release of the Formal Press Announcement.
1.5(a) On the issue of a Trigger Notice Liberty International shall use all
reasonable endeavours to seek a Tax Opinion to be delivered on the
fourth US business day (each a BUSINESS DAY) after service of the
Trigger Notice (the OPINION DATE) provided that Telewest procures
delivery to Liberty International, UAE and Baker Botts LLP letters from
Telewest and Flextech in the forms appended to this Agreement as
Appendix 3A and Appendix 3B respectively (REPRESENTATION LETTERS) by
9:00 a.m. London time on the Opinion Date and dated the Opinion Date.
(b) If Telewest procures delivery to Liberty International, UAE and Baker
Botts LLP of Representation Letters by 9:00 a.m. London time on the
Opinion Date and dated the Opinion Date, and Telewest have received
clearance from the Inland Revenue under Section 138 of the Taxation of
Chargeable Gains Act 1992 in relation to the Offer (a TCGA CLEARANCE)
by 9.00 a.m. London time on the Opinion Date, and Liberty International
and UAE receive a Tax Opinion on the Opinion Date, Liberty
International shall:
(i) by 12 noon on the Business Day following the Opinion Date
procure that UAE accepts the Offer in respect of the Liberty
Retained Shares; and
(ii) procure that, although the terms of the Offer will confer a
right of withdrawal on accepting shareholders, neither UAE nor
any other member of the Liberty International Group shall
withdraw any acceptances of the Offer (including for the
avoidance of doubt in respect of any Liberty Accepted Shares)
other than where any of the representations in either of the
Representation Letters are inaccurate in any respect during
the remainder of the Initial Offer Period.
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(c) If Liberty International becomes obliged to perform its obligations
under Clause 1.5(b)(i) and does so but Telewest does not declare the
Offer unconditional in all respects (save for the condition relating to
admission of the new Telewest shares) on the date on which UAE accepts
the Offer in respect of the Liberty Retained Shares or if Telewest does
not have valid acceptances entitling it to acquire Control (as defined
in Appendix 3A) of Flextech (the REQUISITE ACCEPTANCE LEVEL)
immediately after the time when Liberty International performs its
obligations under clause 1.5(b)(i) then the provisions of clause
1.5(e)(i) and (ii) shall forthwith apply mutatis mutandis (except that
the words "subject to Telewest's rights pursuant to (iii) below" in
e(ii) shall not apply) but thereafter Telewest shall be entitled, if
able to do so, to issue a further Trigger Notice and clauses 1.5(a) to
(c) shall apply "mutatis mutandis" to such further Trigger Notice
except that references to the "Liberty Retained Shares" shall be read
as references to all ordinary shares in Flextech held by any member of
the Liberty International Group in respect of which the Offer has not
been accepted (or has been accepted and withdrawn).
(d) If upon application to them pursuant to clause 1.5(a) above Baker Botts
LLP refuse to give Liberty a Tax Opinion then Liberty shall so confirm
and warrant to Telewest in writing that they (i) have not instructed
Baker & Botts LLP to withhold such an opinion, (ii) have used
reasonable endeavours to seek such an opinion, (iii) have not knowingly
done any act or thing between today's date and the date of such refusal
(the PERIOD) which prejudiced Baker & Botts LLP's ability to give the
Tax Opinion, and (iv) have acted in good faith in relation to the
matters referred to in this Agreement throughout the Period (a LIBERTY
CONFIRMATION LETTER) and if so requested by Telewest shall provide a
copy of a letter from Baker Botts LLP addressed to Liberty
International giving the reasons for such refusal.
(e) after service of a Liberty Confirmation Letter on Telewest:
(i) UAE and any other member(s) of the Liberty International Group
who hold ordinary shares in Flextech and have accepted the
Offer shall at any time be entitled to withdraw such
acceptances; and
(ii) no member of the Liberty International Group shall have any
further obligation to accept the Offer (including without
limitation UAE in respect of the Liberty Retained Shares) and
all undertakings given by UAE and Liberty Media International
in this Agreement shall immediately lapse subject to
Telewest's rights pursuant to (iii) below; and
(iii) Telewest shall be entitled, within 2 Business Days of such
service, to serve a further notice on Liberty International
requiring Liberty International to use all reasonable
endeavours to seek a Tax
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Opinion from US tax counsel from a nationally recognised US
law firm other than Baker Botts LLP selected by Telewest but
reasonably acceptable to Liberty International (ALTERNATIVE
TAX COUNSEL) and may procure if so requested by Alternative
Tax Counsel that letters in the form of the Representation
Letters but addressed to Alternative Tax Counsel rather than
Baker Botts LLP be issued. If the Tax Opinion is obtained by
Liberty International from Alternative Tax Counsel the
provisions of clause 1.5(b) and (c) shall apply mutatis
mutandis thereafter. In this sub-clause (iii) "Tax Opinion"
shall bear the meaning set out in clause 1.5(g) except that
the reference to "Baker Botts LLP, special tax counsel to
Liberty International and UAE" shall be replaced with a
reference to Alternative Tax Counsel.
(f) If Telewest issues a Trigger Notice but fails to procure that
Representation Letters are delivered to Liberty International, UAE and
Baker Botts LLP by 9.00 a.m. London time on the Opinion Date and/or has
not received TCGA Clearance by 9.00 a.m. London time on the Opinion
Date the provisions of (e)(i) and (ii) above shall apply mutatis
mutandis (except that the words "subject to Telewest's rights pursuant
to (iii) below" in e(ii) shall not apply) as from 9.00 a.m. London time
on the Opinion Date.
(g) For the purposes of this clause 1.5 the following terms shall bear the
following meanings:
"Tax Opinion" means an opinion of Baker Botts L.L.P, special tax
counsel to Liberty International and UAE, in form and substance, and
with such qualifications and limitations as are reasonably satisfactory
to Liberty International and UAE, to the effect that, for United States
federal income tax purposes, (i) the share exchange contemplated by the
Offer should be treated as a reorganization within the meaning of
Section 368 (a) of the Internal Revenue Code of 1986, as amended (the
CODE), (ii) except as otherwise required by Treas. Reg. Section
1.367(b)-4(b), T.D. 8862, no gain or loss should be recognized by, and
no amount should be included in the income of, UAE as a result of the
exchange of Flextech shares for Telewest shares in the share exchange
contemplated by the Offer (without regard to the rules for the
determination of the gross income of a foreign corporation in Section
882(b) of the Code and except with respect to cash received in lieu of
fractional shares of Telewest), and (iii) except with respect to cash
received in lieu of fractional shares of Telewest, no amount should be
included in the income of Liberty Programming UK, Inc. as a result of
such share exchange contemplated by the Offer. In rendering such
opinion, such counsel shall be entitled to receive and rely upon (and
may incorporate by reference) representations and covenants by officers
of Flextech and
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Telewest in relation to such matters including without limitation the
Representation Letters and such representations and covenants by
officers of Flextech and Telewest as to such matters as such counsel
may reasonably request in order to determine the issues described in
(i), (ii) and (iii) above, and UAE and Liberty International shall be
entitled to rely upon such representations and covenants of officers of
Flextech and Telewest.
1.6 In the period between today's date and 31 March 2000 Liberty International
shall not and shall procure that no member of the Liberty International Group
shall sell or enter into a binding commitment to sell or otherwise deal in any
shares or other securities of Flextech or any interest therein (including any
derivatives referenced to any such securities).
1.7 If at any time Flextech notifies Liberty International or Liberty
International become otherwise aware that Flextech intends to issue further
ordinary shares (other than pursuant to options or other rights in existence at
the date of this agreement) so that the amount of Flextech's fully diluted share
capital will be increased (the increased amount being referred to as FLEXTECH'S
REVISED FULLY DILUTED SHARE CAPITAL) Liberty International and UAE shall
forthwith be entitled and shall be entitled to procure that relevant members of
the Liberty International Group shall:
(a) if UAE has already complied with its obligations under clause 1.3(a)
above, withdraw acceptance of the Offer in respect of such number of
ordinary shares in Flextech as shall leave members of the Liberty
International Group taken together holding (excluding shares which have
been accepted and not withdrawn) 10.1% of Flextech's Revised Fully
Diluted Share Capital (including shares which have been accepted and
not withdrawn); or
(b) if UAE has not yet complied with its obligations under clause 1.3(a)
above, notwithstanding clauses 1.3(a) and 1.4(a), only accept the Offer
in relation to such number of Flextech ordinary shares as shall leave
members of the Liberty International Group taken together holding
(excluding shares which have been accepted and not withdrawn) 10.1% of
Flextech's Revised Fully Diluted Share Capital (including shares which
have been accepted and not withdrawn).
1.8 Liberty International understands that, on the basis of facts currently
known to Baker Botts LLP and under present law, Baker Botts LLP would be able to
deliver the Tax Opinion to Liberty International, although such counsel has
undertaken no obligation of any kind to issue such tax opinion.
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EXCLUSIVITY
2.1 During the Relevant Period each of Liberty International and UAE severally
agree that they will not, and will ensure that their respective directors,
employees, agents, subsidiary undertakings, consultants or professional advisers
who are aware of the Possible Offer do not without the written consent of
Telewest:
(a) directly or indirectly solicit, initiate or enter into discussions or
negotiations or otherwise co-operate in any manner with any third party
in relation to:
(i) a bid by a third party for Flextech or any other business
combination involving Flextech or any of its subsidiaries and
the third party; or
(ii) the acquisition of a substantial equity interest in, or a
substantial portion of the assets of, Flextech or any such
subsidiary where, for this purpose SUBSTANTIAL means a Class 1
transaction in respect of Flextech (together with (i) above
being a FLEXTECH TRANSACTION) (for the avoidance of doubt a
Flextech Transaction shall not include any business
combination including Flextech or any of its subsidiaries and
any third party as may be entered into after the Offer becomes
or is declared unconditional in all respects);
(b) provide any information to any third party with a view to that third
party investigating or entering into a Flextech Transaction, except
where the Code or the Panel or other regulatory authority or the law
requires that Flextech provide the information to the third party;
(c) indicate its willingness, or agree, to do anything after the
Exclusivity Period which it is not permitted to do during the
Exclusivity Period,
provided that each shall be permitted to inform any such third party that it is
currently bound by these exclusivity provisions.
2.2 Each of Liberty International and UAE will inform Telewest immediately
during the Relevant Period:
(a) if it becomes aware of a proposal or approach from a third party in
relation to a Flextech Transaction;
(b) if it is asked to, or does, provide any information to a third party
with a view to that third party investigating or entering into a
Flextech Transaction; or
(c) if it becomes aware of any breach of the provisions of this agreement
or if it becomes aware of any likely publicity in relation to a
possible bid for
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Flextech or the future management of Flextech or any subsidiary of
Flextech.
2.3 Liberty International confirms that, apart from the discussions with
Telewest, they have not received any proposal or approach from a third party in
relation to any Flextech Transaction, which has not been terminated or
abandoned.
2.4 If any party is required by applicable law, by any applicable regulation or
rule of any relevant stock exchange, or by the Panel to make an announcement
relating to the Possible Offer, the possible acquisition of Flextech by Telewest
or a Flextech Transaction, it may make such an announcement provided that it is
no more extensive than is required and it has first consulted the other parties
and sought in good faith to secure the other's agreement to the timing, manner
and content of the announcement.
MISCELLANEOUS
3.1 The parties acknowledge that they are not entering into this Agreement in
reliance upon any representation, warranty or undertaking save as expressly set
out herein and, in the absence of fraud, no party shall have any claim or remedy
against any other party in respect of any misrepresentation, untrue statement,
omission or non-disclosure. In particular, Liberty International's and UAE's
undertaking pursuant to clause 1 shall be irrevocable and, in the absence of
fraud, shall not be capable of rescission or termination on the basis of any
information subsequently disclosed by Telewest or Flextech in any offer
document, listing particulars or registration statement or for any other reason
whatsoever.
3.2 The undertakings in this Agreement (save in clause 1.6) shall lapse:
(a) if the Press Announcement has not been released by 3.00 p.m. (London
time) on 31 January 2000 (or such later time and/or date as Liberty
International and Telewest may agree); or
(b) if the Press Announcement has been so released before that time but
(i) Telewest releases an announcement on the London Stock Exchange
stating that it is not proceeding to post an offer document
and is therefore withdrawing from making an offer for Flextech
at that time;
(ii) the Disclosure Document (as defined in the Merger Agreement)
has not been filed with the SEC by 29 February 2000 (provided
that all appropriate financial information relating to
Flextech for the purpose of compiling this document has been
supplied to Telewest by no later than 15 February 2000 and all
necessary co-
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operation and assistance has been given by Flextech to
Telewest in preparation of that document);
(iii) if the SEC decide not to review the Disclosure Document, the
Offering Documents (as defined in the Merger Agreement) have
not been posted by 7 March 2000;
(iv) the Offering Documents have not been posted by 15 April 2000
including in circumstances where the SEC decided to review the
Disclosure Document;
(v) the Offer lapses or is withdrawn; or
(vi) insofar as the proposed acquisition of Flextech by Telewest is
a concentration with a community dimension within the scope of
Council Regulation (EEC 4064/89) (the MERGER REGULATION), the
European Commission either initiates proceedings under Article
(6)(1)(c) of the Merger Regulation or makes a referral to the
OFT under Article (9)(1) of the Merger Regulation and there is
a subsequent reference to the Competition Commission or,
insofar as the proposed acquisition of Flextech by Telewest is
not a concentration with a Community dimension, the Secretary
of State refers the Offer or Possible Offer or any aspect
thereof to the Competition Commission.
If the undertakings lapse, no party to this Agreement shall have any claim
against any other party except in respect of any prior breach of this Agreement.
3.3 Any time, date or period mentioned in this Agreement may be extended by
mutual agreement but as regards any time, date or period originally fixed or as
extended, time shall be of the essence.
3.4 Liberty International and UAE each agree that, if either fails to accept or
procure acceptance of the Offer in accordance with the undertakings in clause 1
or breaches any of its or their other obligations under this Agreement, damages
would not be an adequate remedy and accordingly Telewest shall be entitled to
the remedy of specific performance and/or other injunctive relief.
3.5 This Agreement is governed by and shall be construed in accordance with the
laws of England.
3.6 Each of the parties agrees that the Courts of England are to have exclusive
jurisdiction to settle any disputes which may arise in connection with this
Agreement.
3.7 Liberty International shall at all times maintain an agent for service of
process or any other proceedings in connection with this Agreement. Such agent
shall be Grays Inn Secretaries, 5 Chancery Lane, London EC4 1BU (for
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the attention of Philip Goodwin/Tony Grant/Anthony Alexander) and any writ,
judgement or other notice of legal process shall be sufficiently served on
Liberty International if delivered to Grays Inn Secretaries at its address for
the time being. Liberty International hereby irrevocably undertakes not to
revoke the authority contained in this clause.
3.8 This Agreement may be entered into in any number of counterparts and by the
parties to it on separate counterparts, each of which, when executed and
delivered, shall be an original, but all counterparts shall together constitute
one and the same instrument.
3.9 A reference in this undertaking to the OFFER does not include any new,
increased, renewed or revised offer made by or on behalf of Telewest (or any of
its subsidiary undertakings) to acquire shares in Flextech.
3.10 Each notice or other communication under this deed shall be by fax and
shall be sent:
(a) to UAE or Liberty International to fax number 00 1 720 875 4983 (marked
for the attention of Graham Hollis) copied to Philip Goodwin and Jeremy
Cohen at Denton Hall on fax number 0171 320 6309;
(b) to Telewest to fax number 01483 295165 (marked for the attention of
Victoria Hull) copied to Barry O'Brien, Gareth Stephenson and Ben
Spiers on fax number 0171 832 7001;
(c) to Baker Botts LLP to fax number 001 212 705 5125, for the attention of
Robert S Langley
or to such other fax number or marked for such other attention as the relevant
party may from time to time notify the others for the purposes of this
Agreement. Any such notice or communication shall be conclusively deemed
received when sent to the appropriate number with confirmation of receipt by
person or electronic device being received by the sender.
3.11 This Agreement constitutes a notice to Telewest given by UAE pursuant to
the equivalent provisions contained in the Offer Document to those set out under
the heading "Notices" in Schedule 1.
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SCHEDULE 1
UNLESS THE CONTEXT OTHERWISE REQUIRES, ANY REFERENCE:
(i) to the "Offer" shall include any revision, variation, renewal or
extension thereto;
(ii) to the "Offer becoming unconditional" shall include references to the
Offer becoming or being declared unconditional;
(iii) to "acceptances of the Offer" shall include deemed acceptances of the
Offer;
(iv) to "Initial Offer Period" means the period from the date of the offer
document up to and including the time and date the Offer becomes or is
declared unconditional in all respects or lapses";
(v) to "Subsequent Offer Period" means the period following the expiry of
the Initial Offer Period during which the Offer remains open for
acceptance;
(vi) to "Acceptance Condition" means the condition set out in paragraph 1 of
Schedule 1 to Appendix 1.
RIGHTS OF WITHDRAWAL
(a) Except as otherwise provided in this paragraph, acceptances of the
Offer by holders of Flextech shares are irrevocable. Acceptances of the
Offer may, however, be withdrawn pursuant to the procedures set out
below at any time during the Initial Offer Period and in certain other
circumstances described below. Flextech shares assented to the Offer
during the Initial Offer Period and not validly withdrawn prior to the
expiry of the Initial Offer Period, and Flextech shares assented to the
Offer during the Subsequent Offer Period, may not be withdrawn. Holders
of Flextech shares will not have withdrawal rights during the
Subsequent Offer Period, except in certain limited circumstances
described below.
(b) If Telewest, having announced that the Acceptance Condition has been
satisfied, fails by 3.30 pm (London time), 10.30 am (New York City
time) on the relevant day (or such later time or date as the Panel may
agree) to comply with any of the relevant requirements relating to the
Offer specified in [Rule 17 of the City Code] an accepting holder of
Flextech shares may immediately after that time withdraw his acceptance
of the Offer by written notice given by post or by hand to [Lloyds TSB
Registrars, The Causeway, Worthing, West Sussex, BN99 6DA or, by hand
only, to Lloyds TSB Registrars, Antholin House, 71 Queen Street, London
EC4N 1SL] in each case receiving such notice on behalf of
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Telewest. This right of withdrawal may be terminated not less than
eight days after the relevant day by Telewest confirming, if that be
the case, that the Offer is still unconditional and complying with the
other relevant requirements relating to the Offer specified in [Rule 17
of the City Code].
(c) If a no extension and/or a no increase statement is withdrawn in a
competitive situation any acceptance of the Offer made after the date
of that statement may be withdrawn thereafter in the manner referred to
in paragraph 3(b) above, for a period of eight days following the date
on which the notice of the withdrawal of such statement is posted to
holders of Flextech shares.
(d) To be effective, a written notice of withdrawal must be received in
good time by the Receiving Agent and must specify the name of the
person who accepted the Offer, the number of Flextech shares to be
withdrawn and (if certificates have been submitted) the name of the
registered holder of the relevant Flextech shares, if different from
the name of the person who accepted the Offer in respect of such
Flextech shares.
(e) Withdrawals of Flextech shares assented to the Offer may not be
rescinded (without Telewest's consent) and any Flextech shares properly
withdrawn and not properly re-submitted will thereafter be deemed not
validly assented to the Offer.
(f) All questions as to the validity (including time of receipt) of any
notice of withdrawal will be determined by Telewest, whose
determination (except as required by the Panel) will be final and
binding. None of Telewest, Flextech, Schroders, the Receiving Agent or
any other person will be under any duty to give notification of any
defects or irregularities in any notice of withdrawal or incur any
liability for failure to give such notification.
REDUCTION OF THE ACCEPTANCE CONDITION
The Offer is conditional, amongst other things, on valid acceptances being
received (and not, where permitted, withdrawn) by 3.00 p.m. (London time), 10.00
a.m. (New York time) (or such later time(s) and/or dates(s) as Telewest may,
subject to the rules of the City Code, decide) on the first closing date of the
Offer in respect of not less than 90% of Flextech shares to which the Offer
relates, or such lesser percentage as Telewest may decide, provided that such
Condition (the ACCEPTANCE CONDITION) shall not be satisfied unless Telewest
shall have acquired or agreed to acquire, whether pursuant to the Offer or
otherwise, Flextech shares carrying in the aggregate more than 50% of the voting
rights then exercisable at general meetings of Flextech and provided further
that the Acceptance Condition shall be capable of being satisfied only at a time
when all other Conditions have been satisfied, fulfilled or, where
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permitted, waived. Telewest reserves the right to reduce the percentage of
Flextech shares required to satisfy the Acceptance Condition provided that four
clear US Business Days prior to any such reduction, Telewest will announce that
it has reserved the right so to reduce the Acceptance Condition. Such
announcement (a TRIGGER NOTICE) will state the percentage to which the
Acceptance Condition may be reduced (provided that such condition cannot be
reduced below 80% without the consent of Liberty Media and Microsoft and
Flextech) and will state that such a reduction is possible but that Telewest
need not declare its actual intentions until it is required to do so under the
City Code. Telewest will not make such an announcement unless it believes that
there is a significant possibility that sufficient Flextech shares will be
tendered to permit the Acceptance Condition to be satisfied at such reduced
level. Holders of Flextech shares who are not willing to accept the Offer if the
Acceptance Condition is reduced from the 90% level should either not accept the
Offer until the Subsequent Offer Period or be prepared to withdraw their
acceptances promptly following an announcement by Telewest of its reservation of
the right to reduce the Acceptance Condition.
NEW ISSUES OF FLEXTECH SHARES
Telewest shall, as soon as practicable, issue an announcement if it becomes
aware that Flextech intends to make an issue of ordinary shares other than
pursuant to options or other rights in existence as the date of this document.
NOTICES
Any shareholder will be sent copies of the announcements referred to under
"Reduction of the Acceptance Condition" and "New Issues of Flextech Shares" if a
request is made in writing to Telewest for such notices to be so sent.
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DULY DELIVERED as a deed by Liberty Media International, Inc. and United Artists
European Holdings Limited and executed by Telewest Communications plc on the day
and year first before written.
SIGNED )
by VICTORIA HULL )
for and on behalf of ) /s/ VICTORIA HULL
TELEWEST COMMUNICATIONS PLC )
)
)
SIGNED as a DEED and DELIVERED )
on behalf of LIBERTY MEDIA )
INTERNATIONAL, INC. )
by MIRANDA CURTIS ) /s/ MIRANDA CURTIS
being a person who in accordance with the laws )
of Delaware, is acting under the )
authority of )
Liberty Media International, Inc. )
EXECUTED as a DEED and DELIVERED )
by UNITED ARTISTS EUROPEAN ) /s/ GRAHAM HOLLIS
HOLDINGS LIMITED acting )
by two directors/a director and secretary )
Director /s/ MIRANDA CURTIS
Director/Secretary /s/ ROBERT BENNETT
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