EXHIBIT 3
29 MARCH 1998
TELEWEST COMMUNICATIONS PLC
GENERAL CABLE PLC
COMPAGNIE GENERALE des EAUX
GENERAL UTILITIES HOLDINGS LIMITED
AGREEMENT RELATING TO THE MERGER OF
GENERAL CABLE AND TELEWEST
CONTENTS
CLAUSE PAGE
Release of Initial Press Announcement 1
Co-operation by General Cable 1
Recommendation 2
Irrevocable Commitment by CGE and General Utilities 2
Exclusivity 4
Telewest Undertakings 5
Miscellaneous 5
SCHEDULE 1 8
SCHEDULE 2 10
Part A 10
Part B 13
THIS AGREEMENT is made on 29 March 1998
BETWEEN
TELEWEST COMMUNICATIONS PLC whose registered office is at Xxxxxxx Xxxxxxxx Xxxx,
Xxxxxx Xxxxx, Xxxxxx, Xxxxxx XX00 0XX (TELEWEST);
GENERAL CABLE PLC whose registered office is at 00-00 Xxx Xxxxx Xxxxxx, Xxxxxx
XX0X 0XX (GENERAL CABLE);
COMPAGNIE GENERALE DES EAUX whose principal office is at 00 Xxx x'Xxxxx, Xxxxx
00000 (XXX); and
GENERAL UTILITIES HOLDINGS LIMITED whose registered office is at 00-00 Xxx Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX (GENERAL UTILITIES).
WHEREAS
A. Telewest is considering making an offer for General Cable (the POSSIBLE
OFFER).
B. If Telewest makes an offer for General Cable on the terms and, in all
material respects, subject to the conditions set out in Schedule 2 (the OFFER)
General Utilities and CGE have irrevocably undertaken to accept such Offer.
THIS AGREEMENT WITNESSES AS FOLLOWS:
RELEASE OF INITIAL PRESS ANNOUNCEMENT
1.1 The parties agree to the immediate release of the press announcement in the
form of Schedule 1, with such amendments as J Xxxxx Xxxxxxxx & Co. Limited and
XX Xxxxxxxxxx may approve.
1.2 Telewest agrees to comply with its obligations under Rules 5 and 8 of the
City Code on Takeovers and Mergers (the CODE), to notify the Panel on Takeovers
and Mergers (the PANEL) and the London Stock Exchange of the acquisition of
rights over General Utilities' holding of shares in General Cable and to comply
with its obligation to notify General Cable under section 198 of the Companies
Xxx 0000.
CO-OPERATION BY GENERAL CABLE
2. General Cable agrees that it shall:
(a) provide all reasonable assistance as may be requested to enable Telewest to
(i) release an announcement to the Company's Announcement Office of the
London Stock Exchange incorporating the terms and conditions set out in
Schedule 2 (the FORMAL PRESS ANNOUNCEMENT), (ii) make the Offer; and (iii)
prepare all related and ancillary documents in accordance with the
requirements of the Code, the London Stock Exchange, the Securities and
Exchange Commission, NASDAQ National Market and any other legal or
regulatory requirement or body;
(b) provide all reasonable assistance to Telewest as may be required to obtain
the clearances and consents referred to in Schedule 2; and
(c) agree to any extension of time limits in the Code which Telewest requests
(unless it is acting unreasonably) and which the Panel approves.
RECOMMENDATION
3. General Cable hereby confirms that each of its directors has confirmed
that, if the Offer is made, each of these directors will, subject to their
fiduciary duties and their responsibilities under the Code, recommend the Offer
to General Cable's shareholders.
IRREVOCABLE COMMITMENT BY CGE AND GENERAL UTILITIES
4.1 General Utilities hereby warrants and undertakes to Telewest that it is the
sole registered holder and the sole beneficial owner of 146,785,916 ordinary
shares of (Pounds)1.00 each in the capital of General Cable (the SHARES) and the
beneficial owner of one additional such ordinary share and that it holds these
Shares free of any lien, charge, option, equity or encumbrance and it has full
power and authority to enter into this undertaking and to accept the Offer in
respect of the Shares.
4.2 Until such time as the undertakings in this Agreement terminate in
accordance with clause 7.2, (the RELEVANT PERIOD), CGE shall not and shall
procure that each member of the CGE Group (being CGE 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 any Shares or any other shares or securities in General Cable
issued or unconditionally allotted to any member of the CGE Group or
otherwise acquired by any member of the CGE Group before then (FURTHER
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 4.2(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 4.2(a) or (b);
(ii) in relation to, or operating by reference to, the Shares or any
Further Shares; or
(iii) which, in relation to the Shares or any Further Shares, would or
might restrict or impede any member of the CGE Group accepting
the Offer,
and for the avoidance of doubt, references in this clause 4.2 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
General Cable or Telewest or any interest therein (including any
derivatives referenced to any such securities).
4.3. General Utilities undertakes that:
(a) if a formal document containing the Offer (the OFFER DOCUMENT) is posted,
it shall accept the Offer in respect of the 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; and
(b) 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; and
(c) Telewest shall acquire the Shares and any Further Shares held by General
Utilities free of any lien, charge, option, equity or encumbrance and
together with all rights of any nature attaching to those shares including
the right to all dividends declared or paid after the date of this
undertaking.
4.4 CGE undertakes that:
(a) if the Offer Document is posted, it shall accept or procure the acceptance
of the Offer in respect of any Further Shares in accordance with the
procedure for acceptance set out in the Offer Document not later than two
days after the date it or the relevant member of the CGE Group becomes the
registered holder of the Further Shares;
(b) 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; and
(c) Telewest shall acquire the Shares and any Further Shares from each and
every member of the CGE Group free of any lien, charge, option, equity or
encumbrance and together with all rights of any nature attaching to those
shares including the right to all dividends declared or paid after the date
of this undertaking.
4.5 A reference in this undertaking to the OFFER also includes any new,
increased, renewed or revised offer made by or on behalf of Telewest to acquire
shares in General Cable, provided that, having consulted with XX Xxxxxxxxxx, J.
Xxxxx Xxxxxxxx & Co. Limited has written to General Cable stating that, in its
opinion, the terms of such offer are no less favourable to acceptors than the
terms referred to in Schedule 2 and the cash element is no less than the amount
specified in Schedule 2.
EXCLUSIVITY
5.1 During the Relevant Period, General Cable, CGE and General Utilities will
not, and will ensure that their directors, employees, agents, consultants or
professional advisers who are aware of the possible public offer do not:
(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 or other business combination involving General Cable or
any of its subsidiaries; or
(ii) the acquisition of a substantial equity interest in, or a
substantial portion of the assets of, General Cable or any such
subsidiary (together with (i) above being a GENERAL CABLE
TRANSACTION);
(b) provide any information to any third party with a view to that third party
investigating or entering into a General Cable Transaction, except where
the Code or the Panel or other regulatory authority or the law requires
that General Cable provide the information to the third party;
(c) indicate his willingness, or agree, to do anything after the period of
exclusivity expires which he is not permitted to do during the period of
exclusivity.
5.2 General Cable and CGE will inform Telewest immediately:
(a) if it becomes aware of a proposal or approach from a third party in
relation to a General Cable 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 General Cable
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
General Cable or the future management of General Cable or any subsidiary
of General Cable,
except to the extent prohibited from doing so when General Cable and CGE have
not encouraged such prohibition.
5.3 Nothing in this Agreement shall prohibit or restrict the directors of
General Cable from exercising their fiduciary duties or responsibilities under
the Code to consider (including with advisers) any approach from any third party
in connection with any of the matters referred to in clause 5.1.
5.4 General Cable and CGE confirms that, apart from the discussions with
Telewest, it has not received any proposal or approach from a third party in
relation to any General Cable Transaction, which has not been terminated.
5.5 If any party is required by applicable law, by any applicable regulation or
rule of any relevant stock exchange, or by the Panel on Takeovers and Mergers to
make an announcement, 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.
TELEWEST UNDERTAKINGS
6. Telewest undertakes that, if an Offer is made, it will use all reasonable
endeavours to ensure that any pre-conditions to despatch of the Offer Document
are satisfied or waived and that the Offer Document is despatched as soon as
possible and shall use all reasonable endeavours to ensure that the conditions
of the Offer set out in Part B of Schedule 2 (Conditions) numbered 2 to 7
(inclusive) are satisfied as soon as practicable. Telewest hereby confirms that
the directors who have signed this Agreement on behalf of Telewest have
confirmed that they will, subject to their fiduciary duties, recommend that
Telewest's shareholders vote in favour of any resolution referred to in the
Condition 2.
MISCELLANEOUS
7.1 The parties acknowledge that they are not entering into this Agreement in
reliance upon on 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, CGE's and General
Utilities' undertaking pursuant to clause 4 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 General Cable in any
offer document, listing particulars or registration statement or for any other
reason whatsoever.
7.2 The undertakings in this Agreement shall lapse:
(a) if the Formal Press Announcement has not been released by 3.00 p.m. (London
time) on 15 April 1998 (or such later time and/or date as CGE, General
Cable and Telewest may agree); or
(b) if the Formal 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 General Cable
at that time;
(ii) the Offer Document has not been posted by 30 June 1998; or
(iii) the Offer lapses or is withdrawn.
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.
7.3 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.
7.4 CGE and General Utilities each agree that, if either fail to accept or
procure acceptance of the Offer in accordance with the undertaking in clause 4
or breach 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.
7.5 This Agreement is governed by and shall be construed in accordance with the
laws of England.
7.6 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.
7.7 CGE 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. Such agent shall be General Utilities (who hereby
irrevocably agrees to accept such appointment) and any writ, judgement or other
notice of legal process shall be sufficiently served on CGE if delivered to
General Utilities at its address for the time being. CGE hereby irrevocably
undertakes not to revoke the authority contained in this clause.
7.8 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.
SCHEDULE 1
TELEWEST COMMUNICATIONS PLC (TELEWEST)
GENERAL CABLE PLC (GENERAL CABLE)
The boards of Telewest and General Cable announce that merger discussions
between their two companies are at an advanced stage which may result in a
recommended offer being made by Telewest for the outstanding ordinary shares of
General Cable.
General Utilities Holdings Limited (XXXX), a subsidiary of Compagnie Generale
des Eaux (CGE) has entered into an agreement with Telewest on 29 March 1998
whereby it has agreed that, if Telewest announces a firm intention to make an
offer within prescribed terms on or before 3.00 p.m. on 15 April 1998 (or such
later time or date as shall be agreed), XXXX will irrevocably accept such an
offer in respect of its entire holding of 146,785,916 General Cable ordinary
shares (representing approximately 40 per cent. of General Cable's issued share
capital). The prescribed terms referred to above include the following:
an offer of 1.243 new Telewest shares and 65 xxxxx in cash for every
General Cable share and 0.622 new Telewest ADSs and the equivalent in US$
of 325 xxxxx in cash for each General Cable ADS;
a reorganisation of the board of directors of Telewest so that it will
initially consist of seven non-executive directors (designated by U S WEST
Inc., Tele-Communications Inc., Xxx Communications Inc., SBC CableComms
(UK) and CGE), four executives (to include one executive member of the
General Cable board) and three independent non-executive directors (to
include a nomination from the board of General Cable).
It is intended that the cash component of the offer would, if made, be provided
by means of an issue of up to 259 million new Telewest shares, to be
underwritten by major shareholders of Telewest at 92.5 xxxxx per share. It is
envisaged that arrangements will be made to enable Telewest's shareholders to
participate in this issue.
If made on the above terms, an Offer would currently value each General Cable
ordinary share at approximately 182.5 xxxxx per share (based on the closing
price in London of 94.5 xxxxx per Telewest ordinary share on Friday 27 March
1998) and the whole of General Cable's issued ordinary share capital at
approximately (Pounds)666 million.
The board of General Cable has welcomed these developments and has indicated
that it will recommend the proposed offer if made. Likewise, U S WEST Inc.,
Tele-Communications Inc., SBC CableComms (UK) and Xxx Communications Inc. have
indicated their support for the proposed merger.
Further details of the proposed merger will be given as soon as possible. It
must be emphasised, however, that there can be no certainty that these
discussions will result in any proposal being put to General Cable's
shareholders.
PRESS ENQUIRIES
Telewest 01483 750900 General Cable 0171 393 2828
Xxxx Xxxx (0171 333 8866) Xxx Xxxxxxx Xxxxxxx
Cob Stenham (0171 494 4956) Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx
Schroders 0171 658 6597 NatWest Securities 0171 375 8720
Xxxxx Xxxxx Xxxxx Xxxxx
XX Xxxxxxxxxx 0171 982 3720
Xxxxxx Xxxxxxxxx
SCHEDULE 2
PART A
1. TERMS
FOR EVERY GENERAL CABLE SHARE 1.243 NEW TELEWEST SHARES
AND
65 XXXXX IN CASH
FOR EVERY GENERAL CABLE ADS 0.622 NEW TELEWEST ADSS
AND
THE EQUIVALENT IN US$ OF
325 XXXXX IN CASH
The terms will incorporate a mix and match facility to permit preferences
amongst General Cable's securityholders as between cash and new Telewest shares
and new Telewest ADSs to be met, so far as possible, within the overall limits
of approximately 458 million new Telewest shares (whether in share or ADS form)
and (Pounds)240 million cash.
2. BOARD STRUCTURE AND MANAGEMENT
(A) COMPOSITION
The Board of the enlarged group would initially consist of 14 directors
comprising:
seven non-executive directors designated by the five major corporate
shareholders (including CGE);
four executives (to include one executive member of the General Cable
board in a senior role to be agreed); and
three independent non-executive directors, to include a nomination
from the board of General Cable.
(B) CORPORATE SHAREHOLDER REPRESENTATION ON THE BOARD
U S WEST and TCI will each have the right to designate two Telewest
Board members. Cox, SBC and CGE will each have the right to designate one
Telewest Board member.
(C) CHAIRMAN
The enlarged group would initially be chaired by Xxxx Xxxx, a U S WEST
designated director, with Cob Stenham as Deputy Chairman. The Articles
would provide that future chairmen would be elected by the Board in the
ordinary course; there would be no requirement for the chairman to be a
member of any particular director group.
(D) BOARD COMMITTEES
The Telewest Articles would provide that each of U S WEST and TCI would be
entitled to appoint a member of each Board committee. The Articles would
further provide that the Chairman of each Board committee would be
appointed from amongst the independent non-executive directors and that a
majority of the members of each committee would be independent of U S WEST
and TCI.
(E) QUORUM
The special quorum requirements in the existing Telewest Articles would be
removed.
(F) VOTING
The special two thirds voting requirement in the existing Telewest Articles
would be removed.
3. COVENANTS IN FAVOUR OF U S WEST AND TCI
In exchange for TCI and U S WEST agreeing to change the Articles of
Telewest, Telewest would agree and undertake with TCI and U S WEST that
Telewest will not undertake any of the following without the written
consent in advance of TCI and U S WEST:
any major acquisition or disposal outside the ordinary course of
business;
borrowing or granting of security in excess of (Pounds)50 million in
aggregate;
any new issues of shares;
the appointment or removal of Telewest's Chief Executive Officer;
and
appointment of new directors (other than shareholder representatives).
The agreement of TCI and U S WEST in relation to these matters will only be
required so long as that shareholder retains a holding of 15% or more of
Telewest's voting shares.
4. IRREVOCABLE COMMITMENTS TO VOTE
Each of U S WEST, TCI, SBC and Cox will irrevocably undertake (except to the
extent precluded by The London Stock Exchange or the Panel) to vote in favour of
all shareholder resolutions required to implement the Offer, the revisions of
the Telewest Articles and the other proposals set out in this Schedule.
PART B
CONDITIONS AND FURTHER TERMS OF THE OFFER
CONDITIONS
The posting of the Offer will be subject to the following pre-conditions:
1. the completion of Telewest's financing and the obtaining of appropriate
consents for the purposes of making the Offer;
2. the re-financing of General Cable's existing financing and leasing
facilities or the waiver by the providers of such facilities of their
rights to withdraw such facilities in the event of an acquisition of
General Cable by Telewest, in each case on terms overall materially no less
favourable to those currently applying to such facilities.
Telewest reserves the right to waive all or any of the conditions above, in
whole or in part.
The Offer will be subject to the following conditions:
1. valid acceptances being received (and not, where permitted, withdrawn) by
3.00 p.m. on the first closing date (or such later time(s) and/or date(s)
as Telewest may, subject to the rules of the City Code, decide) in respect
of not less than 90 per cent. in nominal value (or such lesser percentage
as Telewest may decide) of the General Cable Shares to which the Offer
relates, provided that unless agreed by the Panel this condition will not
be satisfied unless Telewest (together with any of its wholly owned
subsidiaries) shall have acquired or agreed to acquire, whether pursuant to
the Offer or otherwise, General Cable Shares carrying, in aggregate, more
than 50 per cent. of the voting rights then exercisable at general meetings
of General Cable.
For the purposes of this condition:
(a) shares which have been unconditionally allotted but not issued
shall be deemed to carry the voting rights they will carry upon
issue; and
(b) the expression "General Cable Shares/1/ to which the Offer
relates" shall mean (i) General Cable Shares which have been
issued or allotted on or before the date the Offer is made; and
(ii) General Cable Shares issued or allotted after that date but
before the time at which the Offer closes (or such earlier date,
not being earlier than
__________
/1/ Definition of General Cable shares evidenced by ADSs.
the date on which the Offer becomes or is declared unconditional
as to acceptances or, if later, the first closing date of the
Offer, as Telewest may decide) but excluding any General Cable
Shares which, on the date the Offer is made, are held or
(otherwise than under such a contract as described in Section
428(5) of the Companies Xxx 0000 (the ACT)) contracted to be
acquired by Telewest and/or its associates (within the meaning of
Section 430E of the Act);
2. the passing at an extraordinary general meeting of Telewest (or at any
adjournment thereof) of such resolutions as may be necessary or incidental
to approve, implement and effect the Offer and the acquisition by Telewest
of General Cable pursuant thereto;
3. the London Stock Exchange admitting, or (if determined by Telewest and
subject to the consent of the Panel) agreeing to admit, to the Official
List, the new Telewest Shares to be issued pursuant to the Offer and such
admission becoming effective in accordance with the Listing Rules;
4. the new Telewest ADSs issuable pursuant to the Offer having been approved
for quotation on the NASDAQ National Market, subject to official notice of
issuance of such new Telewest ADSs being given to NASDAQ;
5. necessary registration statements with respect to the Offer having been
declared and remaining effective under the US Securities Act of 1933, as
amended, and no stop order suspending the effectiveness of such
registration statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the US Securities and
Exchange Commission;
6. it being indicated in terms satisfactory to Telewest that it is not the
intention of the Secretary of State for Trade and Industry to refer the
proposed acquisition of General Cable by Telewest, or any matters arising
therefrom, to the Monopolies and Mergers Commission;
7. all necessary filings having been made and all applicable waiting periods
under the United States Xxxx-Xxxxx Xxxxxx Antitrust Improvements Act of
1976 and the regulations thereunder having expired, lapsed or been
terminated as appropriate in each case in connection with the Offer and the
acquisition or proposed acquisition of any shares in, or control of,
General Cable by Telewest;
8. no relevant authority having:
(a) withdrawn or refused to renew, or threatened to withdraw or to
refuse to renew, any licence or permission; or
(b) instituted, implemented or taken, or threatened to take any
other action;
the effect of which would adversely affect the businesses, assets,
prospects or profits of any member of the wider Telewest Group to an extent
which is material in the context of the Telewest Group taken as a whole or
of General Cable or any member of the wider General Cable Group to an
extent which is material in the context of the General Cable Group taken as
a whole, and no such licences or permissions terminating or otherwise
becoming invalid as a result of the Offer or its implementation the effect
of which would adversely affect the businesses, assets, prospects or
profits of General Cable or Telewest or any member of the wider General
Cable Group or the wider Telewest Group to an extent which is material in
the context of the General Cable Group or the Telewest Group, as the case
may be, taken as a whole;
9. no relevant authority having intervened in a way which would or might:
(a) make the Offer, its implementation or the acquisition or proposed
acquisition by any member of the Telewest Group of any shares in,
or control of, General Cable by any member of the Telewest Group,
illegal, void and/or unenforceable in or under the laws of any
relevant jurisdiction, or otherwise materially, whether directly
or indirectly, restrict, restrain, prohibit, delay, or otherwise
materially interfere with or challenge the implementation of, or
impose additional conditions or obligations with respect to, or
otherwise challenge or interfere with the Offer or such
acquisition;
(b) require, prevent or materially delay the divestiture or
materially alter the terms envisaged for any proposed divestiture
by any member of the wider Telewest Group or any member of the
wider General Cable Group of all or any portion of their
respective businesses, assets or properties or impose any
limitation on the ability of any of them to conduct any of their
respective businesses or to own any of their respective assets or
property or any part thereof in each case to an extent which is
material in the context of the Telewest Group taken as a whole or
the General Cable Group taken as a whole;
(c) impose any limitation on, or result in any material delay in, the
ability of any member of the wider Telewest Group or of the wider
General Cable Group to acquire or to hold or to exercise
effectively, directly or indirectly, any rights of ownership in
respect of shares or other securities in, or to exercise
management control over, any member of the wider General Cable
Group or the wider Telewest Group, in each case to an extent
which is material in the context of the Telewest Group taken as a
whole or the General Cable Group taken as a whole;
(d) require any member of the wider Telewest Group or of the wider
General Cable Group to offer to acquire any shares or securities
in any member of the wider General Cable Group (other than
General Cable) or any member of the wider Telewest Group owned by
a third party, in each case to an extent which would be material
in the context of the Telewest Group or the General Cable Group,
as the case may be, taken as a whole;
(e) result in a material delay in the ability of any member of the
Telewest Group, or render any member of the Telewest Group unable
to acquire some or all of the General Cable Shares;
(f) require, prevent or materially delay the divestiture by any
member of the wider Telewest Group of any shares or other
securities in General Cable;
(g) otherwise adversely affect any or all of the businesses, assets,
prospects or profits of any member of the wider General Cable
Group or the wider Telewest Group in each case to an extent which
is material in the context of the General Cable Group or the
Telewest Group, as the case may be, taken as a whole;
(h) impose any limitation on the ability of any member of the wider
General Cable Group or the wider Telewest Group to co-ordinate
its business, or any part of it, with the businesses of any other
member of the wider General Cable Group or the wider Telewest
Group, as the case may be, to an extent which is material in the
context of the General Cable Group or the Telewest Group taken as
a whole, as the case may be; or
(i) result in any member of the General Cable Group ceasing to be
able to carry on business under any name which it presently does
so,
and all applicable waiting and other time periods during which any relevant
authority could intervene in such a way having expired, lapsed or been
terminated;
10. all necessary filings having been made, all appropriate waiting periods
under any applicable legislation or regulation of any jurisdiction having
expired, lapsed or been terminated, in each case in connection with the
Offer or the acquisition of any shares or other securities in, or control
of, General Cable by Telewest, and all authorizations, waivers and
determinations which Telewest reasonably deems necessary or appropriate in
any relevant jurisdiction for or in respect of the Offer or the acquisition
or proposed acquisition of any shares in, or control of, General Cable by
Telewest having been obtained in a form reasonably satisfactory to
Telewest, from all relevant authorities or (without prejudice to the
generality of the foregoing) from any persons or bodies with whom any
member of the wider General Cable Group has entered into contractual
arrangements and such authorizations, waivers and determinations together
with all authorizations, waivers and determinations necessary or
appropriate for any member of the wider General Cable Group to carry on its
business (where such business is material in the context of the General
Cable Group taken as a whole and where the absence of such authorization
waiver or determination would have a material adverse effect on the General
Cable Group taken as a whole) remaining in full force and effect and all
filings necessary for such purpose having been made and there being no
notice or intimation of any intention to revoke or not to renew any of the
same, and all necessary statutory or regulatory obligations in all relevant
jurisdictions having been complied with;
11. except as publicly announced (by the delivery of an announcement to the
Company Announcement Office of the London Stock Exchange) before
[Announcement Date], there being no provision of any arrangement,
agreement, licence, permit, franchise or other instrument to which any
member of the wider General Cable Group is a party, or by or to which any
such member or any of its assets is or are or may be bound, entitled or
subject or any circumstance, which, in each case as a consequence of the
Offer or the acquisition or proposed acquisition by any member of the
Telewest Group of any shares in, or change in the control or management of,
General Cable, would or might reasonably be expected to result in (to an
extent which in each case is material in the context of the General Cable
Group taken as a whole):
(a) any such arrangement, agreement, licence, permit, franchise or
instrument being terminated or adversely modified or affected or
any obligation or liability arising or any adverse action being
taken or arising thereunder;
(b) the rights, liabilities, obligations or interests of any member
of the wider General Cable Group under any such arrangement,
agreement, licence or instrument or the interests or business of
any such member in or with any other firm or company or body or
person (or any arrangement or arrangements relating to such
business or interests) being terminated, modified or adversely
affected;
(c) any material assets or interests of any such member of the wider
General Cable Group being or falling to be disposed of or charged
or any right arising under which any such asset or interest could
be required to be disposed of or charged otherwise than in the
ordinary course of business;
(d) any material amount of moneys borrowed by, or any other material
indebtedness, actual or contingent, of, or grant available to,
any member of the wider General Cable Group being or becoming
repayable, or capable of being declared repayable immediately or
prior to its stated repayment date, or the ability of any such
member to borrow moneys or incur any material indebtedness being
withdrawn or inhibited or becoming capable of being withdrawn;
(e) the financial or trading position or prospects or value of any
member of the wider General Cable Group being prejudiced or
adversely affected;
(f) any member of the wider General Cable Group ceasing to be able to
carry on business under any name under which it presently does
so; or
(g) the creation or enforcement of any mortgage, charge or other
security interest over the whole or any part of the business,
property, assets or interests of any member of the wider General
Cable Group,
and no event having occurred which, under any provision of any arrangement,
agreement, licence, permit or other instrument to which any member of the
wider General Cable Group is a party or by which any such member or any of
its assets may be bound, entitled or be subject, could result in any of the
events or circumstances as are referred to in sub-paragraphs (a) to (g) of
this condition 11 in any case where such result
would be material in the context of the General Cable Group taken as a
whole;
12. except as publicly announced by General Cable (by the delivery of an
announcement to the Company Announcements Office of the London Stock
Exchange) prior to [Announcement Date], no member of the General Cable
Group having, since 31 December 1996:
(a) issued or agreed to issue, authorized or proposed the issue of
additional shares of any class, or securities convertible into,
or rights, warrants or options to subscribe for or acquire, any
such shares or convertible securities (save as between General
Cable and wholly-owned subsidiaries of General Cable and save for
shares issued or options granted pursuant to the [General Cable
Share Option Schemes] before [Announcement Date]) or redeemed,
purchased or reduced any part of its share capital or proposed
the redemption, purchase or reduction of any part of its share
capital;
(b) merged with or demerged any body corporate or acquired or (other
than in the ordinary course of business) disposed of, or
transferred, mortgaged or charged or created any security
interest over, any assets or any right, title or interest in any
assets (including shares and trade investments other than in the
ordinary course of business) or made any change in its loan or
share capital, authorized or proposed or announced any intention
to propose any merger, demerger, acquisition, disposal, transfer,
mortgage, charge or security interest (other than in the ordinary
course of business) which, in any case, is material in the
context of the General Cable Group taken as a whole;
(c) entered into or varied or announced its intention to enter into
or vary any contract, transaction, arrangement or commitment
(whether in respect of capital expenditure or otherwise)
otherwise than in the ordinary course of business which is, in
any case, material in the context of the General Cable Group
taken as a whole;
(d) issued, authorized or proposed the issue of any debentures or
incurred or increased any indebtedness or contingent liability
which is, in any case, material in the context of the General
Cable Group taken as a whole and not in the ordinary course of
business;
(e) recommended, declared, paid or made, or proposed the
recommendation, declaration, paying or making of, any bonus,
dividend, or other distribution whether in cash or otherwise
other than to General Cable or to a wholly-owned subsidiary of
General Cable;
(f) been unable, or admitted in writing that it is unable, to pay its
debts or having stopped or suspended (or threatened to stop or
suspend) payment of its debts generally or ceased or threatened
to cease carrying on all or a substantial part of its business;
(g) waived or compromised any claim which is material in the context
of the relevant member of the wider General Cable Group;
(h) proposed any voluntary winding up;
(i) entered into or varied or made any offer (which remains open for
acceptance) to enter into or materially vary the terms of any
service agreements with any of the directors of any member of the
General Cable Group;
(j) entered into any contract, reconstruction, amalgamation,
commitment or other transaction or arrangement which would be
materially restrictive on the business of any member of the
General Cable Group or the Telewest Group;
(k) made by alteration to its memorandum or articles of association
or other incorporation documents; or
(l) entered into any contract, commitment, agreement or arrangement
or passed any resolution or made any offer (which remains open
for acceptance) with respect to or announced an intention to
effect or to propose any of the transactions, matters or events
referred to in this condition 12;
13. since 31 December 1996 and except as announced publicly by General Cable
(by the delivery of an announcement to the Company Announcements Office of
the London Stock Exchange):
(a) there having been no receiver, administrative receiver or other
encumbrancer appointed over any material portion of the assets of
any member of the wider General Cable Group or any analogous
proceedings or steps having taken place under the laws of any
relevant jurisdiction and there having been no petition presented
for
the administration of any member of the wider General Cable Group
or any equivalent proceedings or steps taken under the laws of
any other jurisdictions;
(b) no adverse change or deterioration having occurred in the
business, assets, financial or trading position or profits of
prospects of any member of the wider General Cable Group which is
material in the context of the General Cable Group taken as a
whole;
(c) save for matters fully and fairly disclosed to Telewest before
[Announcement Date] no litigation or arbitration proceedings,
prosecution or other legal proceedings having been instituted,
announced or threatened by or against or remaining outstanding
against any member of the wider General Cable Group which is
material in the context of the General Cable Group taken as a
whole;
(d) no contingent or other liability having arisen or become apparent
or increased which would or might be likely adversely to affect
any member of the wider General Cable Group which is material in
the context of the General Cable Group taken as a whole; and
(e) no investigation by any relevant authority having been
threatened, announced, implemented or instituted or remaining
outstanding in respect of any member of the wider General Cable
Group which, in any such case, is material in the context of the
General Cable Group taken as a whole;
14. Telewest not having discovered:
(a) that any financial, business or other information concerning the
wider General Cable Group disclosed at any time by or on behalf
of any member of the wider General Cable Group either is
misleading or contains a misrepresentation of fact which is
material in the context of the Offer or omits to state a fact
necessary to make any information contained therein not
misleading to an extent which is so material; or
(b) that any member of the General Cable Group is subject to any
liability (contingent or otherwise) which is not disclosed in the
annual report and accounts of General Cable for the year ended 31
December 1996 or the interim report for the six months ended 30
June 1997 and which is material in the context of the General
Cable
Group taken as a whole;
(c) that any past or present member of the wider General Cable Group
has not complied with all applicable laws of any relevant
jurisdiction relating to environmental matters which non-
compliance would be likely to give rise to a material liability
(whether actual or contingent) or cost on the part of any member
of the wider General Cable Group which is, or would be, material
in the context of the General Cable Group taken as a whole;
(d) that there has been an emission, disposal, discharge, deposit,
spillage or leak of waste or hazardous or harmful substances on
or about or from any property now or previously owned, or
occupied or made use of by any past or present member of the
wider General Cable Group which would be likely to give rise to
any liability (whether actual or contingent) or cost on the part
of any member of the wider General Cable Group which is, or would
be, material in the context of the General Cable Group taken as a
whole;
(e) that there is or is likely to be any material liability (whether
actual or contingent) or requirement to make good, repair, re-
instate or clean-up any property now or previously owned,
occupied or made use of by any past or present member of the
wider General Cable Group;
(f) any information which affects the import of any information
disclosed at any time by or on behalf of any member of the wider
General Cable Group which is material in the context of the
Offer.
For the purposes of these conditions: (a) "relevant authority" means any central
bank, government, government department or governmental, quasi-governmental,
supranational, statutory or regulatory body, court, trade agency, association,
institution or professional or environmental association in any relevant
jurisdiction; (b) a relevant authority shall be regarded as having "intervened"
if it has instituted, implemented, threatened or decided to taken any action,
proceedings, suit, investigation or enquiry, or made, enacted or proposed any
statute, regulation, decision or order, or taken any measures or other steps and
"intervene" shall be construed accordingly; (c) "authorizations" means
authorizations, orders, grants, recognitions, confirmations, consents, licences,
clearances, permissions and approvals; (d) "Telewest Group" means Telewest and
its subsidiary undertakings and the "wider Telewest Group" means Telewest and
its subsidiary undertakings, associated undertakings and any other
undertaking in which Telewest and such undertakings (aggregating their
interests) have a substantial interest; (e) "General Cable Group" means General
Cable and its subsidiary undertakings and "wider General Cable Group" means
General Cable and its subsidiary undertakings, associated undertakings and any
other undertaking in which General Cable and such undertakings (aggregating
their interests) have a substantial interest and, for these purposes,
"subsidiary undertaking", "associated undertaking" and "undertaking" have the
meanings given by the Act and "substantial interest" means a direct or indirect
interest in 20 per cent. or more of the voting equity capital of an undertaking.
Telewest reserves the right to waive all or any of conditions 6 to 14
(inclusive) above, in whole or in part.
Conditions 6 to 14 (inclusive), if not waived, must be fulfilled or satisfied on
or before midnight on the day which is the later of (a) 21 days after the first
closing date of the Offer and (b) 21 days after the date on which condition 1 is
fulfilled (or in each case such later date as the Panel may agree) failing which
the Offer will lapse. Telewest shall be under no obligation to waive or treat as
satisfied any of conditions 6 to 14 (inclusive) by a date earlier than the
latest date specified above for the satisfaction thereof notwithstanding that
the other conditions of the Offer may at such earlier date have been waived or
fulfilled or satisfied and that there are at such earlier date no circumstances
indicating that any of such conditions may not be capable of fulfilment or
satisfaction.
If Telewest is required by the Panel to make an offer for General Cable Shares
under the provisions of Rule 9 of the City Code, Telewest may make such
alterations to the conditions of the Offer, including to condition 1 above, as
are necessary to comply with the provisions of that Rule.
The Offer will lapse if the acquisition of General Cable is referred to the
Monopolies and Mergers Commission before the later of 3.00 p.m. on the first
closing date of the Offer and the date when the Offer becomes or is declared
unconditional as to acceptances. In such circumstances, the Offer will cease to
be capable of further acceptance and persons accepting the Offer and Telewest
shall thereupon cease to be bound by acceptances delivered on or before the date
on which the Offer so lapses.
The Offer will comply with the rules and regulations of the London Stock
Exchange and with the City Code.
Fractions of new Telewest Shares and ADSs will not be allocated or issued to
accepting General Cable shareholders. Fractional entitlements to the new
Telewest Shares and ADSs will be aggregated and sold in the market and the net
proceeds of sales distributed pro rata to the holders of General Cable Shares
entitled to them. However, individual entitlements to amounts of less than
(Pounds)3.00 will not be paid to holders of General Cable Shares but will be
retained for the benefit of the enlarged Telewest group.
The General Cable Shares are to be acquired by Telewest fully paid and free from
all liens, charges and encumbrances and together with all rights attaching
thereto, including the right to all dividends or other distributions declared,
made or paid after [Announcement Date].
The new Telewest Shares and ADSs will be issued free from all liens, charges and
encumbrances. New Telewest Shares and ADSs will rank pari passu in all respects
with existing Telewest Shares and ADSs.
DULY DELIVERED as a deed by Compagnie Generale des Eaux and General Utilities
Holdings Limited on the day and year first before written.
SIGNED by Cob Stenham and ) Cob Stenham
Xxxxxxx Xxxxxxx ) Xxxxxxx Xxxxxxx
For and on behalf of )
TELEWEST COMMUNICATIONS PLC )
SIGNED by Xxxxxxxx Xxxxxxx ) Xxxxxxxx Xxxxxxx
For and on behalf of
GENERAL CABLE PLC )
)
SIGNED as a DEED and DELIVERED
on behalf of Compagnie Generale des Eaux )
in Chamonix, France by Michel Villaneau ) Michel Villaneau
being a person who in accordance with the laws )
of France, is acting under the authority of )
Compagnie Generale des Eaux )
EXECUTED as a DEED and DELIVERED )
by General Utilities Holdings Limited acting )
by two directors/a director and secretary )
Director X X Xxxxx
Director/Secretary Michel Villaneau
