EXHIBIT 10.39
Dated 28th February 1997
(1) THE BRITISH BROADCASTING CORPORATION
and
(2) CASTLE TOWER HOLDING CORPORATION
and
(3) TELEDIFFUSION DE FRANCE INTERNATIONAL SA
and
(4) TELEDIFFUSION DE FRANCE SA
COMMITMENT AGREEMENT
This Agreement is made the 28th day of February 1997 between
(1) The British Broadcasting Corporation, a corporation incorporated
under Royal Charter, whose principal office is at Xxxxxxxxxxxx
Xxxxx, Xxxxxxxx Xxxxx, Xxxxxx X0X 0XX ("the BBC"); and
(2) Telediffusion de France International SA, a Societe Anonyme
incorporated in France with its principal place of business at 00
xxx x'Xxxxxxx xxx Xxxxx, 00000, Xxxxx, Xxxxxx ("TdFI");
(3) Telediffusion de France SA, a Societe Anonyme incorporated in
France with its principal place of business at 00 xxx x'Xxxxxxx
xxx Xxxxx, 00000, Xxxxx, Xxxxxx ("TdF"); and
(4) Castle Tower Holding Corporation, a company incorporated in the
United States of America with its principal place of business at
000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx, 00000, Xxxxxx Xxxxxx
of America ("CTC")
Whereas
In connection with the proposed acquisition by Castle Transmission
Services (Holdings) Limited (Company Registration No. 3242381)
("Newco") of Castle Transmission Services Limited ("CTS"), and in
consideration, inter alia, for entry by the BBC into the Share Sale
Agreement CTC, TdFI and TdF have agreed to enter into the arrangements
described below under which CTC and TdFI undertake to maintain and not
to dispose of their respective interests in the Share capital of CTS
and CTC and TdF undertake to provide services to CTS and the BBC, on
the terms described below.
1 INTERPRETATION
1.1 IN THIS AGREEMENT:
"Associate" means in relation to a person, a subsidiary or holding
company (as those terms are defined by Section 736 of the Companies
Act 1985) of that person or a subsidiary of that person's holding
company;
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"Completion" means completion of the Share Sale Agreement;
"dispose" means, in relation to a Share, to transfer, sell, assign,
mortgage, pledge or otherwise encumber that Share or allow any right
to arise under which any person other than the holder thereof may
require a transfer, sale, assignment, mortgage, pledge or other
encumbrance of that Share (including after the date of this Agreement)
other than a mortgage, pledge, encumbrance or right;
(a) for purposes of financing Newco's obligations pursuant to the
Share Sale Agreement;
(b) to which the BBC has consented, such consent not to be
unreasonably withheld, having regard to the reasonable interests
of the BBC, TdFI and CTC, and each Relevant Company and those of
Her Majesty's Government, or delayed.
PROVIDED THAT the entry into, and any subscription of any Shares
pursuant to, the Shareholders Agreement dated 23 January 1997 between
Castle Tower Holding Corporation and its consortium members for
purposes of financing Newco's obligations pursuant to the Share Sale
Agreement shall not comprise a disposal.
and "disposal" shall be construed accordingly;
"Interest" means, in relation to a Share, any legal or beneficial
interest in that Share or any right or power (whether conditional or
unconditional and whether legally enforceable or otherwise) to
exercise control (directly or indirectly) over the disposal of that
Share or over the manner in which any right to vote in a general
meeting attached to that Share is exercised and "interested" shall be
constituted accordingly;
"Indirect Interest" means, where a company ("A") has an interest
(directly or through one or more intermediate companies) in the
Relevant Shares of a company ("B") which, in turn, has an interest in
the Share of another company ("C") (in which A is not interested), B's
percentage interest in the Shares of C multiplied by such percentages
as represent A's percentage interest in the Relevant Shares of B and
each relevant percentage interest in the Relevant Shares of any
intermediate company in which A has an Indirect Interest.
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"Preference Shares" means any preference shares of a company not
comprising shares in its relevant share capital (as that expression is
defined in Section 198(2) of the Companies Act 1985) and includes any
rights to receive any such shares allotted (whether or not subject to
conditions).
"Relevant Company" means CTS or any holding company (as that term is
defined by Section 736 of the Companies Act 1985) of CTS;
"Relevant Date" means the third anniversary of Completion;
"Relevant Shares" means shares of a company in its relevant share
capital (as that expression is defined in Section 198(2) of the
Companies Act of 1985) and includes any rights to receive any such
shares allotted (whether or not subject to conditions);
"Shares" includes Relevant Shares and Preference Shares; and
"Share Sale Agreement" means the Agreement dated 23 January 1997
between Newco and the BBC relating to the acquisition by Newco of the
issued Share capital of CTB.
1.2 SUBORDINATE LEGISLATION
References to a statutory provision include any subordinate
legislation made from time to time under that provision.
1.3 INTERPRETATION XXX 0000
Xxx Xxxxxxxxxxxxxx Xxx 0000 shall apply to this Agreement in the same
way as it applies to an enactment.
1.4 MODIFICATION ETC. OF STATUTES
References to a statutory provision include that provision as from
time to time modified or re-enacted.
1.5 COMPANIES XXX 0000
The words company, body corporate and subsidiary, holding company,
fellow subsidiary and employees' share scheme shall have the same
meanings in this Agreement as in the Companies Xxx 0000.
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In this Agreement the term "company" shall include "body corporate".
In this Agreement, any percentage interest in any Shares, or in any
class of Shares, shall be determined according to the percentage which
the aggregate nominal value of the Shares, or the relevant class of
Shares, in which the interest is held, represents to the aggregate
nominal value of all of the Shares, or all of the Shares of the
relevant class.
1.6 RECITALS, CLAUSES ETC.
References to this Agreement include its Schedules and references to
Recitals, Clauses, sub-Clauses and Schedules are to Recitals, Clauses
and sub-Clauses of, and Schedules to, this Agreement.
1.7 HEADINGS
Headings shall be ignored in construing this Agreement.
1.8 WINDING-UP
References to the winding-up of a person include the amalgamation,
reconstruction, reorganization, administration, dissolution,
liquidation, merger or consolidation of such person and any equivalent
or analogous procedure under the law of any jurisdiction in which that
person is incorporated, domiciled or resident or carrieson business or
has assets.
2 CONDITIONS
2.1 CONDITIONS PRECEDENT
This obligations of the parties under this Agreement are conditional
only on Completion.
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3 RESTRICTIONS
3.1 Each of CTC and TdFI severally agrees with the BBC (for itself and all
successors to it) that save as provided below:*
3.1.1 during the period from the date of this Agreement until the
Relevant Date it will not dispose of any Shares of Newco;
3.1.2 CTC and TdFI will (insofar as it lies within the power or
ability of each of them) until the Relevant Date maintain
(i) an aggregate percentage indirect interest in the Relevant
Shares of CTS; and
(ii) an aggregate percentage indirect interest in the Shares of
CTS
which (together with any direct interest held in CTS) in each
case represents no less than 30 percent;
3.1.3 CTC and TdFI will (insofar as it lies within the power or
ability of each of them) until the Relevant Date maintain
(i) an aggregate percentage interest in the Relevant Shares of
Newco; and
(ii) an aggregate percentage interest in the Share of Newco
which in each case represents in aggregate no less than 30 per
cent;
3.1.4 CTC will (insofar as it lies within the power or ability)
during the period of two years following the Relevant Date
maintain
(i) a percentage indirect interest in the Relevant Shares of
CTS; and
(ii) a percentage indirect interest in the Shares of CTS
which (together with any direct interest held in CTS) in each
case represents no less than 17.1%;
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3.1.5 CTC will (insofar as it lies within its power or ability)
during the period of two years following the Relevant Date
maintain
(i) a percentage interest in the Relevant Shares of Newco; and
(ii) a percentage interest in the Shares of Newco
which in each case represents no less than 17.1%;
3.1.6 TdFI will (insofar as it lies within its power or ability)
during the period of two years following the Relevant Date
maintain
(i) a percentage indirect interest Relevant Shares of CTS; and
(ii) a percentage indirect Interest Shares of CTS
which (together with any direct interest held in CTS) in each
case represents no less than 10.5%;
3.1.7 TdFI will (insofar as it lies within its power or ability)
during the period of two years following the Relevant Date
maintain
(i) a percentage interest in the Relevant Shares of Newco; and
(ii) a percentage interest in the Shares of Newco
which in each case represents no less than 10.5%;
3.2 Each of CTC and TdFI agrees to exercise all such rights as each of
them have in connection with either of their holdings of Shares in any
Relevant Company, or pursuant to any other arrangement with any
Relevant Company, to ensure that they are able to comply with their
undertakings in this Clause 3.
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3.3 The restrictions contained in Clause 3.1 shall not apply:
(i) to any sale, transfer, pledge or other disposal of any
Shares of a Relevant Company or any interest therein which
is notified in advance to the BBC in writing and to which
the BBC, in any such case, gives its prior consent in
writing;
(ii) to the transfer of any title to or interest in Shares of
any Relevant Company to the transferor's ultimate holding
company or any of its subsidiaries or subsidiary
undertakings or to any subsidiary or subsidiary undertaking
of its ultimate holding company
PROVIDED THAT
(a) any such transferee shall first agree with the BBC to
be bound by the terms of this Agreement by the
execution of a deed of adherence in a form acceptable
to the BBC and shall provide an opinion of legal
counsel to the transferee reasonably acceptable to the
BBC (and at the expense of the transferee) confirming
that the form of agreement to be entered into by the
transferee has been duly authorised by the transferee
and, upon execution thereof, will be valid, binding
and enforceable against the transferee in accordance
with its terms; and
(b) in the event that any such transferee ceases to be
such an ultimate holding company or a subsidiary or
subsidiary undertaking of such a person or of such an
ultimate holding company, any such interest in any
relevant Shares will first be transferred to the
relevant party to this Agreement and held subject to
the restrictions of this Agreement; or
(iii) to any sale, transfer or other disposal of any Shares of a
Relevant Company pursuant to an employees' share scheme.
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3.4 The restrictions in this Clause 3 shall terminate on the fifth
anniversary of Completion. Termination shall be without prejudice to
any accrued rights or obligations of either party arising from any
prior breach of this Agreement.
4 WARRANTIES AND UNDERTAKINGS
4.1 Each of CTC and TdFI confirms that it has full corporate power and
authority to undertake the obligations set out in this Agreement and
that the entry into and execution of this Agreement has been duly
authorised.
4.2 Each of TdFI and CTC confirms as regards its respective interests that
it will immediately following Completion be directly or indirectly
interested in no less than such numbers of Relevant Shares and
Preference Shares in such Relevant Companies as is set out against its
name in Schedule 1.
4.3 CTC covenants with the BBC (for itself and all successors to it) that
it will enter into with CTC an Agreement for Services in the form of
the document set out in Schedule 2 and will perform its obligations
thereunder.
4.4 TdF covenants with the BBC (for itself and all successors to it) that
it will enter into an Agreement with CTS for Services in the form of
the document set out in Schedule 2 and will perform its obligations
thereunder.
5 RELEASE AND WAIVER
5.1 RELEASE ETC.
Any liability to the BBC under this Agreement may in whole or in part
be released, compounded or compromised or time or indulgence given by
BBC in its absolute discretion as regards any of CTC, TdF or TdFI
under such liability without in any way prejudicing or affecting its
rights against the other under the same or a like liability, whether
joint and several or otherwise.
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5.2 WAIVER
No waiver of the BBC to exercise, and no delay by it in exercising,
any right, power or remedy in connection with this Agreement (each a
Right) will operate as a waiver thereof, nor will any single or
partial exercise of any Right preclude any other or further exercise
of such Right or the exercise of any other Right.
6 WHOLE AGREEMENT, VARIATION, ASSIGNMENT
6.1 WHOLE AGREEMENT
This Agreement supersedes any previous written or oral agreement
between the parties in relation to the matters dealt with in this
Agreement and contains the whole agreement between the parties
relating to the subject matter of this Agreement at the date hereof to
the exclusion of any terms implied by law which may be excluded by
contract.
6.2 VARIATION
No variation of this Agreement shall be effective unless in writing
and signed by or on behalf of each of the parties.
6.3 ASSIGNMENT
This Agreement is personal to the parties and the rights and
obligations of the parties may not be assigned or otherwise
transferred.
7 FURTHER ASSURANCE
At any time after the date of this Agreement CTC and TdFI shall, and
shall use all reasonable endeavours to procure that any necessary
third party shall, execute such documents and do such acts and things
as the BBC may reasonably require for the purpose of giving to the BBC
the full benefit of all the provisions of this Agreement.
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8 INVALIDITY
If any provision in this Agreement shall be held to be illegal,
invalid or unenforceable, in whole or in part,
Under any enactment or rule of law, such provision or part shall to
that extent be deemed not to form part of this Agreement but
the legality, validity and enforceability of the remainder of this
Agreement shall not be affected.
9 COUNTERPARTS
This Agreement may be entered into in any number of counterparts, all
of which taken together shall constitute one and the same instrument.
Any party may enter into this Agreement by executing any such
counterparts.
10 NOTICES
10.1 ADDRESSES
Any notice, claim or demand in connection with this Agreement (each a
Notice) shall be sufficiently given (1) To any of TdF, TdFI or CTC, at
the address stated in this Agreement or last known to the BBC and (2)
To the BBC, at its registered office.
10.2 FORM
Any Notices shall be in writing in English and may be sent by
messenger, telegram, telex, fax or prepaid (first class in the case of
service in the United Kingdom and airmail in the case of international
service). Without prejudice to the foregoing, any Notice shall
conclusively be deemed to have been received on the next working day
in the place to which it is sent, if sent by telegram, telex of fax,
or 60 hours from the time of posting, if sent by post.
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11 GOVERNING LAW AND SUBMISSION TO JURISDICTION
11.1 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English law.
11.2 JURISDICTION
All the parties irrevocably agree that the courts of England are to
have jurisdiction to settle any dispute which may arise out of or in
connection with this Agreement and the documents to be entered into
pursuant to it. All the parties irrevocably submit to the
jurisdiction of such courts and waive any objection to proceedings in
any such court on the ground of venue or on the ground that the
proceedings have been brought in an inconvenient forum.
12 APPOINTMENT OF PROCESS AGENT
12.1 CTC irrevocably appoints Norose Notices Limited (AMC/99/2135214) for
the attention of the Director of Administration, at its registered
office for the time being as its agent to accept service of process in
England in any legal action or proceedings arising out of or in
connection with this Agreement, service upon whom shall be deemed
completed whether or not forwarded to or received by CTC. If such
process agent ceases to be able to act as such or to have an address
in England, CTC irrevocably agrees to appoint a new process agent in
England acceptable to the BBC and to deliver to the BBC within 14 days
a copy of a written acceptance of appointment by the process agent.
12.2 Each of TdFI and TdF irrevocably appoints Fleetside Legal
Representatives Services Limited, for the attention of Xxxxxx Xxxxxxx,
at its registered for the time being, as its agent to accept service
of process in England in any legal action or proceedings arising out
of or in connection with this Agreement, service upon whom shall be
deemed completed whether or not forwarded to or received by TdFI or
TdF. If such process agent ceases to be able to act as such or to have
an address in England, each of TdF and TdFI irrevocably agrees to
appoint a new process agent in England acceptable to the BBC
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and to deliver to the BBC within 14 days a copy of a written
acceptance of appointment by the process agent.
12.3 Nothing in this Agreement shall affect the right to serve process in
any other manner permitted by law.
13 RESTRICTIVE TRADE PRACTICES
Notwithstanding any other provision of this Agreement, no provision of
this Agreement which is of such a nature as to make this Agreement
liable to registration under the Restrictive Trade Practices Act 1976
shall take effect until the day after that on which particulars
thereof have been duly furnished to the Director General of Fair
Trading.
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Schedule 1
CTC INTERESTS
Relevant Class of Shares No. of Relevant
Company Shares/Preferences
Shares
Newco Preference Shares of 1p each 3,522,154,310
Ordinary Shares of 1p each 3,525,690
CTS Ordinary Shares of (Pounds)1 each such number as
represents 34.45% of
the Shares of CTS,
immediately following
Completion
TdFI INTERESTS
Relevant Class of Shares No. of Shares/
Company Preference Shares
Newco Referenced Shares of 1p each 2,160,837,000
Ordinary Shares of 1p each 2,163,000
CTS Ordinary Shares of (Pounds)1 each such numbers as
represents 21.13% of
the Shares of CTS,
immediately following
Completion
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