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PURCHASE AGREEMENT, made as of the 6th day of January, 1999 (this "Agreement")
BETWEEN
1. The Seller listed in Annex I hereto (the "Vendor"), whose address is
listed in Annex I, and
2. Dresdner Kleinwort Xxxxxx North America LLC, a company registered in
Delaware and having its registered office at 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 10005-2889, United States, in its capacity as agent for
Kleinwort Xxxxxx Securities Limited, a company registered in the
United Kingdom having its registered office at 00 Xxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX (the "Purchaser").
WHEREAS
The Vendor desires to sell to the Purchaser, and the Purchaser, subject to the
terms and conditions set out in this Agreement, desires to purchase from the
Vendor, an aggregate of 253,765,818 ordinary shares, par value 10 xxxxx per
share (the "Sale Shares") of Telewest Communications Plc (the "Company"), a
company incorporated in the United Kingdom and having its principal executive
office at Xxxxxxx Xxxxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxx, Xxxxxx, XX00 0XX, at a
price per Sale Share as set forth below and otherwise on the terms set out in
this Agreement;
NOW IT IS HEREBY AGREED as follows:
1. On and subject to the terms and conditions of this Agreement, the Vendor,as
beneficial owner, hereby agrees to sell, to the Purchaser the number of
Sale Shares listed by its name in Annex I hereto, and the Purchaser agrees
to purchase such Sale Shares, which Sale Shares shall rank pari passu in
all respects with all other issued ordinary shares, par value 10 xxxxx per
share, of the Company, as the case may be, at the purchase price set out
below and free from all pledges, liens, security interest or other
encumbrances, and with all rights attaching thereto, including, for the
avoidance of doubt; any dividends, distributions, and other rights
hereafter declared, made or paid in respect thereof. The time and date of
such sale and purchase shall be 10 a.m., London time, on January 15, 1999,
or at such other time and date as the Vendor and the Purchaser may agree
upon in writing. Such date is herein called the "Settlement Day".
2. (A) The Vendor shall, or shall direct its representative to, instruct the
Company's register holder to instruct its custodian or other
settlement agent to release the Sale Shares in certificated form to
Kleinwort Xxxxxx Securities, together with an executed CREST Transfer
Form and any other supporting documentation which might be required by
the registrar in order to make good delivery of the Sale
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Shares as soon as possible, but in any event so as to be received by
Kleinwort Xxxxxx Securities no later than 5:00 p.m. London time on
January 12, 1999;
(B) Against performance of the obligations referred to in sub-clause (A)
above (or such other arrangements, which may include escrow or other
safekeeping arrangements satisfactory to the Vendor and the Purchaser
to ensure that the Purchaser receives, on the Settlement Day, the Sale
Shares free of any pledge, lien, security interest or other
encumbrance of any kind), the Purchaser shall; on the Settlement Day,
transfer to the Vendor by wire transfer to an account of the Vendor or
an affiliate of the Vendor at National Westminster Bank, in accordance
with instructions received from the Vendor, the purchase price for the
Sale Shares sold by the Vendor hereunder.
3. The purchase price per share to be paid by the Purchaser for the Sale
Shares on Settlement Day shall be 175.25 xxxxx per Sale Share, for an
aggregate of 444,724,596.05 British pounds for all of the Sale Shares.
4. (A) The Vendor undertakes, at its own expense, to execute all such
documents and do all such acts and things as the Purchaser or its
assignee may reasonably require in order to give effect to the terms
of this Agreement and to enable the sale and purchase of the Sale
Shares to be carried out and given full force and effect.
(B) The Purchaser undertakes at its own expenses, to execute all such
documents and do all acts and things as the Vendor or its assignee may
reasonably require in order to give effect to the terms of this
Agreement and to enable the sale and purchase of the Sale Shares to be
carried out and given full force and effect.
(C) Except as provided in sub-clauses 4(A) and 4(B) hereof, each party
hereto shall bear its own fees, disbursements, costs and expenses
incident to the performance of its respective obligations hereunder.
5. (A) The Vendor hereby makes to the Purchaser the representations,
warranties and undertakings set forth in Annex II hereto as of the
date hereof and as of the Settlement Day.
(B) The Vendor shall notify the Purchaser forthwith if on or prior to the
Settlement Day it comes to the Vendor's knowledge that any of the
representations, warranties, undertakings or agreements set out in
Annex II hereto ceases to be true and accurate in all material
respects or becomes misleading in any material respect or that there
has been any material breach of any of such representations,
warranties, undertakings or agreements.
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(C) The Purchaser makes to the Vendor the representations, warranties and
undertakings set forth in Annex III hereto as of the date hereof and
as of the Settlement Day.
6. The obligations of the Purchaser hereunder are subject, in its discretion,
to the conditions that:
(A) prior to the Settlement Day, there shall not have occurred any change,
or any development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Company's most recent annual report or subsequent
information releases issued prior to the Settlement Day that, is
material and adverse to the Company and that makes it, in the
reasonable judgment of the Purchaser, impracticable to conduct the
placement of the Sale Shares in the manner contemplated herein.
(B) all representations and warranties and other statements of the Vendor
herein are, at and as of the Settlement Day, true and correct in all
material respects;
(C) the Vendor is in compliance with all material contracts to which it is
a party, and there does not exist any event or condition upon
consummation of the sale by the Vendor of the Sale Shares as
contemplated by this Agreement, which, upon the giving of notice or
the lapse of time or both, would (i) constitute a default or event of
default under, or (ii) entitle any other party thereto to accelerate,
renegotiate or terminate, or receive any payment under, any such
material contract; and
(D) all of the Sale Shares shall have been delivered to the Purchaser in
accordance with sub-clause 2(A) hereof.
The Purchaser in its sole discretion may waive any of the foregoing
conditions.
7. The obligations of the Vendor hereunder are subject, in its discretion, to
the following conditions:
(A) all representations and warranties and other statements of the
Purchaser herein are, at and as of the Settlement Day, true and
correct in all material respects; and
(B) the full purchase price shall have been delivered to the Vendor in
accordance with sub-clause 2(B) hereof.
The Vendor in its sole discretion may waive any of the foregoing conditions.
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8. (A) The Vendor shall indemnify and hold harmless the Purchaser against any
losses, claims, damages or liabilities to which the Purchaser may
become subject insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) relate to or arise out of any breach
or alleged breach of the Vendor's representations and warranties,
covenants or other undertakings in this Agreement; and the Vendor
shall reimburse the Purchaser for any duly itemised legal or other
expenses (including counsel's fees) reasonably incurred by the
Purchaser in connection with investigating any such action or claim as
such expenses are incurred.
(B) The obligations of the Vendor under this Paragraph 8 shall be in
addition to any liability which the Vendor may otherwise have and
shall extend, upon the same terms and conditions, to the partners,
managing directors, officers, employees and controlling persons within
the meaning of the United States Securities Act of 1933, as amended
(the "Securities Act"), if any, as the case may be, of the Purchaser
and each of its affiliates within the meaning of the Securities Act
(and shall include the partners of any such affiliate).
(C) The obligations of the Vendor set forth in this Paragraph 8 shall
survive termination of this Agreement.
9. The respective indemnities, agreements, representations, warranties and
other statements of the Vendor and the Purchaser, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of the Purchaser, or any controlling person of the Purchaser, or the
Vendor or any officer or director or any controlling person of the Vendor,
and shall survive delivery of and payment for the Sale Shares.
10. All statements, requests, notices and agreements hereunder shall be in
writing and shall be delivered or sent by mail, telex or facsimile
transmission, if to the Vendor as noted on Annex I, and if to the
Purchaser, to:
Dresdner Kleinwort Xxxxxx North America LLC
00 Xxxx Xxxxxx
Xxx Xxxx
Xxx Xxxx 00000-0000
Xxxxxx Xxxxxx
Attention: Xxxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
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Any notices to the Vendor as set forth in Annex I will be copied to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Xxxxxx Xxxxxx
Attention: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 202-776-2222
Any such statements, requests, notices or agreements shall take effect upon
receipt thereof.
11. This Agreement shall be binding upon, and inure solely to the benefit of,
the Purchaser and the Vendor and, to the extent provided in Paragraphs 8
and 9 hereof, any partners, managing directors, directors, officers,
employees and controlling persons of the Vendor or the Purchaser, or any
affiliates of the Vendor or the Purchaser (including the partners of such
affiliate), and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. Time shall be of the essence in this
Agreement.
12. This Agreement will be governed and construed in accordance with the law of
the State of New York. The New York State and US federal courts will have
jurisdiction in relation to this Agreement.
13. This Agreement may be signed in any number of counterparts and via
facsimile, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS THEREOF this Agreement has been duly executed as of the day and year
first before written.
COX UK COMMUNICATIONS LP
By: Xxx Communications International, Inc. as general partner
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
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DRESDNER KLEINWORT XXXXXX NORTH AMERICA LLC
As Agent for Kleinwort Xxxxxx Securities Limited
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Director
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ANNEX I
Vendor Number of Sale Shares
Cox UK Communications LP 253,765,818
c/o The Corporation Trust Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx
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ANNEX II
Representations, Warranties and Undertakings of the Vendor
The Vendor hereby represents, warrants and undertakes to the Purchaser, that:
A. It has full power under its constitutive documents and applicable law, and
all authorizations, approvals, consents and licenses required by it have
been unconditionally obtained and are in full force and effect, to permit
it to enter into and perform this Agreement and any powers of attorney
appointing an attorney to act for the Vendor; the execution and delivery by
such Vendor of, and the performance by the Vendor of, this Agreement will
not contravene any agreement or other instrument binding upon the Vendor,
except for such contraventions that individually or in the aggregate would
not have a material adverse effect on the Vendor; and this Agreement has
been duly authorized, executed and delivered by the Vendor and is a valid
and binding agreement of the Vendor enforceable in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and except
as the availability of remedies may be limited by equitable principles of
general applicability;
B. The Sale Shares have been duly and validly authorized and issued and are
fully paid and non-assessable and rank pari passu in all respects with the
other ordinary shares of the Company; no person has any conflicting right,
contingent or otherwise, to purchase or to be offered for purchase the Sale
Shares, or any of them; the Vendor has valid title to, and the legal right
and the power to sell and transfer full beneficial legal interest in, the
Sale Shares, and transfer of the Sale Shares to the Purchasers will pass
title to such sales, free and clear of all security interests, liens,
encumbrances, equities or other claims (except for any in favour of
creditors of the Purchaser) together with all rights and advantages now and
hereafter attaching to such Sale Shares;
C. Neither the Vendor nor any of its Affiliates has taken, directly or
indirectly, any action which was designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Sale Shares;
D. Neither the Vendor nor any of its Affiliates nor any persons acting on its
or their behalf has engaged in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities
Act) in the United States;
E. Neither the Vendor nor any of its Affiliates nor any person acting on its
or their behalf has directly, or through any agency, engaged in any
directed selling efforts (as that term
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is defined in Regulation S under the Securities Act ("Regulation S")) with
respect to the Sale Shares;
F. The Vendor is not aware of any material information (including without
limitation any information regarding any material adverse change or
prospective material adverse change in the condition of, or any actual,
pending or threatened litigation, arbitration or similar proceeding
involving, the Company) that is not described in the Company's most recent
annual report or subsequent public information releases which information
is necessary to enable investors to make an informed assessment of the
assets and liabilities, financial position, profits and losses and
prospects of the Company and its subsidiaries;
G. Assuming the accuracy of the representations and warranties of the
Purchaser in Annex III, neither the Vendor nor any its Affiliates nor any
persons acting on its or their behalf has, directly or indirectly, made
offers or sales of any security, or solicited offers to buy any security,
under circumstances that would require the registration of the Sale Shares
under the Securities Act;
H. The Vendor reasonably believes that the Company is a "foreign private
issuer" (as defined in Regulation S);
I. The Vendor reasonably believes that there is no substantial U.S. market
interest (as defined in Regulation S) in the Sale Shares;
J. The Vendor reasonably believes that the Company is not an "investment
company" within the meaning of the U.S. Investment Company Act of 1940, as
amended; and
K. The Vendor reasonably believes that the Company is not a "passive foreign
investment company" within the meaning of Section 1297 of the U.S. Internal
Revenue Code of 1986.
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ANNEX III
Representations, Warranties and Undertakings of the Purchaser
The Purchaser hereby represents, warrants and undertakes to the Vendor as
follows:
A. (1) It has full power under it constitutive documents and applicable law
and all authorizations, approvals, consents and licenses required by
it have been unconditionally obtained and are in full force and
effect, to permit it to enter into and perform this Agreement and any
powers of attorney appointing an attorney to act for the Purchaser,
the execution and delivery by such Purchaser of, and the performance
by the Purchaser of this Agreement will not contravene any agreement
or other instrument binding upon the Purchaser, except for such
contraventions that individually or in the aggregate would not have a
material adverse effect on the Vendor, and this Agreement has been
duly authorized, executed and delivered by the Purchaser and is a
valid and binding agreement of the Purchaser enforceable in accordance
with its terms, subject to applicable bankruptcy, reorganization
insolvency, moratorium or similar laws affecting creditors' rights
generally and except as the availability of remedies may be limited by
equitable principles of general applicability.
(2) The Sale Shares have not been and will not be registered under the
Securities Act and may not be offered or sold within the United States
except pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act. The Purchaser
has not offered or sold, and will not offer or sell, any Sale Shares
within the United States except in accordance with Rule 903 of
Regulations S or in accordance with sub-clause A(3) below.
Accordingly, neither the Purchaser, its affiliates nor any persons
acting on its or their behalf has engaged or will engage in any
directed selling efforts with respect to the Sale Shares. Terms used
in this sub-clause A(2) have the meanings given to them by Regulation
S.
(3) Notwithstanding sub-clause A(3), it is understood and agreed by the
Vendor and the Purchaser that the Purchaser may arrange for the offer
and sale of a portion of the Sale Shares to sophisticated
institutional investors who are in the United States (as such term is
defined in Regulation S) under restrictions and other circumstances
reasonably designed to preclude a distribution that would require
registration of the Sale Shares under the Securities Act.
B. In connection with any offer or sale of the Sale Shares in the United
States by the Purchaser (through its affiliate, Dresdner Kleinwort Xxxxxx,
North America LLC),
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or any persons acting on its or their behalf neither the Purchaser nor any
of its affiliates nor any persons acting on its or their behalf has engaged
in any form of general solicitation or general advertising (as those terms
are used in Regulation D under the Securities Act).
C. In connection with any offer or sale of the Sale Shares in the United
Kingdom, the Purchaser (i) has not offered or sold and, prior to the
expiration of the period ending six months after the Settlement Day, will
not offer or sell, any Sale Shares to persons in the United Kingdom except
to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995; (ii) has complied and will comply with all applicable provisions of
the Financial Services Xxx 0000 with respect to anything done by it in
relation to the Sale Shares in, from or otherwise involving the United
Kingdom; and (iii) it has only issued or passed on and will only issue or
pass on in the United Kingdom any document received by it in connection
with the issue of the Sale Shares to a person who is of a kind descried in
Article 11 (3) of the Financial Services Xxx 0000 (Investment Advertising)
(Exemptions) Order 1996 (as amended) or is a person to whom such document
may otherwise lawfully be issued or passed on.
D. In connection with any offer or sale of the Sale Shares, no action has been
taken or will e taken in any jurisdiction by the Purchaser or any other
person acting on its or their behalf that would require the registration or
qualification of the Sale Shares under the Securities Act or any state law.
E. The information contained in our letter to you of even date herewith
regarding the details of the transaction described therein are true and
accurate in all material respects.
