Dated 14 August 2008 NUCLOBEL LUX 1 S.ÀR.L -and- NUCLOBEL LUX 2 S.ÀR.L -and- NDS GROUP PLC -and- NDS FINANCE LIMITED -and- NEWS CORPORATION -and- NDS HOLDCO INC.
Dated
14 August 2008
NUCLOBEL
LUX 1 S.ÀR.L
-and-
NUCLOBEL
LUX 2 S.ÀR.L
-and-
-and-
NDS
FINANCE LIMITED
-and-
NEWS
CORPORATION
-and-
NDS
HOLDCO INC.
Skadden,
Arps, Slate, Xxxxxxx & Xxxx (UK) LLP
00
Xxxx Xxxxxx
Xxxxxx
Xxxxx
Xxxxxx
X00 0XX
CONTENTS
|
1
|
Interpretation
|
3
|
|
2
|
Conditions
|
17
|
|
3
|
Implementation
of the Transactions
|
20
|
|
4
|
Cash
Consideration
|
30
|
|
5
|
Court
Order
|
31
|
|
6
|
Documentation
and Stockholders Agreement
|
31
|
|
7
|
Warranties,
Undertakings and Indemnities
|
31
|
|
8
|
Exclusivity
|
39
|
|
9
|
Employees
|
40
|
|
10
|
Announcement
|
40
|
|
11
|
Assignment
|
41
|
|
12
|
Time
of the Essence
|
41
|
|
13
|
Termination
|
41
|
|
14
|
Fees
and Costs
|
42
|
|
15
|
Waiver/Amendment
|
42
|
|
15
|
Directors'
and Officers' Insurance
|
42
|
|
17
|
Invalidity
|
43
|
|
18
|
Notices
|
43
|
|
19
|
General
|
46
|
|
20
|
Governing
Law
|
48
|
|
Schedule
I Announcement
|
50
|
|
|
Schedule
II Target Share Schemes
|
51
|
|
|
Schedule
III Target Operating Companies
|
53
|
|
|
Schedule
IV Exhaustive List Of Applicable City Code
Provisions
|
54
|
|
|
Schedule
V Conditions
|
55
|
|
|
Schedule
VI Material Agreements – Clause 7.2(b)
|
60
|
|
THIS
AGREEMENT is
made
the 14th
day of
August 2008
BETWEEN:
|
(1)
|
Nuclobel
Lux 1 S.àr.l. a
company incorporated in Luxembourg and whose registered office is
at 000,
xxxxx xx Xxxxxx X-0000 Xxxxxxxxxx registered with the Luxembourg
Register
of Trade and Companies with company number B139764 (“Bidco
1”);
|
|
(2)
|
Nuclobel
Lux 2 S.àr.l. a
company incorporated in Luxembourg and whose registered office is
at 000,
xxxxx xx Xxxxxx X-0000 Xxxxxxxxxx registered
with the Luxembourg Register of Trade and Companies with company
number
B139747 (“Bidco
2”
and together with Bidco 1, the “Bidcos”);
|
|
(3)
|
NDS
Group Plc,
a
public limited company registered in England and Wales with company
number
01950497 and whose registered office is at 0 Xxxxxxxx Xxxxxxxxx,
000 Xxxx
Xxxx, Xxxx Xxxxxxx, Xxxxxxxxx XX0 0XX (“Target”);
|
|
(4)
|
NDS
Finance Limited,
a
private limited company registered in England and Wales with company
number 6617193 and whose registered office is at 0 Xxxxxxxx Xxxxxxxxx,
000
Xxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxxxx XX0 0XX (“NDS
Finance”);
|
|
(5)
|
News
Corporation,
a
Delaware corporation (“News
Corporation”);
and
|
|
(6)
|
NDS
Holdco Inc., a
Delaware corporation (“NDS
Holdco”).
|
WHEREAS:
|
(A)
|
As
at the date of this Agreement, the entire issued share capital of
each of
the Bidcos is held directly or indirectly by the Permira
Entities.
|
|
(B)
|
As
at the date of this Agreement, News Corporation indirectly owns the
entire
issued share capital of NDS Holdco, and NDS Holdco holds all of the
B
Shares and the Deferred Shares. As at the date of this Agreement,
the
majority of the A Shares are represented by the ADSs and the ADSs
are
listed on Nasdaq.
|
|
(C)
|
Prior
to the entry into of this Agreement, the NDS Finance Insertion has
been
substantially completed, Target legally and beneficially owns the
entire
issued share capital of NDS Finance and, upon the NDS Finance Insertion
being completed, NDS Finance will legally and beneficially own the
entire
issued share capital of each of the Target Operating Companies.
Immediately after the entry into of this Agreement, NDS Finance will
enter
into the Debt Facilities.
|
|
(D)
|
The
parties intend to implement the Transactions, subject, in the case
of the
Scheme Proposal, to satisfaction or waiver (if applicable) of the
Conditions, in accordance with the provisions of this Agreement,
the Steps
Paper and the Announcement so that upon the Transactions having been
consummated on the Effective Date:
|
|
(1)
|
pursuant
to the NDS Finance Capital Reduction, 2.3 billion NDS Finance Shares
shall
have been cancelled and NDS Finance shall have declared and paid
the NDS
Finance Dividend to Target;
|
1
|
(2)
|
pursuant
to the Scheme, all of the Deferred Shares shall have been cancelled
for
nil consideration and Target shall have been re-registered as a private
company. The A Shares shall have been cancelled pursuant to the Scheme
in
consideration of the payment of the Cash Consideration (in respect
of
which the Bidco Cash Consideration shall be payable by the Bidcos
and the
A Share Distribution shall be payable by Target) to the Scheme
Shareholders, and New Target Shares shall have been issued to the
Bidcos;
|
|
(3)
|
further
pursuant to the Scheme, the Target Capital Reduction shall have taken
place pursuant to which approximately 67 per cent. of the B Shares
shall
have been cancelled in consideration of the News
Distribution;
|
|
(4)
|
pursuant
to the Management Investment Agreement, the New Hurdle Shares and
the
Manager B Shares shall have been subscribed for by, and issued to
or
bought by, the Manager Investors;
|
|
(5)
|
the
remaining B Shares (including the New Target Shares) shall be held
by the
Bidcos and NDS Holdco, with the Bidcos holding in aggregate series
B
ordinary shares of $0.01 each in the capital of the Target representing
approximately 51 per cent. of Target’s issued share capital and NDS Holdco
holding series B ordinary shares of $0.01 each in the capital of
the
Target representing approximately 49 per cent. of Target’s issued series
share capital (such percentages to be diluted by the issue to or
acquisition by managers and employees of members of the Target Group
of
shares in the capital of Target, either through options or direct
equity
participation (including the issue of the New Hurdle Shares and Manager
B
Shares to the Manager Investors pursuant to the Management Investment
Agreement)); and
|
|
(6)
|
the
Stockholders Agreement shall be entered into by the Bidcos, News
Corporation, NDS Holdco and the Manager Investors and shall be considered,
and if thought appropriate, approved by the board of Target immediately
after the Scheme becomes fully effective, and immediately thereafter
entered into by Target.
|
|
(E)
|
The
Panel has ruled that it does not consider that it has jurisdiction
with
respect to the Scheme Proposal. Notwithstanding this ruling, the
parties
have agreed to comply with certain specified provisions of the City
Code
in implementing the Scheme Proposal. The parties have also been cognisant
of the fact that the Court has a duty to ensure the terms of the
Scheme
are fair and equitable, of the scope of the applicable SEC disclosure
obligations and of the particular
circumstances.
|
|
(F)
|
The
parties intend that upon the First Court Order being registered with
the
Registrar, the elements of the Scheme providing for the re-registration
of
Target as a private company in accordance with section 139(3) of
the 1985
Act, certain amendments to Target's articles of association and the
cancellation of the Deferred Shares shall become effective. The parties
further intend that upon the Second Court Order being registered
with the
Registrar, the Scheme, including those elements providing for the
Target
Capital Reduction, shall become fully effective. In the event that
the
Second Court Order is not granted or registered with the Registrar
and the
Scheme does not become fully effective, the parties shall take the
actions
provided for in
sub-clause 5.2.
|
2
IT
IS AGREED:
|
1.
|
Interpretation
|
|
1.1
|
In
this Agreement, its Recitals and Schedules, unless the context
requires
otherwise, each of the following expressions shall have the meaning
set
opposite it:
|
|
“1985
Act”
|
the
Companies Xxx 0000, as amended;
|
|
“1997
Scheme”
|
the
NDS 1997 Executive Share Option Scheme;
|
|
“1999
Scheme”
|
the
NDS 1999 Executive Share Option Scheme;
|
|
“Act”
|
the
Companies Xxx 0000;
|
|
“Acts”
|
the
Act and the 1985 Act;
|
|
“ADS”
|
an
American Depositary Share representing one A Share;
|
|
“Advisers”
|
in
relation to the Bidcos means Xxxxxxx Xxxxx International, Fried,
Frank,
Harris, Xxxxxxx & Xxxxxxxx LLP, Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx (London) LLP, Xxxxxxxx Chance LLP, PricewaterhouseCoopers
LLP,
Spectrum I Value Partners and Farncombe Technology, in relation
to Target
(but not the Independent Committee) means Xxxxxx Xxxxxxx & Co.
Limited, Xxxxx & Overy LLP and Weil, Gotshal & Xxxxxx LLP, in
relation to News Corporation and NDS Holdco means XX Xxxxxx, Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP and Skadden, Arps, Slate, Xxxxxxx
& Xxxx (UK) LLP, and in relation to the Independent Committee, means
the Independent Committee Advisers, including (unless the context
requires
otherwise) partners in and directors and employees of such
advisers;
|
3
|
“Affiliate”
|
in
respect of each Bidco, each Permira Entity and any person controlled
by or
controlling one or more of the Bidcos, and in relation to News
Corporation, NDS Holdco, NDS Finance or Target, any person that
directly
or indirectly, through one or more intermediaries, controls, is
controlled
by, or is under common control with, the party, and for these purposes
a
party shall be deemed to control a person only if such party possesses,
directly or indirectly, the power to control the direction of the
management and policies of the person, whether through the ownership
of
over 50% of the voting securities or the right to appoint over
50% of the
relevant board of directors by contract or otherwise, but, in relation
to
News Corporation and NDS Holdco, specifically excluding Target,
NDS
Finance and each other member of the Target Group;
|
|
“Agreed
Form”
|
such
documents in the terms agreed between the parties as at the date
of this
Agreement (or as expressly set out herein), subject to any further
changes
as the parties may agree and initialled for the purposes of identification
by any of the Advisers to each of the relevant parties;
|
|
“Agreed
Form Documents”
|
each
of: the Discount Notes, NDS Finance Written Resolution, News Loan
Note,
Steps Paper, Stockholders Agreement and Upstream Loan
Agreement;
|
|
“Announcement”
|
the
joint press announcement relating to the Transactions in the form
agreed
between the parties as set out in Schedule I;
|
|
“Approved
Scheme”
|
the
NDS UK Approved Share Option Scheme;
|
|
“A
Shares”
|
the
series A ordinary shares of $0.01 each in the capital of
Target;
|
|
“A
Shareholders”
|
holders
of A Shares;
|
|
“A
Share Distribution”
|
the
distribution to be declared and paid by Target to the Scheme Shareholders
pursuant to the Scheme, being the sum of approximately $301.5 million
in
aggregate, assuming that all A Shares to be issued pursuant to
the Target
Share Schemes have been issued, being an amount of $15.58 per Scheme
Share;
|
4
|
“Bidco
Cash Consideration”
|
the
portion of the Cash Consideration, being the sum of approximately
$917.8
million in aggregate, assuming that all A Shares to be issued pursuant
to
the Target Share Schemes have been issued, to be paid by the Bidcos
(with
approximately 19.44 per cent. paid by Bidco 1 and approximately
80.56 per
cent. paid by Bidco 2), being an amount of $47.42 per Scheme
Share;
|
|
“Board”
|
the
board of directors of Target;
|
|
“B
Shares”
|
the
42,001,000 issued series B ordinary shares of $0.01 each in the
capital of
Target, all of which are held by NDS Holdco as at the date of this
Agreement;
|
|
“Business
Day”
|
a
day (other than Saturday, Sunday or a public holiday), on which
banks in
the City of London, New York City and Luxembourg are open for business
generally;
|
|
“Capital
Reductions”
|
the
Target Capital Reduction and the NDS Finance Capital
Reduction;
|
|
“Cash
Confirmation Undertaking”
|
the
letter from (i) Permira IV Managers Limited as general partner
of Permira
IV Managers L.P. as manager of P4 Sub L.P. 1; (ii) Permira IV Managers
Limited as general partner of Permira IV Managers L.P. as manager
of
Permira IV L.P. 2; (iii) Permira Nominees Limited as nominee for
Permira
Investments Limited; (iv) Permira IV G.P. Limited as general partner
of
Permira IV G.P. L.P. as general partner of P4 Co-Investment L.P.;
(v)
Permira IV G.P. Limited as general partner of Permira IV G.P. L.P.;
and
(vi) Permira IV Managers Limited as general partner of Permira
IV Managers
L.P. to News Corporation, delivered on the date of this
Agreement;
|
5
|
“Cash
Consideration”
|
the
sum of $63.00 for each Scheme Share held by Scheme Shareholders
in cash
(comprising the Bidco Cash Consideration and the A Share
Distribution);
|
|
“CFC
Certificates”
|
has
the meaning ascribed to it in Schedule V;
|
|
“Circular”
|
the
circular to be issued by Target to its shareholders containing
an
explanatory statement of the Scheme including, inter
alia,
the cancellation of the Deferred Shares, cancellation of the Scheme
Shares, the Target Capital Reduction, the allotment of the New
Target
Shares to the Bidcos, the payment of the Cash Consideration, the
declaration and payment of the News Distribution and the allotment
of the
New Hurdle Shares and Manager B Shares to the Manager
Investors;
|
|
“City
Code”
|
the
City Code on Takeovers and Mergers;
|
|
“Commitments”
|
the
commitments offered by News Corporation to the European Commission
in
relation to its acquisition of a controlling stake in Premiere
AG, as
accepted by the European Commission on 25 June 2008;
|
|
“Competing
Proposal”
|
any
proposal or offer by any third party (other than a proposal or
offer by or
on behalf of the Bidcos or any Affiliate thereof) for 30 per cent.
or more
of the A Shares and/or for 30 per cent. or more of the B Shares
whether by
offer, merger, scheme of arrangement or other means and any partnership,
joint venture or other business combination involving a change
of control
of Target, or contribution, disposal or purchase of 50 per cent.
or more
of the assets, businesses, revenues or undertaking of Target or
of the
Target Group or other similar transaction that is inconsistent
with the
implementation of the Scheme Proposal;
|
|
“Conditions”
|
the
conditions to the Scheme set out in Schedule V;
|
|
“Confirmations”
|
has
the meaning set out in sub-clause
3.7(e);
|
6
|
“Court”
|
the
High Court of Justice in England and Wales;
|
|
“Court
Meeting”
|
the
meeting or meetings of Scheme Shareholders as may be convened pursuant
to
an order of the Court under Part 26 of the Act for the purposes
of
considering and, if thought fit, approving the Scheme (with any
amendment
approved or imposed by the Court and agreed by Target, News Corporation,
NDS Holdco and the Bidcos) including any adjournment or postponement
of
any such meeting, notice of which shall be contained in the
Circular;
|
|
“Court
Orders”
|
the
First Court Order and the Second Court Order;
|
|
“Debt
Facilities”
|
the
senior facilities made available under the Senior Facilities Agreement
and
the mezzanine facility made available under the Mezzanine Facility
Agreement;
|
|
“Deferred
Shares”
|
the
42,000,002 deferred shares of £1.00 per share in the capital of Target,
all of which are held by NDS Holdco as at the date of this
Agreement;
|
|
“Discount
Notes”
|
the
discount notes in the Agreed Form to be issued by NDS Technologies
Israel
Limited and Jungo Limited to NDS Finance, following the First Court
Order;
|
|
“Effective
Date”
|
the
date upon which the Scheme (including the Target Capital Reduction)
becomes fully effective in accordance with its terms;
|
|
“EGM
Resolutions”
|
the
resolutions to be proposed at the Extraordinary General Meeting
in
connection with the Scheme and the Target Capital Reduction, including,
without limitation, to amend Target’s articles of association and such
other matters as may be agreed between Target, News Corporation,
NDS
Holdco and the Bidcos as necessary or desirable for the purposes
of
implementing the Scheme, and as may be agreed between Target, News
Corporation and NDS Holdco for the purposes of implementing the
Target
Capital Reduction;
|
7
|
“Encumbrance”
|
any
charge, mortgage, lien, hypothecation, judgment, encumbrance, easement,
security, title retention, preferential right, trust arrangement,
or any
other security interest or any other agreement or arrangement having
a
commercial effect analogous to the conferring of security or similar
right
in favour of any person;
|
|
"Employer
Debt Regulations"
|
means
The Occupational Pension Schemes (Employer Debt) Regulations
2005;
|
|
“Equity
Commitment Letter”
|
the
letter from certain Permira Entities to the Bidcos, delivered on
the date
of this Agreement;
|
|
“Exchange
Act”
|
the
United States Securities Exchange Act of 1934, as amended, and
the rules
and regulations promulgated thereunder;
|
|
“Exclusivity
Period”
|
the
period between the date hereof and the earliest to occur of: (i)
the
Effective Date and (ii) the date of termination of this Agreement
in
accordance with clause 13;
|
|
“Extraordinary
General Meeting”
|
the
extraordinary general meeting of Target, notice of which will be
contained
in the Circular, or any adjournment or postponement
thereof;
|
|
“First
Court Hearing”
|
the
hearing by the Court to sanction the Scheme and confirm the cancellation
of the Deferred Shares, pursuant to which Target will be re-registered
as
a private company in accordance with section 139(3) of the 1985
Act, and
certain amendments to Target's articles of association will take
effect;
|
|
“First
Court Hearing Date”
|
the
date of commencement of the First Court Hearing;
|
|
“First
Court Order”
|
the
order of the Court under Section 899 of the Act sanctioning the
Scheme and
confirming the cancellation of the Deferred Shares, pursuant to
which
Target will be re-registered as a private company in accordance
with
section 139(3) of the 1985 Act, and certain amendments to Target's
articles of association will take
effect;
|
8
|
“FSA”
|
the
Financial Services Authority;
|
|
“Fundamental
Conditions”
|
the
Conditions listed in paragraphs Conditions 1-8, 10, 11 and 13 in
Schedule
V;
|
|
“Government
Authority”
|
any
nation or government or any agency, public or regulatory authority,
instrumentality, department, commission, court, arbitrator, ministry,
tribunal or board of any nation or government or political subdivision
thereof, in each case, whether foreign or domestic and whether
national,
supranational, federal, provincial, state, regional, local or
municipal;
|
|
“Group”
|
in
relation to any person, its subsidiaries, subsidiary undertakings
and
holding companies and the subsidiaries and subsidiary undertakings
of any
such holding company;
|
|
“Independent
Committee”
|
the
committee of independent directors of Target established for the
purposes
of considering the Transactions comprising Xxxxxx Xxxxxxxx, Xxxxx
Xxxxxx
and Xxxxx Xxxxxxx;
|
|
“Independent
Committee Advisers”
|
Xxxx
Xxxxxxx & Xxxxxx LLP and Citigroup Global Markets
Limited;
|
|
“Law”
|
applicable,
statutes, common laws, rules, ordinances, regulations, codes, orders,
judgments, injunctions, writs, decrees, governmental guidelines
or
interpretations having the force of law or bylaws, in each case,
of a
Government Authority;
|
|
“Long
Stop Date”
|
25
February 2009 (or such later date as News Corporation, NDS Holdco,
the
Bidcos, Target and the Court may agree);
|
|
“LTIP”
|
the
NDS 2006 Long-Term Incentive Plan;
|
|
“Management
Election or Adherence”
|
the
additional amount (if any) to be invested by Manager Investors
in being up
to $27 million in Manager B Shares as notified by the Managers
to the
Bidcos and Target pursuant to the Management Investment Agreement
or
pursuant to their adherence to the Management Investment Agreement
by no
later than 25 days after the date of this
Agreement;
|
9
|
“Management
Investment Agreement”
|
the
investment agreement to be entered into on or before the date of
this
Agreement by, inter alia, the Manager Investors, the Bidcos, News
Corporation and NDS Holdco and, subject to the approval by the
board of
Target upon the Scheme becoming fully effective, Target, in respect
of the
acquisition by the Manager Investors of New Hurdle Shares and Manager
B
Shares;
|
|
“Manager
B Shares”
|
between
119,000 and 436,000 new series B ordinary shares of $0.01 each
in the
capital of Target to be issued or sold to the Manager Investors
pursuant
to the Management Investment Agreement;
|
|
“Manager
Investors”
|
the
persons who are investing in Target pursuant to the Management
Investment
Agreement;
|
|
“Meetings”
|
the
Court Meeting and the Extraordinary General Meeting;
|
|
“Mezzanine
Facility Agreement”
|
the
mezzanine facility agreement dated on or about the date of this
Agreement
between, amongst others, NDS Finance as borrower and original guarantor,
Target and certain of its subsidiaries as guarantors, the mezzanine
arrangers, the mezzanine facility agent, the security trustee and
certain
financial institutions as lenders;
|
|
“Moral
Hazard Costs”
|
has
the meaning given to it in clause 7.12;
|
|
“Nasdaq”
|
the
Nasdaq Stock Market;
|
|
“NDS
Finance Capital Reduction”
|
the
capital reduction in relation to NDS Finance Shares to be implemented
in
accordance with Section 136 of the 1985 Act, the principal terms
of which
are set out in the Announcement;
|
|
“NDS
Finance Capital Reduction
Court
Hearing”
|
the
hearing by the Court of the claim to sanction the NDS Finance Capital
Reduction;
|
|
“NDS
Finance Capital Reduction
Court
Order”
|
the
order of the Court sanctioning the NDS Finance Capital Reduction
under
Section 137 of the 1985 Act;
|
10
|
“NDS
Finance Dividend”
|
the
dividend in the amount of up to approximately $1,347 million in
aggregate
to be paid by NDS Finance to Target out of distributable reserves
created
in NDS Finance as a result of the NDS Finance Capital
Reduction;
|
|
“NDS
Finance Insertion”
|
the
transfer by Target of the entire issued share capital of each of
the
Target Operating Companies to NDS Finance in exchange for the issue
by NDS
Finance of approximately 2.47 billion NDS Finance Shares to Target
fully
paid up, with the effect that the Target Operating Companies became,
or
are to become, wholly-owned subsidiaries of NDS
Finance;
|
|
“NDS
Finance Shares”
|
ordinary
shares of $1.00 each in the capital of NDS Finance including, where
the
context requires, those ordinary shares issued pursuant to the
NDS Finance
Insertion;
|
|
“NDS
Finance Written Resolution”
|
the
written resolution in the Agreed Form to be approved by Target
as sole
shareholder of NDS Finance in favour of the NDS Finance Capital
Reduction;
|
|
“New
Hurdle Shares”
|
the
new hurdle shares of $0.01 each in the capital of Target to be
issued
credited as fully paid up to the Manager Investors pursuant to
the
Management Investment Agreement;
|
|
“New
Target Shares”
|
the
new series B ordinary shares of $0.01 each in the capital of Target
to be
issued credited as fully paid up to the Bidcos pursuant to the
Scheme;
|
|
“News
Distribution”
|
the
distribution to be declared and paid by Target pursuant to the
Scheme,
comprising, by way of a cash distribution and a return of capital,
an
aggregate cash payment of the sum of approximately $1,522.2 million
(subject to adjustment arising as a result of investment in shares
in the
capital of Target pursuant to the Management Investment Agreement)
to News
Corporation (as designee of NDS Holdco) and the issue to NDS Holdco
by
Target of the News Loan Note;
|
11
|
“News
Executive Plan”
|
the
News International Pension and Life Assurance Plan for Senior
Executives;
|
|
“News
Group”
|
News
Corporation and each member of its Group;
|
|
“News
Loan Note”
|
the
loan note in the principal amount of $242 million in the Agreed
Form to be
issued by Target to NDS Holdco as part of the News
Distribution;
|
|
“Other
Filings”
|
has
the meaning set out in sub-clause 7.4;
|
|
“Outstanding
Condition”
|
has
the meaning set out in sub-clause 3.7(e);
|
|
“Panel”
|
the
Panel on Takeovers and Mergers;
|
|
“Pension
Costs”
|
has
the meaning given to it in clause 7.13;
|
|
“Permira
Entity”
|
has
the meaning set out in the Stockholders Agreement;
|
|
“Personnel”
|
in
relation to any person, its board of directors, members of their
immediate
families, related trusts and persons connected with them, as such
expressions are construed in accordance with the City
Code;
|
|
“Proceedings”
|
has
the meaning set out in sub-clause 21.2;
|
|
“Proxy
Statement”
|
has
the meaning set out in sub-clause 7.4;
|
|
“Registrar”
|
the
registrar of companies for England and Wales;
|
|
“Regulatory
Conditions”
|
the
Conditions listed in paragraphs 7 and 8 of Schedule V;
|
|
“Regulatory
Clearances”
|
all
consents, clearances, permissions and waivers as may be necessary,
and all
filings and waiting periods as may be necessary, from or under
the laws,
regulations or practices applied by the Relevant Authorities, including
without limitation, the European Commission and the Israel Antitrust
Authority, in each case in connection with the implementation of
the
Transactions and references to Regulatory Clearances having been
satisfied
shall be construed as meaning that the foregoing have been obtained
or,
where appropriate, made or
expired;
|
12
|
“Relevant
Authority”
|
any
government or governmental, quasi-governmental, supranational,
statutory,
regulatory, environmental or investigative body, court, trade or
regulatory agency, association or institution or any competition,
antitrust or supervisory body, in each case in any
jurisdiction;
|
|
“Relevant
Proportion”
|
49%
in relation to News Corporation and 51% in relation to the
Bidcos;
|
|
“Replacement
Executive”
|
has
the meaning set out in clause 3.3(b);
|
|
“Representatives”
|
in
relation to each party, the directors, employees, agents, consultants
of,
and any individuals seconded to work for, such party (including
persons
who, at the relevant time, occupied such position);
|
|
“Rules”
|
the
rules of the City Code;
|
|
“Xxxxxxxx-Xxxxx
Act”
|
has
the meaning set out in sub-clause 7.6(a)(i);
|
|
“Schedule
13E-3”
|
the
Rule 13e-3 Transaction Statement on Schedule 13E-3, pursuant to
the
requirements of Rule 13e-3 promulgated under the Exchange Act,
relating to
the Transactions to be filed with the SEC in connection with the
Transactions;
|
|
"Scheme"
|
the
scheme of arrangement under Part 26 of the Act to be described
in the
Circular, the principal terms of which are set out in the
Announcement;
|
|
“Scheme
Documentation”
|
the
Circular, the Scheme Resolution, the EGM Resolutions, the SEC Filings,
the
proxy forms for use at the Meetings and any other document required
in
connection with the Scheme;
|
|
“Scheme
Proposal”
|
the
proposed cancellation of the Scheme Shares, the cancellation of
the
Deferred Shares, and the Target Capital Reduction, to be effected
by means
of the Scheme and subject to the terms and conditions of this
Agreement;
|
13
|
“Scheme
Record Time”
|
6.00
p.m. (London time) on the Business Day immediately preceding the
day upon
which the Second Court Order becomes effective in accordance with
its
terms;
|
|
“Scheme
Resolution”
|
the
resolution of Target to be proposed at the Court Meeting in connection
with the Scheme;
|
|
“Scheme
Shareholders”
|
holders
of Scheme Shares;
|
|
“Scheme
Shares”
|
the
A Shares in issue on the date of the Circular together with any
further A
Shares (if any):
|
| (a) |
issued
after the date of the Circular and prior to the Voting Record
Time;
and
|
| (b) |
issued
on or after the Voting Record Time and prior to the Scheme Record
Time
either on terms that the original or any subsequent holder thereof
shall
be bound by the Scheme or, in respect of which the holder thereof
shall
have agreed in writing to be bound by the
Scheme;
|
|
"SEC"
|
the
United States Securities and Exchange Commission;
|
|
“SEC
Filings”
|
means
collectively and together with any amendments or supplements thereto,
the
proxy statement (which will include the Circular) relating to the
Transactions to be filed with the SEC in connection with seeking
the
approval of Target’s shareholders, and the Schedule 13E-3, as well as any
other documents required to be filed with the SEC in connection
with the
Transactions;
|
|
“Second
Court Hearing”
|
the
hearing by the Court to confirm those elements of the Scheme not
already
confirmed by the Court pursuant to the First Court Order, namely
confirming the Target Capital Reduction under Section 137 of the
1985
Act;
|
|
“Second
Court Hearing Date”
|
the
date of commencement of the Second Court
Hearing;
|
14
|
“Second
Court Order”
|
the
order of the Court under Section 899 of the Act confirming those
elements
of the Scheme not already confirmed by the Court pursuant to the
First
Court Order, namely confirming the Target Capital Reduction under
Section
137 of the 1985 Act;
|
|
“Securities
Act”
|
the
United States Securities Act of 1933, as amended, and the rules
and
regulations promulgated thereunder;
|
|
“Senior
Facilities Agreement”
|
the
senior facilities agreement dated on or about the date of this
Agreement
between, amongst others, NDS Finance as original borrower and original
guarantor, Target and certain of its subsidiaries as guarantors,
the
senior arrangers, the senior facility agent, the security trustee
and
certain financial institutions as lenders;
|
|
“Steps
Paper”
|
the
timing and responsibilities table in the Agreed Form setting out
the
various steps which are to be taken by or on behalf of each of
the parties
to this Agreement in order to implement the
Transactions;
|
|
“Stockholders
Agreement”
|
the
Stockholders Agreement in the Agreed Form (which, for the purposes
of this
definition, means in the terms agreed between News Corporation,
NDS Holdco
and the Bidcos) to be entered into on the Effective Date by the
Bidcos,
News Corporation, NDS Holdco, the Manager Investors and, subject
to
approval by the board of Target upon the Scheme becoming fully
effective,
Target;
|
|
“Supplemental
Document”
|
has
the meaning set out in sub-clause 3.9;
|
|
“Target
Capital Reduction”
|
the
capital reduction described in the Announcement, in relation to
all of the
A Shares, approximately 28 million B Shares and such additional
number of
B Shares as equals News Corporation's Relevant Proportion of the
Management Election or Adherence divided by $63.00, to be implemented
as
part of the Scheme and in accordance with Section 136 of the 1985
Act;
|
15
|
“Target
Directors”
|
the
directors of Target from time to time;
|
|
“Target
Group”
|
Target
and its subsidiaries and subsidiary undertakings;
|
|
“Target
Operating Companies”
|
Target's
subsidiaries listed in Schedule III;
|
|
“Target
SEC Documents”
|
has
the meaning set out in sub-clause 7.3;
|
|
“Target
Share Schemes”
|
the
1997 Scheme, the 1999 Scheme, the Approved Scheme and the
LTIP;
|
|
“Transaction
Documents”
|
this
Agreement, the Stockholders Agreement, the Management Investment
Agreement
and documents relating thereto, the documents relating to the Debt
Facilities, the new articles of association of Target and the Agreed
Form
Documents;
|
|
“Transactions”
|
the
Scheme (including the Target Capital Reduction) and the NDS Finance
Capital Reduction;
|
|
“Upstream
Loan Agreement”
|
the
loan agreement in the Agreed Form to be entered into on or about
the date
of this Agreement between NDS Limited and NDS Finance;
|
|
“Upstream
Loans”
|
the
loans in the sum of approximately $173 million, approximately $71
million
and approximately $13 million to be made by NDS Limited, NDS Technologies
Israel Limited and Jungo Limited, respectively, to NDS Finance
following
the First Court Order becoming effective pursuant to the Upstream
Loan
Agreement and the Discount Notes;
|
|
“US
GAAP”
|
United
States generally accepted accounting principles;
|
|
“Voting
Record Time”
|
6.00
p.m. (London time) on the day prior to the day immediately preceding
the
Meetings or any adjournment thereof; and
|
|
“$”
|
United
States dollars.
|
16
|
1.2
|
In
this Agreement:
|
|
(a)
|
the
Recitals and Schedules form an integral part of this
Agreement;
|
|
(b)
|
the
headings are for convenience only and shall not affect its
interpretation;
|
|
(c)
|
expressions
used in this Agreement shall have the same meanings as in the Act
(excluding its Schedules), unless the context requires otherwise
or they
are otherwise defined in this
Agreement;
|
|
(d)
|
a
reference to the provisions of law includes a reference to any provisions
which from time to time amends, extends, consolidates or replaces
that
provision (other than any such provision with retrospective effect,
to the
extent that it is retrospective) and any subordinate legislation
made
under any such provisions;
|
|
(e)
|
words
denoting the singular number shall include the plural, the masculine
gender shall include the feminine gender and neuter, and vice
versa;
|
|
(f)
|
references
to sub-clauses, Clauses and Schedules are, unless otherwise stated,
to
sub-clauses, Clauses of and Schedules to this
Agreement;
|
|
(g)
|
references
to persons shall include individuals, corporations (wherever
incorporated), unincorporated associations (including joint ventures
and
partnerships), trusts, any form of governmental body, agency or authority,
and any other organisation of any nature (in each case, whether or
not
having separate legal personality);
and
|
|
(h)
|
a
reference to any English legal term for any action, remedy, method
or form
of judicial proceeding, legal document, court or any other legal
concept
or matter will be deemed to include a reference to the corresponding
or
most similar legal term in any jurisdiction other than England, to
the
extent that such jurisdiction is relevant to the transactions contemplated
by this Agreement or the terms of this
Agreement.
|
|
1.3
|
In
construing this Agreement, the rule known as the ejusdem
generis
rule shall not apply and accordingly general words introduced or
followed
by the word “other” or “including” or “in particular” shall not be given a
restrictive meaning because they are followed or preceded (as the
case may
be) by particular examples intended to fall within the meaning of
the
general words.
|
|
2.
|
Conditions
|
|
2.1
|
Each
party agrees that the Scheme Proposal is conditional upon the Conditions
being satisfied and continuing to be satisfied (or, in each case,
waived
in accordance with this Agreement).
|
|
2.2
|
The
parties agree that, (i) the Bidcos and News Corporation, each in
their
absolute discretion, reserve the right to jointly waive all or any
of the
Conditions set out in paragraphs 7, 8, 9 and 12 of Schedule V in
whole or
in part, (ii) the Bidcos and News Corporation, each in its absolute
discretion, reserve the right to jointly waive Condition 13 of Schedule
V
in whole or in part, subject only to the consent of Target, such
consent
not to be unreasonably withheld, rendered subject to conditions,
or
delayed, and (iii) that News Corporation shall have the right to
waive the
Conditions set out in paragraphs 10 and 11 of Schedule V, in whole
or in
part, in its absolute discretion, and the Conditions set out in paragraphs
10 and 11 of Schedule V are for the benefit of News Corporation only
and
may only be waived by News Corporation. For the avoidance of doubt,
the
Conditions set out in paragraphs 1 to 6 (inclusive) of Schedule V
cannot
be waived by any party.
|
17
|
2.3
|
The
Bidcos shall subject to the other parties' compliance with sub-clause
2.5,
use all reasonable endeavours to fulfil or procure the fulfilment
of the
Regulatory Conditions as soon as reasonably practicable and in any
event
on or before the First Court Hearing Date including by means
of:
|
|
(a)
|
as
soon as reasonably practicable and, in any other event, no later
than
twenty-one Business Days after the date of this Agreement, ensuring
the
submission of all filings and notifications necessary for satisfying
the
Regulatory Conditions and obtaining any other approval from each
Relevant
Authority required in connection with the Scheme (other than those
pertaining to the administration of the Scheme), requesting that
all
correspondence is copied to Target, News Corporation and NDS Holdco;
|
|
(b)
|
promptly
providing sufficient information to each Relevant Authority to reach
its
conclusions on the Scheme and as far as reasonably practicable without
needing to request further information from the Bidcos or, as the
case may
be, Target and/or News Corporation and/or NDS
Holdco;
|
|
(c)
|
provided
that the Relevant Authority does not object to this course of action,
giving Target, News Corporation and NDS Holdco reasonable notice
of all
material meetings and telephone calls with each Relevant Authority,
giving
Target, News Corporation and NDS Holdco and their respective
Representatives and advisers reasonable opportunity to participate
thereat
(save to the extent that a Relevant Authority requests that Target,
News
Corporation or NDS Holdco should not be present at the meeting or
telephone call or part or parts of the meeting or telephone call
or to the
extent that such meeting or telephone call is administrative or procedural
in nature);
|
|
(d)
|
providing,
as soon as reasonably practicable, Target, News Corporation and NDS
Holdco
(and advisers nominated by them) with draft copies of all notifications
and communications (other than non-material communications) (subject
to
redaction of confidential business information) to the Relevant
Authorities in relation to obtaining any Regulatory Clearance, where
reasonably possible at such time as will allow Target, News Corporation
and NDS Holdco a reasonable opportunity to provide comments on such
notifications and communications before they are submitted or sent
to such
Relevant Authorities and taking into account any such comments as
are
reasonable and providing Target, News Corporation and NDS Holdco
(or their
nominated advisers) with copies of all such notifications and
communications in the form submitted or sent;
|
|
(e)
|
notifying
Target, News Corporation and NDS Holdco, and providing copies in
a timely
fashion of any material communications (subject to redaction of
confidential business information) from any Relevant Authority in
relation
to obtaining any Regulatory Clearance;
|
18
|
(f)
|
accepting
any conditions or fulfilling or undertaking to fulfil any obligations
subject to which any Regulatory Clearances are granted, including
if
required by any Relevant Authority accepting, cooperating with and
entering into undertakings to comply with the conditions and obligations
to which News Corporation is subject under the Commitments and any
amendments to the Commitments required by any Relevant Authority
insofar
as such conditions and obligations relate to Target, provided
that:
|
|
(1)
|
to
the extent that such conditions or obligations relate to the disposal
(or
procuring the disposal) of any assets of, or any subsidiary or subsidiary
undertaking in, the Target Group, News Corporation consents to and
cooperates with such conditions or obligations and enters into any
undertakings required by the Relevant Authority in order to allow
the
Bidcos to comply with such conditions or obligations;
and
|
|
(2)
|
the
parties agree that the Bidcos are not required to accept any conditions
or
fulfil or undertake to fulfil any obligations with respect to the
behaviour of any portfolio company of any Permira Entity or to the
disposal of any assets of, or any subsidiary undertaking of, or any
interest in, any portfolio company of any Permira Entity;
and
|
|
(g)
|
fulfilling
or procuring the fulfilment of any conditions or obligations attached
to
any Regulatory Clearances, provided that such conditions or obligations
are consistent with sub clause
2.3(f).
|
|
2.4
|
Without
prejudice to the foregoing provisions of this Clause 2, in the event
that
either of the Bidcos becomes aware that the European Commission is
proposing to initiate proceedings under Article 6(1)(c) of Council
Regulation (EC) 139/2004 in relation to the Scheme Proposal, they
shall as
soon as practicable provide written notice thereof to News Corporation.
In
such circumstances, the Bidcos shall use their best endeavours to
avoid or
prevent the initiation of such proceedings and to procure satisfaction
of
the Regulatory Conditions, including by way of the making of proposals
to
the Relevant Authority in relation to the making of any undertaking(s)
to
accept any conditions or fulfil or undertake to fulfil any obligations
consistent with sub clause 2.3(f).
|
|
2.5
|
Each
party shall use all reasonable endeavours to cooperate with and assist
each of the other parties and shall procure that each of its relevant
Affiliates and its directors and professional advisers use reasonable
endeavours to assist each of the other parties in each case to ensure
the
satisfaction by the Bidcos of the Regulatory Conditions in accordance
with
sub-clauses 2.3 and 2.4, including by providing such other party
or
parties and each Relevant Authority promptly, properly and accurately
upon
request and in good faith any information, documents and comments
necessary or desirable for the purpose of making (or responding to
any
requests for further information consequent upon) any submissions,
filings
and notifications (including draft versions) to such Relevant Authority
in
relation to the Transactions in accordance with sub-clause 2.3(a),
including making any joint filings with any other party where required
by
any such Relevant Authority, and, in the case of each of the Bidcos,
News
Corporation and NDS Holdco, by consenting to and cooperating with
and
entering into undertakings to comply with, and procuring that Target
consents to and cooperates with or enters into undertakings to comply
with, any conditions or obligations required by a Relevant Authority
in
relation to the future conduct of Target, but solely insofar as such
conditions and obligations require Target and/or any of its subsidiaries
and subsidiary undertakings to remain independent of all portfolio
companies of any Permira Entity and to conduct business with any
such
portfolio company only on arm's length terms and not to discriminate
against any competitor of any such portfolio
company.
|
19
|
2.6
|
Each
Bidco shall use its reasonable best endeavours to cause the
representations contained in Section 10.2(a) of the Stockholders
Agreement
to be true, correct and complete in all respects immediately following
the
Effective Date and each Bidco and News Corporation shall use its
reasonable best endeavours to cause the Condition set out in paragraph
11
of Schedule V to be fulfilled.
|
|
3.
|
Implementation
of the Transactions
|
|
3.1
|
Each
party will use all reasonable
endeavours:
|
|
(a)
|
to
procure the release of the Announcement by no later than 9.00 a.m.
(New
York time) on Thursday 14 August 2008 (or by such other time or such
other
date as may be agreed between the Bidcos, News Corporation, NDS Holdco
and
Target);
|
|
(b)
|
to
finalise (i) the Circular by the time that the Proxy Statement is
filed
with the SEC, and (ii) all other Scheme Documentation by the time
the
Proxy Statement is circulated to the Scheme Shareholders, and provide
promptly such cooperation and information (including such information
as
is necessary for the Scheme Documentation to comply with all applicable
legal and regulatory provisions) in respect of itself and its Affiliates
as the other parties may reasonably request at least three Business
Days
before such time; and
|
|
(c)
|
to
ensure that the Second Court Hearing occurs as soon as practicably
possible after the First Court Hearing, having regard to the relevant
steps set out in the Steps Paper.
|
|
3.2
|
Target
agrees to co ordinate the preparation of the Scheme Documentation
with the
Bidcos, News Corporation and NDS Holdco and agrees to despatch the
Circular, Proxy Statement and Schedule 13E 3, together with appropriate
forms of proxy for use at the Meetings, only with the prior written
consent of the Bidcos, News Corporation and NDS Holdco (which in
each case
shall not be unreasonably withheld, rendered subject to conditions
or
delayed) and in accordance with sub-clause 3.14. Each of the Bidcos,
News
Corporation and NDS Holdco severally undertakes to provide to Target
for
the purposes of inclusion in the Circular all such information as
may
reasonably be required by Target for inclusion in the Circular and
to
provide promptly all such other assistance as Target may reasonably
require in connection with the preparation of the Circular.
|
20
|
3.3
|
In
relation to the information in the Circular, and subject at all times
to
the relevant directors acting in accordance with their fiduciary
duties,:
|
|
(a)
|
the
Bidcos will procure that the directors of the Bidcos accept responsibility
for all of the information in the Circular relating to the Bidcos,
their
respective Affiliates and the directors of the Bidcos, by the inclusion
of
a statement in the Circular in substantially the following
form;
|
“The
directors of the Bidcos accept responsibility for all information in this
document relating to the Bidcos, their respective Affiliates and the directors
of Bidco (and any person whose interest in NDS Shares such directors are taken
to be interested in pursuant to Part 22 of the Act). To the best of the
knowledge and belief of the directors of the Bidcos, the information contained
in this document for which they are responsible is in accordance with the facts
and does not omit anything likely to affect the import of such
information.”
|
(b)
|
News
Corporation will procure that each of Xxx Xxxxxx, Xxxx Xxxxxx and
Xxxxx
XxXxx (unless any such person is unable to act as required due to
incapacity, professional conflict or cessation of employment with
News
Corporation at the time of the Circular, in which case News Corporation
will procure that a replacement person accepts responsibility, that
person
being in an equivalent or more senior position within News Corporation
(a
“Replacement
Executive”)),
accept responsibility for all of the information in the Circular
relating
to News Corporation, its Affiliates and the directors of News Corporation,
by the inclusion of a statement in the Circular in substantially
the
following form;
|
“Each
of Xxx Xxxxxx, Xxxx Xxxxxx and Xxxxx XxXxx (or any Replacement Executive),
accept responsibility for all information in this document relating to News
Corporation, its respective Affiliates and the directors of News Corporation
(and any person whose interest in NDS Shares such directors are taken to be
interested in pursuant to Part 22 of the Act). To the best of the knowledge
and
belief of each of Xxx Xxxxxx, Xxxx Xxxxxx and Xxxxx XxXxx (or any Replacement
Executive), the information contained in this document for which they are
responsible is in accordance with the facts and does not omit anything likely
to
affect the import of such information.”
|
(c)
|
Target
will procure that the members of the Independent Committee accept
responsibility for their views set out in the Circular, by the inclusion
of a statement in the Circular in substantially the following
form:
|
“The
members of the Independent Committee accept responsibility for the statements,
information and opinions contained in this document which are expressed to
be
statements, information or opinions given by them as the Independent Committee.
To the best of the knowledge and belief of the members of the Independent
Committee, the information contained in this document for which they are
responsible is in accordance with the facts and does not omit anything likely
to
affect the import of such information.”;
and
|
(d)
|
Target
will procure that the Target Directors accept responsibility for
all of
the information in the Circular, other than information for which
the
directors of the Bidcos, the directors of News Corporation or the
members
of the Independent Committee accept responsibility, by the inclusion
of a
statement in the Circular in substantially the following
form:
|
21
“The
Target Directors accept responsibility for all information in this document
except for information for which the directors of the Bidcos, each of Xxx
Xxxxxx, Xxxx Xxxxxx and Xxxxx XxXxx (or any Replacement Executive), or the
members of the Independent Committee, accept responsibility. To the best of
the
knowledge and belief of the Target Directors, the information contained in
this
document for which they are responsible is in accordance with the facts and
does
not omit anything likely to affect the import of such
information.”
|
3.4
|
Each
of the parties undertakes to use all reasonable endeavours
to:
|
|
(a)
|
do
and execute, or procure the doing and executing of, each necessary
act,
document and thing reasonably within its powers to implement the
Transactions in accordance with, and subject to the terms and conditions
of, the Announcement and to give effect to the matters specified
in, and
to act in accordance with, the Announcement and the Scheme
Documentation;
|
|
(b)
|
ensure
that the steps referred to in this Agreement, the Steps Paper, and
otherwise required to implement the Transactions in the manner
contemplated by this Agreement to be taken by it, its shareholders
or
Representatives between the date of this Agreement and the Effective
Date
are undertaken in accordance with a process agreed with each of the
other
parties and always in accordance with sub-clause 3.4(c);
|
|
(c)
|
procure
that each of its Affiliates and its and their respective directors
assist
it to prepare all such documents and take all such steps as are necessary
or desirable in order to complete the Transactions, and in particular,
with respect to those actions, steps and/or events set out in the
Steps
Paper in relation to each of the Transactions, each party shall,
and shall
procure that its relevant Affiliates and its and their Representatives
and
its and their respective relevant professional advisers assist it
to,
prepare all such documents and take all such steps and/or actions
as are
necessary or desirable in order to take, perform or implement the
steps,
actions or events in respect of which responsibility is ascribed
to such
party as indicated in the columns of the Steps Paper headed “Primary
Responsibility” and “Parties”, strictly in accordance with the timing
provided for in the Steps Paper, subject to such variations thereto
as the
parties may agree or as the Court may require. The parties will have
due
regard to, and take due account of, all reasonable requests from
time to
time of the other parties in relation to the Transactions and their
implementation;
and
|
22
|
(d)
|
(other
than Target and NDS Finance) immediately upon the Effective Date,
take all
steps in their capacities as shareholders in Target to procure that
Target
executes the Stockholders Agreement and the Management Investment
Agreement (subject in each case, to approval by the Board of
Target).
|
|
3.5
|
Without
limitation to the generality of the foregoing, NDS Finance
shall:
|
|
(a)
|
enter
into the documents relating to the Debt Facilities immediately after
execution of this Agreement, and, following the re-registration of
Target
as a private company, and in any event no earlier that 1 October
2008, use
all reasonable endeavours to: (i) satisfy all conditions precedent
to the
draw down pursuant to the Debt Facilities within its or its controlled
Affiliates’ control; and (ii) ensure that all other requirements for draw
down within its or its controlled Affiliates’ control are met (including,
without limitation, representations being true, covenants being complied
with, no event of default being caused which could prevent NDS Finance
drawing under the Debt Facilities and satisfying all conditions
subsequent);
|
|
(b)
|
make
all necessary applications to the Court in connection with the
implementation of the NDS Finance Capital
Reduction;
|
|
(c)
|
not
finalise the documentation relating to the NDS Finance Capital Reduction
without obtaining the prior written approval of the Bidcos, News
Corporation and NDS Holdco, as to the form and content of such
documentation (such approval not to be unreasonably withheld, rendered
subject to conditions or delayed);
|
|
(d)
|
submit
the NDS Finance Written Resolution to Target for
approval;
|
|
(e)
|
procure
the publication of the requisite advertisements in relation to the
NDS
Finance Capital Reduction, and thereafter publish and/or post such
other
documents and information as the Court may approve or direct from
time to
time;
|
|
(f)
|
promptly
provide the Bidcos, News Corporation and NDS Holdco with a copy (certified
as a true copy by any of NDS Finance’s directors or its secretary) of the
NDS Finance Written Resolution once passed and the NDS Finance Capital
Reduction Court Order once
obtained;
|
|
(g)
|
as
soon as practicable following the NDS Finance Capital Reduction Hearing
(and in any event by no later than the Business Day after that hearing
or
at such later time as the Bidcos, News Corporation and NDS Finance
may
agree), cause an office copy of the NDS Finance Capital Reduction
Court
Order to be filed with the Registrar;
|
|
(h)
|
procure
that any Target Operating Companies which have declared dividends
in
favour of Target and not yet paid such dividends, do not cancel/withdraw
them prior to such dividends being paid; and
|
|
(i)
|
following
the re-registration of Target as a private company, and in any event
no
earlier than 1 October 2008, and subject to the First Court Order
having
become effective, make the necessary draw downs under the Debt Facilities
and upon receipt of funds drawn under the Debt Facilities and received
pursuant to the Upstream Loans to declare and pay the NDS Finance
Dividend
to Target for same day value.
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23
|
3.6
|
Without
limitation to the generality of the foregoing, Target shall: (i)
convene
and hold the Extraordinary General Meeting in accordance with its
memorandum and articles of association and the Acts; (ii) seek leave
of
the Court to convene and hold the Court Meeting in accordance with
the Act
and the directions of the Court; and (iii) in particular, but without
limitation, save with the consent of the Bidcos, News Corporation
and NDS
Holdco (such consent not to be unreasonably withheld, rendered subject
to
conditions or delayed):
|
|
(a)
|
submit
the EGM Resolutions and Scheme Resolution for consideration and,
if
thought fit, approval of its shareholders at the Extraordinary General
Meeting and the Court Meeting respectively in each case regardless
of the
recommendations or any change in the recommendations of the Independent
Committee with respect thereto (provided that where any submissions
are
not recommended by the Independent Committee at the time of submission,
all such submissions shall make it clear on the face of the documents
that
they have been considered but not recommended by the Independent
Committee);
|
|
(b)
|
not
finalise the Scheme Documentation or seek to amend the Scheme
Documentation after the despatch of the
Circular;
|
|
(c)
|
use
reasonable endeavours to ensure that the quorum requirements of the
Act
and its articles of association are satisfied with respect to the
Extraordinary General Meeting and the Court Meeting;
and
|
|
(d)
|
if
necessary to implement the Scheme reconvene the Court Meeting, the
Extraordinary General Meeting and any other necessary meeting of
its
shareholders or of any class of its
shareholders.
|
|
3.7
|
Target
further undertakes:
|
|
(a)
|
to
execute the NDS Finance Written
Resolution;
|
|
(b)
|
to
make all necessary applications to the Court in connection with the
implementation of the Scheme;
|
|
(c)
|
to
procure the publication of the requisite advertisements in relation
to the
Scheme, and thereafter publish and/or post such other documents and
information as the Court may approve or direct from time to
time;
|
|
(d)
|
to
keep the Bidcos and News Corporation informed, on a regular basis
or as
soon as practicable following a request from the Bidcos or News
Corporation respectively, of the number of proxy votes received in
respect
of each of the Scheme Resolution and the EGM Resolutions and the
identity
of the relevant shareholders;
|
|
(e)
|
following
each of the Court Meeting and the Extraordinary General Meeting,
subject
to the Scheme Resolution and EGM Resolutions having been approved
by the
requisite majorities at the Court Meeting and the Extraordinary General
Meeting respectively, to seek the sanction of the Court to the Scheme
by
petitioning the Court to grant the First Court Order and the Second
Court
Order in accordance with the Steps Paper, provided that the obligation
on
Target to petition the Court to grant the Second Court Order shall
be
subject to the Bidcos and News Corporation having first each confirmed
in
writing (the “Confirmations”)
(so that such Confirmations are available at the Second Court Hearing)
that each has waived (to the extent permitted) or treated as satisfied
each of the Conditions other than the Conditions set forth in paragraphs
3
and 6 of Schedule V (an “Outstanding
Condition”)
(and each of the Bidcos and News Corporation undertake that they
will,
prior to the Second Court Hearing, provide such Confirmations if,
at that
time, they are not aware of any fact, matter or circumstance indicating
that any of the relevant Conditions are not satisfied or capable
of being
satisfied);
|
24
|
(f)
|
promptly
to provide the Bidcos and News Corporation with a copy (certified
as a
true copy by any of Target’s directors or secretary) of each of the Scheme
Resolution and the EGM Resolutions once passed and the First Court
Order
and the Second Court Order once
obtained;
|
|
(g)
|
as
soon as practicable following each of the First Court Hearing and
the
Second Court Hearing (and in any event by no later than the Business
Day
after the relevant hearing or at such later time as Target, News
Corporation and the Bidcos may agree), to cause an office copy of
each of
the First Court Order and the Second Court Order, respectively, to
be
filed with the Registrar;
|
|
(h)
|
following
its re-registration as a private company, and in any event no earlier
than
1 October 2008, to distribute and pay the A Share Distribution and
the
cash portion of the News Distribution (and to issue the News Loan
Note to
News Corporation pursuant to the News
Distribution);
|
|
(i)
|
following
its re-registration as a private company, and in any event no earlier
than
1 October 2008, to vote in favour of all necessary resolutions to
allow
NDS Finance and the Target Operating Companies to carry out their
obligations under the Debt Facilities including granting guarantees
and
security as required under the Debt
Facilities;
|
|
(j)
|
following
its re-registration as a private company, and in any event no earlier
than
1 October 2008, to grant security and guarantees as required under
the
Debt Facilities;
|
|
(k)
|
following
its re-registration as a private company, and in any event no earlier
than
1 October 2008, to cooperate and provide such assistance as NDS Finance
may reasonably require to support the syndication by the lenders
of part
of the Debt Facilities after the date of this Agreement to other
banks,
financial institutions or other third parties which hold participations
in
syndicated loans (such support including the preparation of an information
memorandum, providing and using reasonable efforts to cause NDS Finance
to
provide financial and other information and subject to advice from
outside
legal counsel, projections to the book runner of the syndication
relating
to NDS Finance and the Target Group and reasonably deemed necessary
by the
book runner to enhance the prospects of a successful syndication
(subject
to any confidentiality restrictions in relation to the provision
of such
information), making the relevant employees of the Target Group available
to participate in presentations to and meetings and telephone calls
with
potential lenders and arranging, attending and participating in agreed
site visits for potential
lenders);
|
25
|
(l)
|
not
knowingly do any act, matter or thing or knowingly omit to do any
act,
matter or thing, which would or is reasonably likely to cause any
of the
Conditions to not be satisfied; and
|
|
(m)
|
deliver
on the Effective Date resignations from the directors constituting
the
Independent Committee conditional on the Scheme becoming effective
in
accordance with its terms.
|
|
3.8
|
Without
limitation to the generality of the foregoing, NDS Holdco shall (and
News
Corporation shall exercise its rights as a shareholder of NDS Holdco
to
procure that NDS Holdco shall):
|
|
(a)
|
vote
in favour of the EGM Resolutions at the Extraordinary General Meeting;
and
|
|
(b)
|
give
such undertakings to be bound by the Scheme as the Court may
require.
|
|
3.9
|
Should
any supplemental circular or announcement be required to be published
or
submitted to the Court in connection with any variation or amendment
to
the Scheme (in each case, a “Supplemental
Document”)
the parties will provide promptly such co-operation and information
(including such information as is necessary for the Supplemental
Document
to comply with all applicable legal and regulatory provisions) as
any
other party may reasonably request and is reasonably necessary to
finalise
and publish promptly such Supplemental Document. Where applicable,
the
parties will procure that the party which took responsibility for
the
original document to which the Supplemental Document relates shall
also
take responsibility for such Supplemental
Document.
|
|
3.10
|
The
parties agree that Target will be entitled, with the express prior
written
consent of the Bidcos and News Corporation, to adjourn the Court
Meeting
and/or the Extraordinary General Meeting if it reasonably considers
that
such an adjournment would assist the obtaining of the requisite majorities
in respect of the Scheme Resolution and/or the EGM Resolutions, as
applicable, in which case Target will promptly notify News Corporation,
NDS Holdco and the Bidcos of any such proposal and will meet with
the
Bidcos, News Corporation and NDS Holdco to discuss in good faith
an
appropriate alternative date.
|
|
3.11
|
Target
agrees that the Circular and Proxy Statement shall incorporate a
unanimous
and unqualified recommendation of the Independent Committee to Scheme
Shareholders to vote in favour of the Scheme and the EGM Resolutions,
except if, and only to the extent that, the Independent Committee
concludes, in good faith, after consultation with, and taking into
account
the advice of, the Independent Committee Advisers at a meeting of
the
Independent Committee, that such recommendation should not be given
or
should be withdrawn, modified or qualified in order to comply with
the
fiduciary duties of the members of the Independent Committee and
on the
basis that an extract from the minutes of the relevant meeting of
the
Independent Committee (certified as a true extract by the Company
Secretary of Target) evidencing the conclusion of the Independent
Committee and referring to the substance of the legal and financial
advice
provided to the Independent Committee shall be promptly delivered
to the
Bidcos, News Corporation and NDS Holdco by
Target.
|
26
|
3.12
|
Target
agrees that the Circular and any other documents to be approved and/or
executed by Target in connection with the Transaction shall be considered
and approved by Target Directors and each Target Director (including
those
Target Directors who are not members of the Independent Committee)
shall
be eligible to vote and approve these documents on behalf of Target
(subject to any declaration of interest, as applicable, under article
90(7) of the articles of association of
Target).
|
|
3.13
|
Without
prejudice to its obligations under sub-clause 7.8 if Target wishes
to
request of the Court, or agree to, any variation of, or amendment
to, the
Scheme or if NDS Finance wishes to do so in respect of the NDS Finance
Capital Reduction, they will only do so after receiving the express
prior
written consent of the Bidcos and News Corporation (such consent
not to be
unreasonably withheld, rendered subject to conditions or
delayed).
|
|
3.14
|
SEC
Filings
|
|
(a)
|
As
promptly as reasonably practicable after the SEC indicates that it
has no
further comments on the Proxy Statement and Schedule 13E-3, Target,
acting
through the Board will give notice of, convene and hold the Extraordinary
General Meeting in accordance with sub-clause 3.6 and the Exchange
Act.
|
|
(b)
|
As
promptly as reasonably practicable following the date of this Agreement
Target shall (i) prepare and file (after the Bidcos, News Corporation
and
NDS Holdco have had a reasonable opportunity to review and comment
on)
with the SEC the Proxy Statement and all Other Filings, (ii) respond
as
promptly as reasonably practicable to any comments received from
the SEC
with respect to such filings, (iii) as promptly as reasonably practicable
prepare and file (after Bidcos, News Corporation and NDS Holdco have
had a
reasonable opportunity to review and comment on) any amendments or
supplements necessary to be filed in response to any SEC comments
or as
required by Law, (iv) use its reasonable endeavours to have cleared
by the
SEC and will thereafter mail to its stockholders as promptly as reasonably
practicable, the Proxy Statement and all other customary proxy or
other
materials for meetings such as the Extraordinary General Meeting,
(v) to
the extent required by applicable Law, as promptly as reasonably
practicable prepare, file and distribute to the shareholders of Target
any
supplement or amendment to the Proxy Statement if any event shall
occur
which requires such action at any time prior to the Extraordinary
General
Meeting, and (vi) otherwise use commercially reasonable efforts to
comply
with all requirements of Law applicable to the Extraordinary General
Meeting and the Scheme. In connection with the filing of the Proxy
Statement, Target, Bidcos, News Corporation and NDS Holdco will,
(a)
cooperate in connection with preparation and filing of the Proxy
Statement
including any appendices thereto, and (b) to (i) concurrently with
the
preparation and filing of the Proxy Statement, jointly prepare and
file
with the SEC the Schedule 13E-3 relating to the Transactions and
furnish
to each other all information concerning such party as may be reasonably
requested in connection with the preparation of the Schedule 13E-3,
(ii)
respond as promptly as reasonably practicable to any comments received
from the SEC with respect to such filings and will consult with each
other
prior to providing such response, (iii) as promptly as reasonably
practicable after consulting with each other, prepare and file any
amendments or supplements necessary to be filed in response to any
SEC
comments or as required by Law, (iv) have cleared by the SEC the
Schedule
13E-3 and (v) to the extent required by applicable Law, as promptly
as
reasonably practicable prepare, file and distribute to the shareholders
of
Target any supplement or amendment to the Schedule 13E-3 if any event
shall occur which requires such action at any time prior to the
Extraordinary General Meeting.
|
27
|
(c)
|
If,
at any time prior to the Effective Time, any information relating
to
Target, the Bidcos, News Corporation or NDS Holdco should be discovered
by
Target, the Bidcos, News Corporation or NDS Holdco, respectively,
which
should be set forth in an amendment or supplement to the Proxy Statement,
Schedule 13E-3 or the Other Filings, as applicable, so that the Proxy
Statement, Schedule 13E-3 and the Other Filings, as applicable, shall
not
contain any untrue statement of a material fact or omit to state
any
material fact required to be stated therein or necessary in order
to make
the statements therein, in light of the circumstances under which
they are
made, not misleading, the party that discovers such information shall
promptly notify the other parties and, to the extent required by
applicable Law, Target shall file with the SEC (and, if and to the
extent
required by applicable Law or the SEC, shall disseminate to the
shareholders of Target) an appropriate amendment thereof or supplement
thereto describing such information to Target's
shareholders.
|
|
(d)
|
Each
of Target, the Bidcos, News Corporation and NDS Holdco shall as soon
as
reasonably practicable notify the other parties of the receipt of
any
comments from or other correspondence with the SEC staff with respect
to
the Proxy Statement, Schedule 13E-3 or the Other Filings and any
request
by the SEC for any amendment or supplement to the Proxy Statement,
Schedule 13E-3 or the Other Filings or for additional information
(and
promptly deliver a copy of such comments, correspondence or request
to the
other party).
|
|
(e)
|
Without
limiting the generality of the foregoing, each of the Bidcos, News
Corporation and NDS Holdco will furnish to Target upon request, any
and
all information as may be reasonably required to be set forth in
the Proxy
Statement under the Exchange Act.
|
|
3.15
|
Target
shall not allot or issue any shares in its capital between the Scheme
Record Time and the time at which the Scheme becomes fully
effective.
|
|
3.16
|
Each
party shall keep each of the other parties informed reasonably promptly
of
developments which are, or could reasonably be expected to be, material
or
potentially material to the fulfilment of the
Conditions.
|
|
3.17
|
Each
of the parties acknowledges that the Panel has ruled that it does
not have
jurisdiction in respect of the Scheme Proposal. Notwithstanding this
ruling, each of the parties undertakes to each of the other parties
to
comply with those provisions of the City Code that are set out in
Schedule
IV as if they applied, subject to such interpretation thereof as
the
parties may agree from time to time, with such agreement to be absolute,
final and binding upon the parties and for all purposes in connection
with
the Scheme Proposal. Schedule IV sets out an exhaustive list of certain
of
the provisions of the City Code which the parties have agreed are
to apply
in the manner described in that Schedule in the conduct and execution
of
the Scheme Proposal. References in this Agreement to the City Code
are to
be construed accordingly.
|
28
|
3.18
|
In
particular, but without limitation, each party agrees that it will
not
seek to rely on any of the Conditions (other than the Fundamental
Conditions) or exercise their rights under Clause 13 to terminate
this
Agreement (other than if there is a failure or breach of any of the
Fundamental Conditions), where in analogous circumstances they would
not
be permitted to do so by the City Code as implemented by the Panel,
in
particular, but without limitation, by reference to the Panel’s
application of Rule 13.4 and statements and rulings of the Panel
in
respect of that Rule. To the extent necessary to give effect to this
sub-clause 3.18, News Corporation and the Bidcos will waive or agree
to
waive any relevant Condition excluding the Fundamental
Conditions.
|
|
3.19
|
News
Corporation and NDS Holdco severally undertake
to:
|
|
(a)
|
terminate
with effect from the Effective Date the cash pooling arrangements
which
are in place between the News Group and the Target Group and release
the
guarantees which have been given by certain members of the Target
Group to
the News Group in respect of such cash pooling arrangements;
and
|
|
(b)
|
not
acquire any interest in Target which it does not already hold as
at the
date of this Agreement, or, prior to the Effective Date, transfer
any such
interest save within the News Group subject to (i) any transferee
of the
interest assuming the obligations of NDS Holdco in this Agreement
as if it
were a party to this Agreement in place of or as well as NDS Holdco;
and
(ii) News Corporation ensuring that NDS Holdco and the transferee
remain
part of the News Group up to and including the Effective
Date.
|
|
3.20
|
Each
of the Bidcos severally undertake
to:
|
|
(a)
|
provide
all deliverables required to be delivered by it or its Affiliates
for the
purposes of satisfying any conditions precedent to drawdown of the
Debt
Facilities;
|
|
(b)
|
to
the extent that each of them is able to do so, deliver its respective
CFC
Certificates to News Corporation immediately prior to the Second
Court
Hearing;
|
|
(c)
|
at
any time after satisfaction of the conditions set out in paragraph
2 of
the Equity Commitment Letter and upon receipt of written notice from
Target, enforce its rights under the Equity Commitment Letter by
taking
such steps as it deems to be appropriate and are reasonably within
its
control;
|
|
(d)
|
not
materially to vary or amend the terms of the Equity Commitment Letter
without the prior written consent of the Target (not to be unreasonably
withheld); and
|
29
|
(e)
|
not
acquire any A Shares or ADSs prior to the Effective
Date.
|
|
3.21
|
The
parties shall respectively take the steps and other actions provided
for
in Schedule II in relation to the Target Share Schemes. Target undertakes,
prior to the distribution of the Circular to the shareholders of
Target,
to establish an employee benefit trust with a wholly owned special
purpose
vehicle, for the purposes of acquiring A Shares in accordance with
paragraph 3
of
Schedule II and to procure that the special purpose vehicle acquires
the A
Shares as outlined in paragraph 3 of Schedule II. Such special purpose
vehicle and Target will become parties to the Management Investment
Agreement immediately following the Effective Date by executing deeds
of
adherence thereto.
|
|
3.22
|
News
Corporation undertakes to Target that, in the event that: (i) there
is a
default by any of the Equity Investors, the Pythagoras HoldCos (as
defined
in the Equity Commitment Letter) or the Bidcos under their respective
obligations under the Equity Commitment Letter; and (ii) News Corporation
receives a written request from Target requesting it to take such
action,
News Corporation shall, enforce its rights against the Equity Investors
(as defined in the Cash Confirmation Undertaking) by taking such
steps as
it deems to be appropriate and are reasonably within its control,
under
the terms of the Cash Confirmation Undertaking, including, without
limitation, under paragraph 2.4 of the Cash Confirmation
Undertaking.
|
|
4.
|
Cash
Consideration
and News Distribution
|
|
4.1
|
The
Bidcos shall, subject only to the Scheme becoming fully effective
and to
the Bidcos being notified in advance of the account details of the
relevant paying agent, give irrevocable instructions to make payment
of
the Bidco Cash Consideration to an appropriate paying agent for same
day
value (for onward payment to the Scheme Shareholders entitled thereto),
by
no later than one Business Day following the Effective Date. Target
and
the Bidcos shall, in each case subject only to the Scheme becoming
fully
effective and Target having received the dividends from the Target
Operating Companies as referred to in sub-clause 3.5(h) and the NDS
Finance Dividend, procure that the relevant paying agent makes payment
of
the Bidco Cash Consideration and the A Share Distribution (Target
having
already paid an amount equal to the A Share Distribution to the relevant
paying agent) to the Scheme Shareholders entitled thereto in accordance
with the Scheme as soon as reasonably practicable after the Effective
Date, and in any event by no later than five Business Days following
the
Effective Date. Target shall pay the News Distribution (including,
without
limitation, by issuing the News Loan Note to NDS Holdco) in accordance
with the Scheme by no later than one Business Day following the Effective
Date. The Parties agree that in respect of the portion of the Cash
Consideration to be paid to each Manager Investor, amounts may be
deducted
therefrom in accordance with the provisions of the Management Investment
Agreement. The obligations of the Bidcos to pay the Bidco Cash
Consideration shall be several.
|
|
4.2
|
If
the Equity Investors, as defined in, the Equity Commitment Letter,
fail to
subscribe for their relevant equity, equity-related instruments or
shareholder loan instruments pursuant to the Equity Commitment Letter
on
or in advance of the Effective Date, the Bidcos undertake to News
Corporation and NDS Holdco and Target to jointly enforce their rights
under the Equity Commitment Letter to procure such subscriptions,
including, without limitation, the delivery of any drawdown requests,
and
the delivery of any documents (including by way of deed) required
to
effect such drawdown.
|
30
|
5.
|
Court
Orders
|
|
5.1
|
Notwithstanding
any other provision of this Agreement, Target shall not, and shall
be
under no obligation to, petition the Court to sanction the Scheme
and to
grant the First Court Order prior to 1 October
2008.
|
|
5.2
|
In
the event that the First Court Order is granted but the Second Court
Order
is not granted or is not registered by the Registrar and the Scheme
does
not become fully effective, the parties (insofar as they are able
to do
so) shall promptly take such steps as are necessary to procure
that:
|
|
(a)
|
Target
is re-registered as a public company in accordance with the applicable
requirements of the Acts; and
|
|
(b)
|
any
amounts drawn under the Debt Facilities are repaid to the lenders
thereof.
|
|
6.
|
Documentation
and Stockholders Agreement
|
|
6.1
|
Each
of the parties shall promptly provide such reasonable assistance
and
information and shall co-operate and consult with each other in the
preparation and publication of the Circular and any other document
or
filing which is required or which Target, News Corporation, NDS Holdco
or
the Bidcos reasonably considers to be necessary or appropriate in
accordance with the requirements of the Acts, the Securities Act
and the
Exchange Act for the purposes of implementing the Transactions in
accordance with the provisions of this Agreement and the
Announcement.
|
|
6.2
|
News
Corporation, NDS Holdco and the Bidcos each agree to enter into the
Stockholders Agreement on the Effective
Date.
|
|
7.
|
Warranties,
Undertakings
and Indemnities
|
|
7.1
|
Each
of the parties severally warrants to each of the other parties on
the date
hereof that:
|
|
(a)
|
it
has the requisite power and authority to enter into and perform this
Agreement;
|
|
(b)
|
this
Agreement constitutes the binding obligations of that party in accordance
with its terms;
|
|
(c)
|
the
execution and delivery of, and performance of that party’s obligations
under, this Agreement will not:
|
|
(i)
|
result
in a breach of any provision of that party’s constitutional
documents;
|
|
(ii)
|
result
in a breach of, or constitute a default under, any instrument to
which
that party is a party or by which it is bound, to an extent that
is
material in the context of the Transactions;
or
|
31
|
(iii)
|
result
in a breach of any order, judgment or decree of any court or governmental
agency or any applicable Law or regulation to which that party is
a party
or by which it is bound.
|
|
7.2
|
News
Corporation warrants to the Bidcos on the date hereof
that:
|
|
(a)
|
NDS
Holdco is the legal and beneficial owner of all of the B Shares and
that
the entire issued share capital of Target is comprised of 16,187,253
A
Shares, the B Shares and the Deferred Shares;
and
|
|
(b)
|
the
material agreements set out in Schedule VI to this Agreement, each
of
which are or were once (should that agreement have since elapsed
or been
terminated) in place between News Corporation (and/or members of
its
Group) and Target (and/or another member of the Target Group), have
been
disclosed to the Bidcos.
|
|
7.3
|
Target
confirms and undertakes that it has timely filed all reports, proxy
statements, registrations statements, forms, schedules and other
documents
(including all exhibits, schedules and annexes thereto) required
to be
filed or furnished by it under the Securities Act or the Exchange
Act, as
the case may be, with the SEC from 1 January 2005 to the date hereof
(as
amended to date, the “Target
SEC Documents”).
Target warrants to each of the other parties that,
on the date hereof:
|
|
(a)
|
as
of their respective dates, or, if amended, as of the date of the
last such
amendment, the Target SEC Documents complied as to form in all material
respects with the requirements of the Securities Act or the Exchange
Act,
as the case may be. None of the Target SEC Documents at the time
they were
filed or, if amended, as of the date of such amendment contained
any
untrue statement of a material fact or omitted to state any material
fact
required to be stated therein or necessary to make the statements
therein,
in light of the circumstances under which they were made, not misleading.
As of the date hereof, so far as Target is aware, there are no outstanding
or unresolved comments from the SEC staff with respect to any of
the
Target SEC Documents;
|
|
(b)
|
each
of the consolidated financial statements (including all related notes)
of
Target included (or incorporated by reference) in the Target SEC
Documents
fairly presents in all material respects the consolidated financial
position of Target and its consolidated subsidiaries as at the respective
dates thereof and their consolidated results of operations and
consolidated cash flows for the respective periods then ended (subject,
in
the case of the unaudited statements, to the absence of information
or
notes not required by US GAAP to be included in interim financial
statements, to normal year-end audit adjustments and to any other
adjustments described therein including the notes thereto, which
are not
expected to be material to Target and its subsidiaries taken as a
whole)
in conformity with US GAAP (except, in the case of the unaudited
statements, as permitted by Form 10-Q of the SEC or indicated in
the notes
thereto) applied on a consistent basis during the periods involved
(except
as may be indicated therein or in the notes thereto);
and
|
32
|
(c)
|
except
(i) as reflected or reserved against on the consolidated balance
sheet of
Target (including the notes thereto) included in Target's Annual
Report on
Form 10-K for the 12 months ended 30 June 2008, (ii) for liabilities
or
obligations incurred in the ordinary course of business since 1 July
2008,
(iii) liabilities and obligations arising under this Agreement and
in
relation to the Transaction, (iv) liabilities or obligations which
have
been discharged or paid in full in the ordinary course of business
or
which have arisen as a result of the steps set out in the Steps Paper,
and
(v) liabilities and obligations that would not cause an adverse change
or
deterioration in the business, assets, financial or trading position
or
profits or operational performance of the any member of Target Group
to an
extent which is material in the context of the Wider Target Group
(as that
term is defined in the Conditions) taken as a whole, neither Target
nor
any of the Target Group have any liabilities or obligations of any
nature,
whether or not accrued, contingent or otherwise, that would be required
by
US GAAP to be reflected on a consolidated balance sheet (or the notes
thereto) of Target and the Target
Group.
|
|
7.4
|
The
proxy statement (to which the Circular will be attached as an appendix)
(the "Proxy
Statement")
relating to the Transactions to be filed by Target with the SEC in
connection with seeking the approval of Target’s shareholders to the
Transactions and the Schedule 13E-3, as well as any other documents
required to be filed by Target with the SEC in connection with the
Transactions (collectively, the "Other
Filings"),
will not, at the time each is filed with the SEC, or, in the case
of the
Proxy Statement and Schedule 13E-3, at the time it is first mailed
to
Target’s shareholders or at the time of the Extraordinary General Meeting
or at the time of the Court Meeting, contain any untrue statement
of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
light of
the circumstances under which they are made, not misleading. Target
will
cause the Proxy Statement, Schedule 13E-3 and all Other Filings to
comply
as to form in all material respects with the requirements of the
Exchange
Act applicable thereto as of the date of such filing. No representation
is
made by Target with respect to statements made in the Proxy Statement,
Schedule 13E-3 or any Other Filings based on information supplied,
or
required to be supplied, by the Bidcos, News Corporation or NDS Holdco
or
any of their respective directors, officers, employees, Affiliates,
agents
or other representatives specifically for inclusion or incorporation
by
reference therein.
|
|
7.5
|
Except
as disclosed in the documents filed with or furnished to the SEC
by Target
prior to the date of this Agreement, Target warrants to each of the
other
parties that on the date hereof, except for this Agreement and the
Transactions, there are no transactions, or series of related
transactions, agreements, arrangements or understandings, nor are
there
any currently proposed transactions, or series of related transactions,
between Target or any member of the Target Group, on the one hand,
and
Target's Affiliates (other than members of the Target Group), on
the other
hand, that would be required to be disclosed under Item 404 of Regulation
S-K promulgated under the Securities
Act.
|
33
|
7.6
|
Reporting
Requirements.
|
|
(a)
|
Target
warrants to each of the other parties
that:
|
|
(i)
|
since
1 January 2005, subject to any applicable grace periods, Target has
been
and is in compliance in all material respects with the applicable
provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx
Act");
|
|
(ii)
|
Target
has established and maintains disclosure controls and procedures
(as
defined in Rule 13a-15(e) of the Exchange Act) designed to comply
with
Rule 13a–15 of the Exchange Act;
and
|
|
(iii)
|
Target
has disclosed, based on its most recent evaluation prior to the date
hereof, to Target's auditors and the audit committee of the Board
(i) any
significant deficiencies and material weaknesses in the design or
operation of internal controls over financial reporting (as defined
in
Rule 13a-15(f) of the Exchange Act) which are reasonably likely to
adversely affect in any material respect Target's ability to record,
process, summarize and report financial information and (ii) any
fraud,
whether or not material, that involves management or other employees
who
have a significant role in Target's internal controls over financial
reporting.
|
|
(b)
|
No
member of the Target Group other than Target is, or has at any time
since
1 January 2005 been, subject to the reporting requirements of Sections
13(a) or 15(d) under the Exchange
Act.
|
|
7.7
|
Each
of the Bidcos, News Corporation, and NDS Holdco severally but not
jointly,
warrants to Target that none of the information supplied by it or
any of
its directors, officers, employees, Affiliates, agents or other
representatives expressly for inclusion in (a) the Proxy Statement
or
Schedule 13E-3 will, on the date the Proxy Statement or Schedule
13E-3 is
first sent to Target’s shareholders, at the time of the Extraordinary
General Meeting or at the time of the Court Meeting, contain any
untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements
therein,
in light of the circumstances under which they are made, not misleading
and (b) any of the Other Filings will, on the date any such Other
Filing
is filed with the SEC, contain any untrue statement of a material
fact or
omit to state any material fact required to be stated therein or
necessary
in order to make the statements therein, in light of the circumstances
under which they are made, not
misleading.
|
|
7.8
|
Target
shall conduct
its business in the ordinary and usual course consistent with past
practice during the Exclusivity Period. Without limitation to the
generality of the foregoing and except as contemplated or as reasonably
required in connection with the implementation of the Transactions
or the
performance of this Agreement, or as required or provided by applicable
Law, during the Exclusivity Period, Target shall not and shall procure
that no other member of the Target Group shall, carry out any of
the
following actions without having obtained the prior written consent
of
each of the Bidcos, News Corporation and NDS Holdco (not to be
unreasonably withheld, rendered subject to conditions or
delayed):
|
34
|
|
(a)
|
the
alteration of the nature or scope of its business in any way that
is
material in the context of either the business of the Target Group
taken
as a whole or the implementation of any of the
Transactions;
|
|
(b)
|
save
where required by the Target Share Schemes, the variation, creation,
increase, reorganisation, consolidation, subdivision, conversion,
reduction, redemption, repurchase, redesignation or other alteration
of
the authorised or issued share or loan capital of Target or any other
member of the Target Group or the variation, modification, abrogation
or
grant of any rights attaching to any such share or loan
capital;
|
|
(c)
|
the
convening of any general meeting of Target or any other member of
the
Target Group other than the Meetings or a meeting convened in accordance
with sub-clause 3.6;
|
|
(d)
|
save
where required by the Target Share Schemes and the NDS Finance Insertion,
the entry into or creation by Target or any other member of the Target
Group of any agreement, arrangement or obligation requiring the creation,
allotment, issue, transfer, redemption or repayment of, or the grant
to a
person of the right (conditional or not) to require the creation,
allotment, issue, transfer, redemption or repayment of, any shares
in the
capital of Target or any other member of the Target Group (including,
without limitation, an option or right of pre-emption or
conversion);
|
|
(e)
|
save
where required by the Target Share Schemes and the NDS Finance Insertion,
the reduction, capitalisation, repayment or distribution of any amount
standing to the credit of the share capital, share premium account,
capital redemption reserve or any other reserve of Target or any
other
member of the Target Group, or the reduction of any uncalled liability
in
respect of partly paid shares of Target or any other member of the
Target
Group;
|
|
(f)
|
save
where required by the Target Share Schemes, the NDS Finance Insertion
or
in connection with the Debt Facilities, the alteration, in any material
respect, of the memorandum or articles of association or other applicable
constitutional document of Target or any other member of the Target
Group;
|
|
(g)
|
the
alteration of the accounting reference date of Target or any other
member
of the Target Group or the alteration, in any material respect, of
the
accounting policies or practices of Target or any other member of
the
Target Group except as required by Law, to bring in line with the
rest of
the Target Group or to comply with a new applicable accounting
standard;
|
|
(h)
|
except
in the ordinary course of business consistent with past practice
(including, without limitation, the proposed acquisition of Electracade
Limited which has been approved by the board of Target), the entering
into, amendment, variation or supplement in any manner materially
adverse
to Target or any other member of the Target Group or termination
of any
agreement or arrangement (including, without limitation, any contract
or
arrangement with any member of the News Group), in any such case
which is
material in the context of the business of the Target Group as a
whole or
the implementation of any of the Transactions, including, without
limitation, any agreement or arrangement which (i) confers exclusive
rights or obligations of any nature whatsoever on any party (ii)
involves
expenditure on the part of Target or any other member of the Target
Group
of $10,000,000 or more or has a term of twelve months or more, or
(iii) is
not terminable by Target or any other relevant member of the Target
Group
on 90 days’ notice or less without the payment of any
penalty;
|
35
|
(i)
|
the
amendment or variation to or termination of any of the Transaction
Documents;
|
|
(j)
|
the
commencement or settlement of any litigation or arbitration proceedings,
in any such case which is material in the context of the business
of the
Target Group as a whole or the implementation of any of the Transactions,
other than any claims by current or former shareholders of
Target;
|
|
(k)
|
the
creation of any Encumbrance over any uncalled capital of, or any
other
asset of, Target or any material member of the Target Group or the
giving
of any guarantee, indemnity or security, or the entry into of any
agreement or arrangement having a similar effect by Target or any
other
material member of the Target Group or the assumption, otherwise
than (a)
by operation of Law, or (b) in the ordinary course of business as
currently conducted by Target or any other material member of the
Target
Group of any liability, whether actual or contingent, in respect
of any
obligation of any person, in any such case to an extent which is
material
in the context of the business of the Target Group as a whole or
the
implementation of any of the
Transactions;
|
|
(l)
|
except
in the ordinary course of business, discontinue, amend, dispose of
or
grant an exclusive licence of any intellectual property rights or
fail to
maintain any registrations or fail to continue any pending applications
for material intellectual property rights, in any such case to an
extent
which is material in the context of the business of the Target Group
as a
whole or the implementation of any of the
Transactions;
|
|
(m)
|
the
entry into of any agreement or facility to obtain any borrowing,
advance,
credit or finance or any other indebtedness or liability in the nature
of
borrowing in excess of $10,000,000;
|
|
(n)
|
the
taking of any action that would require the approval of the holders
of A
Shares under Rule 21 of the City
Code;
|
|
(o)
|
the
entry into of any transaction, agreement, arrangement or understanding
between (i) Target or any other member of the Target Group, on the
one
hand, and (ii) any member of the News Group, on the other hand, of
the
type that would be required to be disclosed under Item 404 of Regulation
S-K;
|
|
(p)
|
the
taking by Target or any other member of the Target Group of any step
which, to the knowledge of Target, is reasonably likely to have the
effect
of preventing or materially delaying the satisfying of any of the
Conditions;
|
|
(q)
|
the
entry into of any Agreement or binding commitment to do any of the
actions
described in this sub-clause 7.8;
and
|
36
|
(r)
|
the
making by or on behalf of Target or any other member of the Target
Group
of an announcement in relation to any of the actions described in
this
sub-clause 7.8 or in relation to a proposal to take any such
action.
|
Nothing
set forth in this sub-clause 7.8 shall give the Bidcos, directly or indirectly,
the right to control or direct the business or operations of Target or any
other
member of the Target Group prior to the Effective Date. Prior to the Effective
Date, Target shall exercise, consistent and subject to with the terms and
conditions of this Agreement, complete control and supervision over the business
and operations of Target and each of the other members of the Target
Group.
|
7.9
|
During
the Exclusivity Period, Target shall and shall procure that the other
members of the Target Group shall:
|
|
(a)
|
furnish
the Bidcos, News Corporation and NDS Holdco and their respective
Representatives with such financial and operating data and other
information with respect to each member of the Target Group as the
Bidcos,
News Corporation and NDS Holdco may from time to time reasonably
request
and consistent with the nature and scope of the financial and operating
data and other information provided by Target to News Corporation
in the
ordinary course as at the date of this Agreement;
and
|
|
(b)
|
give
the Bidcos, News Corporation and NDS Holdco and their respective
Representatives reasonable access to such of the books, records and
personnel of each member of the Target Group as shall be necessary
or
desirable to enable the Bidcos, News Corporation and NDS Holdco to
prepare
for the implementation of the
Transactions,
|
in
each
case without giving rise to any obligation of Target to any third party or
which
would cause Target to be in breach of any obligation to any third party (other
than any immaterial obligation).
|
7.10
|
Each
of the Bidcos warrants to Target and News Corporation that, as of
the date
hereof, none of its officers are actually aware of any fact, matter
or
circumstance which could reasonably be expected to occur, which if
it did
occur, would prevent it from delivering its CFC Certificate in
satisfaction of the Condition set out in paragraph 11 of Schedule
V.
|
|
7.11
|
Each
of the Bidcos and News Corporation shall not take any step which,
to the
knowledge of the Bidcos or News Corporation respectively, is reasonably
likely to have the effect of preventing or materially delaying the
satisfaction of any of the
Conditions.
|
|
7.12
|
News
Corporation and NDS Holdco undertake to the Bidcos to pay on demand
to the
Bidcos or as the Bidcos shall otherwise direct a sum equal to each
and any
Moral Hazard Costs as and when they arise. “Moral
Hazard Costs”
for this purpose mean each loss, liability, contribution, cost and
expense
(including, without limitation, each loss, liability, contribution,
cost
and expense incurred as a result of defending or settling a claim
alleging
such liability) of any person connected with or an associate of (as
defined in section 249 or 435 of the Insolvency Act 1986) Target,
other
than a member of the News Group or the Target Group, arising in relation
to the News Executive Plan pursuant to the issue by the Pensions
Regulator
of a contribution notice and/or a financial support direction under
sections 38 to 51 of the Pensions Xxx 0000. The Pensions Regulator
for
these purposes means the Pensions Regulator established under the
Pensions
Xxx 0000.
|
37
|
7.13
|
News
Corporation and NDS Holdco undertake to Target to pay on demand to
Target
a sum equal to each and any Pension Costs as and when they arise.
“Pension
Costs”
for this purpose means each loss, liability, contribution, cost and
expense (including, without limitation, each loss, liability,
contribution, cost and expense incurred as a result of defending
or
settling a claim alleging such liability) of Target or the Target
Group
arising or which may arise, out of or in connection with any liability
to
make any payment on or after the Effective Date to the News Executive
Plan:
|
|
(a)
|
pursuant
to the operation of section 75 and/or section 75A of the Pensions
Xxx
0000, but only if and to the extent that (A) is greater than (B)
where:
|
|
(i)
|
“(A)”
is Target's "liability share" (as defined in the Employer Debt
Regulations);
|
|
(ii)
|
“(B)”
is C/D multiplied by the total difference between the value of the
assets
of the News Executive Plan and the amount of the liabilities of the
News
Executive Plan (calculated in accordance with Regulation 5(11) of
the
Employer Debt Regulations) where C is the News Executive Plan liabilities
(calculated in accordance with Regulation 5(11) of the Employer Debt
Regulations) attributable to Xx Xxxxx and Xx Xxxx Xxxxxx (also known
as Ms
Xxxx Xxxxxxx, but herein referred to as Xx Xxxx Xxxxxx) and D are
the News
Executive Plan liabilities (calculated in accordance with Regulation
5(11)
of the Employer Debt Regulations) attributable to Target and News
International Limited; and
|
|
(iii)
|
for
the avoidance of doubt, in determining the "liability share" for
the
purpose of (A) and in determining "D" for the purpose of (B), the
liabilities attributed to employers shall include any liabilities
attributed under Regulation 6 of the Employer Debt
Regulations.
|
|
(b)
|
pursuant
to the issue by the Pensions Regulator of a contribution notice and/or
a
financial support direction under sections 38 to 51 of the Pensions
Xxx
0000; and
|
|
(c)
|
under
the trust deed and rules of the News Executive Plan or under any
other
documentation relevant to the operation of the News Executive Plan
but
only if and to the extent such liability exceeds ongoing contributions
payable by Target in respect of future accrual of benefits in relation
to
Xx Xxxxx and Xx Xxxx Xxxxxx pursuant to the current schedule of
contributions or any revised rate provided that the revised rate,
expressed as a percentage of Xx Xxxxx'x or Xx Xxxx Xxxxxx’x respective
pensionable salary, is no more than the rate applicable to the pensionable
salaries of other active members in the News Executive
Plan.
|
38
|
7.14
|
Each
of News Corporation and NDS Finance undertake to use their reasonable
endeavours to replace the current Master Intercompany Agreement dated
22
November 1999 and entered into between News Corporation and NDS,
with a
new Master Intercompany Agreement (that is, between News Corporation
and
NDS Finance) on terms to be agreed between News Corporation and NDS
Finance.
|
|
8.
|
Exclusivity
|
|
8.1
|
Subject
to sub-clause 8.4, in consideration of the commitment of time, cost,
expense and personnel by the Bidcos, News Corporation and their respective
Affiliates and of the Bidcos, News Corporation and their respective
Affiliates incurring the expense of instructing advisers, in each
case for
the purpose of investigating, finalising and documenting the Transactions
and the financing thereof:
|
|
8.1.1
|
Target
warrants and undertakes that, during the Exclusivity Period, neither
it
nor any other member of the Target Group, or any of their respective
Advisers or Representatives, will, directly or indirectly through
any
other person:
|
|
(a)
|
solicit,
initiate, authorise, recommend, facilitate or encourage, participate
in,
continue or enter into discussions or negotiations or any agreement
or
arrangement regarding, any Competing
Proposal;
|
|
(b)
|
provide
or cause to be provided information to any person (other than the
Bidcos,
News Corporation and their respective Advisers and Representatives)
in
relation to any Competing Proposal;
or
|
|
(c)
|
otherwise
cooperate in any way with, or assist or participate in, facilitate
or
encourage, any effort or attempt by any other person to do or seek
any of
the foregoing.
|
|
8.1.2
|
News
Corporation warrants and undertakes that, during the Exclusivity
Period,
neither it nor any of its Affiliates, or any of their respective
Advisers
or Representatives, will, directly or indirectly through any other
person:
|
|
(a)
|
solicit,
initiate, authorise, facilitate or encourage, participate in, continue
or
enter into discussions or negotiations or any agreement or arrangement
regarding, any Competing Proposal;
|
|
(b)
|
provide
or cause to be provided information to any person (other than the
Bidcos
and their Advisers and Representatives) in relation to any Competing
Proposal; or
|
|
(c)
|
otherwise
cooperate in any way with, or assist or participate in, facilitate
or
encourage, any effort or attempt by any other person to do or seek
any of
the foregoing.
|
39
|
8.2
|
During
the Exclusivity Period, News Corporation and NDS Holdco as shareholders
in
NDS Holdco and Target respectively, will vote against any Competing
Proposal proposed at shareholder meetings or in proposed shareholder
written resolutions of NDS Holdco or Target respectively and not
accept or
support any Competing Proposal.
|
|
8.3
|
News
Corporation and NDS Holdco undertake that they will not, and shall
procure
that none of their Affiliates shall, exercise any of the change of
control
rights which are exercisable under any agreements or arrangements
between
News Corporation and/or any of its Affiliates and Target and/or the
Target
Group as a result of the
Transactions.
|
|
8.4
|
Notwithstanding
sub-clause 8.1, Target may engage in discussions or negotiations
with, and
furnish information concerning the Target Group and its businesses,
properties or assets, to a third party which has indicated that it
may
make an unsolicited Competing Proposal, or recommend a Competing
Proposal,
if, and only to the extent that, the members of the Independent Committee
concludes, in good faith, after consultation with, and taking into
account
the advice of the Independent Committee Advisers their legal and
financial
advisers at a meeting of the Independent Committee, that the failure
to
take such action would be in breach of their fiduciary duties or
would
violate their obligations under this Agreement, the Act or the 0000
Xxx.
|
|
8.5
|
Target
agrees, if requested by the Bidcos or News Corporation and to the
extent
requested, subject to the members of the Independent Committee concluding,
in good faith, and after consultation with, and taking into account
the
advice of the Independent Committee Advisers that to take such action
would not be in breach of their fiduciary duties, to disclose to
the
Bidcos and News Corporation as soon as
practicable:
|
|
(a)
|
the
price, form of consideration and identity of the offeror, in relation
to
any approach made relating to a Competing
Proposal;
|
|
(b)
|
the
fact that the Board (or any committee thereof including the Independent
Committee) is considering such Competing Proposal with details of
the
price, form of consideration and identity of offeror;
and
|
|
(c)
|
any
changes in the price, form of consideration and identity of offeror
in
relation to any Competing Proposal details of which have already
been
notified to the Bidcos and News
Corporation.
|
|
9.
|
Employees
|
The
parties have agreed the arrangements set out in Schedule II with respect to
certain employee related matters.
|
10.
|
Announcement
|
|
10.1
|
Without
prejudice to the provisions of Clause 8, during the Exclusivity Period,
the parties shall, subject to the requirements of applicable Law
or any
Relevant Authority, consult together as to the terms of, the timetable
for
and manner of publication of, any announcement, circular or publication
to
shareholders, employees, customers, suppliers, distributors and
sub-contractors and to any Relevant Authority or to the media or
otherwise
which any party may desire or be obliged to make regarding the
Transactions, except in connection with any dispute between the parties
regarding this Agreement or the
Transactions.
|
40
|
10.2
|
Except
where required by any applicable Law, none of the parties will make
any
announcement about the implementation of the Transactions or any
matters
arising in relation to or in connection with the Transactions or
about any
discussions between the parties concerning any of the foregoing,
without
the prior consent of (in the case of an announcement by Target, News
Corporation or NDS Holdco) the Bidcos and (in the case of an announcement
by the Bidcos, News Corporation or NDS Holdco) Target and (in the
case of
an announcement by the Bidcos or Target) News Corporation and NDS
Holdco
acting jointly (such consent in each case not to be unreasonably
withheld,
rendered subject to conditions or delayed), except in connection
with any
dispute between the parties regarding this Agreement or the
Transactions.
|
|
11.
|
Assignment
|
This
Agreement is personal to the parties to it and may not be assigned (nor may
a
party purport to assign it) in whole or in part, nor may any party transfer
or
create any trust in respect of, or purport to transfer or create any trust
in
respect of, a right or obligation under this Agreement.
|
12.
|
Time
of the Essence
|
Any
time,
date or period referred to in any provision of this Agreement may be extended
by
mutual agreement between Target, News Corporation and the Bidcos but as regards
any time, date or period originally fixed or any time, date or period so
extended, time shall be of the essence.
|
13.
|
Termination
|
|
13.1
|
Subject
to sub-clause 13.3
and notwithstanding anything contained in this Agreement to the contrary,
this Agreement may be terminated as
follows:
|
|
(a)
|
by
the mutual consent (in writing) of the Bidcos, News Corporation,
NDS
Holdco and Target at any time prior to the granting of the Second
Court
Order;
|
|
(b)
|
by
either of the Bidcos or News Corporation acting in their absolute
discretion if there is a failure or breach of any of the Fundamental
Conditions set out in paragraphs 1 to 8 or 13 of Schedule V, and
by News
Corporation acting in its absolute discretion if there is a failure
or
breach of either of the Fundamental Conditions set out in paragraphs
10
and 11 of Schedule V; or
|
|
(c)
|
by
any of the Bidcos, News Corporation, NDS Holdco or Target upon written
notice to the other parties if the Effective Date shall not have
occurred
on or before the Long Stop
Date.
|
41
|
13.2
|
Except
for the provisions of this Agreement which are expressly provided
to
survive termination and without prejudice to any liability of any
party in
respect of any antecedent wilful and material breach hereof or to
any
accrued rights of any party hereto, if this Agreement is terminated
pursuant to this Clause 13
this Agreement shall terminate (save for Clauses 10,
14,
15,
17, 18,
19,
20
and 21
which will survive termination) and there shall be no other liability
on
the part of any of the parties hereto to any of the other parties.
No
representation or warranty contained in this Agreement shall survive
the
time, if any, at which the Scheme becomes fully
effective.
|
|
13.3
|
Termination
of this Agreement shall be without prejudice to any rights any party
may
have in respect of any prior breach
hereof.
|
|
14.
|
Fees
and Costs
|
|
14.1
|
If
the Scheme becomes fully effective, the costs associated therewith
shall
be borne in the manner separately agreed between the Bidcos, News
Corporation and NDS Holdco.
|
|
14.2
|
If
the Scheme fails to become fully effective, each party will bear
its own
legal, accountancy and other costs and expenses incurred in connection
with the negotiation, preparation and implementation of this Agreement
and
any other agreement incidental to or referred to in this Agreement
and the
implementation of the Transactions, except that News Corporation
and the
Bidcos will equally bear the cost of counsel to the lenders for
preparation of the documents for the Debt
Facilities.
|
|
15.
|
Waiver/Amendment
|
|
15.1
|
There
shall be no waiver of any term, provision or condition of this Agreement
unless such waiver is in writing and signed by the waiving
party.
|
|
15.2
|
No
relaxation, forbearance, indulgence or delay (together “indulgence”)
of any party in exercising any right, power or privilege hereunder
shall
be construed as a waiver thereof and shall not effect the ability
of that
party subsequently to exercise that right, power or privilege or
to pursue
any remedy, nor shall any indulgence constitute a waiver of any other
right, power or privilege, nor will any single or partial exercise
thereof
preclude any other or future exercise thereof or the exercise of
any other
right, power or privilege
hereunder.
|
|
15.3
|
No
amendment, change or addition to this Agreement shall be effective
or
binding on any party unless reduced to writing and executed by all
of the
parties to this Agreement.
|
|
16.
|
Directors'
and Officers' Insurance
|
Until
the
sixth anniversary of the Effective Date, the Bidcos and News Corporation shall
not vote in favour of or approve any proposal to amend, modify or repeal the
provisions for indemnification of directors or officers contained in the
articles of association of Target or any other member of the Target Group as
of
the date of this Agreement or otherwise in such a manner as would adversely
affect the rights of any individual who shall have served as a director or
officer of Target or any other member of the Target Group before the Effective
Date to be indemnified by Target or such other member of the Target Group (as
the case may be) in respect of their serving in such capacities before the
Effective Date, save to the extent that such amendment is required by applicable
Law.
42
|
17.
|
Invalidity
|
If
any
provision of this Agreement shall be held to be illegal, void, invalid or
unenforceable under the laws of any jurisdiction, the legality, validity and
enforceability of the remainder of this Agreement in that jurisdiction shall
not
be affected, and the legality, validity and enforceability of the whole of
this
Agreement in any other jurisdiction shall not be affected.
|
18.
|
Notices
|
|
18.1
|
Any
notice or other communication to be given under this Agreement shall
be in
writing, shall be deemed to have been duly served on, given to or
made in
relation to a party if it is left at the authorised address of that
party,
posted by first class mail (or airmail if abroad) addressed to that
party
at such address, or sent by electronic mail to the email address
set out
in sub-clause 18.3 (or such other number as may be notified to the
parties) and shall if:
|
|
(a)
|
personally
delivered, be deemed to have been received at the time of
delivery;
|
|
(b)
|
posted
to an inland address in the United Kingdom, be deemed to have been
received on the second Business Day after the date of posting and
if
posted to an overseas address, be deemed to have been received on
the
fifth Business Day after the date of posting;
or
|
|
(c)
|
sent
by electronic mail, be deemed to have been received upon verbal
confirmation of receipt by the recipient (to the sender) of the electronic
mail,
|
provided
that where, in the case of delivery by hand or electronic mail, delivery or
transmission occurs after 6.00 pm on a Business Day or on a day which is not
a
Business Day, receipt shall be deemed to occur at 9.00 am on the next following
Business Day.
|
18.2
|
For
the purposes of this Clause 18 the authorised address of each party
shall
be the address set out at the head of this Agreement or such other
address
(and details) as that party may notify to the others in writing from
time
to time in accordance with the requirements of this Clause
18.
|
|
18.3
|
Any
notice or other communication will, in the case of service by electronic
mail, be sent to the recipient using the following electronic mail
addresses (or such other electronic mail address as may from time
to time
be notified in writing to the recipient to the sender as being the
recipient’s electronic mail address for service):
|
43
|
Bidco
1:
|
000,
xxxxx xx Xxxxxx
|
|
X-0000
|
|
|
Xxxxxxxxxx
|
|
|
xxxxxxxx.xxxxxx@xxxxxxx.xxx
|
|
|
Attention:
Xxxxxxxx Xxxxxx
|
|
|
with
a copy to:
|
|
|
Permira
Advisers LLP
|
|
|
00
Xxxxxxxxxxx Xxxxxx
|
|
|
Xxxxxx
XX0X0XX
|
|
|
xxx.xxxxxxx@xxxxxxx.xxx
|
|
|
Attention:
Xxx Xxxxxxx
|
|
|
Bidco
2:
|
000,
xxxxx xx Xxxxxx
|
|
X-0000
|
|
|
Xxxxxxxxxx
|
|
|
xxxxxxxx.xxxxxx@xxxxxxx.xxx
|
|
|
Attention:
Xxxxxxxx Xxxxxx
|
|
|
with
a copy to:
|
|
|
Permira
Advisers LLP
|
|
|
00
Xxxxxxxxxxx Xxxxxx
|
|
|
Xxxxxx
XX0X0XX
|
|
|
xxx.xxxxxxx@xxxxxxx.xxx
|
|
|
Attention:
Xxx Xxxxxxx
|
|
|
Target:
|
|
|
Xxx
Xxxxxxxx Xxxxxxxxx
|
|
|
000
Xxxx Xxxx
|
|
|
Xxxx
Xxxxxxx
|
|
|
Xxxxxxxxx
|
|
|
XX0
0XX
|
|
|
xxxxxx@xxx.xxx
|
|
|
Attention:
Ismut Xxxxx
|
|
|
with
a copy to:
|
|
|
Weil,
Gotshal & Xxxxxx
|
|
|
One
Xxxxx Xxxxx
|
|
|
Xxxxxx
|
|
|
XX0X
0XX
|
|
|
xxxxxxx.xxxxxxxx@xxxx.xxx
|
|
|
Attention:
Xxxxxxx Xxxxxxxx
|
|
|
and
to:
|
|
|
Weil,
Gotshal & Xxxxxx
|
|
|
000
Xxxxx Xxxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
xxxxxxxx.xx@xxxx.xxx
|
|
|
xxxxxxxxx.xxxxx@xxxx.xxx
|
|
|
Attention:
Xxxxxxxxx Xxxxx, and Xxxxxxxx
Do
|
44
|
NDS
Finance:
|
NDS
Finance Limited
|
|
Xxx
Xxxxxxxx Xxxxxxxxx
|
|
|
000
Xxxx Xxxx
|
|
|
Xxxx
Xxxxxxx
|
|
|
Xxxxxxxxx
|
|
|
XX0
0XX
|
|
|
xxxxxxxxx@xxx.xxx
|
|
|
Attention:
Xxxxxx Xxxxxxxx
|
|
|
with
a copy to:
|
|
|
Weil,
Gotshal & Xxxxxx
|
|
|
One
Xxxxx Xxxxx
|
|
|
Xxxxxx
|
|
|
XX0X
0XX
|
|
|
xxxxxxx.xxxxxxxx@xxxx.xxx
|
|
|
Attention:
Xxxxxxx Xxxxxxxx
|
|
|
and
to:
|
|
|
Weil,
Gotshal & Xxxxxx
|
|
|
000
Xxxxx Xxxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
xxxxxxxx.xx@xxxx.xxx
|
|
|
xxxxxxxxx.xxxxx@xxxx.xxx
|
|
|
Attention:
Xxxxxxxxx Xxxxx, and Xxxxxxxx Do
|
|
|
News
Corporation:
|
News
Corporation
|
|
0000
Xxxxxx xx Xxxxxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Xxxxxx
Xxxxxx
|
|
|
XXxxx@xxxxxxxx.xxx
|
|
|
XXxxxxx@xxxxxxxx.xxx
|
|
|
Attention:
Group General Counsel
|
|
|
with
a copy to:
|
|
|
Skadden,
Arps, Slate, Xxxxxxx and Xxxx LLP
|
|
|
Xxxx
Xxxxx Xxxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Xxxxxx
Xxxxxx
|
|
|
Xxx.Xxxxx@xxxxxxx.xxx
|
|
|
Xxxxxx.Xxxxx@xxxxxxx.xxx
|
|
|
Attention:
Xxx X. Xxxxx and Xxxxxx X. Xxxxx
|
|
|
and
to:
|
|
|
Skadden,
Arps, Slate, Xxxxxxx and Xxxx (UK) LLP
|
|
|
00
Xxxx Xxxxxx
|
|
|
Xxxxxx
Xxxxx, Xxxxxx
|
|
|
X00
0XX, Xxxxxx Xxxxxxx
|
|
|
United
States
|
|
|
xxxxxxx.xxxxxxxx@xxxxxxx.xxx
|
|
|
xxxx.xxxxxxx@xxxxxxx.xxx
|
|
|
Attention:
Xxxxxxx Xxxxxxxx and Xxxx
Xxxxxxx
|
45
|
NDS
Holdco:
|
NDS
Holdco Inc
|
|
c/o
News Corporation
|
|
|
0000
Xxxxxx xx Xxxxxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Xxxxxx
Xxxxxx
|
|
|
XXxxx@xxxxxxxx.xxx
|
|
|
XXxxxxx@xxxxxxxx.xxx
|
|
|
Attention:
Group General Counsel
|
|
|
with
a copy to:
|
|
|
Skadden,
Arps, Slate, Xxxxxxx and Xxxx LLP
|
|
|
Xxxx
Xxxxx Xxxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Xxxxxx
Xxxxxx
|
|
|
Xxx.Xxxxx@xxxxxxx.xxx
|
|
|
Xxxxxx.Xxxxx@xxxxxxx.xxx
|
|
|
Attention:
Xxx X. Xxxxx and Xxxxxx X. Xxxxx
|
|
|
and
to:
|
|
|
Skadden,
Arps, Slate, Xxxxxxx and Xxxx (UK) LLP
|
|
|
00
Xxxx Xxxxxx
|
|
|
Xxxxxx
Xxxxx, Xxxxxx
|
|
|
X00
0XX, Xxxxxx Xxxxxxx
|
|
|
United
States
|
|
|
xxxxxxx.xxxxxxxx@xxxxxxx.xxx
|
|
|
xxxx.xxxxxxx@xxxxxxx.xxx
|
|
|
Attention:
Xxxxxxx Xxxxxxxx and Xxxx Xxxxxxx
|
|
19.
|
General
|
|
19.1
|
Save
where expressly provided, the obligations of each party are several
in
respect of itself only and not joint and several. Each of the parties
shall, and shall use all reasonable efforts to procure that any other
person shall, do and execute and perform all such further deeds,
documents, assurances, acts and things as may reasonably be required
to
give effect to such party’s obligations under this
Agreement.
|
|
19.2
|
No
person who is not a party to this Agreement shall have any rights
under
the Contracts (Right of Third Parties) Xxx 0000 to enforce any term
of
this Agreement.
|
|
19.3
|
This
Agreement may be executed in any number of counterparts but shall
not be
effective until each party has executed at least one counterpart.
Each
counterpart when executed and delivered shall be an original, but
all of
which when taken together shall constitute a single
instrument.
|
|
19.4
|
No
delay or omission by any party to this Agreement in exercising any
right,
power or remedy provided by Law or under this Agreement shall affect
that
right, power or remedy or operate as a waiver of it. The single or
partial
exercise of any right, power or remedy provided by Law or under this
Agreement shall not preclude any other or further exercise of it
or the
exercise of any other right, power or
remedy.
|
46
|
19.5
|
Nothing
in this Agreement and no action taken by the parties under this Agreement
shall constitute a partnership, association, joint venture or other
co-operative entity between the
parties.
|
|
19.6
|
A
variation of this Agreement is valid only if it is in writing and
signed
by or on behalf of each party.
|
|
19.7
|
The
invalidity, illegality or unenforceability of a provision of this
Agreement does not affect or impair the continuation in force of
the
remainder of this Agreement.
|
|
19.8
|
If
any provision of this Agreement (or party of any provision) is found
by
any court or other authority of competent jurisdiction to be invalid,
illegal or unenforceable, that provision or part-provision shall,
to the
extent required, be deemed not to form part of this Agreement, and
the
validity and enforceability of the other provisions of this Agreement
shall not be affected.
|
|
19.9
|
Each
party acknowledges that in entering into this Agreement it is not
relying
upon any pre-contractual statement that is not set out in this
Agreement.
|
|
19.10
|
No
party shall have any right of action against any other party to this
Agreement arising out of or in connection with any pre-contractual
statement except to the extent that it is repeated in this Agreement.
Nothing in this Clause 19
shall limit the liability of any party in respect of
fraud.
|
|
19.11
|
For
the purposes of this Clause 19,
"pre-contractual
statement"
means any draft, agreement, undertaking, representation, warranty,
promise, assurance or arrangement of any nature whatsoever, whether
or not
in writing, relating to the subject matter of this Agreement made
or given
by any person at any time before the date of this Agreement and this
Agreement shall be deemed to refer to this Agreement any other agreement
or arrangement entered into in connection with this Agreement and
the
confidentiality agreement entered into between Permira Advisers LLP,
News
Corporation and Target.
|
|
19.12
|
For
the avoidance of doubt, solely for US federal income tax purposes,
the
parties agree that (i) the transactions contemplated by sub-clause
4.1
shall be treated as a part-sale (to the extent of the Bidco Cash
Consideration) and a part-cancellation (to the extent of the A Share
Distribution) such that taken together the Scheme Shares are completely
cancelled and (ii) the News Distribution shall be treated as a payment
by
Target in redemption of certain B Shares held by NDS
Holdco.
|
|
20.
|
Service
of process
|
|
20.1
|
Each
of the Bidcos irrevocably appoints Xxxxxxxx Chance Secretaries Limited
of
00 Xxxxx Xxxx Xxxxxx, Xxxxxx, X00 0XX Xxxxxx Xxxxxxx, as its agent
under
this Agreement for service of process in any proceedings before the
English courts in connection with the
Transactions.
|
47
|
20.2
|
Each
of News Corporation and NDS Holdco irrevocably appoints News International
Limited of 0 Xxxxxxxx Xxxxxx, Xxxxxx, X00 0XX Xxxxxx Xxxxxxx, as
its agent
under this Agreement for service of process in any proceedings before
the
English courts in connection with the
Transactions.
|
|
20.3
|
If
any person appointed as process agent under this clause 20 is unable
for
any reason to so act, the appointer of that process agent must, within
10
Business Days of such event taking place, appoint another agent on
terms
acceptable to the other parties to this Agreement (acting
reasonably).
|
|
20.4
|
The
parties agree that failure by a process agent to notify its principal
of
any process will not invalidate the relevant
proceedings.
|
|
20.5
|
This
clause 20
does not affect any other method of service allowed by
law.
|
|
21.
|
Governing
Law
|
|
21.1
|
This
Agreement (together with all documents to be entered into pursuant
to it
which are not expressed to be governed by another law) shall be governed
by, construed and take effect in accordance with English
law.
|
|
21.2
|
The
courts of England shall have exclusive jurisdiction to settle any
claim,
legal action proceedings, dispute or matter of difference which may
arise
out of or in connection with this Agreement (including without limitation
claims for set-off or counterclaim) or the legal relationships established
by this Agreement (“Proceedings”),
and each of the parties irrevocably submits to such jurisdiction
and
waives any objection to any Proceedings in such courts or on the
grounds
of venue or on the grounds that Proceedings have been brought in
an
inappropriate forum.
|
48
AS
WITNESS WHEREOF the
hands
of the parties or their duly authorised representatives the day and year first
above written.
|
)
|
|
|
Nuclobel
Lux 1 S.àr.l
|
)
|
|
SIGNED
by
|
)
|
|
Nuclobel
Lux 2 S.àr.l
|
)
|
|
SIGNED
by
|
)
|
|
)
|
|
|
SIGNED
by
|
)
|
|
NDS
Finance Limited
|
)
|
|
SIGNED
by
|
)
|
|
News
Corporation
|
)
|
|
SIGNED
by
|
)
|
|
)
|
49
SCHEDULE
I
ANNOUNCEMENT
50
SCHEDULE
II
TARGET
SHARE SCHEMES
| 1. |
The
parties agree that, to the maximum extent possible, participants
in the
Target Share Schemes should be able to participate in the Scheme
on the
same basis as the A Shareholders.
|
| 2. |
To
give effect to the above, all awards/options outstanding under the
Target
Share Schemes will vest and/or become exercisable in order to participate
in the Scheme. Provided the arrangements set out in paragraph 3 of
this
Schedule II are implemented, all such awards/options will vest and/or
become exercisable on the First Court Order. This will enable participants
whose awards vest and/or who exercise their options at that time
to
participate in the A Share Distribution in respect of the A Shares
acquired by them under the Target Share Schemes. Options will then
lapse
to the extent not exercised very shortly after the First Court Order
is
registered.
|
| 3. |
To
optimise the tax position of participants in the Target Share Schemes
and
ensure that they are not disadvantaged from a tax perspective, the
parties
agree that, as an alternative to participating in the Scheme, participants
will be given the opportunity but will not be obliged to sell their
A
Shares to a special purpose vehicle before the Scheme Record Time.
Participants will be able to participate in the Scheme if they wish
to do
so. The parties agree that Target will (either directly or indirectly)
bear the stamp duty cost on the sale of any A shares by a participant
to
the specified third party.
|
| 4. |
The
parties agree that to achieve the above certain changes will be needed
to
the rules of the Target Share Schemes. The parties agree that, for
the
reasons given above (specifically, to allow participants to participate
in
the Scheme and to improve their tax position), the changes will be
beneficial to participants and will not require their approval.
|
| 5. |
Target
agrees to prepare, in a form to be agreed between Target, News Corporation
and the Bidcos, proposal letters to each of the participants in the
Target
Share Schemes explaining the effect of the Scheme on their outstanding
options and awards and outlining the choices available to them. Such
letters are intended to be posted as soon as practicable after the
posting
of the Circular and will be accompanied by conditional exercise notices
and any other documentation required to enable participants in the
Target
Share Schemes to exercise their outstanding options conditionally
upon the
First Court Order and transfer their A Shares to the special purpose
vehicle. Participants will be given a significant period in which
to
decide how best to deal with their options in light of the Scheme
and the
choices that are being made available to them.
|
| 6. |
Target
and the Bidcos agree that participants exercising share options under
the
Target Share Schemes conditionally on the First Court Order will
be
offered the opportunity to exercise their options with the benefit
of a
cashless exercise facility under which the exercise price will be
deducted
from the consideration due to them on disposal of the A Shares acquired
by
them on the exercise of their options and will be paid to Target
on their
behalf.
|
| 7. |
Notwithstanding
any other provision of this Agreement, Target undertakes to ensure
that no
options or awards are granted under any of the Target Share Schemes
or any
other employee share schemes operated by Target or any member of
the
Target Group from the date of this Agreement without seeking prior
approval from the other parties to this
Agreement.
|
51
| 8. |
It
is understood by the parties that any matter referred to in this
Schedule
II which applies to the Approved Scheme is subject to the approval
of Her
Majesty's Revenue and Customs ("HMRC")
and Target agrees to prepare, in a form to be agreed between Target
and
the Bidcos, the relevant application(s) to HMRC in relation to such
approval.
|
52
SCHEDULE
III
TARGET
OPERATING COMPANIES
Orbis
Technology Limited
NT
Media
Limited
NDS
Limited
NDS
Technologies France S.A.S.
SVPLA
LLC
NDS
Services Pay-TV Technology Private Limited
NDS
Beijing Information Technology Co
Digi-Media
Vision Limited
News
Datacom Limited
NDS
Technologies Israel Limited
NDS
Asia
Pacific Pty Limited
NDS
Asia
Pacific Limited
NDS
Marketing Israel Limited
NDS
Americas Inc.
CastUp
Inc.
CastUp
Israel Limited
NDS
Denmark Holding A/S
NDS
Denmark ApS
NDS
Holdings B.V.
NDS
Sweden XX
Xxxxx
Limited
Jungo
Software Technologies Inc.
NDS
Amerisub LLC
53
SCHEDULE
IV
EXHAUSTIVE
LIST OF APPLICABLE CITY CODE PROVISIONS
The
following list is exhaustive and operates subject to the provisions of
sub-clause 3.17.
|
City
Code Rule
|
Comment
|
|
Rule
3.1
|
The
Independent Committee is to obtain independent advice on the Scheme
Proposal and to make the substance of such advice known to the A
Shareholders and option holders. The Independent Committee is to
determine
the independence of the adviser.
|
|
Rule
13.1
|
The
Scheme Proposal is to be subject to the Conditions
|
|
Rule
13.4
|
See
sub-clause 3.18
|
54
SCHEDULE
V
CONDITIONS
The
Scheme will be conditional upon the following having occurred prior to the
Long
Stop Date:
| 1. |
the
approval
of the Scheme by a majority in number of the Scheme Shareholders
entitled
to vote and present and voting, either in person or by proxy, at
the Court
Meeting or at any adjournment of such meeting and the votes cast
at such
meeting in favour of the Scheme representing three-fourths or more
of the
total votes cast at such
meeting;
|
| 2. |
all
resolutions necessary to approve and implement the Scheme as set
out in
the notice of the Extraordinary General Meeting in the Circular being
duly
passed by the requisite majority at the Extraordinary General Meeting
or
at any adjournment of that meeting and not subsequently being revoked;
|
| 3. |
the
sanction (without modification or with modification as agreed by
the
Bidcos, News Corporation and Target) of the Scheme and the confirmation
of
the capital reductions involved therein by the
Court;
|
| 4. |
the
NDS Finance Capital Reduction having become effective in accordance
with
its terms prior to the date of the First Court
Hearing;
|
| 5. |
the
delivery of an office copy of the First Court Order relating to the
Scheme
and the attached minute of the capital reduction involved therein
to the
Registrar; and
|
| 6. |
the
delivery of an office copy of the Second Court Order and the attached
minute of the capital reductions involved therein to the
Registrar.
|
In
addition, the Bidcos, News Corporation and Target have agreed that the Scheme
will also be conditional upon the following Conditions, and, accordingly, the
necessary actions to make the Scheme effective including the delivery of an
office copy of the Second Court Order to the Registrar, will not be taken unless
such Conditions (as amended if appropriate) have been satisfied (and continue
to
be satisfied pending the commencement of the Second Court Hearing) or
waived:
| 7. |
the
European Commission having issued a decision under Article 6(1)(b)
or 8(1)
or 8(2) of Council Merger Regulation (EC) 139/2004 (or having been
deemed
to have done so under Article 10(6) of Council Regulation (EC) 139/2004)
declaring the Acquisition or any matter arising from or relating
to the
Acquisition or the Bidco Group’s involvement in the Acquisition compatible
with the EC Common Market;
|
55
| 8. |
an
unconditional approval of the Acquisition, or an approval with conditions
or obligations as are deemed satisfactory to the Bidcos and News
Corporation pursuant to this Agreement, has been given by the relevant
controller pursuant to the Israeli Restrictive Business Practices
Law 5748
- 1988, and such approval is in full force and
effect;
|
| 9. |
since
30 June 2008 and except as publicly announced by Target prior to
the date
of the Announcement or as otherwise disclosed prior to the date of
the
Announcement to the Bidcos and News Corporation or their advisers
by or on
behalf of Target there having been no adverse change or deterioration
in
the business, assets, financial or trading position or profits or
operational performance of any member of the Target Group to an extent
which is material in the context of the Wider Target Group taken
as a
whole;
|
| 10. |
the
Internal Revenue Service's having issued a letter ruling to News
Corporation substantially to the effect that the receipt of cash
by News
Corporation pursuant to the Scheme is not essentially equivalent
to a
dividend under Section 302(b)(1) of the Internal Revenue Code of
1986, as
amended;
|
| 11. |
In
the reasonable good faith judgment of News Corporation, there is
not a
reasonable likelihood that Target would be a “controlled foreign
corporation” within the meaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Internal Revenue Code of 1986, as amended, immediately following
the
Scheme becoming Effective, and News Corporation having received,
immediately prior to the Second Court Hearing, a certificate dated
as of
such date of delivery (collectively the “CFC
Certificates”)
from each of the Bidcos pursuant to the Bidcos’ obligations in accordance
with this Agreement confirming that none of Bidco 1, Bidco 2, any
shareholder of either of the Bidcos, or any person who, to the best
knowledge of Bidco 1 and Bidco 2, would be considered as indirectly
or
constructively owning under section 958 of the United States Internal
Revenue Code of 1986, as amended, any equity interests in Target
owned by
a Bidco will be a "U.S. shareholder" of Target as defined in Section
951(b) of the United States Internal Revenue Code of 1986, as amended,
immediately following the Scheme becoming
Effective;
|
| 12. |
no
Third Party having intervened in any way or announced, instituted,
implemented or threatened any action, proceeding, investigation,
enquiry,
or enacted, made or proposed any statute, regulation, decision or
order
which might reasonably be expected to (in any case to an extent which
is
material in the context of the Wider Target Group taken as a whole)
make
the Scheme or its implementation void, unenforceable and/or illegal
in any
jurisdiction or otherwise directly or indirectly restrain, restrict,
prohibit, prevent, delay or otherwise interfere therewith or with
the
implementation thereof, or impose additional conditions or obligations
with respect thereto, or require amendment to the terms of the Scheme
or
the proposed acquisition of any shares or securities in Target, or
the
acquisition of control of Target by the Bidcos; and all applicable
waiting
and other time periods during which any such Third Party could institute,
implement or threaten any action, proceeding, investigation, enquiry,
suit
or reference or any other step under the laws of any relevant jurisdiction
in respect of the Acquisition or the acquisition or proposed acquisition
of any shares or other securities in, or control of, Target or any
other
member of the Wider Target Group by the Bidcos having expired, lapsed
or
terminated;
|
56
13.
|
(a)
|
Target
having received the NDS Finance Dividend and dividends paid to Target
by
other members of the Target Group pursuant to this Agreement (and
documents referred to herein), and Target thereby having available
to it
by no later than the commencement of the Second Court Hearing, including,
without limitation, as a result of the receipt by Target of the NDS
Finance Dividend and of such dividends paid to Target by other members
of
the Target Group sufficient distributable profits (as defined in
section
181 of the Companies Act 1985) to enable it to lawfully declare and
pay,
in accordance with the requirements of the
Scheme:
|
|
(i)
|
the
A Share Distribution; and
|
|
(ii)
|
the
News Distribution, including the issue of the News Loan Note;
and
|
|
(b)
|
at
all times from the granting by the Court of the First Court Order
to the
commencement of the Second Court Hearing, the members of the Target
Group
having not less than $724.9 million in cash in aggregate (excluding
any
cash which is not freely remittable to Target by way of loan or otherwise)
and, for the avoidance of doubt, excluding any amounts drawn down
or
available under the Debt Facilities, any cash proceeds arising from
the
exercise of awards and options under the Target Share Schemes and
any cash
received in relation to any subscription of shares in the capital
of
Target pursuant to the Management Investment
Agreement.
|
14.this
Agreement not having been terminated by the parties in accordance with its
terms.
For
the
purposes of these Conditions:
| (a) |
“publicly
announced”
means disclosed in (i) NDS’s annual report on form 10-K, filed with the
SEC on 8 August 2008; or (ii) otherwise publicly announced on or
before
the date of this announcement by Target;
|
| (b) |
“Third
Party”
means any government, governmental or quasi governmental, supranational,
statutory, regulatory, environmental, administrative, fiscal or
investigative body, court, trade agency, association, institution,
body
corporate, or any other body, entity or person whatsoever in any
jurisdiction; and
|
57
| (c) |
“the
Wider
Target Group”
means Target and its subsidiary undertakings, associated undertakings
and
any other undertakings in which Target and such undertakings (aggregating
their interests) have a substantial interest, the “Target
Group”
means Target and its subsidiaries, subsidiary undertakings and holding
companies and the subsidiaries and subsidiary undertakings of any
such
holding company. For these purposes, “subsidiary
undertaking”,
“associated
undertaking”
and “undertaking”
have the meanings given by the Companies Xxx 0000 (but for this purpose
ignoring paragraph 20(1)(b) of Schedule 4A to the Companies Act 1985)
and
“substantial
interest”
means a direct or indirect interest in 20 per cent. or more of the
voting
or equity capital or the equivalent of an
undertaking.
|
The
Bidcos and News Corporation, each in its absolute discretion, reserve the right
to jointly waive all or any of Conditions 7, 8, 9 and 12 in whole or in part.
The Bidcos and News Corporation, each in its absolute discretion, reserve the
right to jointly waive Condition 13 in whole or in part, subject only to the
consent of Target, such consent not to be unreasonably withheld, rendered
subject to conditions, or delayed. News Corporation reserves the right to waive
Conditions 10 and 11, in whole or in part, in its absolute discretion, and
Conditions 10 and 11 are for the benefit of News Corporation only and may only
be waived by News Corporation. For the avoidance of doubt, Conditions 1 to
6
(inclusive) cannot be waived by any party.
The
Acquisition will lapse and the Scheme will not proceed unless all the above
Conditions are fulfilled or (if capable of waiver) waived or, where appropriate,
determined by the Bidcos and News Corporation to have been satisfied or to
remain satisfied prior to the commencement of the Second Court Hearing. Neither
the Bidcos nor News Corporation shall be under any obligation to waive or treat
as fulfilled any of Conditions 7 to 13 (inclusive, and as relevant) above by
a
date earlier than the Long Stop Date notwithstanding that the other Conditions
may at such earlier date have been waived or fulfilled and that there are at
such earlier date no circumstances indicating that any of such Conditions may
not be capable of fulfilment.
However,
neither of the Bidcos nor News Corporation (where relevant) shall invoke any
of
the Conditions (other than the Fundamental Conditions) so as to cause the Scheme
not to proceed or to lapse or be withdrawn without the agreement of News
Corporation, the Bidcos and Target or where in analogous circumstances it would
not be permitted to do so by the City Code as implemented by the Panel, insofar
as it is applied pursuant to this Agreement, in particular, but without
limitation, by reference to the Panel’s application of Rule 13.4 of the City
Code and statements and rulings of the Panel in respect of that Rule.
The
Scheme will not proceed if the European Commission initiates proceedings under
Article 6(1)(c) of Council Regulation (EC) 139/2004 or the Acquisition is
referred to the Competition Commission before the date of the Court Meeting.
58
The
Acquisition and the Scheme are governed by English law and are subject to the
jurisdiction of the English courts, to the Conditions set out above and the
further terms set out in the Announcement and to be set out in the
Circular.
59
SCHEDULE
VI
MATERIAL
AGREEMENTS – CLAUSE 7.2(b)
|
Agreement
|
Date
|
|
|
BSkyB
Conditional Access Agreement
|
31
November 1999
|
|
|
BSkyB
First Amendment to the Conditional Access Agreement
|
5
August 2002
|
|
|
BSkyB
Second Amendment to the Conditional Access Agreement
|
11
April 2003
|
|
|
BSkyB
Third Amendment to the Conditional Access Agreement
|
31
October 2003
|
|
|
BSkyB
Fourth Amendment to the Conditional Access Agreement
|
30
September 2004
|
|
|
BSkyB
Fifth Amendment to the Conditional Access Agreement
|
20
June 2005
|
|
|
BSkyB
Sixth Amendment to the Conditional Access Agreement
|
Undated
|
|
|
BSkyB
Development Resource Framework Agreement re XTV
|
1
August 2005
|
|
|
BSkyB
Memorandum of Understanding re EPG Licence
|
3
April 2000
|
|
|
BSkyB
Addendum to EPG Licence Memorandum of Understanding
|
1
August 2005
|
|
|
|
||
|
Premiere
Integration, Supply and Licence Agreement
|
29
March 2006
|
|
|
Premiere
Integration, Supply and Licence Agreement Schedule 1 Pricing and
Payment
|
29
March 2006
|
|
|
Premiere
Integration, Supply and Licence Agreement Schedule 6
Exclusivity
|
29
March 2006
|
|
|
Premiere
Conditional Access Software Memorandum of Understanding
|
31
March 2008
|
|
|
Side
Letter
|
31
March 2008
|
|
|
Memorandum
of Understanding Confirmation Letter
|
10
April 2008
|
60
|
Sky
Brazil (Netsat) System Implementation and Licence
Agreement
|
11
July 1996
|
|
|
Sky
Brazil (Netsat) Schedule H re Pricing and Payment Plan to System
Implementation and Licence Agreement
|
11
July 1996
|
|
|
Sky
Brazil (Netsat) System Implementation and Licence Agreement
Amendment
|
3
December 1996
|
|
|
Sky
Brazil (Netsat) System Implementation and Licence Agreement
Amendment
|
1
November 2003
|
|
|
Amendment
to the Sky Brazil (Netsat) System Implementation and Licence
Agreement
|
1
July 2005
|
|
|
Sky
Brazil (Netsat) System Implementation and Licence Agreement
Amendment
|
1
April 2007
|
|
|
Sky
Brazil (Netsat) System Implementation and Licence Agreement
Amendment
|
28
September 2007
|
|
|
Sky
Brazil Conditional Access pricing term sheet
|
17
December 2007
|
|
|
Schedule
I to the Sky Brazil (Netsat) System Implementation and Licence
Agreement
|
11
July 1996
|
|
|
|
||
|
Sky
Italia Agreement for the Supply of NDS Conditional Access System,
Products
and Integration Services
|
3
April 2000
|
|
|
Sky
Italia Conditional Access Supply and Services Amendment
Agreement
|
10
November 2004
|
|
|
Sky
Italia Amendment Agreement No. 2 to the 10 November 2004 Amendment
Agreement
|
1
July 2005
|
|
|
Sky
Italia Amendment Agreement No. 3 re IRD Resource
Allocation
|
8
August 2005
|
|
|
Sky
Italia Addendum to Amendment Agreement No. 3 re IRD Resource
Allocation
|
1
November 2005
|
|
|
Sky
Italia Amendment Agreement No. 4 re Dedicated Management
Resource
|
8
August 2005
|
|
|
Sky
Italia Amendment Agreement No.5 to the 10 November 2004 Amendment
Agreement
|
18
November 2005
|
|
|
Sky
Italia Amendment Agreement No. 6 re P4 Viewing Cards
|
27
July 2007
|
|
|
Sky
Italia Supplement Schedule 4(A) re Extended Simulcrypt Project
Scope and
Timetable
|
5
July 2001
|
|
|
Sky
Italia Supplement Schedule 4(B) re Cable Simulcrypt Project Scope
and
Timetable
|
5
July 2001
|
61
|
Sky
Italia Supplement Schedule 4(C) re Phase II Project Scope and
Timetable
|
3
January 2003
|
|
|
Sky
Italia Supplement Schedule 4(D) re iVideoguard Project
|
21
March 2005
|
|
|
Sky
Italia Amendment to Supplement Schedule 4(D)
|
30
January 2006
|
|
|
Sky
Italia Supplement Schedule 4(F) re XTV
|
1
February 2005
|
|
|
Sky
Italia Conditional Access Supply and Services Amendment Agreement
for the
provision of a viewing card enclosing service
|
5
June 2003
|
|
|
Sky
Italia Indemnity
|
18
July 2007
|
|
|
|
||
|
Sky
Mexico (Innova) System Implementation and Licence
Agreement
|
20
September 1996
|
|
|
Sky
Mexico (Innova) Amendment to XXXX
|
29
February 2000
|
|
|
Sky
Mexico (Innova) Support and Maintenance Amendment to XXXX
|
1
May 1999
|
|
|
Sky
Mexico (Innova) Amendment to XXXX
|
30
April 2003
|
|
|
Sky
Mexico (Innova) Term Sheet Proposal re Conditional Access, MW and
Viewing
Card Pricing
|
20
September 2005
|
|
|
Schedule
I to the Sky Mexico (Innova) System Implementation and Licence
Agreement
|
20
September 1996
|
|
|
|
||
|
Sky
NZ Supply Agreement for the Mommy Bear Product, Smart Cards for
the
Digital System and Videocrypt and Services
|
30
September 1998
|
|
|
Sky
NZ Extended Warranty and Support Agreement
|
30
September 1998
|
|
|
Sky
NZ Term Sheet for ongoing support services
|
2
September 2003
|
|
|
Sky
NZ Interactive System and Interactive Application Licence
Agreement
|
29
June 2004
|
|
|
Sky
NZ Extension of Maintenance and Support
|
17
December 2004
|
|
|
Sky
NZ Change Control Note for Platform Upgrade and XTV PVR
System
|
27
October 2005
|
62
|
Space
TV (Tata) Licence Agreement for conditional access software and
services
|
22
December 2005
|
|
|
Space
TV (Tata) Agreement for the supply of Viewing Cards and Conditional
Access
Modules
|
22
December 2005
|
|
|
Space
TV (Tata) Support Service Agreement
|
22
December 2005
|
|
|
Space
TV (Tata) STB Support and Security Service Agreement
|
22
December 2005
|
|
|
Space
TV (Tata) First Amendment to the Licence Agreement
|
2
February 2007
|
|
|
Space
TV (Tata) Second Amendment to the Licence Agreement
|
April
2007
|
|
|
Space
TV (Tata) First Amendment to the STB Support and Security Service
Agreement
|
17
August 2006
|
|
|
Space
TV (Tata) Second Amendment to the STB Support and Security Service
Agreement
|
Undated
|
|
|
Space
TV (Tata) Third Amendment to the STB Support and Security Service
Agreement
|
Undated
|
|
|
|
||
|
Foxtel
Digital System Agreement
|
18
December 2003
|
|
|
Schedule
17 to the Foxtel Digital System Agreement
|
18
December 2003
|
|
|
|
||
|
News
Media Sales Agency Agreement
|
2
February 2007
|
|
|
News
Media Sales Agency Agreement Amendment
|
1
August 2007
|
|
|
|
||
|
News
Corp Master Intercompany Agreement
|
November
1999
|
|
|
News
Corp Revolving Credit Facility Agreement
|
12
November 1996
|
63
