Exhibit 10.17
NTL AUSTRALIA
SHARE SALE AGREEMENT
NATIONAL TRANSCOMMUNICATIONS SPAIN S.L.
(NTL SPAIN)
NTL AUSTRALIA SPV, INC.
(SPV)
NTL INCORPORATED
(VENDOR GUARANTOR)
MACQUARIE COMMUNICATIONS INFRASTRUCTURE HOLDINGS
PTY LIMITED
(PURCHASER)
SHARE SALE AGREEMENT
relating to shares in ntl Belgium Sprl
NTL AUSTRALIA
SHARE SALE AGREEMENT
TABLE OF CONTENTS
1. DEFINITIONS............................................. 1
2. CONDITIONS.............................................. 7
3. SALE AND PURCHASE....................................... 9
4. PURCHASE PRICE.......................................... 10
5. COMPLETION.............................................. 12
6. COMPLETION ACCOUNTS..................................... 15
7. OBLIGATIONS PRIOR TO COMPLETION......................... 16
8. RELEASE OF VENDOR GROUP GUARANTEES...................... 19
9. WARRANTIES BY NTL SPAIN................................. 19
10. USE OF ntl NAME AND LOGO................................ 26
11. POST COMPLETION ARRANGEMENTS............................ 26
12. POST COMPLETION TAX MATTERS............................. 28
13. CAPACITY................................................ 29
14. PROTECTION OF GOODWILL.................................. 29
15. CONFIDENTIALITY......................................... 31
16. ANNOUNCEMENTS........................................... 32
17. TERMINATION............................................. 33
18. GOODS AND SERVICES TAX.................................. 34
19. ASSIGNMENT.............................................. 35
20. WAIVER.................................................. 35
21. NOTICES................................................. 36
22. GENERAL................................................. 37
23. GOVERNING LAW........................................... 39
24. VENDOR GUARANTOR'S GUARANTEE............................ 40
25. INTERPRETATION.......................................... 43
SCHEDULE 1 ........................................................ 47
SCHEDULE 2 ........................................................ 52
SCHEDULE 3 ........................................................ 53
SCHEDULE 4 ........................................................ 74
SCHEDULE 5 ........................................................ 77
NTL AUSTRALIA
SHARE SALE AGREEMENT
SHARE SALE AGREEMENT
AGREEMENT dated 22 February 2002
BETWEEN NATIONAL TRANSCOMMUNICATIONS SPAIN S.L. of Avda. Alcalde Xxxx Xxxxxxx
Xxxxxxxxxxx, 6(a), 00000, Xxx Xxxxxx xx Xxxx Xxxxxxx, Xxx Xxxxxx,
Xxxxx (NTL SPAIN)
AND NTL AUSTRALIA SPV, INC., a company incorporated in the State of
Delaware whose principal office is at 000 Xxxx 00xx Xxxxxx, 00xx
xxxxx, Xxx Xxxx, XX 00000, XXX (SPV)
AND MACQUARIE COMMUNICATIONS INFRASTRUCTURE HOLDINGS PTY LIMITED ACN 099
653 068 incorporated in Australia of No. 0 Xxxxxx Xxxxx, Xxxxxx XXX
0000, Xxxxxxxxx (PURCHASER)
AND NTL INCORPORATED, (a company incorporated in the State of Delaware)
of 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, XXX (VENDOR
GUARANTOR)
RECITALS
A. The Shares are legally and beneficially owned by the Vendors.
B. The Vendors have agreed to sell and the Purchaser has agreed to
purchase the Shares on the terms and conditions set out in this
agreement.
C. The Vendor Guarantor is the ultimate holding company of the Vendors
and has agreed to guarantee the obligations of the Vendors under this
agreement.
AGREEMENT
1. DEFINITIONS
In this agreement:
ACCOUNTS means the consolidated statement of financial position of
NTLA Holdings as at the Accounts Date and the consolidated statement
of financial performance and consolidated statement of cash flows of
NTLA Holdings for the year ending on the Accounts Date together with
the notes to, and the report of the directors in respect of, those
statements, (the audit opinion for which will be signed prior to
Completion) a true copy of which comprises ANNEXURE A;
ACCOUNTS DATE means 31 December 2001;
ADMINISTRATIVE PROPERTIES means the premises used by the Target Group
at 000 Xxxxxxx Xxxxxxx, Xx Xxxxxxxx, XXX, Xxxxxxxxx and Blue
Building, Xxxxxxxx Offices, Belconnen, ACT, Australia;
NTL AUSTRALIA
SHARE SALE AGREEMENT
ANNOUNCEMENT means the announcement in the approved terms relating to
the Transaction;
AUDITORS means Ernst & Young;
BANK FACILITY means the senior secured credit facilities under the
subscription agreement dated 30 March 2001 between NTLA, Chase
Securities Australia Limited, Chase Capital Markets Fiduciary
Services Australia Limited and others;
BANK FACILITY REDEMPTION AMOUNT means the amount that would be
required to be paid in order to repay in full all amounts outstanding
as at Completion under the Bank Facility;
BELGIAN ACCOUNTS means the balance sheet of the Company as at the
Accounts Date and the profit and loss account of the Company for the
year ending on the Accounts Date, a true copy of which comprises
ANNEXURE B;
BUSINESS means the businesses carried on by the Target Group as at
the date of this agreement;
BUSINESS DAY means a day on which banks (as defined in the Banking
Xxx 0000 (Cth)) are open for general banking business in New South
Wales, excluding Saturday's and Sundays;
CARRIER LICENCE means a carrier licence issued in accordance with the
Telecommunications Xxx 0000;
CLAIM includes a claim, notice, demand, action, proceeding,
litigation, investigation, judgment, damage, loss, cost, expense or
liability however arising, whether present, unascertained, immediate,
future or contingent, whether based in contract, tort or statute and
whether involving a third party or a party to this agreement;
COMPANY means ntl Belgium Sprl (a company incorporated in Belgium);
COMPLETION means completion of the sale and purchase of the Shares as
contemplated by this agreement;
COMPLETION ACCOUNTS means the audited consolidated balance sheet of
NTLA Holdings as at close of business on the Completion Date and the
audited consolidated statement of financial performance of NTLA
Holdings for the period from 1 January 2002 until the Completion
Date, to be prepared and agreed or determined in accordance with
CLAUSE 6;
COMPLETION DATE means the day on which Completion occurs;
CONDITIONS means the conditions set out in CLAUSE 2.1;
CONFIDENTIAL INFORMATION means:
(a) all information of, used by, related to or connected with
the Business, any Target Group Company, SPT or their
respective transactions, operations and affairs (including
the Records);
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SHARE SALE AGREEMENT
(b) all other information treated by any Target Group Company
or SPT as confidential;
(c) all notes, data, reports and other records (whether or not
in tangible form) based on, incorporating or derived from
information referred to in PARAGRAPHS (a) or (b); and
(d) all copies (whether or not in tangible form) of the
information, notes, reports and records referred to in
PARAGRAPHS (a), (b) or (c),
that is not public knowledge (otherwise than as a result of a breach
of a confidentiality obligation of a party);
CONTAMINANT means a solid, liquid or gaseous substance, odour, heat,
sound, vibration or radiation which is or may be:
(a) noxious or poisonous or offensive to the senses of human
beings;
(b) harmful or potentially harmful to the health, welfare,
safety or property of human beings;
(c) poisonous, harmful, or potentially harmful to animals or
plants; or
(d) detrimental to any beneficial use made of the Environment;
DATA ROOM DOCUMENTS means documentation relating to SPT, the Target
Group and the Business which has, prior to execution of this
agreement, been delivered to the Purchaser's solicitors;
DEFERRED AMOUNT means $20 million, as reduced from time to time in
accordance with CLAUSE 4.4 (provided that such amount may not be a
negative number);
DELAY PERIOD means the number of days (if any) the Completion Date is
after 28 February 2002;
DETERMINATION DATE means the fifth Business Day after the date on
which the Completion Accounts and the Net Assets Amount become final
and binding on the parties under this agreement;
DISCLOSURE LETTER means the letter from the Warrantor to the
Purchaser dated the date of this agreement containing disclosures
against the Warranties;
ENCUMBRANCE means mortgage, charge, lien, restriction against
transfer, encumbrance and other third party interest;
ENVIRONMENT means the physical factors of the surrounds of human
beings including the land, waters, atmosphere, climate, sound,
odours, place, the biological factors of animal and plant and the
social factors of aesthetics;
ENVIRONMENTAL AUTHORISATION means any authorisation, approval,
permit, licence or authority issued pursuant to an Environmental Law;
ENVIRONMENTAL LAW means a law regulating or otherwise relating to the
Environment including, without limitation, land use, planning,
pollution of the atmosphere, water or
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SHARE SALE AGREEMENT
land waste, the storage and handling of chemicals, Hazardous
Substances, or any other aspect of the protection of the Environment;
FUNDS means the funds listed in Attachment 5 to the Disclosure
Letter;
GAAP means Accounting Standards, other authoritative pronouncements
of the Australian Accounting Standards Board, Urgent Issues Group
Consensus Views and the Corporations Xxx 0000 applicable to general
purpose financial reports;
GOVERNMENTAL AUTHORITY includes any governmental, semi-governmental,
municipal or statutory authority, instrumentality, organisation, body
or delegate (including without limitation any town planning or
development authority, public utility, environmental, building,
health, safety or other body or authority) having jurisdiction,
authority or power over or in respect of SPT, any Target Group
Company or the Business;
GUARANTEED MONEYS means all debts and monetary liabilities of the
Vendors to the Purchaser, the Company, any Target Group Company or
SPT under or in relation to this agreement and in any capacity,
irrespective of whether the liabilities:
(a) are present or future;
(b) are actual or contingent;
(c) are ascertained or unascertained;
(d) are owed or incurred by or on account of either Vendor
alone, or severally or jointly with any other person;
(e) are owed or incurred to or for the account of the
Purchaser alone, or severally or jointly with any other
person;
(f) are owed or incurred as principal, interest, fees,
charges, Taxes, damages (whether for breach of contract or
tort or incurred on any other ground), losses, costs,
expenses or on any other account; or
(g) comprise any combination of the above;
HAZARDOUS SUBSTANCE means any substance which is, or may be
hazardous, toxic, dangerous or polluting or which is regulated by any
Environmental Law;
INDEPENDENT ACCOUNTANT means a chartered accountant or firm of
chartered accountants appointed under CLAUSE 6.6(d);
INITIAL PURCHASE PRICE means $850,000,000 less:
(a) the SPV Inter-Company Debt Amount;
(b) the UK Inter-Company Debt Amount; and
(c) the Bank Facility Redemption Amount;
INTELLECTUAL PROPERTY RIGHTS means all intellectual property and
proprietary rights (whether registered or unregistered) including:
(a) business names;
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SHARE SALE AGREEMENT
(b) trade or service marks;
(c) any right to have information (including Confidential
Information) kept confidential; and
(d) patents, patent applications, drawings, discoveries,
inventions, improvements, trade secrets, technical data,
formulae, computer programs, data bases, know-how, logos,
designs, design rights, copyright and similar industrial
or intellectual property rights;
LIABILITIES includes all liabilities (whether actual, contingent or
prospective), losses, damages, costs and expenses of whatever
description;
LONG STOP DATE means 31 May 2002 (or such later date as the Vendor
Guarantor and the Purchaser may agree in writing);
MANAGEMENT ACCOUNTS means the unaudited consolidated management
accounts of NTLA Holdings for the month period ended on the
Management Accounts Date, a copy of which is included in the Data
Room Documents;
MANAGEMENT ACCOUNTS DATE means 31 January 2002;
NET ASSETS AMOUNT means the figure disclosed as 'net assets' in the
consolidated balance sheet included in the Completion Accounts;
NTLA means ntl Australia Pty Ltd ACN 086 048 562;
NTLA HOLDINGS means ntl Australia Holdings Pty Limited ACN 086 459
127
NTLT means ntl Telecommunications Pty Ltd ACN 000 000 000;
PARTY means a party to this agreement and PARTIES means all of them;
PERMITS means statutory licences, consents approvals, permissions,
permits, certificates, registrations and other authorisations;
PROPERTIES means the real property (whether licensed, leasehold or
freehold) owned or occupied by the Target Group;
PURCHASE PRICE means the amount specified in CLAUSE 4.1;
PURCHASER GROUP means the Purchaser and its subsidiaries from time to
time (including with effect from Completion, the Company and every
Target Group Company) and references to PURCHASER GROUP COMPANY and
to ANY MEMBER OF THE PURCHASER GROUP shall be construed accordingly;
RECORDS means all original and copy records, documents, books, files,
reports, accounts, plans, correspondence, letters and papers of every
description and other material regardless of their form or medium and
whether coming into existence before, on or after the date of this
agreement, belonging to or in the possession and control of the
Company or any Target Group Company including (without limitation)
certificates of registration, minute books, statutory books and
registers, books of account, Taxation returns, title deeds and other
documents of title, customer lists, price lists, computer programs
and software, and trading and financial records;
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SHARE SALE AGREEMENT
SALE AGREEMENT means the Acquisition Agreement (for the National
Transmission Network) dated 18 March 1999 between the Commonwealth of
Australia, ntl Delaware Inc., ntl Communications Corp., NTLA Holdings
and NTLA;
SHARES means all of the shares in the Company;
SPT means SPT Telecommunications Pty Ltd ACN 099 173 770;
SPV INTER-COMPANY DEBT means the subordinated debt owing by NTLA to
SPV from time to time;
SPV INTER-COMPANY DEBT AMOUNT means the sum of:
(a) $267,390,018 being the amount agreed by SPV as the
outstanding balance (including accrued but unpaid
interest) of the SPV Inter-Company Debt as at 28 February
2002; and
(b) $31,240 multiplied by the number of days in the Delay
Period;
SUBSIDIARIES means the subsidiaries of the Company listed in PART 2
and PART 3 of SCHEDULE 1 and SUBSIDIARY means any one of them;
SUPERANNUATION COMMITMENT means any obligation, liability or duty to
make any payment to any person in respect of any superannuation or
retirement benefits or pensions that are or may be provided to any
present or former employees or directors of the Target Group or their
respective dependants;
TARGET GROUP means NTLA Holdings and the other Subsidiaries and
references to TARGET GROUP COMPANY and to ANY MEMBER OF THE TARGET
GROUP shall be construed accordingly;
TAX means all forms of taxes, duties, imposts, charges, withholdings,
rates, levies or other governmental impositions of whatever nature
and by whatever authority imposed (including GST), assessed or
charged together with all costs, charges, interest, penalties, fines,
expenses and other additional statutory charges, incidental or
related to the imposition and TAXATION has a corresponding meaning;
TOWER SITES means the properties on which the towers used by the
Target Group in connection with the businesses of the Target Group
are situated and includes the property at which the network
operations centre is situated;
TRANSACTION means the sale of Shares and other matters contemplated
by this agreement;
UK INTER-COMPANY DEBT AMOUNT means the sum of:
(a) $12,980,000 (inclusive of withholding tax) being the
amount agreed by the Vendor Guarantor on behalf of all
members of the Vendor Group (excluding SPV in respect of
the SPV Inter-Company Debt) as the outstanding balance
owed by NTLA to ntl Group Limited as at 28 February 2002;
and
(b) $4,000 multiplied by the number of days in the Delay
Period;
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SHARE SALE AGREEMENT
VENDOR GROUP means the Vendor Guarantor and its related bodies
corporate from time to time (excluding, after Completion, the Company
and every Target Group Company) and references to VENDOR GROUP
COMPANY and to ANY MEMBER OF THE VENDOR GROUP shall be construed
accordingly;
VENDOR GROUP GUARANTEES means those guarantees, securities, bonds,
letters of comfort or other similar obligations given or incurred by
any member of the Vendor Group (other than the Target Group) in
respect of the obligations of any Target Group Company as at the date
of this agreement;
VENDORS means NTL Spain and SPV;
WARRANTY CLAIM means a Claim by the Purchaser against the Vendor
arising as a result of a breach of Warranty;
WARRANTIES means each of the warranties given under CLAUSE 9 and set
out in SCHEDULE 3; and
WARRANTOR means NTL Spain.
2. CONDITIONS
2.1 CONDITIONS
Completion must not occur until all of the following Conditions are
fulfilled (or, to the extent capable of waiver in accordance with
CLAUSE 2.2, waived):
(a) the relevant members of the Target Group having received
(on terms reasonably acceptable to the Vendors and the
Purchaser) consent of the Commonwealth of Australia
pursuant to the Sale Agreement to the proposed changes of
control of the Target Group;
(b) the release of ntl (Delaware) Inc. and ntl Communications
Corp. from their respective guarantee obligations in
respect of the Sale Agreement with effect from Completion
in a form reasonably acceptable to the Vendor Guarantor;
(c) WIN Television Network Pty Limited and Southern Cross
Communications Limited each consent for the purpose of the
Shareholders Agreement relating to NTLT, to the proposed
changes of control of the Target Group;
(d) Soul Pattinson Telecommunications Pty Limited consents for
the purpose of the Joint Venture Shareholders Agreement
relating to SPT, to the proposed changes of control of the
Target Group;
(e) the Special Broadcasting Corporation consents for the
purposes of its transmission services agreements with NTLA
to the proposed changes of control of the Target Group;
(f) the Vendors have delivered to the Purchaser legal opinions
from reputable local counsel, in a form reasonably
acceptable to the Purchaser, confirming:
(i) the capacity and authority of the Vendors and
the Vendor Guarantor to enter into and perform
it obligations under, and due execution of,
this agreement; and
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SHARE SALE AGREEMENT
(ii) that on registration in the shareholders'
register of the Company of the transfer of the
Shares, the Purchaser will have title to the
Shares under the laws of Belgium enforceable
against third parties;
(g) the Vendor has delivered to the Purchaser a certificate
from a duly authorised officer of the Vendor Guarantor
confirming that the Vendor Guarantor has obtained an
opinion from a reputable international investment bank at
the time of execution of this agreement that the
consideration to be paid to the Vendors by the Purchaser
pursuant to this agreement is fair from a financial point
of view to the Vendors, it being acknowledged by the
Purchaser that the Purchaser is not a third party
beneficiary of the opinion;
(h) the Vendors have delivered to the Purchaser a legal
opinion from a reputable US counsel, in a form reasonably
acceptable to the Purchaser, in relation to the
enforceability of and the ability to avoid this agreement
under US bankruptcy law;
(i) to the extent that the Purchaser has received legal advice
that the repayment of the SPV Inter-Company Debt, the Bank
Facility or amounts owing to ntl Group Limited by the
Target Group as contemplated by this agreement would
constitute financial assistance requiring approval by the
shareholders of the relevant Target Group Companies and/or
Macquarie Bank Limited under section 260A of the
Corporations Xxx 0000, such shareholder approval has been
obtained in accordance with section 260B of the
Corporations Xxx 0000;
(j) receipt by the Purchaser of the schedule comprising
Attachment 4 to the Disclosure Letter referred to in the
Warranty in PARAGRAPH 8.1 of SCHEDULE 3, in final form
satisfactory to the Purchaser (acting reasonably); and
(k) the Purchaser has received notice from the Australian
Prudential Regulation Authority ('APRA') to the effect
that it has no objection to the Transaction either
unconditionally or on conditions which the Purchaser
(acting reasonably) does not regard as onerous.
2.2 WAIVER OF CONDITIONS
A Condition may only be waived in writing to the other parties:
(a) in respect of the Conditions set out in CLAUSES 2.1(c),
(d), (e), (f), (g), (h), 2.1(i), 2.1(j) and 2.1(k) by the
Purchaser;
(b) in respect of the Condition set out in CLAUSE 2.1(b), by
the Vendor Guarantor, in its absolute discretion; and
(c) in respect of all other Conditions, by the Vendors and the
Purchaser jointly,
and will be effective only to the extent specifically set out in that
waiver.
2.3 CONDUCT OF THE PARTIES
(a) Each party must use all reasonable efforts within its own
capacity to ensure that each Condition is fulfilled as
soon as reasonably practicable after execution of this
agreement and in any event, before 5.00 pm on the Long
Stop Date.
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SHARE SALE AGREEMENT
(b) Without prejudice to CLAUSE 2.3(a), the Purchaser will use
its best efforts to provide such details of its proposed
financing arrangements in relation to the payment of the
Purchase Price and repayment of the Bank Facility, the SPV
Inter-Company Debt and the inter-company debt owed to ntl
Group Limited to the directors of NTLA, by 27 February
2002, as is reasonably necessary to allow those directors
to consider if such proposals would require any
shareholder approval as referred to in CLAUSE 2.1(i).
2.4 LIMITATION OF OBLIGATIONS
Nothing in CLAUSES 2.1 to 2.3 (inclusive) shall require:
(a) any member of the Vendor Group or the Purchaser Group to
make any disposals of any assets or to give any
undertakings in order to satisfy any of the Conditions; or
(b) any member of the Vendor Group or the Purchaser Group to
make any cash payment to any third party in order to
satisfy any of the Conditions (other than customary fees
and disbursements incurred in connection with the
preparation of documentation (including legal opinions)
and adviser's fees and disbursements incurred in
connection with such documentation).
2.5 FAILURE OF CONDITION
If a party has complied with its obligations under CLAUSE 2.3, it may
terminate this agreement by giving notice in writing to the other
parties if one or more Conditions are not fulfilled or (to the extent
capable of being waived pursuant to CLAUSE 2.2) waived by 5.00 pm on
the Long Stop Date.
2.6 ACTION ON TERMINATION
On termination of this agreement under CLAUSE 2.5, this agreement
(save for CLAUSES 1, 15.2, 16, 19 to 23 (inclusive) and 25) shall
automatically terminate and cease to have effect.
2.7 CONDITION INCAPABLE OF FULFILMENT
If at any time any party becomes aware of a fact or circumstance that
is reasonably likely to prevent a Condition being satisfied, it shall
immediately inform the other parties in writing.
3. SALE AND PURCHASE
The Vendors as beneficial owners agree to sell to the Purchaser and
the Purchaser agrees to buy from the Vendors the Shares:
(a) for the Purchase Price;
(b) free from Encumbrances;
(c) with all rights, including dividend and voting rights,
attached or accrued to them on or after the date of this
agreement; and
(d) subject to this agreement.
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4. PURCHASE PRICE
4.1 AMOUNT
The Purchase Price for the Shares is the Initial Purchase Price,
subject to adjustment under CLAUSE 4.2.
4.2 ADJUSTMENT OF PURCHASE PRICE
(a) If the Net Assets Amount is less than $112,187,000, then
on the Determination Date the Vendors must pay an amount
equal to the shortfall to the Purchaser.
(b) If the Net Assets Amount is more than $112,187,000, then
on the Determination Date the Purchaser must pay an amount
equal to the excess to the Vendors.
4.3 PAYMENT OF THE INITIAL PURCHASE PRICE AND DEFERRED AMOUNT
(a) The Purchaser must pay the Initial Purchase Price less the
Deferred Amount on Completion.
(b) The Purchaser must pay the Deferred Amount in accordance
with CLAUSE 4.4.
4.4 DEFERRED AMOUNT
(a) Subject to the remaining provisions of this CLAUSE 4.4,
the Purchaser must pay to the Vendors (or as the Vendors
direct) the Deferred Amount in two instalments in
accordance with this CLAUSE 4.4.
(b) The Purchaser may claim set off against the Deferred
Amount any bona fide claim it has against a Vendor or the
Vendor Guarantor under this agreement.
(c) The Purchaser must serve notice on the Warrantor with
details of any claim under CLAUSE 4.4(b) and the amount
claimed from the Deferred Amount. If the Warrantor
disputes the Purchaser's claim it must serve notice on the
Purchaser within 20 Business Days after it receives the
Purchaser's notice.
(d) If the Warrantor does not serve a dispute notice under
CLAUSE 4.4(c), the Deferred Amount will be reduced by the
amount claimed by the Purchaser.
(e) If:
(i) the Warrantor serves a dispute notice in
accordance with CLAUSE 4.4(c); and
(ii) the claim is subsequently agreed, compromised
or settled or a judgment or award is made in
favour of the Purchaser in respect of the claim
then,
the Deferred Amount will be reduced by the amount payable
to the Purchaser under that agreement, compromise,
settlement, judgment or award.
(f) On 15 January 2003 the Purchaser must pay to the Vendors
(or as the Vendors direct) the difference, if any,
between:
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SHARE SALE AGREEMENT
(i) the amount equal to $5 million, less any
amounts subtracted from the Deferred Amount
under CLAUSE 4.4(d) or (e) to that date; and
(ii) the amount of claims made by the Purchaser
under CLAUSE 4.4(b) which are at that date
still in dispute,
provided that if this does not result in a positive
number, no payment will be due from the Purchaser.
(g) On 30 September 2003, the Purchaser must pay to the
Vendors (or as the Vendors direct) the difference, if any,
between:
(i) the balance of the Deferred Amount at that
date; and
(ii) the amount of claims made by the Purchaser
under CLAUSE 4.4(b) which are at that date
still in dispute.
(h) The Purchaser must pay the balance, if any, of the
Deferred Amount only when all the Purchaser's claims under
CLAUSE 4.4(b) are finalised, within 5 Business Days of
such finalisation.
4.5 RIGHTS OF THE PURCHASER
Any set-off claimed by the Purchaser under CLAUSE 4.4 against the
Deferred Amount in or towards satisfaction of claims under this
agreement will not affect any other rights or remedies which the
Purchaser may have for the purpose of recovering amounts due to it
from the Vendors or the Vendor Guarantor.
4.6 CLEARED FUNDS
All amounts payable under CLAUSE 4.3, CLAUSE 4.4 and CLAUSE 5.4 in
connection with repayment of the SPV Inter-Company Debt and UK
Inter-Company Debt must be paid by bank cheque, telegraphic transfer
to an account or accounts nominated by the Vendor Guarantor (as agent
for the Vendors) or by the Purchaser (as appropriate) or otherwise in
cleared funds.
4.7 ALLOCATION OF THE PURCHASE PRICE
The Purchase Price is allocated as between the Vendors, equally
between each Share.
4.8 WITHHOLDING TAX
(a) The Warrantor indemnifies and holds the Purchaser harmless
from and against any loss, expense or outgoing arising as
a consequence of all or any part of the Purchase Price
being considered by the Commissioner of Taxation to be
subject to either withholding tax or any form of income
tax (including without limitation any liability incurred
by the Purchaser under section 221YQ(1) of the Income Tax
Assessment Act 1936).
(b) Any payment required to be made by the Warrantor to the
Purchaser under CLAUSE 4.8(a) must be made immediately
upon the Warrantor receiving notice in writing from the
Purchaser that the Purchaser has received a notice or
other demand requiring an amount to be paid by it on
account of withholding tax or income tax upon the Purchase
Price.
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(c) Nothing in this CLAUSE 4.8 limits in any way rights which
the Purchaser may have against the Warrantor under the
Income Tax Assessment Xxx 0000 or any other law in
relation to taxation.
4.9 INDEMNITY REGARDING BELGIAN TAX RESIDENCY
The Vendor Guarantor indemnifies the Purchaser against any loss,
cost, liability, expense or damage the Purchaser suffers or incurs as
a result of the Company not being solely tax resident in Belgium at
all times whilst the shares in the Company have been held by any
member of the Vendor Group.
5. COMPLETION
5.1 TIME AND PLACE
If all the Conditions have been fulfilled or waived under CLAUSE 2,
Completion will take place at 10.00am on the later of 28 February
2002 and the second Business Day immediately following the date on
which the last of the Conditions have been fulfilled or waived at the
offices of Xxxxxx Xxxxxxx, 00 Xxxxxxx Xxxxxx, Xxxxxx, XXX 0000 or at
another time and place agreed by the parties in writing.
5.2 WARRANTOR'S OBLIGATIONS
At or before Completion, the Warrantor must:
(a) deliver to the Purchaser copies of the following
documents:
(i) minutes of a directors' meeting of the Company
to convene a shareholders meeting to approve
the transfer of the Shares to the Purchaser;
(ii) a waiver by the directors and auditor of the
Company of their rights to be convened to the
shareholders meeting of the Company;
(iii) letters to the Minister of Economic Affairs,
the Minister of Finance and the Minister of
Economic Affairs of the Brussels Region
notifying such ministers of the Transaction;
(iv) minutes of a shareholders meeting of the
Company indicating that the transfer of the
Shares to the Purchaser was approved by at
least half of the shareholders in the Company
owning at least 75% of the Shares,
in each case, in the form reasonably required by the
Purchaser and in accordance with the laws of Belgium;
(b) produce to the Purchaser copies of any power of attorney
under which any of the Vendor Guarantor and the Vendors
execute this agreement and any document required to be
entered into by this agreement and entered into by any of
them on or prior to Completion;
(c) cause the persons notified in writing by the Purchaser to
the Vendors before Completion to be appointed (conditional
upon those persons first having provided a written consent
to act) as directors of the Company and of each Target
Group Company with effect from Completion (and in relation
to NTLT
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and SPT, only insofar as consistent with the terms of the
shareholders agreements amongst the shareholders of NTLT
and SPT);
(d) cause the resignation of each of the persons named in
SCHEDULE 2 as directors of the Company and of each Target
Group Company with effect from Completion (and in relation
to NTLT and SPT, only insofar as consistent with the terms
of the shareholders agreement amongst the shareholders of
NTLT and SPT);
(e) deliver to the Purchaser the statutory books and register,
the certificate of registration and any common seal of the
Company and each Target Group Company;
(f) if the Bank Facility is to be repaid in full at
Completion, procure the delivery by the trustee for the
security granted by the Target Group in respect of the
Bank Facility of discharges of that security and ASIC
Forms 312, unless the Purchaser elects to retain that
security;
(g) if required by the Purchaser, cause the board of directors
of each Target Group Company to resolve that the
registered office of each member of the Target Group
Company be changed to the address specified by the
Purchaser; and
(h) any other document reasonably required by the Purchaser to
transfer title to the Shares.
5.3 REGISTRATION OF TRANSFER OF SHARES
The Vendors and the Purchaser agree to do and to cause on their
behalf or on behalf of the Company, Peeters Advocaten-Avocats more
specifically Xxxx Xxxxx Xxxxx and/or Xxxxxx Baudoncq to do all such
acts and things that may be necessary or useful in connection with
the transfer of the Shares to the Purchaser under this agreement
including:
(a) any and all necessary notifications and registrations in
connection with the Transaction;
(b) the registration on Completion of the transfer of the
Shares in the shareholders' register of the Company, in
accordance with the laws of Belgium; and
(c) the issuing of appropriate shareholder's certificate to
the Purchaser.
5.4 OBLIGATIONS OF THE PURCHASER
The Purchaser must at Completion:
(a) pay the Initial Purchase Price less the Deferred Amount to
the Vendors in accordance with CLAUSE 4.6;
(b) procure the payment of, the SPV Inter-Company Debt Amount
by way of repayment of the SPV Inter-Company Debt, in
accordance with CLAUSE 4.6; and
(c) procure the payment of, the UK Inter-Company Debt Amount
(less $1,141,440 in respect of withholding tax on that
part of the UK Inter-Company Debt Amount which represents
payment by NTLA for knowhow, which amount
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must be paid to NTLA) by way of repayment of the amount
owing by NTLA to ntl Group Limited, in accordance with
CLAUSE 4.6.
5.5 SIMULTANEOUS ACTIONS AT COMPLETION
In respect of Completion:
(a) the obligations of the parties under this agreement are
interdependent;
(b) all actions required to be performed will be taken to have
occurred simultaneously on the Completion Date; and
(c) the Purchaser need not complete the purchase of any of the
Shares unless the purchase of all the Shares is completed
simultaneously.
5.6 SCHEDULED COMPLETION DATE
The date on which Completion is required to take place in accordance
with CLAUSE 5.1 is referred to in CLAUSE 5.7 as the 'scheduled
Completion Date' which expression shall include any later date set
for Completion in accordance with CLAUSE 5.7.
5.7 COMPLETION OBLIGATIONS BREACHED
If at the scheduled Completion Date:
(a) the Purchaser shall not have complied in any material
respect with any of its obligations under CLAUSE 5.4, the
Vendors shall be entitled, at their discretion; or
(b) if either Vendor shall not have complied in any material
respect with its obligations under CLAUSE 5.2, the
Purchaser shall be entitled, at its discretion;
in either case:
(c) to defer Completion to any subsequent Business Day falling
not more than 10 Business Days after the scheduled
Completion Date or any later date set for Completion in
accordance with this clause. In such event this CLAUSE 5.7
shall apply to the scheduled Completion Date so deferred;
(d) if applicable, to waive the requirement to fulfil those
obligations, in whole or in part, and following such
waiver to complete the sale and purchase of the Shares in
accordance with CLAUSES 5.2 and 5.4;
(e) so far as practicable, to complete the sale and purchase
of the Shares, in accordance with CLAUSES 5.2 and 5.4; or
(f) to terminate this agreement in accordance with CLAUSE 17.
5.8 DISCHARGE OF INTER-COMPANY DEBTS
Payment by the Purchaser of the amounts referred to in CLAUSE 5.4(b)
and CLAUSE 5.4(c) in accordance with CLAUSE 4.6 will constitute full
discharge in respect of the SPV Inter-Company Debt, any amounts owing
on inter-company account by NTLA to ntl Group
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Limited at Completion and any other amounts owing by the Company, the
Target Group or SPT to any member of the Vendor Group at Completion.
6. COMPLETION ACCOUNTS
6.1 COMPLETION ACCOUNTS
The Purchaser must as soon as practicable, and in any event no later
than 20 Business Days after the Completion Date, prepare and give the
draft Completion Accounts to the Auditors.
6.2 BASIS OF PREPARATION
The Completion Accounts must be prepared, and the Net Assets Amount
must be calculated, in accordance with the accounting policies set
out in SCHEDULE 5.
6.3 AUDIT
The Vendor Guarantor and the Purchaser must jointly instruct the
Auditors to audit the Completion Accounts on that basis and to
complete the audit as soon as practicable and in any event within 15
Business Days after delivery of the draft Completion Accounts to the
Auditors. As soon as the audit is complete, the Purchaser must send a
copy of the audited Completion Accounts to the Vendor Guarantor.
6.4 ACCESS TO INFORMATION
(a) The Purchaser must ensure that all information and
assistance requested by the Auditors is given to them to
audit the Completion Accounts and must permit
representatives of the Auditors to have reasonable access
to, and take extracts from or make copies of the Records
in the Purchaser's or Target Group's possession or
control, to audit the Completion Accounts.
(b) The Purchaser must permit representatives of the Vendor
Guarantor to have reasonable access to, and take extracts
from or make copies of the, Records in the Purchaser's or
Target Group's possession or control to review the audited
Completion Accounts served on it by the Purchaser.
6.5 REVIEW OF COMPLETION ACCOUNTS
If no Dispute Notice is given under CLAUSE 6.6 within 10 Business
Days after the date on which the audited Completion Accounts are
given to the Vendor Guarantor ('FINAL OBJECTION DATE'), those
accounts will be taken to be the final Completion Accounts and the
Net Assets Amount in those accounts will be final and binding on the
parties. If the Vendor Guarantor or the Purchaser disputes the
Completion Accounts before the Final Objection Date, the dispute will
be determined in accordance with CLAUSE 6.6.
6.6 DISPUTE RESOLUTION PROCEDURE
(a) If the Vendor Guarantor or the Purchaser disputes the
Completion Accounts, the relevant party must give the
other a notice ('DISPUTE NOTICE') before the Final
Objection Date setting out:
(i) reasonable details of each matter in dispute;
and
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(ii) the reasons why each matter is disputed.
(b) Once the Vendor Guarantor or the Purchaser has given a
Dispute Notice, the relevant party may not dispute any
further items or amounts in the Completions Accounts.
(c) If the Vendor Guarantor and the Purchaser have not
resolved the dispute within 10 Business Days after the
date the Dispute Notice was given, they must promptly
submit the matter or matters in dispute to the Independent
Accountant for determination.
(d) The identity of the Independent Accountant must be agreed
by the Vendor Guarantor and the Purchaser. If the Vendor
Guarantor and the Purchaser cannot agree within 5 Business
Days of the Purchaser giving the Purchaser Response to the
Vendor Guarantor, then the Independent Accountant will be
nominated, at the request of either the Vendor Guarantor
or the Purchaser, by the President of the Institute of
Chartered Accountants (New South Wales Branch).
(e) The disputed matters must be referred to the Independent
Accountant by written submission which must include the
Completion Accounts, the Dispute Notice, and an extract of
the relevant provisions of the agreement. The Independent
Accountant must also be instructed to finish its
determination no later than 15 Business Days after its
appointment (or another period agreed by the parties). The
Vendor Guarantor and the Purchaser will each be entitled
to submit written representations to the Independent
Accountant.
(f) The parties must promptly give the Independent Accountant
any information, assistance and cooperation requested in
writing by the Independent Accountant in connection with
its determination. All correspondence between the
Independent Accountant and a party must be copied to the
other parties.
(g) The Independent Accountant must act as an expert and not
as an arbitrator and its written determination will be
final and binding on the parties in the absence of
manifest error and the Completion Accounts will be deemed
to be amended accordingly and will be taken to comprise
the final Completion Accounts.
6.7 COSTS
The costs of the:
(a) Auditors in preparing the Completion Accounts; and
(b) the Independent Accountant (if instructed),
will be borne by the Vendor Guarantor as to one half, and the
Purchaser as to one half.
7. OBLIGATIONS PRIOR TO COMPLETION
7.1 CONTINUITY OF BUSINESS
Subject to CLAUSE 7.3, and except to the extent contemplated or
required under this agreement or as otherwise agreed in writing
between the Vendors and the Purchaser prior to execution of this
agreement, the Vendors must procure until Completion that:
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(a) the Company does not trade, does not incur any liabilities
or obligations and does not acquire or dispose of any
asset (or enter into any contract, agreement or
understanding in relation to any of those things);
(b) the Business is in all material respects conducted in the
ordinary course of business and in compliance in all
material respects with all applicable laws and regulations
and that each Target Group Company uses best endeavours to
preserve the Business, keep available the services of
current officers and other key employees, and preserve the
relationships of the Target Group and SPT with those
persons having business dealings with them;
(c) each Target Group Company and SPT takes all reasonable
steps to preserve and protect its assets in accordance
with its normal business practices as at the date of this
agreement;
(d) each Target Company and SPT must do all things reasonably
necessary to maintain all Permits required to conduct the
Business and not do anything to jeopardise or compromise
the retention of those Permits; and
(e) no other action is taken by any Target Group Company or by
SPT which is inconsistent with the provisions of this
agreement or the consummation of the Transaction.
7.2 PURCHASER CONSENT REQUIRED
Without prejudice to CLAUSE 7.1 but subject to CLAUSE 7.3, the
Vendors must until Completion procure that no Target Group Company
shall (and the Company and SPT shall not), except to the extent
contemplated or required by this agreement or as otherwise agreed in
writing between the Vendors and the Purchaser prior to execution of
this agreement, take any of the following steps without the prior
written consent of the Purchaser (such consent not to be unreasonably
withheld or delayed):
(a) admit any person as a member (whether by subscription,
transfer or transmission) or issue any shares, options or
securities which are convertible into shares;
(b) make any increase or reduction or other alteration
whatsoever (including by way of redemption, purchase,
sub-division, consolidation or redesignation) of its share
capital or grant any option to subscribe for or acquire
any of its shares or issue any securities convertible into
any of its shares;
(c) liquidate any subsidiary, or take any steps towards the
liquidation of any subsidiary;
(d) otherwise than in the ordinary course of the Business,
sell, lease, transfer, license or otherwise dispose or
agree or commit to dispose of or purchase, lease, license
or otherwise acquire or agree or commit to acquire assets,
businesses or undertakings (or any interest in any of
them) of more than $1 million in aggregate whether by a
single transaction or by a series of transactions (related
or not);
(e) amend the terms of employment or engagement of a director,
other officer or senior employee or provide a gratuitous
payment or benefit to a director, officer or senior
employee (or any of their dependants);
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SHARE SALE AGREEMENT
(f) enter into, or increase or extend any liability under, any
guarantee or indemnity given in respect of the obligations
of NTLT or any person outside the Target Group;
(g) amend, vary, waive or breach any material provision of,
fail to enforce, or terminate (or give notice to
terminate), or take any action that may result in the
termination or cancellation of any material contract to
which any Target Group Company is a party;
(h) enter into any contract which is material to any Target
Group Company;
(i) other than in the ordinary course of the Business, grant,
create or allow to arise any charge, security, lien or
encumbrance over any of its assets (other than charges
arising by operation of law in the ordinary and normal
course of trading).
(j) pay any dividend or any management fee or similar amount
(other than between Target Group Companies, excluding
NTLT), or distribute or return any capital to its members
or repay any of the SPV Inter-Company Debt, any amounts
owing on inter-company account by NTLA to ntl Group
Limited or any other amounts owing by the Company, the
Target Group or SPT to any member of the Vendor Group
(excluding the Company and the Target Group), (save for
the repayment of $35 million of the SPV Inter-Company Debt
on or around 22 February 2002);
(k) alter its constitution or equivalent constituent
documents; and
(l) authorise, or commit or agree to take, any of the
foregoing actions.
7.3 EXCEPTIONS
CLAUSES 7.1 and 7.2 do not:
(a) prevent funding to NTLT in accordance with the funding
obligations which, at the date of this agreement, any
Target Group Company is legally committed to provide to
NTLT, as set out in Attachment 6 to the Disclosure Letter;
(b) oblige any member of the Vendor Group to take or prohibit
action in relation to NTLT to the extent it is unable to
do so under the terms of the shareholders agreement
between the shareholders of NTLT;
(c) prevent funding to SPT in accordance with the funding
obligations which, at the date of this agreement, any
Target Group Company as legally committed to provide to
SPT; and
(d) oblige any member of the Vendor Group to take or prohibit
action in relation to SPT to the extent it is unable to do
so under the terms of the shareholders agreement between
the shareholders of SPT.
7.4 ACCESS TO BUSINESS AND RECORDS
The Vendor must, upon reasonable notice, allow the Purchaser, its
employees, agents and representatives reasonable access to the
Administrative Properties, the Tower Sites, and the Records at all
reasonable times before Completion to enable the Purchaser, as is
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SHARE SALE AGREEMENT
reasonably necessary, to become familiar with the Business and the
affairs of SPT and the Target Group.
7.5 PURCHASER'S OBLIGATIONS
The Purchaser must ensure that any access under CLAUSE 7.4 is
exercised and conducted in a manner to avoid unreasonable disruption
to the conduct of the Business and the activities and operations of
the Target Group and its employees.
7.6 RIGHT TO CONSULT
For the purposes of CLAUSE 7.4, the Purchaser may:
(a) consult with the Managing Director and Finance Director of
NTLA Holdings; and
(b) with the prior consent of the Vendors (which consent may
not be unreasonably withheld), consult with senior
employees of the Target Group.
8. RELEASE OF VENDOR GROUP GUARANTEES
The Purchaser:
(a) must, from the date of this agreement, use reasonable
efforts to procure the release of each member of the
Vendor Group (other than the Target Group) from each of
the Vendor Group Guarantees with effect from Completion;
and
(b) pending such release but following and subject to
Completion, indemnifies the Vendor Guarantor (for itself
and as trustee for each member of the Vendor Group) from
and against any Claim or Liability arising out of the
Vendor Group Guarantees that may be suffered or incurred
by any member of the Vendor Group (other than the Target
Group) which relates to events or circumstances occurring
after Completion, other than events or circumstances which
constitute a breach of Warranty.
9. WARRANTIES BY NTL SPAIN
9.1 WARRANTIES
Subject to CLAUSES 9.2 and 9.4, the Warrantor warrants to the
Purchaser that each of the Warranties is true and accurate at the
date of this agreement and immediately prior to Completion by
reference to the facts and circumstances then subsisting.
9.2 QUALIFICATION
The Warranties are given subject to and are qualified by the
Disclosure Letter.
9.3 WARRANTOR'S KNOWLEDGE
Where any statement in the Warranties is qualified by the expression
'to the best of the knowledge, information and belief of the
Warrantor' or 'so far as the Warrantor is aware' or any similar
expression, the Warrantor shall be deemed only to have knowledge of
anything of which Xxxx Xxxxxxx has actual knowledge and of which any
of Clive
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Xxxxxx, Xxxx Xxxxxxxxxxxx, Xxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx
or Xxxxx Xxxxx has actual knowledge or would have had such knowledge
had he made reasonable inquiries having regard to his position and
responsibilities.
9.4 ACKNOWLEDGMENTS
The parties agree that:
(a) the Purchaser has had the opportunity to conduct, and has
conducted, due diligence investigations in relation to the
Target Group, SPT and the Business before the date of this
agreement;
(b) the only warranties on which the Purchaser has relied on
in entering into this agreement are those set out in
SCHEDULE 3 and CLAUSE 13;
(c) to the extent permitted by law, all other warranties,
representations and undertakings (whether express or
implied and whether oral or in writing) made or given by
the Vendor Guarantor, the Warrantor, any Target Group
Company or their respective employees, agents or
representatives are expressly excluded;
(d) (for the avoidance of doubt) no warranty or
representation, express or implied, is given in relation
to any expression of opinion, intention or expectation or
any forecast or projection contained or referred to in the
Data Room Documents; and
(e) the only person entitled to make a Warranty Claim under
this agreement is the Purchaser or any permitted assignee
under CLAUSE 19.2.
9.5 INDEMNITY
(a) Without prejudice to CLAUSE 9.21 and the other provisions
of this CLAUSE 9 in relation to Warranty Claims, the
Warrantor indemnifies the Purchaser, the Company and each
Target Group Company against any claim, action, damage,
loss, liability, cost, charge, expense or outgoing which
the Company or any Target Group Company pays, suffers,
incurs or is liable for in respect of any breach of
Warranty.
(b) The Purchaser holds the benefit of the indemnity in CLAUSE
9.5(a) on trust for itself and for the Company and each
Target Group Company.
9.6 RESTRICTED SCOPE OF WARRANTIES
Save for the Warranties set out in PARAGRAPHS 5 and 17 of SCHEDULE 3,
the only Warranties given in relation to:
(a) real property, environmental matters and compliance with
laws relating to real property and environmental matters
are those Warranties contained in PARAGRAPHS 8 and 9 of
SCHEDULE 3 provided that this CLAUSE 9.6(a) does not apply
to the extent that assets of the Target Group or SPT are
'real property' by reason of constituting fixtures;
(b) Intellectual Property Rights are those Warranties
contained in PARAGRAPH 10 of SCHEDULE 3;
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(c) Taxation are those Warranties contained in PARAGRAPH 16 of
SCHEDULE 3; and
(d) superannuation are those Warranties contained in PARAGRAPH
15 of SCHEDULE 3.
9.7 PROVISIONS AND RECOVERIES
Despite any other provision of this agreement, the Warrantor has no
Liability for a Warranty Claim to the extent that (but only to the
extent that):
(a) the Warranty Claim is set off against and deducted from
the Deferred Amount;
(b) the subject matter of the Warranty Claim is provided for
or fairly disclosed in the Accounts or the Purchaser
receives a payment under CLAUSE 4.2(a) in respect of the
subject matter of the Warranty Claim;
(c) any amount the subject of the Warranty Claim is recovered
under an insurance policy in favour of any Target Group
Company.
9.8 FINANCIAL LIMITS
The Warrantor has no Liability for a Warranty Claim:
(a) unless the Liability of the Warrantor in respect of such
Warranty Claim (or series of related Warranty Claims (eg
stamp duty claims)) is $500,000 or more; and
(b) until the aggregate amount of the Liability of the
Warrantor in respect of all Warranty Claims (excluding
Warranty Claims for which the Warrantor has no Liability
under CLAUSE 9.8(a)) exceeds $8.5 million, in which case
the Warrantor shall be Liable (subject always to the other
provisions of this CLAUSE 9) for the full amount and not
only for the excess over $8.5 million.
9.9 MAXIMUM AGGREGATE LIABILITY
The maximum Liability of the Warrantor (including legal costs and
expenses incurred in satisfying, settling or defending the Warranty
Claim), as a result of Warranty Claims is limited to an amount equal
to $850 million.
9.10 TIME LIMITS
Except for a Warranty Claim in relation to the Vendors' title to the
Shares (where no time limit will apply), the Warrantor has no
Liability for a Warranty Claim unless:
(a) in the case of a Warranty Claim relating to any Warranty
other than those in PARAGRAPHS 8.1(a) and 16 (Taxation) of
SCHEDULE 3, the Purchaser has given written notice of the
Warranty Claim to the Warrantor under CLAUSE 9.11 on or
before 30 September 2003;
(b) in the case of a Warranty Claim relating to any Warranty
in PARAGRAPH 8.1(a) or PARAGRAPH 16 (Taxation) of SCHEDULE
3, the Purchaser has given written notice of the Warranty
Claim to the Warrantor under CLAUSE 9.11 on or before the
sixth anniversary of the Completion Date; and
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(c) in either case, unless the Warranty Claim has been settled
or legal proceedings in a court of competent jurisdiction
in respect of the Warranty Claim have been commenced by
the Purchaser against the Warrantor within six months of
the Warranty Claim being notified by the Purchaser to the
Warrantor.
9.11 NOTICE OF POTENTIAL WARRANTY CLAIM
If the Purchaser becomes aware of anything which is or may be
reasonably likely to give rise to a Warranty Claim under this CLAUSE
9, it must notify the Warrantor in writing (CLAIM NOTICE):
(a) setting out the act, matter or thing relied on as giving
rise to the Warranty Claim, the Warranty the subject of
the Warranty Claim and all relevant details of the
Warranty Claim; and
(b) within 20 Business Days after it has first come to the
Purchaser's attention.
For the avoidance of doubt, breach by the Purchaser of this CLAUSE
9.11 will not prejudice the Purchaser's right to make a Warranty
Claim.
9.12 DOUBLE CLAIMS
(a) The Warrantor has no Liability for a Warranty Claim to the
extent that the loss occasioned by the fact, matter, event
or circumstance giving rise to such Warranty Claim is
recovered under any other provision of this agreement or
any of the other agreements to be entered into pursuant to
this agreement.
(b) If the same fact, matter, event or circumstance gives rise
to more than one Warranty Claim, no member of the
Purchaser Group is entitled to recover more than once in
respect of the same loss arising out of such fact, matter,
event or circumstance.
9.13 CHANGES AFTER THE DATE OF THIS AGREEMENT
The Warrantor shall not be liable for any Warranty Claim to the
extent that (but only to the extent that) it arises, or is increased
or extended by:
(a) any change to legislation, any decision of any court or
tribunal, any increase in rates of Taxation or any change
in the published practice of a Taxation authority, in each
case made on and/or after the date of this agreement
(provided in each case the previously applying law or
practice has been complied with by the Target Group);
(b) any change in the financial year end of any member of the
Purchaser Group made on and/or after Completion;
(c) any change in any accounting policy or practice of any
member of the Purchaser Group made on and/or after
Completion, save where such change is required to conform
such policy or practice with generally accepted policies
or practices or where such change is necessary to correct
an improper policy or practice;
(d) any cessation of, or any change in, the nature or conduct
of any business carried on by any member of the Purchaser
Group being a cessation or change
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occurring on and/or after Completion and not as a direct
result of the subject matter of the Warranty Claim; or
(e) any act, omission or transaction outside the ordinary and
usual course of business which is carried out or effected
by, or at the request or with the approval of any member
of the Purchaser Group (or any of their respective
directors or authorised officers or employees), other than
any act, omission or transaction contemplated by this
agreement.
9.14 RIGHTS OF THE WARRANTOR
(a) The Warrantor, subject to this CLAUSE 9.14, is in respect
of an act, matter or thing notified by the Purchaser under
CLAUSE 9.11, where that act, matter or thing relates to an
actual or threatened Claim from a third party, entitled to
elect by written notice given to the Purchaser within 10
Business Days of receipt of a Claim Notice to (at the
Warrantor's cost):
(i) take over the conduct of the Claim; and
(ii) take such actions as the Warrantor may decide
about it, including the right to negotiate,
defend and/or settle the Claim and to recover
costs incurred as a consequence of the Claim
from any person.
(b) Where the Warrantor takes over the conduct and/or defence
of any claim under this CLAUSE 9.14, the Warrantor must:
(i) afford the Purchaser the opportunity to consult
with the Warrantor on all matters of
significance for the goodwill of the Business;
and
(ii) at reasonable and regular intervals provide the
Purchaser with written reports concerning the
conduct, negotiation, control, defence and/or
outcome or settlement of the Claim.
(c) The Purchaser must, and must procure that the Company and
each Target Group Company must, provide the Warrantor with
access to (with the right to take copies) and make
available to the Warrantor all relevant personnel,
relevant documents, books and records reasonably required
for the purpose of the conduct of any Claim under CLAUSE
9.14(a).
9.15 RIGHTS OF THE PURCHASER
If the Purchaser gives the Warrantor a Claim Notice falling within
CLAUSE 9.14(a) and the Warrantor does not elect to take over the
control of a Claim under CLAUSE 9.14, the Purchaser may take such
actions as the Purchaser may decide about it, including the right to
negotiate, defend and/or settle the Claim and to recover costs
incurred as a consequence of the Claim from any person, provided
that:
(a) the Purchaser must at reasonable and regular intervals
provide the Warrantor with written reports concerning the
conduct, negotiation, control, defence and/or settlement
of the Claim and must not settle the Claim without the
prior approval of the Warrantor which must not be
unreasonably withheld;
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(b) the Purchaser must afford the Warrantor the opportunity to
consult with the Purchaser on matters of significance in
relation to the conduct, negotiation and settlement of the
Claim; and
(c) the Warrantor must render to the Purchaser, at the
Purchaser's expense (but without prejudice to the
Purchaser's ability to seek recovery of that expense under
a Warranty Claim), all such assistance as the Purchaser
may reasonably require in disputing any Claim.
9.16 CONDUCT OF CLAIM INDEMNITY
(a) The Warrantor indemnifies the Purchaser, the Company, SPT
and the Target Group against all Liabilities incurred by,
or awarded against, any of them arising out of the conduct
of the Warrantor under CLAUSE 9.14 or acts required or
requested of any of them in respect of the same, as and
when they fall due, including legal costs and
disbursements of the relevant entity's lawyers.
(b) The restrictions on the Warrantor's Liability in respect
of Warranty Claims in this CLAUSE 9 do not apply in
relation to the indemnity in CLAUSE 9.16(a).
(c) The Purchaser holds the benefit of the indemnity in CLAUSE
9.16(a) on trust for itself and for the Company, SPT and
each Target Group Company.
9.17 NOTIFICATION OF CREDIT BY THE PURCHASER
If any payment in respect of a Warranty Claim under the Warranties is
made to the Purchaser by or on behalf of the Warrantor and after the
payment is made the Purchaser receives any benefit or credit by
reason of the matters to which the Warranty Claim relates, then the
Purchaser:
(a) must immediately notify the Warrantor of the benefit or
credit; and
(b) provided there are no outstanding Warranty Claims by the
Purchaser (in which case, the Purchaser may apply the
amount of the benefit or credit by way of set-off against
such Warranty Claims), pay to the Warrantor an amount
equal to that paid to the Purchaser by or on behalf of the
Warrantor or (if less) the amount of the benefit or credit
received by the Purchaser,
and the Purchaser's payment will be treated as a credit against the
Warrantor's maximum aggregate liability under CLAUSE 9.9.
9.18 REMEDIABLE BREACHES
The Warrantor will have no Liability for any Warranty Claim to the
extent that the fact, matter, event or circumstance giving rise to
such Warranty Claim is remediable and is remedied by or at the
expense of the Warrantor within 60 Business Days of the date on which
the relevant notice of the Claim is given to the Warrantor. Subject
to the other limitations on Warranty Claims in this CLAUSE 9, the
Warrantor will remain liable in respect of all loss and damage
suffered or incurred by the Company or a Target Group Company prior
to the relevant fact, matter, event or circumstance being remedied to
the extent such loss and damage is not itself remedied or reimbursed.
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9.19 REIMBURSEMENT OF CLAIMS
If, after the Warrantor has made any payment in respect of a Warranty
Claim, the recipient of that payment becomes entitled to recover from
a third party (whether by payment, discount, credit, relief or
otherwise) a sum which is referable to that payment by the Warrantor
(RECOVERY AMOUNT), then upon actually receiving the Recovery Amount,
the Purchaser must promptly repay (or procure the repayment) to the
Warrantor so much of the Recovery Amount (after deduction of the
recipient's reasonable costs of recovery) as does not exceed the
amount paid by the Warrantor. The amount of the repayment must be
deducted from the Warrantor's aggregate Liability in any future
determination as to whether the financial cap in CLAUSE 9.9 has been
exceeded.
9.20 UNASCERTAINABLE CLAIMS
Except as provided in this CLAUSE 9.20, the Warrantor will have no
Liability for any Warranty Claim which arises by reason of a
Liability which, at the time when the relevant Claim Notice is given,
is contingent only or is otherwise not capable of being quantified.
The Warrantor will not be Liable to make any payment in respect of
any such Warranty Claim:
(a) unless and until the Liability becomes an actual Liability
or (as the case may be) becomes capable of being
quantified; and
(b) unless the Liability becomes an actual Liability on or
before the sixth anniversary of the Completion Date.
9.21 MITIGATION
The Purchaser must take, and must procure that each other member of
the Purchaser Group takes, all reasonable action to mitigate any loss
suffered by it which would, could or might result in a Warranty Claim
against the Warrantor.
9.22 DEBT CLAIMS
If the Warrantor makes any payment in relation to a Warranty Claim
for any unpaid debt due to any member of the Purchaser Group then, if
the Warrantor so elects, the Purchaser must (or must procure that the
relevant member of the Purchaser Group must) assign the benefit of
the debt to the Warrantor for a nominal consideration.
9.23 EFFECT OF PAYMENT
A payment to the Purchaser under this CLAUSE 9 is, to the extent
possible, to be treated as a reduction in the Purchase Price.
9.24 SURVIVAL
The provisions of this CLAUSE 9 remain in full force and effect after
Completion.
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10. USE OF NTL NAME AND LOGO
10.1 CESSATION OF USE
Subject to CLAUSE 10.2, the Purchaser shall procure that, as soon as
reasonably practicable after the Completion Date and in any event
within 9 months after such date (in the case of CLAUSES 10.1(a) and
10.1(b)) or 6 months after such date (in the case of CLAUSE 10.1(c)):
(a) the Target Group shall cease in any manner whatsoever to
use or display any trade or service marks, trade or
service names, registered designs or logos used or owned
by any member of the Vendor Group including without
limitation the "ntl" logo or any confusingly similar xxxx,
design, name or logo;
(b) without prejudice to the generality of CLAUSE 10.1(a), the
Purchaser shall cease in any manner whatsoever to use or
display the name "ntl" or any name which is similar or
confusingly similar with such word; and
(c) the name of any Target Group Company which includes the
words "ntl" shall be changed to a name which does not
include such word (or any word which is similar or
confusingly similar with such word),
except that the use or display of any trade or service marks, trade
or service names, registered designs or logos used or owned by any
member of the Vendor Group including without limitation the "ntl"
logo or any confusingly similar xxxx, design, name or logo may
continue until the date 18 months after the Completion Date:
(i) on the name plates installed at Tower Sites;
and
(ii) to the extent that any change to or removal of
signage installed on the Administrative
Properties requires planning or development
consent.
10.2 NTLT NAME
The obligation of the Purchaser under CLAUSE 10.1 insofar as it
relates to NTLT shall be to use its best endeavours to ensure the
provisions of CLAUSE 10.1 are complied with.
11. POST COMPLETION ARRANGEMENTS
11.1 RECORDS AND VENDOR'S RIGHTS OF ACCESS
On and after Completion the Vendor:
(a) may retain copies of any Records and will have the right,
at all reasonable times, on reasonable notice and at the
sole cost of the Vendor, to access, and to take copies of,
any Records reasonably necessary for it to comply with any
applicable law (including, without limitation, any
applicable law relating to Tax) and to prepare Tax or
other returns required of it by law or for the purpose of
dealing with the accounting, Taxation, financial or
insurance affairs of the Vendor Group or (in respect of
pre-Completion matters) of the Target Group; and
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(b) will have the right, at all reasonable times, on
reasonable notice and at the sole cost of the Vendor, to
access, and to take copies of, any Records for the purpose
of disputing or defending any Claim that may be made
against the Vendor,
provided that any such copies of Records or information obtained from
such Records must be kept confidential and used solely for the above
purposes.
11.2 CONDUCT UNTIL TRANSFERS ARE REGISTERED
After Completion and until the Shares are registered in the name of
the Purchaser, the Vendors must:
(a) convene and attend general meetings of the Company; and
(b) vote at general meetings and take all other action in the
capacity of the registered holder of the Shares,
as the Purchaser may lawfully require from time to time by notice in
writing to the Vendors.
11.3 CHANGE OF CONTROL PROVISIONS
Where any property lease, commercial contract or other agreement to
which any Target Group Company or SPT is a party requires the consent
of any person to the change of ownership of the Target Group
contemplated by this agreement, the Vendors and the Vendor Guarantor
must provide reasonable assistance to the Purchaser and the Target
Group in seeking and obtaining that consent.
11.4 TECHNICAL SUPPORT
The Vendor Guarantor must procure that from the Completion Date
technical assistance is provided in relation to the Business of the
type, for the duration and on the basis set out in SCHEDULE 4. The
parties agree to negotiate in good faith to procure that an agreement
is entered into between the appropriate members of the Vendor Group
and the Target Group setting out in full the terms and conditions
relating to the provision of technical assistance as envisaged by
this clause, such agreement to be put in place as soon as reasonably
practicable.
11.5 REIMBURSEMENT REGARDING SECONDEES
In consideration of the Target Group continuing to make available to
Xxx Xxxxxx and his family the house at 0 Xxxxxxxx Xxxx, Xxxxxxxxxx,
XXX 0000 currently leased by NTLA and continuing to make available to
Xxx Xxxxxx and his family the house in Sydney which they currently
occupy, and currently leased by NTLA, in each case until expiry of
the relevant lease, the Vendor Group will not seek reimbursement from
Completion from the Target Group for the provision of the services of
Xxx Xxxxxx and Xxx Xxxxxx in relation to the provision of technical
support as envisaged by CLAUSE 11.4 and SCHEDULE 4.
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11.6 DISCHARGE OF RESIGNING COMPANY DIRECTORS
The Purchaser most procure that at the next annual general
shareholders' meeting of the Company following Completion, the then
shareholders of the Company shall pass a resolution to discharge the
directors of the Company resigning at Completion from liabilities
relating to their directorship, in accordance with the laws of
Belgium unless there are serious reasons, not known at the date of
this agreement, for not doing so.
12. POST COMPLETION TAX MATTERS
12.1 PREPARATION OF TAX RETURNS
The Purchaser will, at the Target Group's cost, cause the Company and
each relevant member of the Target Group to prepare any outstanding
statements or returns in respect of liability to Taxation in any
financial year (and any part of a financial year) which ends prior to
Completion (each an OUTSTANDING RETURN).
12.2 WARRANTOR'S RIGHTS IN RELATION TO PREPARATION OF OUTSTANDING RETURNS
The Purchaser must cause the Company or the member of the Target
Group which is required to lodge an Outstanding Return:
(a) to provide to the Warrantor a complete copy of that return
prior to lodgment;
(b) to give the Warrantor access (at the Warrantor's cost) to
all books, accounts and records of the Company and the
Target Group necessary for the Warrantor to verify the
accuracy of the Outstanding Tax Return and its conformance
with all relevant laws and regulations; and
(c) consider in good faith any changes which the Warrantor
suggests be made to ensure the Outstanding Return conforms
to all relevant laws and regulations.
12.3 WARRANTOR'S RIGHTS IN RELATION TO DEALINGS WITH RELEVANT GOVERNMENTAL
AUTHORITIES
The Purchaser must cause the Company and each member of the Target
Group which is required to or which has lodged an Outstanding Return
(both before and after the lodgment of that return if applicable):
(a) to keep the Warrantor informed as to all material matters
relating to the lodgment and processing of the Outstanding
Return;
(b) to give the Warrantor reasonable and adequate notice of
any discussions proposed with any Governmental Authority
in relation to an Outstanding Return and permit the
Warrantor to take part in any such discussions;
(c) to provide to the Warrantor any drafts of any
correspondence with any Governmental Authority in relation
to an Outstanding Return, give the Warrantor not less than
10 days to comment on that correspondence and (provided
they are received promptly) incorporate all reasonable
comments of the Warrantor into that correspondence;
(d) to provide to the Warrantor copies of all correspondence
between the Company or the member of the Target Group and
a Governmental Authority in relation to an Outstanding
Return; and
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(e) not to agree any aspect of an Outstanding Return with a
Governmental Authority unless the Company or the relevant
member of the Target Group (as appropriate) has first notified
the Warrantor of the proposed terms of that agreement and the
Warrantor has given its prior written consent to that
agreement (which must not be unreasonably withheld and will be
deemed given if no response is received within 10 Business
Days after consent is sought).
13. CAPACITY
Each party represents and warrants to each other party that:
(a) it is validly existing under the laws of its place of
incorporation or registration;
(b) it has the power to enter into and perform its obligations
under this agreement and to carry out the transactions
contemplated by this agreement;
(c) it has taken all necessary action to authorise its entry into
and performance of this agreement and to carry out the
transactions contemplated by this agreement;
(d) its obligations under this agreement are valid and binding and
enforceable against it in accordance with their terms; and
(e) the execution, delivery and performance by it of this
agreement (and any other agreement required to be entered into
by it in connection with this agreement) will not:
(i) subject to satisfaction of the Conditions, result in
a breach of, or constitute a default under, any
agreement or arrangement to which it is party or by
which it is bound; or
(ii) result in a breach of any law or order, judgment or
decree of any court, governmental agency or
regulatory body to which it is a party or by which it
is bound.
14. PROTECTION OF GOODWILL
14.1 UNDERTAKING BY THE WARRANTOR
(a) Subject to CLAUSE 14.2, in consideration for the respective
promises of the Warrantor and the Purchaser to each other in
this agreement, the Warrantor undertakes to the Purchaser that
it will not and will procure that each other member of the
Vendor Group (other than the Company and the Target Group)
will not for a period of 5 years from the Completion Date do
any of the following without first obtaining the written
consent of the Purchaser:
(i) directly or indirectly carry on in Australia (whether
alone or in partnership or joint venture with anyone
else) or otherwise be concerned with or interested in
(whether as trustee, principal, agent, shareholder,
unit holder or in any other capacity), any business
similar or competitive with the point to multipoint
terrestrial broadcast transmission business of NTLA
as carried on at the date of this agreement;
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(ii) directly or indirectly carry on in Australia (whether
alone or in partnership or joint venture with anyone
else) or otherwise be concerned with or interested in
(whether as trustee, principal, agent, shareholder,
unit holder or in any other capacity) any business
similar or competitive with the carrier wholesale
telecommunications service provision carried on at
the date of this agreement by NTLT, provided that
this provision shall not prevent any member of the
Vendor Group from providing similar
telecommunications services to corporate and data
service customers;
(iii) solicit, canvass, induce or encourage any person who
was at any time during the six month period ending on
the Completion Date an employee of any Target Group
Company to leave the employment of the relevant
Target Group Company.
14.2 EXCEPTIONS
(a) CLAUSES 14.1(a)(i) and 14.1(a)(ii) do not prevent any member
of the Vendor Group holding an interest of 5% or less in any
company listed on any international stock exchange.
(b) CLAUSE 14.1(a)(ii) does not prevent any member of the Vendor
Group:
(i) providing in Australia corporate and data
telecommunications services on a point to point
basis; and
(ii) being concerned with or interested in any business as
a result of the acquisition of or by any member of
the Vendor Group, or the merger of any member of the
Vendor Group with, another entity outside Australia
as part of a larger transaction of which the business
in Australia is not a material part of the business
as a whole.
(c) CLAUSE 14.1(a)(iii) shall not apply to:
(i) any employee employed in a non-managerial or purely
administrative role; and
(ii) any recruitment of any person through a recruitment
agency (other than where such agencies deliberately
target employees covered by the provisions of CLAUSE
14.1) or as a response to a newspaper, web page or
other public employment advertisement.
14.3 SEVERABILITY
If the prohibition or restriction contained in CLAUSE 14.1 is judged to
go beyond what is reasonable in the circumstances and necessary to
protect the goodwill of any Target Group Company but would be judged
reasonable and necessary if any activity were deleted or the period or
area were reduced, then the prohibitions or restrictions apply with
that activity deleted or that period or area reduced by the minimum
amount necessary.
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14.4 ACKNOWLEDGMENTS BY THE WARRANTOR
(a) The Warrantor acknowledges that the prohibitions and
restrictions contained in this CLAUSE 14 are reasonable in the
circumstances and necessary to protect the value of the Shares
and the goodwill of the Target Group.
(b) The Warrantor acknowledges that in relation to this agreement
and in particular this CLAUSE 14 it has received legal advice
OR has had the opportunity of obtaining legal advice.
(c) The Warrantor acknowledges that monetary damages alone would
not be adequate compensation to the Purchaser for the
Warrantor's breach of this CLAUSE 14 and that the Purchaser is
entitled to seek an injunction from a court of competent
jurisdiction if:
(i) the Warrantor fails to comply or threatens to fail to
comply with this CLAUSE 14; or
(ii) the Purchaser has reason to believe the Warrantor
will not comply with this CLAUSE 14.
15. CONFIDENTIALITY
15.1 CONFIDENTIAL INFORMATION
With effect from Completion, the Vendor Guarantor shall, and shall
procure that each other member of the Vendor Group shall, in all
respects keep confidential and not at any time disclose or make known
in any other way to anyone whomsoever or use for its own or any other
person's benefit any Confidential Information, provided that:
(a) such obligation shall not apply to information which comes
into the public domain (other than through a breach by the
Vendor Guarantor of the provisions of this CLAUSE 15.1);
(b) any member of the Vendor Group shall be entitled at all times
to disclose such information as may be required by law or by
any competent judicial or regulatory authority or any Taxation
authority or by any securities exchange on which its shares
are listed or traded or for the preparation of its financial
statements; and
(c) any member of the Vendor Group shall be entitled to disclose
to its directors, officers, employees, agents, auditors or
advisers such information as may be necessary to enable them
to carry out their duties (conditional upon any such person
being informed of the confidential nature of such information
and the Vendor Guarantor procuring that such person keeps such
information confidential in accordance with this CLAUSE 15.1).
15.2 VENDOR GROUP CONFIDENTIAL INFORMATION
The Purchaser shall, and shall procure that each member of the
Purchaser Group (including, following Completion, the Company and the
Target Group) shall, in all respects keep confidential and not at any
time disclose or make known in any other way to anyone whomsoever or
use for its own or any other person's benefit any confidential
information of any member of the Vendor Group (other than, following
Completion, the
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Company and the Target Group) disclosed to the Purchaser by or on
behalf of either Vendor or the Vendor Guarantor, provided that:
(a) such obligation shall not apply to information which comes
into the public domain (other than through a breach by the
Purchaser of the provisions of this CLAUSE 15.2);
(b) any member of the Purchaser Group shall be entitled at all
times to disclose such information as may be required by law
or by any competent judicial or regulatory authority or any
Taxation authority or by any securities exchange on which its
shares are listed or traded or for the preparation of its
financial statements; and
(c) any member of the Purchaser Group shall be entitled to
disclose to its directors, officers, employees, agents,
auditors or advisers such information as may be necessary to
enable them to carry out their duties (conditional upon any
such person being informed of the confidential nature of such
information and the Purchaser procuring that such person keeps
such information confidential in accordance with this CLAUSE
15.2).
15.3 OTHER CONFIDENTIALITY AGREEMENTS
(a) In this CLAUSE 15.3, OTHER CONFIDENTIALITY AGREEMENT means an
agreement to which the Vendor Guarantor or any other member of
the Vendor Group is a party and which regulates the use of
Confidential Information provided by the Target Group or any
member of the Vendor Group to any third party.
(b) The Vendor Guarantor, subject to and conditional upon
Completion, assigns to the Purchaser all rights, benefits and
powers it has under the Other Confidentiality Agreements in
relation to Confidential Information, and must ensure that any
other members of the Vendor Group who are party to any Other
Confidentiality Agreements execute assignments in similar
terms in favour of the Purchaser, upon request by the
Purchaser.
(c) The Vendor Guarantor must, from Completion, at the Purchaser's
request:
(i) give directions to all counterparties to Other
Confidentiality Agreements requiring them, to the
fullest extent permitted under the relevant Other
Confidentiality Agreement, to destroy or return to
the Purchaser (as the Purchaser may elect) all copies
of Confidential Information and other material
containing or derived from Confidential information;
and
(ii) take such other action under the Other
Confidentiality Agreements as the Purchaser may
reasonably require (and on the Purchaser's behalf)
and to preserve the confidentiality of the
Confidential Information.
16. ANNOUNCEMENTS
16.1 ANNOUNCEMENT
The Vendor Guarantor and the Purchaser shall only release the
Announcement after 8am (Sydney time) on 22 February 2002 unless
otherwise agreed in writing between the Vendor Guarantor and the
Purchaser.
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16.2 NO OTHER ANNOUNCEMENTS
Save as provided in CLAUSES 16.1 and 16.3, no party shall (and the
Vendor Guarantor shall procure that each other member of the Vendor
Group shall not, without the consent of the Purchaser, and the
Purchaser shall procure that each other member of the Purchaser Group
and the Purchaser's shareholders and financial backers shall not,
without the consent of the Vendor Guarantor) issue any press release or
publish any circular to shareholders or any other document or make any
public statement before or after Completion, relating to any part of
the Transaction or any ancillary matter.
16.3 EXCEPTION
Nothing in CLAUSE 16.2 shall restrict:
(a) the Purchaser or any Target Group Company after Completion
from informing customers or suppliers or directors, officers
or employees of any Target Group Company of the acquisition of
the Target Group by the Purchaser;
(b) any party or any member of the Vendor Group or Purchaser Group
(as appropriate) from making any disclosure to any of its
directors, officers, employees, agents, auditors or advisers
who are required to receive such disclosure to carry out their
duties (conditional upon any such person being informed of the
confidential nature of such information and the disclosing
party procuring that such person keeps such information
confidential for as long as the disclosing party is obliged to
do so in accordance with this clause);
(c) any announcement or disclosure required by law or by any
competent judicial or regulatory authority or by any Taxation
authority or by any securities exchange;
(d) any announcement or disclosure necessary or desirable in order
to satisfy any of the Conditions in accordance with the
provisions of this agreement;
(e) any announcement or disclosure disclosing information which
has previously been publicly announced or disclosed in
accordance with the provisions of this CLAUSE 16; or
(f) any announcement or disclosure necessary by any person in
order to enforce its rights under this agreement or any other
agreement to be entered into pursuant to this agreement.
17. TERMINATION
17.1 TERMINATION RIGHT
This agreement may be terminated at any time at or before Completion:
(a) by the mutual written consent of the Vendor Guarantor and the
Purchaser;
(b) by the Vendor Guarantor or the Vendors, if the Purchaser is in
material breach of any of its obligations under this
agreement;
(c) by the Purchaser, if either Vendor or the Vendor Guarantor is
in material breach of any of their respective obligations
under this agreement;
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(d) by the Purchaser, if the Purchaser becomes aware (and was not
so aware as at the date of this agreement) of any matter which
renders (or would render but for termination of this agreement
under this clause) the Warrantor Liable for a Warranty Claim
(having regard to the provisions of CLAUSE 9) in respect of
the Warranties when given on execution of this agreement;
(e) by the Vendors or the Purchaser, if the Purchaser becomes
aware of any matter after execution of this agreement which
would render (but for termination of this agreement under this
clause), the Warrantor liable for an amount exceeding $50
million for a Warranty Claim or Warranty Claims (having regard
to the provisions of CLAUSE 9) in respect of the Warranties
when repeated immediately prior to Completion.
17.2 NOTICE OF TERMINATION
If a party wishes to terminate this agreement pursuant to CLAUSE 17.1,
it must do so by serving a written notice to that effect on the other
parties. Such notice shall specify the grounds on which this agreement
is being terminated.
17.3 NOTIFICATION
The Warrantor shall notify the Purchaser as soon as reasonably
practicable after being notified of or discovering a matter which would
entitle the Purchaser to terminate this agreement in accordance with
CLAUSE 17.1(D) or CLAUSE 17.1(E).
17.4 NO TERMINATION
Save as provided in CLAUSE 2.5 and CLAUSE 17.1, this agreement may not
be terminated or rescinded.
17.5 SURVIVAL
CLAUSES 1, 15.2, 16, 19 to 23 (inclusive) and 25 continue to apply
after termination of this agreement under this CLAUSE 17.1.
17.6 ACCRUED RIGHTS
Termination of this agreement under CLAUSE 17.1 does not affect any
accrued rights or remedies of a party.
18. GOODS AND SERVICES TAX
18.1 INTERPRETATION
Words or expressions used in this CLAUSE 18 that are defined in the A
New Tax System (Goods and Services Tax) Xxx 0000 (Cth) have the same
meaning in this clause.
18.2 GROSS UP OF CONSIDERATION
(a) Despite any other provision in this agreement, if a supply is
made (whether by a Vendor, the Purchaser or the Vendor
Guarantor) under or in connection with this agreement on which
GST is imposed (not being a supply the consideration for which
is specifically described in this agreement as 'GST
inclusive'):
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(i) the consideration payable or to be provided for that
supply under this agreement but for the application
of this clause (GST EXCLUSIVE CONSIDERATION) is
increased by, and the recipient of the supply must
also pay to the supplier, an amount equal to the GST
payable by the supplier on that supply (provided the
supplier has first issued a tax invoice to the
recipient); and
(ii) the amount by which the GST exclusive consideration
is increased must be paid to the supplier by the
recipient of the supply without set off, deduction or
requirement for demand, at the same time as the GST
exclusive consideration is payable or to be provided.
(b) If any person is entitled under this agreement to be
reimbursed or indemnified by another party for a cost or
expense incurred in connection with this agreement, the
reimbursement or indemnity payment must not include any GST
component of the cost or expense for which an input tax credit
may be claimed by the party entitled to be reimbursed or
indemnified, or by its representative member.
19. ASSIGNMENT
19.1 NO ASSIGNMENT
Subject to CLAUSE 19.2, a party must not assign or otherwise deal with
this agreement or any right under this agreement without the prior
written consent of each of the other parties.
19.2 PURCHASER'S ASSIGNMENT RIGHTS
All or any of the Purchaser's rights under this agreement (including in
respect of the Warranties) may be:
(a) assigned to or pledged to any person by way of security for borrowings
of the Purchaser Group; and
(b) assigned to any third party
provided that in each case, in respect of any assignment of any of the
Purchaser's rights under this agreement in respect of the Warranties,
such assignment shall be permitted only to the extent that the assignee
or pledgee is bound by all of the provisions of CLAUSE 9 in relation to
Warranty Claims and that the assignee's or pledgee's rights to recover
amounts in respect of any Warranty Claim will be the same as if the
Purchaser had not assigned such rights to the assignee or pledged such
rights to the pledgee.
20. WAIVER
20.1 FAILURE TO REQUIRE PERFORMANCE
The failure of a party at any time to require performance of any
obligation under this agreement is not a waiver of that party's right:
(a) to claim damages for breach of that obligation; and
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(b) at any other time to require performance of that or any other
obligation under this agreement,
unless written notice to that effect is given in accordance with CLAUSE
21.
20.2 WAIVER
Waiver of any provision of or right under this agreement:
(a) must be in writing signed by the party entitled to the benefit
of that provision or right;
(b) is effective only to the extent set out in any written waiver;
and
(c) shall not operate as a waiver of any repetition of any
particular breach of a provision of this agreement.
21. NOTICES
21.1 SERVICE OF NOTICES
A party giving or serving notice or notifying under this agreement may
do so in writing:
(a) directed to the recipient's address specified in this clause,
as varied by any notice; and
(b) hand delivered or sent by prepaid post (or by prepaid airmail
if from one country to another country) or facsimile to that
address.
The parties' addresses and facsimile numbers are:
PURCHASER:
Attention: Xxxxxxx Xxxxxxxxxxxxx
Address: No. 0 Xxxxxx Xxxxx, Xxxxxx, XXX 0000, Xxxxxxxxx
Facsimile no: 02 8232 3656
WITH COPIES TO:
Attention: Xxx Xxxxxx
Address: No. 0 Xxxxxx Xxxxx, Xxxxxx, XXX 0000, Xxxxxxxxx
Facsimile no: 02 8232 3656
AND:
Attention: Xxxxxxx xx Xxxxxx
Address: No. 0 Xxxxxx Xxxxx, Xxxxxx, XXX 0000, Xxxxxxxxx
Facsimile no: 02 8232 3656
VENDORS AND VENDOR GUARANTOR:
Attention: Xxxxxxx Xxxxxxx
Address: 000 Xxxx, 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000, XXX
Facsimile no: x0 000 000 0000
36
NTL AUSTRALIA
SHARE SALE AGREEMENT
WITH A COPY TO NTL GROUP LIMITED:
Attention: Xxxx Xxxxx and Xxxxxxxx Xxxxxx
Address: 00 Xxxx Xxxx, Xxxxxx XX0X 0XX, Xxxxxxx
Facsimile no: x00 000 000 0000
AND A COPY TO XXXXXXX XXXX SLATE XXXXXXX & XXXX LLP
Attention: Xxxxxx X Xxxxxxx
Address: Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, XXX
Facsimile no: x0 000 000 0000
21.2 RECEIPT
A notice given in accordance with CLAUSE 21.1 is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, two Business Days (or four Business
Days if sent by airmail) after the date of posting; or
(c) if sent by facsimile, when the sender's facsimile system
generates a message confirming successful transmission of the
total number of pages of the notice unless, within one
Business Day after the transmission, the recipient informs the
sender that it has not received the entire notice.
21.3 EXECUTION
A notice given in accordance with CLAUSE 21.1 is sufficiently signed
for or on behalf of a party if:
(a) in the case of a body corporate, it is signed by a director,
secretary or other authorised officer of the body corporate;
or
(b) in the case of an individual, it is signed by that party.
21.4 OTHER MODES OF SERVICE PERMITTED
The provisions of this CLAUSE 21 are in addition to any other mode of
service permitted by law.
21.5 INTERPRETATION
In this clause:
NOTICE includes a demand, request, consent, approval, offer and any
other instrument or communication made, required or authorised to be
given under this agreement.
22. GENERAL
22.1 DURATION OF PROVISIONS
On completion of the transactions contemplated in this agreement, the
provisions of this agreement will not merge and, to the extent any
provision has not been fulfilled, will remain in force.
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NTL AUSTRALIA
SHARE SALE AGREEMENT
22.2 FURTHER ACTION
Save as expressly provided by this agreement and any other agreement to
be entered into pursuant to this agreement, each party must use
reasonable efforts to do all things necessary or desirable to give full
effect to this agreement.
22.3 COUNTERPARTS
This agreement may be executed in any number of counterparts.
22.4 ALTERATION
This agreement may be altered only in writing signed by each party.
22.5 COSTS
Each party must bear its own costs of negotiating, preparing and
executing this agreement.
22.6 STAMP DUTY AND OTHER TAXES
(a) In addition to any GST payable by the Purchaser under CLAUSE
18 but subject to CLAUSE 22.6(B), the Purchaser must pay all
stamp duty or other Taxes on or in respect of:
(i) this agreement;
(ii) any instrument, document or transaction contemplated
by this agreement; and
(iii) any instrument or document required under any
relevant law in connection with any transaction
contemplated by this agreement.
(b) The Vendors must pay any and all stamp duty or other transfer
taxes payable in any jurisdiction outside Australia in
relation to the transfer of the Shares.
22.7 EXCLUSION OF WARRANTIES AND REPRESENTATIONS
Each of the parties acknowledges and agrees that:
(a) it is not entering into this agreement on the basis of, and is
not relying on and has not relied on, any statement,
representation, warranty or other provision made, given or
agreed to by any person (whether a party to this agreement or
not) except those expressly repeated or referred to in this
agreement; and
(b) the only remedy or remedies available in respect of any
misrepresentation or untrue statement made to it shall be a
claim for breach of contract under this agreement.
22.8 NO EXCLUSION FOR FRAUD
CLAUSE 22.7 shall not apply to any statement, representation, or
warranty made fraudulently or to any provision of this agreement
(including for the avoidance of doubt, the Warranties) which was
induced by fraud for which the remedies shall be all those
38
NTL AUSTRALIA
SHARE SALE AGREEMENT
available under the law governing this agreement, regardless of the
other terms of this agreement.
22.9 NO PARTNERSHIP OR AGENCY
This agreement shall not be construed as creating any partnership or
agency (except where otherwise expressly stated) relationship between
any of the parties.
22.10 NO SET-OFF
Except as otherwise expressly provided, all payments to be made by the
parties arising out of or in connection with this agreement (or any
other agreement or arrangement required to be entered into by it in
connection with this agreement) shall be made in full, without set-off
or counterclaim and without any deduction whatsoever except to the
extent required by law.
22.11 SUBSEQUENT TRANSFER OF THE COMPANY AND TARGET GROUP COMPANIES
References in this agreement (or any other agreement to be entered into
pursuant to this agreement) to the Purchaser procuring that members of
the Purchaser Group take any action shall be deemed to include the
Company and members of the Target Group with effect from Completion. If
any member of the Purchaser Group shall subsequently sell the Company
or any member of the Target Group or the whole or substantial part of
the undertaking and assets of the Company or any Target Group Company,
the Purchaser undertakes to procure that, to the extent still
applicable, the transferee shall enter into similar procurement
obligations in favour of the Vendor Guarantor and the other relevant
members of the Vendor Group.
23. GOVERNING LAW
23.1 GOVERNING LAW
This agreement is governed by the law applicable in New South Wales.
23.2 SUBMISSION TO JURISDICTION AND SERVICE OF PROCESS
(a) Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of New South Wales.
(b) The Vendors and the Vendor Guarantor each irrevocably appoint
Xxxxxx Xxxxxxx whose address in New South Wales is at Aurora
Place, 00 Xxxxxxx Xxxxxx, Xxxxxx XXX 0000, Xxxxxxxxx,
reference: P Wentworth as its agent to accept service of
process in any legal proceeding commenced in the courts of New
South Wales relating to any matter arising out of this
agreement (PROCESS AGENT).
(c) Each of the Vendors and the Vendor Guarantor:
(i) may from time to time appoint a replacement of the
Process Agent or any replacement Process Agent by
giving notice to the Purchaser;
(ii) acknowledges that service will be taken to be
completed and effective service of process for any
legal proceeding brought against it in a New South
Wales court relating to any matter arising out of
this agreement
39
NTL AUSTRALIA
SHARE SALE AGREEMENT
on delivery to the Process Agent or any replacement
Process Agent (whether or not it is forwarded to the
relevant Vendor or Vendor Guarantor, as appropriate);
and
(iii) if for any reason the Process Agent or any
replacement Process Agent ceases to be able to act,
or ceases to have an address in New South Wales,
agrees to appoint a substitute Process Agent able to
act and with an address in New South Wales and to
notify the Purchaser of that new Process Agent's
acceptance of that appointment and its identity and
address.
(d) Each of the Vendors and the Vendor Guarantor acknowledges that
the appointment of the Process Agent or any replacement
Process Agent cannot be revoked without the simultaneous
appointment of a replacement Process Agent.
24. VENDOR GUARANTOR'S GUARANTEE
24.1 GUARANTEE
In consideration of the Purchaser agreeing, at the request of the
Vendors and the Vendor Guarantor, to enter into this agreement, the
Vendor Guarantor unconditionally and irrevocably guarantees to the
Purchaser the payment of the Guaranteed Moneys and the due and punctual
performance and observation by the Vendors of all of the obligations
contained in or implied under this agreement and any other agreement to
be entered into under this agreement which are to be performed and
observed by the Vendors or either of them (VENDOR GUARANTEED
OBLIGATIONS).
24.2 PAYMENT
If the Guaranteed Moneys are not paid when due, the Vendor Guarantor
must immediately on demand from the Purchaser pay to the Purchaser (or
other relevant entity as appropriate) the Guaranteed Moneys in the same
manner and currency as the Guaranteed Moneys are required to be paid.
24.3 PERFORMANCE
If either Vendor fails to perform its obligations under this agreement
when they are due, the Vendor Guarantor must immediately on demand from
the Purchaser cause the relevant Vendor to perform its obligations
under this agreement.
24.4 INDEMNITY
(a) If any of the Guaranteed Moneys (or amounts which would have
been Guaranteed Moneys had they not been irrecoverable) are:
(i) irrecoverable from either Vendor; and
(ii) not recoverable by the Purchaser from the Vendor
Guarantor on the basis of a guarantee,
the Vendor Guarantor as a separate and principal obligation:
(iii) indemnifies the Purchaser against any claim, action,
damage, loss, liability, cost, charge, expense,
outgoing or paYment suffered, paid or
40
NTL AUSTRALIA
SHARE SALE AGREEMENT
incurred by the Purchaser in relation to the
non-payment of those amounts; and
(iv) must pay to the Purchaser an amount equal to those
amounts.
(b) The Vendor Guarantor indemnifies the Purchaser against all
Liabilities which the Purchaser may now or in the future
suffer or incur consequent on or arising directly or
indirectly out of any breach or non-observance by either
Vendor of any of the Vendor Guaranteed Obligations.
24.5 EXTENT OF GUARANTEE AND INDEMNITY
(a) This CLAUSE 24 applies:
(i) to the present and future amount of the Guaranteed
Moneys and the present and future obligations of the
Vendors under this agreement; and
(ii) to this agreement, as amended, supplemented, renewed
or replaced.
(b) The obligations of the Vendor Guarantor under this CLAUSE 24
extend to any increase in the Guaranteed Moneys and any change
in the Vendor Guaranteed Obligations as a result of:
(i) any amendment, supplement, renewal or replacement of
this agreement; or
(ii) the occurrence of any other thing.
(c) This CLAUSE 24 is not affected nor are the obligations of the
Vendor GuarAntor under this agreement released or discharged
or otherwise affected by anything which but for this provision
might have that effect.
(d) This CLAUSE 24 applies:
(i) regardless of whether the Vendor Guarantor is aware
of or has consented to or is given notice of any
amendment, supplement, renewal or replacement of any
agreement to which either Vendor and the Purchaser
are a party or the occurrence of any other thing; and
(ii) irrespective of any rule of law or equity to the
contrary.
24.6 AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other transaction
relating to or affecting the Guaranteed Moneys or the Vendor
Guaranteed Obligations is:
(i) void, voidable or unenforceable in whole or in part;
or
(ii) is claimed to be void, voidable or unenforceable and
that claim is upheld, conceded or compromised in
whole or in part,
41
NTL AUSTRALIA
SHARE SALE AGREEMENT
the liability of the Vendor Guarantor under this CLAUSE 24 and
any power, right or remedy of the Purchaser is the same as if:
(iii) that payment, transaction, conveyance or transfer (or
the void, voidable or unenforceable part of it); and
(iv) any release, settlement or discharge made in reliance
on any thing referred to in CLAUSE 24.6(a),
had not been made and the Vendor Guarantor must immediately
take all action and sign all documents necessary or required
by the Purchaser to restore to the Purchaser this CLAUSE 24
and any security interest held by the Purchaser immediately
before the payment, conveyance, transfer or transaction.
(b) CLAUSE 24.6(a) applies whether or not the Purchaser knew, or
ought to have known of, anything referred to in that clause.
24.7 PRINCIPAL AND INDEPENDENT OBLIGATION
(a) This CLAUSE 24 is:
(i) a principal obligation and is not to be treated as
ancillary or collateral to any other right or
obligation; and
(ii) independent of and not in substitution for or
affected by any other collateral security which the
Purchaser may hold in respect of the Guaranteed
Moneys or the Vendor Guaranteed Obligations.
(b) This CLAUSE 24 is enforceable against the Vendor Guarantor:
(i) without first having recourse to any collateral
security;
(ii) whether or not the Purchaser has:
(A) made demand upon the relevant Vendor; or
(B) given notice to the relevant Vendor or any
other person in respect of any thing; or
(C) taken any other steps against the relevant
Vendor or any other person; and
(iii) whether or not any Guaranteed Moneys is due.
24.8 NO COMPETITION
(a) Subject to CLAUSE 24.8(b), until the Guaranteed Moneys have
been fully paid, until the Vendor Guaranteed Obligations have
been fully performed and until this CLAUSE 24 has been finally
discharged, the Vendor Guarantor must not, either directly or
indirectly prove in, claim or receive the benefit of any
distribution, dividend or payment arising out of or relating
to the liquidation of the relevant Vendor.
42
NTL AUSTRALIA
SHARE SALE AGREEMENT
(b) If required by the Purchaser, the Vendor Guarantor must prove
in any liquidation of the relevant Vendor for all amounts owed
to the Vendor Guarantor.
(c) All amounts recovered by the Vendor Guarantor from any
liquidation or under any Encumbrance from the relevant Vendor
must be received and held in trust by the Vendor Guarantor for
the Purchaser to the extent of the unsatisfied liability of
the Vendor Guarantor under this CLAUSE 24.
24.9 CONTINUING GUARANTEE AND INDEMNITY
Each guarantee and indemnity contained in this CLAUSE 24 is a
continuing guarantee and indemnity for the purpose of securing the
whole of the Guaranteed Moneys and the Vendor Guaranteed Obligations,
despite any partial performance of the Vendor Guaranteed Obligations,
settlement of account or any other matter. The obligations of the
Vendor Guarantor under this CLAUSE 24 are absolute and unconditional
and remain in full force and effect until:
(a) all the Guaranteed Moneys have been paid in full;
(b) the Vendor Guaranteed Obligations of the Vendor under this
agreement have been performed; and
(c) this CLAUSE 24 has been finally discharged.
25. INTERPRETATION
In this agreement, unless the contrary intention appears:
(a) headings are for ease of reference only and do not affect the
meaning of this agreement;
(b) the singular includes the plural and vice versa and words
importing a gender include other genders;
(c) other grammatical forms of defined words or expressions have
corresponding meanings;
(d) a reference to a clause, paragraph, schedule, annexure or
attachment is a reference to a clause or paragraph of or
schedule, annexure or attachment to this agreement and a
reference to this agreement includes its schedules, annexures
and attachments;
(e) a reference to a document or agreement, including this
agreement, includes a reference to that document or agreement
as novated, altered or replaced from time to time;
(f) a reference to 'A$', '$A', 'DOLLAR' or '$' is a reference to
Australian currency;
(g) a reference to a specific time for the performance of an
obligation is a reference to that time in Sydney, New South
Wales, Australia even if the obligation is to be performed
elsewhere;
(h) a reference to a party includes a reference to the party's
executors, administrators, successors, substitutes and
permitted assigns;
43
NTL AUSTRALIA
SHARE SALE AGREEMENT
(i) words and expressions importing natural persons include
partnerships, bodies corporate, associations, governments and
governmental and local authorities and agencies, and vice
versa;
(j) a reference to any legislation or statutory instrument or
regulation is construed in accordance with the Acts
Interpretation Xxx 0000 (Cth) or the equivalent State
legislation, as applicable;
(k) a reference to writing includes typewriting, printing,
lithography, photography and any other method of representing
or reproducing words, figures or symbols in a permanent and
visible form;
(l) if a day for the payment under this agreement falls on a day
which is not a Business Day, payment is due on the immediately
preceding Business Day;
(m) words and expressions defined in the Corporations Xxx 0000
(Cth) have the same meaning when used in this agreement;
(n) 'including', 'such as', 'for example' and similar expressions
are not and must not be treated as words of limitation; and
(o) obligations, covenants, warranties and undertakings expressed
to be assumed or given by two or more persons shall in each
case be construed as if expressed to be given jointly and
severally (except to the extent otherwise expressly provided
by this agreement).
44
NTL AUSTRALIA
SHARE SALE AGREEMENT
EXECUTED as an agreement.
EXECUTED by XXXXXXXX XXXXXX as )
attorney for NATIONAL )
TRANSCOMMUNICATIONS SPAIN )
S.L. pursuant to a power of
attorney dated
in the presence of
/s/ Xxxx Xxxxxxxxx /s/ Xxxxxxxx Xxxxxx
------------------------------------- --------------------------------------
Signature of witness Xxxxxxxx Xxxxxx
Xxxx Xxxxxxxxx
-------------------------------------
Name of witness (print)
EXECUTED by XXXXXXXX XXXXXX as )
attorney for NTL AUSTRALIA SPV, INC. )
pursuant to a power of attorney dated )
in the presence of
/s/ Xxxx Xxxxxxxxx /s/ Xxxxxxxx Xxxxxx
------------------------------------- --------------------------------------
Signature of witness Xxxxxxxx Xxxxxx
Xxxx Xxxxxxxxx
-------------------------------------
Name of witness (print)
EXECUTED by XXXXXXXX XXXXXX as )
attorney for NTL INCORPORATED )
pursuant to a power of attorney dated )
in the presence of
/s/ Xxxx Xxxxxxxxx /s/ Xxxxxxxx Xxxxxx
------------------------------------- --------------------------------------
Signature of witness Xxxxxxxx Xxxxxx
Xxxx Xxxxxxxxx
-------------------------------------
Name of witness (print)
45
NTL AUSTRALIA
SHARE SALE AGREEMENT
EXECUTED by )
)
as attorney for MACQUARIE )
COMMUNICATIONS
INFRASTRUCTURE HOLDINGS PTY
LIMITED pursuant to a power of
attorney dated
in the presence of
/s/ X. Xxxxxxxxxxxxx
------------------------------------- --------------------------------------
Signature of witness
X. Xxxxxxxxxxxxx
-------------------------------------
Name of witness (print)
46
NTL AUSTRALIA
SHARE SALE AGREEMENT - Schedule 1 - Details of the Target Group
SCHEDULE 1
PART 1
DETAILS OF THE COMPANY
NAME AND REGISTERED NUMBER: ntl Belgium SPRL, entered with the
Trade Register of Brussels under no.
638.921
REGISTERED OFFICE: Xxxxxx Xxxxxx Xxxxx 000, 0000
Xxxxxxxx, Xxxxxxx
ISSUED SHARE CAPITAL: EUR93,529,557.58 represented by
3,772,973 registered shares without
designation of a nominal value of
which:
- 3,772,223 registered shares are
legally and beneficially owned by
NTL Spain; and
- 750 registered shares are legally
and beneficially owned by SPV.
DIRECTORS: Xxxx Xxxxx and Xxxxxxx Xxxxxxx
CHARGES: None.
47
NTL AUSTRALIA
SHARE SALE AGREEMENT - Schedule 1 - Details of the Target Group
SCHEDULE 1
PART 2
DETAILS OF SUBSIDIARIES
NAME AND ACN: ntl Australia Holdings Pty Limited (ACN 086 459 127)
REGISTERED OFFICE: Xxxxx 0, 000 Xxxxxxx Xxxxxxx, Xxxxx Xxxx XXX 0000
DATE OF REGISTRATION: 26 February 1999
ISSUED SHARE CAPITAL: 210,000,000 ordinary shares, all of which are legally
and beneficially owned by the Company.
DIRECTORS: Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxx
Xxxxx, Xxxx Xxxxxxx
SECRETARY: Xxxxxx Xxxxxxx
CHARGES: Charge with ASIC registered charge no. 803459
NAME AND ACN: ntl Australia Pty Limited (ACN 086 048 562)
REGISTERED OFFICE: Xxxxx 0, 000 Xxxxxxx Xxxxxxx, Xxxxx Xxxx XXX 0000
DATE OF REGISTRATION: 11 February 1999
ISSUED SHARE CAPITAL: 209,999,002 ordinary shares, all of which are legally
and beneficially owned by NTLA Holdings.
DIRECTORS: Xxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxxx Xxxxxxx and Xxxxx
Xxxxxxx
SECRETARY: Xxxxxx Xxxxxxx
CHARGES: Charges with ASIC registered charge numbers 803455,
803457, 803461 and 803463
48
NTL AUSTRALIA
SHARE SALE AGREEMENT - Schedule 1 - Details of the Target Group
NAME AND ACN: ntl Telecommunications Holdings Pty Ltd (ACN 000 000 000)
REGISTERED OFFICE: Xxxxx 0, 000 Xxxxxxx Xxxxxxx, Xxxxx Xxxx XXX 0000
DATE OF REGISTRATION: 1 August 2000
ISSUED SHARE CAPITAL: 1 ordinary share, which is legally and beneficially
owned by NTLA Holdings.
DIRECTORS: Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx and Xxxxx Xxxxx
SECRETARY: Xxxxxx Xxxxxxx
CHARGES: Nil
49
NTL AUSTRALIA
SHARE SALE AGREEMENT - Schedule 1 - Details of the Target Group
PART 3
DETAILS OF NTLT
NAME AND ACN: ntl Telecommunications Pty Ltd (ACN 000 000 000)
REGISTERED OFFICE: Xxxxx 0, 000 Xxxxxxx Xxxxxxx, Xxxxx Xxxx XXX 0000
DATE OF REGISTRATION: 30 May 2000
ISSUED SHARE CAPITAL: 37,502,292 ordinary shares of which:
- 19,126,169 ordinary shares (ie 51% of the
total issued share capital) are legally and
beneficially owned by ntl Telecommunications
Holdings Pty Ltd;
- 9,938,108 ordinary shares (ie 26.5% of the
total issued share capital) are registered
in the name of WIN Television Network Pty
Limited; and
- 8,438,015 ordinary shares (ie 22.5% of the
total issued share capital) are registered
in the name of Southern Cross Communications
Limited.
DIRECTORS: Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx
Xxxx and Xxxx Xxxxxxx
SECRETARY: Xxxxxx Xxxxxxx
CHARGES: Nil
50
NTL AUSTRALIA
SHARE SALE AGREEMENT - Schedule 1 - Details of the Target Group
SCHEDULE 1
PART 4
DETAILS OF SPT
NAME AND ACN: SPT Telecommunications Pty Limited (ACN 099 173 770)
REGISTERED OFFICE: 00 Xxxxxx Xxxxxxxx, Xxx Xxxx, XXX 0000
DATE OF REGISTRATION: 4 January 2002
ISSUED SHARE CAPITAL: 1,000,002 ordinary shares of which:
- 500,001 ordinary shares, representing 50% of
the total issued share capital, are legally
and beneficially owned by NTLT; and
- 500,001 ordinary shares, representing 50% of
the total issued share capital, are
registered in the name of Soul Pattinson
Telecommunications Pty Ltd
DIRECTORS: Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxx
Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxx Xxxxxxxx
SECRETARY: Jeffrey Eather
CHARGES: Nil
51
NTL AUSTRALIA
SHARE SALE AGREEMENT - SCHEDULE 2 DIRECTORS AND SECRETARIES
SCHEDULE 2
DIRECTORS TO RESIGN
THE COMPANY
DIRECTORS: Xxxx Xxxxx and Xxxxxxx Xxxxxxx
NTL AUSTRALIA HOLDINGS PTY LIMITED
DIRECTORS: Xxxx Xxxxx and Xxxx Xxxxxxx
NTLA
DIRECTOR: Xxxx Xxxxxxx
52
NTL AUSTRALIA
SHARE SALE AGREEMENT - SCHEDULE 3 WARRANTIES
SCHEDULE 3
WARRANTIES
1. THE VENDORS AND THE VENDORS' CAPACITY
1.1 THE VENDORS
(a) The Vendors are validly existing and in good standing in their
respective countries of incorporation and:
(b) no meeting has been convened, resolution proposed, petition
presented or order made for the winding up of either Vendor
(or the equivalent in their respective countries of
incorporation);
(c) no receiver, receiver and manager, provisional liquidator,
liquidator or other officer of the Court has been appointed in
relation to all or any material assets of either Vendor; or
(d) no mortgagee has taken, attempted or indicated an intention to
exercise its rights under any security of which either of the
Vendors is the mortgagor or chargor;
(e) are able to sell and transfer the Shares without the consent
of any other person and free of any pre-emptive rights or
rights of first refusal.
For the purposes of the above warranty, "good standing" means that the
company is financially sound and is conducting its operations lawfully
and in particular that the company has filed all relevant corporate
returns with relevant Government Authorities and has paid any and all
applicable corporate filing fees and taxes.
1.2 THE VENDORS' CAPACITY
(a) The Vendors:
(i) are the sole registered and beneficial owners of the
Shares; and
(ii) have obtained all corporate authorisations required
to empower them to enter into this agreement and to
perform their obligations under this agreement.
(b) The sale of the Shares under this agreement will not:
(i) impose any Encumbrance on the Vendors; or
(ii) cause the Vendors to be in breach of any obligation
or agreement by which they are bound.
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NTL AUSTRALIA
SHARE SALE AGREEMENT - SCHEDULE 3 WARRANTIES
2. THE SHARES AND THE COMPANY
2.1 SHARE CAPITAL
The Shares:
(a) comprise the whole of the issued share capital of the Company;
and
(b) are all fully paid.
2.2 NO ENCUMBRANCES
There are no Encumbrances, options, equities, claims or other third
party rights over or affecting the Shares and there is no agreement to
give or create any such interest.
2.3 THE COMPANY
(a) The Company is solely resident in Belgium for tax purposes and
is not, and has never been, a tax resident of any other
jurisdiction.
(b) The Company is duly incorporated and validly exists under the
law of its place of incorporation and:
(i) has not traded since incorporation and has no
Liabilities;
(ii) has no assets other than the Shares and cash in hand;
(iii) has full corporate power and authority to own its
assets; and
(iv) has not passed any resolution for its winding up or
any equivalent process under the law of its place of
incorporation.
2.4 ACCOUNTS OF THE COMPANY
The Belgian Accounts:
(a) give a true and fair view of the financial position of the
Company as at the Accounts Date and of its financial
performance for the year ended on the Accounts Date; and
(b) have been prepared in accordance with accounting standards and
generally accepted accounting principles applicable in
Belgium.
3. SUBSIDIARIES AND INVESTMENTS
3.1 DETAILS OF THE TARGET GROUP AND SPT
(a) The Company (or a Subsidiary of the Company) is the registered
and beneficial owner free from all Encumbrances, equities and
claims of:
(i) the whole of the share capital of the wholly-owned
Subsidiaries listed in Part 2 of Schedule 1;
(ii) the number of shares representing the percentage of
total issued share capital of the other Subsidiary
set out in Part 3 of Schedule 1.
54
NTL AUSTRALIA
SHARE SALE AGREEMENT - SCHEDULE 3 WARRANTIES
(b) The Subsidiaries listed in Part 2 and Part 3 of Schedule 1
are the Company's only subsidiaries.
(c) NTLT holds 500,001 ordinary shares in the share capital of
SPT which represents 50% of the total issued share capital
of SPT.
(d) The details of the Company, the Subsidiaries and SPT set
out in Schedule 1 are accurate in all respects.
(e) Except as set out in Schedule 1, neither the Company, the
Subsidiaries nor SPT holds shares or other securities in
any other company, any units or other interests in any
trust, or any interest in any partnership or joint
venture.
3.2 NO OBLIGATION TO ISSUE
No member of the Target Group nor SPT is under any obligation to
issue, and has not granted any person the right to call for the
issue, of any shares or other securities of the Target Group or SPT
at any time.
3.3 NO GUARANTEES
No guarantees, securities, bonds, letters of comfort or other similar
obligations have been given or incurred by the Company, SPT or any
member of the Target Group in respect of the obligations of the
Vendor Group (other than the Company and the Target Group).
3.4 INTERCOMPANY ACCOUNTS
(a) The amount of the SPV Inter-Company Debt at 28 February
2002 will be $267,390,018 and will increase at $31,240 per
day thereafter.
(b) The amounts owing on inter-company account by NTLA to ntl
Group Limited at 28 February 2002 will be $12,980,000
(inclusive of withholding tax) and will increase at $4,000
per day thereafter.
(c) There are no other amounts owed by any member of the
Target Group or the Company to any member of the Vendor
Group (other than the Company and the Target Group).
4. THE TARGET GROUP'S STANDING AND CONSTITUENT DOCUMENTS
4.1 THE TARGET GROUP'S STANDING
Each member of the Target Group and SPT:
(a) is duly organised and validly existing under the laws of
its place of incorporation; and
(b) has full corporate power and authority to carry on its
business as it is now being conducted and to own the
material properties and assets that it now owns.
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4.2 NO INSOLVENCY
(a) Neither SPT nor the Company nor any member of the Target
Group has gone into liquidation or passed a winding-up
resolution (and no steps for the passing of such
resolution have been taken) nor received a deregistration
notice;
(b) no petition or other process for winding-up has been
presented or threatened against any member of the Target
Group, the Company or SPT and there are no circumstances
justifying a petition or other process;
(c) no writ of execution has issued against any member of the
Target Group, the Company or SPT or its property and there
are no circumstances justifying a writ; and
(d) no administrator, receiver or receiver and manager of any
part of the undertaking or assets of any member of the
Target Group, the Company or SPT has been appointed or is
threatened or expected to be appointed and there are no
circumstances justifying an appointment.
4.3 THE TARGET GROUP'S CONSTITUENT DOCUMENTS
The Data Room Documents contain a copy of:
(a) the constitution of each member of the Target Group as in
effect immediately prior to this agreement; and
(b) the shareholders agreement governing ownership, control
and operation of NTLT as in effect immediately prior to
this agreement.
4.4 SPT'S CONSTITUENT DOCUMENTS
The Data Room Documents contain a copy of:
(a) the shareholders agreement governing the ownership,
control and operation of SPT as in effect immediately
prior to this agreement; and
(b) the constitution of SPT as in effect immediately prior to
this agreement.
5. THE ACCOUNTS
5.1 ACCOUNTS
The Accounts:
(a) give a true and fair view of the financial position of
NTLA Holdings and the consolidated financial position of
NTLA Holdings as at the Accounts Date and of their
financial performance and cash flows for the year ended on
the Accounts Date; and
(b) have been prepared in accordance with GAAP.
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5.2 POSITION SINCE THE ACCOUNTS DATE
Since the Accounts Date:
(a) the Target Group has carried on its businesses in the
ordinary and usual course;
(b) there has been no material adverse change in the
consolidated financial or trading position of the Target
Group;
(c) no share or loan capital has been issued or agreed to be
issued by any member of the Target Group other than to
another member of the Target Group;
(d) there has been no change in the level of borrowing or in
the working capital requirements of any member of the
Target Group;
(e) all transactions between the Target Group and the Vendor
Group and between members of the Target Group have been on
commercial arms length terms;
(f) there has been no breach of the Settlement Deed dated 3
December 2001 between NTLT, ECI Telecom Limited, and ECI
Telecom (Australia) Pty Limited which has resulted or may
result in material additional costs to the Target Group.
5.3 MANAGEMENT ACCOUNTS
The Management Accounts were properly prepared in accordance with
GAAP having regard to the usual month-end procedures for preparation
of monthly management accounts by the Target Group consistent with
that adopted in the preparation of the Accounts.
5.4 OFF BALANCE SHEET FINANCING
No member of the Target Group is engaged in any financing of a type
which would not be required by GAAP to be shown or reflected in the
Accounts.
5.5 ACCOUNTING RECORDS
All books of account of each member of the Target Group are in its
possession and contain the information required by law.
6. DEBTS AND LIABILITIES
6.1 FINANCE FACILITIES
The Warrantor has disclosed to the Purchaser, details of the
financial facilities, loans, overdrafts and other financial
accommodation (other than that arising from credit terms extended to
the Target Group in the ordinary course of the Business) available to
the Target Group and a list of all financial facilities, loans,
overdrafts and other such financial accommodation available to the
Target Group is set out in Attachment 7 to the Disclosure Letter.
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6.2 GUARANTEES AND INDEMNITIES
There are no guarantees, letters of comfort, indemnities or
Encumbrances given by or for the benefit of any member of the Target
Group or SPT that have not been fully discharged or released other
than as set out in Attachment 8 to the Disclosure Letter.
6.3 NO UNDISCLOSED LIABILITIES
There are no Liabilities of any Target Group Company as at 31
December 2001 which have not been fairly disclosed in the Disclosure
Letter or in the Accounts.
6.4 NO DEFAULT
(a) No event of default, potential event of default or
termination event (however described) in respect of any of
the financial facilities, loans, overdrafts and other
financial accommodation available to the Target Group
(FACILITIES) subsists.
(b) No member of the Target Group has breached any undertaking
in any of the Facilities and none of the representations
and warranties given by any member of the Target Group
under or in connection with any Facility is false,
misleading or incorrect.
6.5 ABILITY TO DRAWDOWN
NTLA is entitled to draw amounts under the Bank Facility in
accordance with its terms and is capable of satisfying all conditions
precedent to such drawdown.
7. ASSETS - GENERAL
7.1 OWNERSHIP AND RIGHT TO USE
The Target Group owns or is entitled to use and enjoy all the rights,
assets, Permits and equipment necessary to carry on the businesses of
the Target Group as carried on in the year ended on the Accounts Date
and the Warrantor is not aware of any circumstance which would lead
to such rights, assets, Permits and equipment ceasing to be available
for the purpose of carrying on those businesses within six months
after completion.
7.2 TITLE
No Encumbrance will at Completion be outstanding over the whole or
any part of the assets of the Target Group (other than retention of
title rights entered into in the ordinary course of the Business) or
SPT.
7.3 NO RELIANCE ON VENDOR GROUP
Except to the extent provided for in the documents referred to in
CLAUSE 7 of this agreement or in the documents listed in Attachment 9
to the Disclosure Letter, the businesses of the Target Group and SPT
do not use or rely on the assets owned by or facilities or services
provided by any member of the Vendor's Group.
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7.4 INSURANCE
(a) Attachment 10 to the Disclosure Letter contains a list of
each current insurance policy of the Target Group and
copies of those policies are contained in the Data Room
Documents.
(b) So far as the Warrantor is aware, each insurance policy
held by the Target Group or SPT is current, in force and
not voidable and no claim in excess of $1 million (in the
case of personal injury insurance) or $5 million (in all
other cases) is outstanding under any of those policies.
(c) So far as the Warrantor is aware, no member of the Target
Group has received a notice from its insurers adversely
affecting an insurance policy of the Target Group or SPT.
(d) Each member of the Target Group has, and at all material
times has had, valid insurance cover in respect of the
Business, its employees and assets against all risks
normally insured against by companies carrying on the same
type of business as the Target Group or having similar
assets, for the full amount required by legislation, for
the full replacement value of its assets and from a
well-established and reputable insurer.
7.5 TITLE
All assets (other than 'off-the-shelf' computer software) used in the
Business and any other asset of the Target Group or SPT are:
(a) fully paid for;
(b) in the possession of the Target Group (or SPT, as
appropriate);
(c) used solely by the Target Group (or SPT, as appropriate);
(d) not the subject of any lease or hire purchase agreement or
agreements for purchase on deferred terms;
(e) to the extent that such assets are owned by the Target
Group or SPT, are recorded in the books of the Target
Group or SPT,
except as set out in the Disclosure Letter.
7.6 PLANT AND MACHINERY
All material items of plant, machinery, equipment and vehicles of the
Target Group or SPT or used in the business of the Target Group or
SPT are:
(a) in good repair and condition having regard to their age,
location and use;
(b) in satisfactory working order;
(c) capable of doing the work for which they are designed; and
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(d) not obsolete or otherwise adequate provision has been made
in the capital expenditure budget and maintenance budget
in the current annual budget and business plans relating
to 2002/2003 for their renewal.
7.7 CONSTRUCTION WORKS IN PROGRESS
All items of expenditure included in Construction Works in Progress
of the Target Group or SPT comprise assets in the course of being
constructed and not yet ready for use, and which will be used in the
business of the Target Group or SPT once their construction is
complete. There are no material items of expenditure included in
Construction Works in Progress as at 31 December 2001, which should
have been or will be expensed (as opposed to capitalised) to the
Target Group's or SPT's financial performance for the year ended 31
December 2001 or subsequent financial periods.
8. REAL PROPERTY
8.1 DISCLOSURE
Attachment 4 to the Disclosure Letter, in the form delivered to the
Purchaser to satisfy the Condition in CLAUSE 2.1(j), contains a list,
complete and accurate in all material respects of the Tower Sites and
the Administrative Properties which indicates:
(a) the type of tenure held at each Tower Site listed and its
status;
(b) in relation to Tower Sites, whether or not the relevant
transmission facility has been upgraded by or at the
request of a member of the Target Group to provide digital
terrestrial television transmission services; and
(c) in relation to each Property not owned by any member of
the Target Group, details of the relevant:
(i) landlord/licensor;
(ii) expiry date;
(iii) aggregated annual rent and outgoings for 2002;
(iv) next scheduled rent review date; and
(v) so far as the Warrantor is aware, whether there
are any change of control restrictions.
8.2 RIGHT TO OCCUPY OR TO ACCESS AND USE TOWER SITES
(a) The Target Group has a contractual, statutory, legal or
equitable entitlement to:
(i) access to;
(ii) occupy; and
(iii) use,
all of the Tower Sites and holds all rights and privileges
to use the equipment and structures located on the Tower
Sites (subject to the terms of such
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entitlement) which are necessary for the conduct of the
Business from the Tower Sites.
(b) No member of the Target Group has received any valid
written notification and the Warrantor is not aware of any
other notification:
(i) stating that any member of the Target Group's
entitlement to access, to occupy or to use any
of the Tower Sites is revoked or is to be'
revoked; or
(ii) ordering any member of the Target Group to
cease to occupy or to access and use any of the
Tower Sites; or
(iii) to remove any structure erected on any of the
Tower Sites.
(c) In relation to the Tower Sites which are leased or
licensed by the Target Group:
(i) there are no subsisting breaches of the leases
or licences of those Properties; and
(ii) no member of the Target Group has received any
valid written notification of any material
breach of the leases or licences of those
Properties.
8.3 OWNERSHIP AND/OR LEASES OF ADMINISTRATIVE PROPERTIES
(a) The Target Group has a valid and subsisting lease of each
Administrative Property.
(b) In relation to the Administrative Properties which are
leased by the Target Group:
(i) there are no subsisting breaches of the leases
of those Properties; and
(ii) no member of the Target Group has received any
valid written notification of any breach of the
leases of those Properties.
8.4 NO ACTION LIKELY TO HAVE A MATERIALLY ADVERSE EFFECT
No action has been taken against or threatened in writing to any
member of the Target Group in respect of any of the Tower Sites or
Administrative Properties that is likely to have a material adverse
effect on the use of any Tower Site or result in a material
additional financial burden on any Target Group Company.
8.5 NATIVE TITLE
No claim lodged under the Native Xxxxx Xxx 0000 (Cth), or other
proceedings relating to native title, affecting the Tower Sites is
likely to have a material adverse effect on the ability of the Target
Group to perform its operations under any material contract or have a
material adverse effect on any Target Group Company if that claim is
observed or upheld in whole or in part.
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8.6 SALE AGREEMENT
All occupation rights (whether freehold, leasehold or otherwise) of
the Commonwealth in relation to properties acquired by NTLA under the
Sale Agreement have been fully and properly transferred to NTLA.
8.7 NO MATERIAL WORK REQUIRED
By reference to the facts and circumstances subsisting as at the date
of this agreement, there is no substantial work required to be done
or material expenditure to be made by any Target Group Company in
relation to Tower Sites, which is not provided for in the NTLA five
year management plan or NTLT five year management plan included in
the Data Room Documents.
8.8 LAND TAX AND RATES PAID
All assessments to land tax and rates and taxes and payments to
utility or service providers that have been issued to the Target
Group since acquisition of those Properties by the Target Group) are
paid up to date on all freehold properties owned by the Target Group
or where not paid, the liability or accrual arising since acquisition
is fully provided for in the Accounts. All land tax and rates and
taxes and payments for utility or service providers reimbursible to
lessor or licensor or payable directly under leases or licences to
the Target Group are paid up to date.
8.9 RENT FREE SITES AND CHARGE INCREASES
(a) Tower Sites currently occupied by the Target Group on a
rent-free basis will continue to be rent free for the
duration of the unexpired term of the lease or licence
under which they are currently occupied.
(b) The Warrantor is not aware of any written proposal to
increase, or impose, rent, licence or other occupancy fees
in relation to any Tower Sites occupied by the Target
Group otherwise than under an unexpired lease or licence
for which provision has not been made in the current
annual business plan and budget.
8.10 STAMP DUTY
All documents which are necessary to establish the right, title and
interest of any member of the Target Group, in and to the Properties
will be in the possession or control of the Target Group at
Completion. To the extent that documents or the transactions
evidenced by them in relation to the right, title and interest of any
Target Group Company in and to the Properties or occupation of the
Properties attract stamp duty in Australia or elsewhere such
documents have been properly stamped.
8.11 ZONING
The current zoning of each Tower Site and Administrative Property
acquired by a Target Group Company after 30 April 1999 permits its
current use in the Business and, in relation to those Tower Sites,
currently would permit digital terrestrial transmission of television
and radio.
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8.12 NO DEFECTS
The Warrantor is not aware of any defect in any improvements which a
Target Group Company owns or controls at any Tower Site which
materially affects, or is reasonably likely to affect, the operation
or use of the Tower Site as it is presently operated and used.
9. ENVIRONMENTAL MATTERS
9.1 CONDUCT OF THE BUSINESS
While the Warrantor has owned and conducted the businesses of the
Target Group, it has been carried on and maintained in compliance
with applicable Environmental Laws and so far as the Warrantor is
aware, the business of SPT has been carried on and maintained in
compliance with applicable Environmental Laws.
9.2 AUTHORISATIONS
All Environmental Authorisations which are necessary or are required
by law (including Environmental Laws) to operate the Target Group's
businesses and the business of SPT:
(a) have been obtained;
(b) are, and have been at all relevant times, in full force
and effect;
(c) have been complied with in all material respects; and
(d) are not being appealed by any person.
9.3 NO CONTRAVENTION OR BREACH
The Target Group has not been notified that an event has occurred or
other fact or circumstance exists (and, so far as the Warrantor is
aware, no event has occurred or other fact or circumstance exists)
that:
(a) with the giving of notice or the lapse of time, or both,
would lead to any Environmental Authorisation held by any
Target Group Company which is required by law (including
Environmental Laws) or is necessary to operate the Target
Group's businesses or the business of SPT being modified,
suspended, revoked or not renewed;
(b) with the giving of notice or lapse of time, or both, would
cause SPT or a Target Group Company to be in breach of
any:
(i) Environmental Authorisation held by any Target
Group Company;
(ii) Environmental Law;
(c) may require the SPT or any Target Group Company to carry
out any work or pay any money in relation to the
Properties in order for the Target Group's businesses (or
the business of SPT) or the Properties to comply with any
Environmental Law, Environmental Authorisation held by any
Target Group Company or any notice or requirement issued
pursuant to any Environmental Law;
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(d) may require the SPT or any Target Group Company to cease
or alter any activity of the Target Group's businesses or
the business of SPT or at the Properties in order to
comply with any Environmental Law, Environmental
Authorisation held by any Target Group Company or any
notice or requirement issued pursuant to any Environmental
Law; or
(e) would give rise to a claim from any person against SPT or
any Target Group Company relating to:
(i) a breach by a Vendor Group Company of any
Environmental Law or Environmental
Authorisation;
(ii) the handling, storage or use of any Hazardous
Substance; or
(iii) the presence of any Contaminant on, under or
migrating or being discharged from the
Properties.
9.4 CONTAMINATION ETC
There is:
(a) no plan or policy which has been or is required to be
prepared in relation to the Properties under any
Environmental Law;
(b) no Hazardous Substance present on or at the Properties
except in such quantities and stored in such a manner as
is allowed by an Environmental Law; and
(c) nothing (including Contamination) in, on or under the
Properties (including underground tanks and associated
piping) that would require notification to any
Governmental Authority or could entitle any Governmental
Authority to require monitoring, closure, clean up or
remediation under any Environmental Law.
9.5 NO CHARGE IN FAVOUR OF GOVERNMENTAL AUTHORITY
The Properties are not the subject of any charge, bond or security
deposit given in favour of any Governmental Authority as security for
the cleaning up or monitoring of the Properties or other costs under
any Environmental Law.
9.6 FILINGS
All filings, reports and notices required by any Environmental
Authorisation issued to a Target Group Company or SPT for the Target
Group's businesses (or the business of SPT) and the Properties:
(a) have been prepared and, where applicable, lodged with the
relevant Governmental Authority; and
(b) were accurate and complete in all material respects at the
time of lodgement.
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10. INTELLECTUAL PROPERTY
10.1 DISCLOSURE
Attachment 11 to the Disclosure Letter is a complete and accurate
list of:
(a) all material registered and unregistered business names
and trade marks;
(b) all material registered patents and designs; and
(c) all material applications for registration of patents and
designs,
owned by the Target Group.
10.2 NO INFRINGEMENT OF OTHER RIGHTS
(a) Each member of the Target Group and SPT beneficially owns
or has a valid and enforceable right to use all the
Intellectual Property Rights that it uses or requires in
its business (including those referred to in paragraph
10.1) (the 'BUSINESS INTELLECTUAL PROPERTY RIGHTS').
(b) So far as the Warrantor is aware, the use of the Business
Intellectual Property Rights by the Target Group and SPT
does not infringe, breach an obligation of confidence or
wrongfully use any confidential information, trade
secrets, copyright, letters patent, trade marks, service
marks, trade names, designs, business names or other
similar industrial, commercial or intellectual property
rights of any corporation or person.
10.3 NO CLAIMS
So far as the Warrantor is aware, no Claims have been asserted
challenging the use by the Target Group or SPT of the Business
Intellectual Property Rights.
10.4 LICENSING
(a) No person, other than the Target Group or a licensor to
the Target Group, has any right to or may benefit from any
Business Intellectual Property Right.
(b) No members of the Target Group or SPT have licensed,
assigned, authorised or permitted any person or
corporation to use the Business Intellectual Property
Rights.
10.5 REGISTRATION
All Business Intellectual Property Rights which are either capable of
registration or capable of being recorded or required to be
registered or recorded, are registered in the name of the relevant
member of the Target Group or SPT.
11. CONTRACTUAL MATTERS
11.1 DISCLOSURE
(a) The Warrantor has made available to the Purchaser copies
of the contracts and agreements entered into by Target
Group Companies comprised in the Data
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Room Documents and those agreements have not been
terminated or varied in any material respect since those
copies were made available.
(b) All Material Contracts are listed in Attachment 12 to the
Disclosure Letter, and complete and accurate copies of all
Material Contracts are comprised in the Data Room
Documents.
11.2 MATERIAL CONTRACTS
For the purposes of the Warranties in paragraph 11 of this SCHEDULE
3, "Material Contract" means a contract, agreement or other
arrangement under which the Target Group derived in the last 12
months an amount of revenue or would, on an annualised basis, derive
revenue, or incurred costs in the last 12 months or would, on an
annualised basis, incur costs, greater than $5 million (excluding
leases and licences relating to the occupation of Tower Sites).
Other than the contracts, agreements and other arrangements comprised
or described in the Data Room Documents there are no other contracts,
agreements or other arrangements that:
(a) establish any joint venture, consortium, partnership or
profit sharing agreement to which a member of the Target
Group or SPT is a party;
(b) pursuant to which any member of the Target Group or SPT
has sold any company or business in circumstances that it
remains subject to any liability;
(c) are outside the ordinary course of business of the Target
Group or SPT.
11.3 NO NOTICE OF BREACH OR TERMINATION
So far as the Warrantor is aware, neither the Target Group nor SPT
has received notification, nor is the Warrantor aware of any matter
which could give rise to notification:
(a) of any claim for breach or termination of any of the
contracts and agreements comprised in the Data Room
Documents;
(b) of any litigation or other proceedings that have been
threatened in writing to be commenced in respect any of
the contracts and agreements comprised in the Data Room
Documents; and
(c) from a counter-party to any of the contracts and
agreements comprised in the Data Room Documents which
notice states that that counter-party intends to reduce
its level of custom or dealings with the Target Group or
SPT if the sale of the Shares contemplated by the
agreement is completed.
11.4 NO DEFAULT
(a) No member of the Target Group is in default that would
give rise to a claim for damages under any agreement to
which it is a party or would be in default, but for the
requirements of notice or lapse of time, or both.
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(b) So far as the Warrantor is aware, no party to any
agreement with a member of the Target Group is in default
under it or would be in default, but for the requirements
of notice or lapse of time, or both.
11.5 NATURE OF CONTRACTS
Any agreement binding on a member of the Target Group or SPT:
(a) is at arm's length; and
(b) is duly executed and binding on the parties and, so far as
the Warrantor is aware, enforceable in accordance with its
terms.
11.6 FOREIGN CURRENCY TRANSACTIONS
No member of the Target Company is party to any foreign currency
transaction except as otherwise disclosed in the Disclosure Letter.
11.7 NO RESTRICTIVE COVENANTS
Other than the shareholders agreements in relation to NTLT and SPT,
no member of the Target Group or SPT is party to any agreement which
restricts its freedom to engage in any activity or business in any
area.
11.8 CHANGE OF CONTROL
Save as set out in Attachment 12 to the Disclosure Letter, no party
to any Material Contract is entitled, as a result of a change in
ownership of the Shares:
(a) to terminate the agreement; or
(b) to require the adoption of terms which are less favourable
to the Target Group (or SPT) than the current terms.
11.9 EXECUTION
All Data Room Documents provided in unexecuted or conformed form,
other than those clearly marked "draft" on the documents and in the
Data Room index, were validly executed by all parties on the date
indicated on the document or otherwise and are binding on the
parties.
11.10 SALE AGREEMENT
NTLA Holdings and its related bodies corporate have complied with
their obligations under the Sale Agreement and:
(a) there are no further amounts payable to the Commonwealth
under the Sale Agreement (whether as part of the purchase
price or otherwise), other than as provided for in the
Accounts;
(b) the Commonwealth is not entitled to exercise any step in
rights under the Sale Agreement and the Warrantor is not
aware of any fact, matter or circumstance that may give
rise to such an entitlement.
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11.11 FUNDING OF NTLT
Attachment 6 to the Disclosure Letter accurately sets out the dates
and amounts of future funding contributions to be made to NTLT by NTL
Telecommunications Holdings Pty Limited in accordance with the
funding program currently in force under the shareholders agreement
in relation to NTLT.
12. REGULATORY
12.1 COMPLIANCE WITH LAWS
No member of the Target Group or SPT has received notification that
it is and, so far as the Warrantor is aware, no member of the Target
Group nor, so far as the Warrantor is aware, SPT is in contravention
of any statute, regulation, mandatory standard, code of practice,
order or judgment of any court or governmental tribunal or agency,
where such contravention would give rise to a Liability of any Target
Group Company greater than $1,000.
12.2 LICENCES AND CONSENTS
(a) The Target Group and SPT have:
(i) obtained and maintain all Permits necessary for
the operation of the businesses of the Target
Group and SPT, including the authorisations
required to operate the apparatus used in
connection with the provision of services for
the ABC and SBS, in the manner in which those
businesses are operated at the date of this
agreement and will be operated at the
Completion Date;
(ii) complied with the terms of those Permits and is
not in material breach of any Permit;
(iii) paid all fees, levies and other payments
necessary to maintain those Permits or
otherwise required as a condition of any such
Permit; and
(iv) not received any notification of any of the
Permits having been revoked or terminated.
(b) All radiocommunications licences issued pursuant to the
Radiocommunications Xxx 0000 to any member of the Target
Group or SPT:
(i) are renewable;
(ii) are not subject to any special conditions,
including any conditions that would restrict or
prevent a change in control of the licence
holder or any of its upstream companies.
(c) All third party authorisations granted pursuant to the
Radiocommunications Xxx 0000, including pursuant to
sections 68 and 114 of that Act, are not subject to any
conditions that would restrict or prevent a change in
control of the authorised party or any of its upstream
companies.
(d) So far as the Warrantor is aware, there is no matter that
would prejudice the continuance or renewal of any Permit
held by the Target Group or SPT.
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12.3 CARRIER LICENCE
Without limiting the warranties set out in 12.1 and 12.2 above:
(a) the Carrier Licence held by NTLT is contained in the Data
Room Documents;
(b) neither NTLT is in breach of any term or condition of its
Carrier Licence;
(c) NTLT is the only entity in the Target Group that carries
on any activity that would require it to hold a Carrier
Licence; and
(d) no contract entered into by any member of the Target Group
places, or may (assuming no amendment to its terms) in the
future place, NTLT in breach of any conditions of its
Carrier Licence.
12.4 ACCESS
Without limiting the warranties set out in 12.1 and 12.2 above:
(a) SPT and the members of the Target Group have complied with
all relevant statutory access obligations, including those
imposed by the Telecommunications Xxx 0000, the Trade
Practices Xxx 0000, the Broadcasting Services Xxx 0000 and
the National Transmission Network Sale Xxx 0000;
(b) there are no outstanding requests for, statutory
arbitrations or proceedings in relation to the provision
of access to or co-location rights with respect to any
premises, assets or services that are owned, occupied or
used by SPT or any member of the Target Group; and
(c) no member of the Target Group, nor SPT, is party to or
involved in any outstanding requests pursuant to statutory
access rights to obtain access to or co-location rights
with respect to the premises, assets or services of any
third party.
12.5 COMPLAINTS AND INVESTIGATIONS
(a) The Warrantor is not aware of any complaint in relation to
SPT or any Target Group member to any regulator or
industry body, including the Australian Communications
Authority, the Australian Broadcasting Authority, the
Telecommunications Industry Ombudsman and the Australian
Competition and Consumer Commission which has not been
fully and finally resolved.
(b) No Target Group member, nor SPT, has made any complaint to
any regulator or industry body, including the Australian
Communications Authority, the Australian Broadcasting
Authority, the Telecommunications Industry Ombudsman and
the Australian Competition and Consumer Commission which
has not been fully and finally resolved.
(c) The Warrantor is not aware of any investigation by any
regulator or industry body, including the Australian
Communications Authority, the Australian Broadcasting
Authority, the Telecommunications Industry Ombudsman and
the Australian Competition and Consumer Commission in
relation to the operation of the business or of any assets
of SPT or the Target Group.
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13. LITIGATION
13.1 LITIGATION
The Target Group is not engaged in, and has not been threatened in
writing with, any litigation, arbitration or similar proceedings.
13.2 INVESTIGATIONS
The Target Group is not the subject of and, so far as the Warrantor
is aware, has not received written notice that it will be the subject
of, any investigation, official enquiry or disciplinary proceedings
by a regulatory body.
13.3 NO CIRCUMSTANCES
So far as the Warrantor is aware, there are no circumstances which
might give rise to any litigation, arbitration, investigation,
enquiry or proceedings referred to in warranty 13.1 or 13.2.
13.4 JUDGMENTS
There are no unsatisfied or outstanding judgments, orders or awards
affecting any member of the Target Group.
14. OFFICERS AND EMPLOYEES
14.1 OFFICERS
The persons listed in SCHEDULE 1 are the only directors and company
secretaries of the Company, the members of the Target Group and SPT.
14.2 EMPLOYEE PARTICULARS
The particulars set out in Attachment 2 to the Disclosure Letter
identify in respect of each employee of the Target Group and SPT:
(a) the annual cash remuneration payable to that employee
(excluding accrued holiday pay);
(b) a description of all employment-related benefits
receivable by that employee otherwise than in cash; and
(c) details of any profit sharing, incentive and bonus
arrangement in respect of which that employee is entitled
to participate;
(d) details of the annual superannuation contributions paid in
respect of that employee; and
(e) the employing entity of that employee.
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14.3 NO MATERIAL CHANGE
No material change in the level of remuneration, benefits and
arrangements identified in Attachment 2 to the Disclosure Letter is
due or expected within 6 months after Completion by reason of matters
and circumstances as at the date of this agreement.
14.4 COMPLIANCE
So far as the Warrantor is aware, each Target Group Company has
complied in all material respects with all obligations arising under
law, equity or statute, award, enterprise agreement or other
instrument made or approved under any law with respect to employment
of its employees.
14.5 WRITTEN CONTRACTS
The Target Group is not a party to any written employment or service
agreement other than listed in the Disclosure Letter, and the
employment of each employee can be lawfully terminated on no more
than 3 months' notice without payment of any damages or compensation,
including any severance or redundancy payments (other than as
required pursuant to any award or other industrial relations
instrument applicable to the employee).
14.6 INDUSTRIAL DISPUTES
The Target Group has not been involved in any material industrial
dispute with any employee at any time within the 2 years preceding
the date of this agreement and the Warrantor does not know of any
circumstances likely to give rise to any material industrial dispute.
15. SUPERANNUATION
15.1 THE FUNDS ARE THE ONLY SUPERANNUATION COMMITMENT
Except for its commitment to contribute to the Funds, no Target Group
Company has any Superannuation Commitments.
15.2 NO OUTSTANDING OR UNPAID CONTRIBUTIONS
(a) With respect to the Funds, there are no outstanding or
unpaid contributions by any Target Group Company in
respect of the period to 31 December 2001.
(b) The Target Group have provided at least the prescribed
minimum level of superannuation support for each employee
so as not to incur a Superannuation Guarantee Charge
liability.
15.3 APPROVALS
The Funds Fund are regulated superannuation funds under the
Superannuation Industry (Supervision) Xxx 0000 (the SIS ACT).
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16. TAXATION
16.1 TAXES UP TO ACCOUNTS DATE PAID OR ACCOUNTED FOR
Each member of the Target Group has paid, or the Accounts fully
provide for, all Taxes which that member is or may become liable to
pay for the period up to and including the Accounts Date.
16.2 TAX LIABILITY INCURRED SINCE THE ACCOUNTS DATE
The only liabilities for Tax of a member of the Target Group arising
in respect of the period after the Accounts Date and ending on the
Completion Date will be liabilities arising out of the normal
business and trading activities of that member.
16.3 WITHHOLDINGS AND DEDUCTIONS
Without limiting PARAGRAPH 16.2, each member of the Target Group has
deducted or withheld all amounts of Tax required by law to be
deducted or withheld and has punctually paid those Taxes to the
relevant Taxation authority as required by law.
16.4 LODGMENT OF RETURNS AND OTHER INFORMATION
(a) Each member of the Target Group has lodged or supplied all
information regarding Taxation matters as and when
required by a Taxation authority, and complied with all
necessary due dates for lodgment.
(b) Any information, notice, computation or return which has
been submitted to a relevant authority by a member of the
Target Group in respect of any Taxation matter:
(i) discloses all material facts which should be
disclosed under any relevant Tax law; and
(ii) has been submitted on time.
16.5 TAX FILE NUMBERS
Each member of the Target Group has complied with its obligations
under Tax law in relation to the quotation of tax file numbers by
employees of the member, including the guidelines under applicable
privacy legislation, and has not committed an offence in relation to
the collection, recording, use or disclosure of tax file numbers.
16.6 GST
Each member of the Target Group is registered for GST under the A New
Tax System (Goods and Services Tax) Xxx 0000 (Cth).
16.7 DUTY
Any duty payable in respect of any Tax law in relation to any
agreement or transaction to which any member of the Target Group is
or has been a party, or by which any member of the Target Group
derives or has derived a substantial benefit, has been paid.
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16.8 LEASED PLANT
No member of the Target Group has leased plant in the manner
contemplated in Attachment R to the Treasurer's Press release No. 058
of 21 September 1999 entitled The New Business Tax System.
16.9 PUBLIC OFFICER
The office of public officer of SPT and each member of the Target
Group as required under any law in relation to Taxation has always
been occupied.
16.10 NO TAX AUDIT
(a) There are no disputes with any Government Authority in
respect of any Tax of any member of the Target Group or of
SPT, and the Vendor is not aware of any circumstances
which may give rise to such a dispute.
(b) No tax audit, investigation, inquiry or proceeding has
been instituted by any Government Authority in relation to
any Tax of any member of the Target Group or of SPT and
the Vendor is not aware of any pending or threatened Tax
audit.
17. DISCLOSURE
17.1 INFORMATION ACCURATE
The Warrantor has not knowingly withheld any information which would
render any information given by or on behalf of the Warrantor or its
advisers to the Purchaser or its advisers in respect of the sale of
the Shares misleading in any material respect.
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SHARE SALE AGREEMENT - SCHEDULE 4 - TECHNICAL ASSISTANCE
SCHEDULE 4
TECHNICAL ASSISTANCE TERMS
PARTIES: NTL AUSTRALIA HOLDINGS PTY LIMITED AND RELATED BODIES CORPORATE ('NTL
AUSTRALIA'); AND
NTL INCORPORATED
1. NTL Inc to procure that National Transcommunications Limited and its
related bodies corporate in the UK ('NTL BROADCAST UK') provide the
technical assistance to ntl Australia on the terms set out in this
term sheet
2. In the event NTL Inc proposes to enter a transaction to divest its
interest in ntl Broadcast UK, NTL Inc must ensure that a technical
assistance agreement on substantially the terms of this term sheet be
executed prior to the completion of such divestment.
3. The term of the technical assistance agreement be 5 years from the
date of completion of the sale of ntl Belgium Sprl.
4. Ntl Inc must procure that ntl Broadcast UK must act in good faith in
relation to its obligations under this term sheet, and must agree to
provide the information and assistance reasonably required by ntl
Australia and within a reasonable time frame.
5. Technical Assistance will include but not be limited to the provision
of technical, engineering and design information, technical
feasibility and costing analyses and financial feasibility modelling.
6. The areas where Technical Assistance may be sought and must be
provided include those set out in the attachment.
7. ntl Australia Holdings Pty Limited agrees to pay: (1) where the
information is not already available to ntl Broadcast UK, for the
costs incurred to prepare the information - such costs to exclude
overhead allocation or profit, and be based solely on payroll cost
recovery and reimbursement of reasonable third party costs and
expenses incurred directly on the project; and (2) where the
information is already available to ntl Broadcast UK, reimbursement
of reasonable third party costs and expenses incurred directly on the
project.
8. To facilitate the provision of Technical Assistance for the initial
period, NTL Inc must procure that Xxx Xxxxxx'x services are available
(in Australia) for use by ntl Australia, on a full-time basis, until
15 March 2002 and that the services of Xxx Xxxxxx are made available
(in Australia) to ntl Australia, on a full-time basis until 30 June
2002, subject, in the case of Xxx Xxxxxx, to reasonable periods of
absence from Australia if ntl Australia are not using his services
and for personal circumstances, or earlier by mutual agreement.
9. For the avoidance of doubt, (but save as provided in PARAGRAPH 7
above) it is envisaged that technical assistance to be provided by
NTL will be largely satisfied by the provision of written information
by ntl Broadcast UK to ntl Australia and telephone discussions and
conference calls between relevant personnel in ntl Broadcast UK and
ntl Australia.
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SHARE SALE AGREEMENT - SCHEDULE 4 - TECHNICAL ASSISTANCE
10. ntl Broadcast UK will, on a reasonable endeavours basis, make
available in Australia individuals to assist on ad hoc short term
secondments or projects for ntl Australia.
11. It is envisaged that in the provision of technical assistance by ntl
Broadcast UK, Xxx Xxxxxx and Xxxxx Xxxxxxx would each visit ntl
Australia for short term trips, typically, three times per annum.
12. ntl Broadcast UK may also request ntl Australia to provide on a
reasonable endeavours basis technical assistance to it of a similar
type and on similar terms and conditions to that to be provided to
ntl Australia (including as regards the basis of charging for the
provision of technical assistance).
13. ntl Broadcast UK and ntl Australia both agree that to the extent that
either develops new products or technology in relation to their
mutual business areas, they will enter into good faith discussions
with each other regarding the ability for the other to derive benefit
from that new technology or products, on appropriate commercial terms
and arrangements, provided to do so does not prejudice the business
of the disclosing party.
14. Neither ntl Broadcast UK nor ntl Australia need provide information
to each other under this Term Sheet, to the extent that to do so
would place it in breach of any confidentiality obligations owed to
third parties. In those circumstances, the person bound by the
confidentiality obligations will use its reasonable endeavours to
obtain consent to disclosure of the relevant information to ntl
Australia or ntl Broadcast UK (as appropriate).
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SHARE SALE AGREEMENT - SCHEDULE 4 - TECHNICAL ASSISTANCE
ATTACHMENT
Technical Assistance to be provided includes the following:
1. SATELLITE SYSTEMS:
- System design & costing analysis;
- link budget analysis.
2 DTV: particularly in the event some form of multichannel datacasting
is implemented in the Australian market
- specifications and operational experience.
- knowledge from DVB industry forum (ntl UK has previously had
representation)
- mobile TV applications (UK research; Singapore system in operation)
- receiver standards
- modulation systems
- multiplex design, configuration & management
3 DIGITAL RADIO:
- System design & costing analysis
- specifications and operational experience
4 DIGITAL MEDIA:
- System design and costing analysis
- multiplex management expertise and advice
- Back-channel management / common playout advice and design
- Feasibility analysis and financial modelling
-
5 FACILITIES LEASING - TELECOMMUNICATIONS
- In building system design, costing and financial analysis
- Fibrecell system design, costing and financial feasibility
6 MISCELLANEOUS AREAS
- OH&S / STANDARDS: EME expertise from UK regulatory / operational
perspective
- COVERAGE AND SERVICE PLANNING: comparative modelling techniques,
in-building planning, systems and penetration
- STRUCTURES: structural integrity analysis and expertise
- NOC SYSTEMS DEVELOPMENT: Operational knowledge and support of DTV
multiplex management (eg mux reconfiguration etc.)
- MAINTENANCE TECHNIQUES AND PRACTICES: Antenna system - monitoring &
protection, non-invasive testing and operational efficiency in
network operation (and O&M delivery)
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SHARE SALE AGREEMENT - SCHEDULE 5 - SPECIAL ACCOUNTING POLICIES
SCHEDULE 5
1.1 SPECIAL ACCOUNTING POLICIES
The Completion Accounts must be prepared and audited in accordance
with GAAP and the following special policies:
(a) there must be no revaluations of tangible or intangible
assets, other than for decrements in the value of these
assets;
(b) there must be no reduction in provisions other than for
payments made specifically relating to items for which
those provisions were made;
(c) deferred tax assets will not be recognised;
(d) insurance receivables will not be recognised, other than
for those where the insurer has confirmed in writing that
payment will be made;
(e) the SPT joint venture must be accounted for on the cost
basis and not equity accounted or consolidated, adjusted
for any decrement in the value of the investment; and
(f) any forgiveness of inter company debt owing by the group
must be treated as if it had not occurred.
1.2 APPLICATION OF POLICIES
(a) If there is a conflict between GAAP and the special
accounting policies referred to in paragraph 1.1, the
special accounting policies will prevail.
(b) Accounting policies must be consistently applied between
the Accounts and the Completion Accounts, except where a
special accounting policy referred to in paragraph 1.1
requires a different treatment.
(c) Where an item in the Completion Accounts is not governed
by GAAP, the Vendor Auditor should apply International
Accounting Standards relevant to the item, or, if these do
not govern the item, generally accepted accounting
principles for entities in a similar industry to the
Target Group.
1.3 NOTES
The Completion Accounts must include disclosure of the accounting
policies used and notes to the accounts (consistent with the notes
disclosed in the Accounts).
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