EXHIBIT 2.1
CONFORMED COPY
29 MARCH 1998
TELEWEST COMMUNICATIONS PLC
GENERAL CABLE PLC
COMPAGNIE GENERALE DES EAUX
GENERAL UTILITIES HOLDINGS LIMITED
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AGREEMENT RELATING TO THE
MERGER OF
GENERAL CABLE AND TELEWEST
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FRESHFIELDS
CONTENTS
CLAUSE PAGE
1. RELEASE OF INITIAL PRESS ANNOUNCEMENT...............................1
2. CO-OPERATION BY GENERAL CABLE.......................................1
3. RECOMMENDATION......................................................2
4. IRREVOCABLE COMMITMENT BY CGE AND GENERAL UTILITIES.................2
5. EXCLUSIVITY.........................................................4
6. TELEWEST UNDERTAKINGS...............................................5
7. MISCELLANEOUS.......................................................5
SCHEDULE 1.................................................................8
SCHEDULE 2................................................................10
Part A...............................................................10
Part B...............................................................13
THIS AGREEMENT is made on 29 March 1998
BETWEEN
TELEWEST COMMUNICATIONS PLC whose registered office is at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (TELEWEST);
GENERAL CABLE PLC whose registered office is at ▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ (GENERAL CABLE);
COMPAGNIE GENERALE DES EAUX whose principal office is at ▇▇ ▇▇▇ ▇'▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ (▇▇▇); and
GENERAL UTILITIES HOLDINGS LIMITED whose registered office is at ▇▇-▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (GENERAL UTILITIES).
WHEREAS
A. Telewest is considering making an offer for General Cable (the POSSIBLE
OFFER).
B. If Telewest makes an offer for General Cable on the terms and, in all
material respects, subject to the conditions set out in Schedule 2 (the OFFER)
General Utilities and CGE have irrevocably undertaken to accept such Offer.
THIS AGREEMENT WITNESSES AS FOLLOWS:
RELEASE OF INITIAL PRESS ANNOUNCEMENT
1.1 The parties agree to the immediate release of the press announcement in the
form of Schedule 1, with such amendments as J ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. Limited and
▇▇ ▇▇▇▇▇▇▇▇▇▇ may approve.
1.2 Telewest agrees to comply with its obligations under Rules 5 and 8 of the
City Code on Takeovers and Mergers (the CODE), to notify the Panel on Takeovers
and Mergers (the PANEL) and the London Stock Exchange of the acquisition of
rights over General Utilities' holding of shares in General Cable and to comply
with its obligation to notify General Cable under section 198 of the Companies
▇▇▇ ▇▇▇▇.
CO-OPERATION BY GENERAL CABLE
2. General Cable agrees that it shall:
(a) provide all reasonable assistance as may be requested to enable
Telewest to (i) release an announcement to the Company's Announcement
Office of the London Stock Exchange incorporating the terms and
conditions set out in Schedule 2 (the FORMAL PRESS ANNOUNCEMENT), (ii)
make the Offer; and (iii) prepare all related and ancillary documents
in accordance with the requirements of the Code, the London Stock
Exchange, the Securities and Exchange Commission, NASDAQ National
Market and any other legal or regulatory requirement or body;
(b) provide all reasonable assistance to Telewest as may be required to
obtain the clearances and consents referred to in Schedule 2; and
(c) agree to any extension of time limits in the Code which Telewest
requests (unless it is acting unreasonably) and which the Panel
approves.
RECOMMENDATION
3. General Cable hereby confirms that each of its directors has confirmed that,
if the Offer is made, each of these directors will, subject to their fiduciary
duties and their responsibilities under the Code, recommend the Offer to General
Cable's shareholders.
IRREVOCABLE COMMITMENT BY CGE AND GENERAL UTILITIES
4.1 General Utilities hereby warrants and undertakes to Telewest that it is the
sole registered holder and the sole beneficial owner of 146,785,916 ordinary
shares of (pound)1.00 each in the capital of General Cable (the SHARES) and the
beneficial owner of one additional such ordinary share and that it holds these
Shares free of any lien, charge, option, equity or encumbrance and it has full
power and authority to enter into this undertaking and to accept the Offer in
respect of the Shares.
4.2 Until such time as the undertakings in this Agreement terminate in
accordance with clause 7.2, (the RELEVANT PERIOD), CGE shall not and shall
procure that each member of the CGE Group (being CGE and its subsidiary
undertakings as defined in the Companies Act 1985) shall not:
(a) sell, transfer, charge, encumber, grant any option over or otherwise
dispose of any Shares or any other shares or securities in General
Cable issued or unconditionally allotted to any member of the CGE Group
or otherwise acquired by any member of the CGE Group before then
(FURTHER SHARES) other than pursuant to its or their acceptance of the
Offer;
(b) accept any other offer in respect of any shares or securities referred
to in sub-clause 4.2(a) (whether it is conditional or unconditional and
irrespective of the means by which it is implemented);
(c) (other than pursuant to the Offer) enter into any agreement or
arrangement or permit any agreement or arrangement to be entered into
or incur any obligation or permit any obligation to arise:
(i) to do any of the acts referred to in sub-clause 4.2(a) or (b);
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(ii) in relation to, or operating by reference to, the Shares or
any Further Shares; or
(iii) which, in relation to the Shares or any Further Shares, would
or might restrict or impede any member of the CGE Group
accepting the Offer,
and for the avoidance of doubt, references in this clause 4.2 to any
agreement, arrangement or obligation includes any agreement,
arrangement or obligation whether or not legally binding or subject to
any condition or which is to take effect if the Offer closes or lapses
or if this undertaking ceases to be binding or following any other
event; or
(d) purchase, sell or otherwise deal in any shares or other securities of
General Cable or Telewest or any interest therein (including any
derivatives referenced to any such securities).
4.3. General Utilities undertakes that:
(a) if a formal document containing the Offer (the OFFER DOCUMENT) is
posted, it shall accept the Offer in respect of the Shares in
accordance with the procedure for acceptance set out in the Offer
Document not later than seven days after posting of the Offer Document;
and
(b) although the terms of the Offer will confer a right of withdrawal on
accepting shareholders, it shall not withdraw or procure the withdrawal
of any acceptances of the Offer; and
(c) Telewest shall acquire the Shares and any Further Shares held by
General Utilities free of any lien, charge, option, equity or
encumbrance and together with all rights of any nature attaching to
those shares including the right to all dividends declared or paid
after the date of this undertaking.
4.4 CGE undertakes that:
(a) if the Offer Document is posted, it shall accept or procure the
acceptance of the Offer in respect of any Further Shares in accordance
with the procedure for acceptance set out in the Offer Document not
later than two days after the date it or the relevant member of the CGE
Group becomes the registered holder of the Further Shares;
(b) although the terms of the Offer will confer a right of withdrawal on
accepting shareholders, it shall not withdraw or procure the withdrawal
of any acceptances of the Offer; and
(c) Telewest shall acquire the Shares and any Further Shares from each and
every member of the CGE Group free of any lien, charge, option, equity
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or encumbrance and together with all rights of any nature attaching to
those shares including the right to all dividends declared or paid
after the date of this undertaking.
4.5 A reference in this undertaking to the OFFER also includes any new,
increased, renewed or revised offer made by or on behalf of Telewest to acquire
shares in General Cable, provided that, having consulted with ▇▇ ▇▇▇▇▇▇▇▇▇▇, J.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. Limited has written to General Cable stating that, in its
opinion, the terms of such offer are no less favourable to acceptors than the
terms referred to in Schedule 2 and the cash element is no less than the amount
specified in Schedule 2.
EXCLUSIVITY
5.1 During the Relevant Period, General Cable, CGE and General Utilities will
not, and will ensure that their directors, employees, agents, consultants or
professional advisers who are aware of the possible public offer do not:
(a) directly or indirectly solicit, initiate or enter into discussions or
negotiations or otherwise co-operate in any manner with any third party
in relation to:
(i) a bid or other business combination involving General Cable
or any of its subsidiaries; or
(ii) the acquisition of a substantial equity interest in, or a
substantial portion of the assets of, General Cable or any
such subsidiary (together with (i) above being a GENERAL CABLE
TRANSACTION);
(b) provide any information to any third party with a view to that third
party investigating or entering into a General Cable Transaction,
except where the Code or the Panel or other regulatory authority or the
law requires that General Cable provide the information to the third
party;
(c) indicate his willingness, or agree, to do anything after the period of
exclusivity expires which he is not permitted to do during the period
of exclusivity.
5.2 General Cable and CGE will inform Telewest immediately:
(a) if it becomes aware of a proposal or approach from a third party in
relation to a General Cable Transaction;
(b) if it is asked to, or does, provide any information to a third party
with a view to that third party investigating or entering into a
General Cable Transaction; or
Page 4
(c) if it becomes aware of any breach of the provisions of this agreement
or if it becomes aware of any likely publicity in relation to a
possible bid for General Cable or the future management of General
Cable or any subsidiary of General Cable,
except to the extent prohibited from doing so when General Cable and CGE have
not encouraged such prohibition.
5.3 Nothing in this Agreement shall prohibit or restrict the directors of
General Cable from exercising their fiduciary duties or responsibilities under
the Code to consider (including with advisers) any approach from any third party
in connection with any of the matters referred to in clause 5.1.
5.4 General Cable and CGE confirms that, apart from the discussions with
Telewest, it has not received any proposal or approach from a third party in
relation to any General Cable Transaction, which has not been terminated.
5.5 If any party is required by applicable law, by any applicable regulation or
rule of any relevant stock exchange, or by the Panel on Takeovers and Mergers to
make an announcement, it may make such an announcement provided that it is no
more extensive than is required and it has first consulted the other parties and
sought in good faith to secure the other's agreement to the timing, manner and
content of the announcement.
TELEWEST UNDERTAKINGS
6. Telewest undertakes that, if an Offer is made, it will use all reasonable
endeavours to ensure that any pre-conditions to despatch of the Offer Document
are satisfied or waived and that the Offer Document is despatched as soon as
possible and shall use all reasonable endeavours to ensure that the conditions
of the Offer set out in Part B of Schedule 2 (Conditions) numbered 2 to 7
(inclusive) are satisfied as soon as practicable. Telewest hereby confirms that
the directors who have signed this Agreement on behalf of Telewest have
confirmed that they will, subject to their fiduciary duties, recommend that
Telewest's shareholders vote in favour of any resolution referred to in the
Condition 2.
MISCELLANEOUS
7.1 The parties acknowledge that they are not entering into this Agreement in
reliance upon on any representation, warranty or undertaking save as expressly
set out herein and, in the absence of fraud, no party shall have any claim or
remedy against any other party in respect of any misrepresentation, untrue
statement, omission or non-disclosure. In particular, CGE's and General
Utilities' undertaking pursuant to clause 4 shall be irrevocable and, in the
absence of fraud, shall not be capable of rescission or termination on the basis
of any information subsequently disclosed by Telewest or General Cable in any
offer document, listing particulars or registration statement or for any other
reason whatsoever.
Page 5
7.2 The undertakings in this Agreement shall lapse:
(a) if the Formal Press Announcement has not been released by 3.00 p.m.
(London time) on 15 April 1998 (or such later time and/or date as CGE,
General Cable and Telewest may agree); or
(b) if the Formal Press Announcement has been so released before that time
but
(i) Telewest releases an announcement on the London Stock Exchange
stating that it is not proceeding to post an offer document
and is therefore withdrawing from making an offer for General
Cable at that time;
(ii) the Offer Document has not been posted by 30 June 1998; or
(iii) the Offer lapses or is withdrawn.
If the undertakings lapse, no party to this Agreement shall have any claim
against any other party except in respect of any prior breach of this Agreement.
7.3 Any time, date or period mentioned in this Agreement may be extended by
mutual agreement but as regards any time, date or period originally fixed or as
extended, time shall be of the essence.
7.4 CGE and General Utilities each agree that, if either fail to accept or
procure acceptance of the Offer in accordance with the undertaking in clause 4
or breach any of its or their other obligations under this Agreement, damages
would not be an adequate remedy and accordingly Telewest shall be entitled to
the remedy of specific performance and/or other injunctive relief.
7.5 This Agreement is governed by and shall be construed in accordance with the
laws of England.
7.6 Each of the parties agrees that the Courts of England are to have exclusive
jurisdiction to settle any disputes which may arise in connection with this
Agreement.
7.7 CGE shall at all times maintain an agent for service of process and any
other documents in proceedings in England or any other proceedings in connection
with this Agreement. Such agent shall be General Utilities (who hereby
irrevocably agrees to accept such appointment) and any writ, judgement or other
notice of legal process shall be sufficiently served on CGE if delivered to
General Utilities at its address for the time being. CGE hereby irrevocably
undertakes not to revoke the authority contained in this clause.
Page 6
7.8 This Agreement may be entered into in any number of counterparts and by the
parties to it on separate counterparts, each of which, when executed and
delivered, shall be an original, but all counterparts shall together constitute
one and the same instrument.
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SCHEDULE 1
TELEWEST COMMUNICATIONS PLC (TELEWEST)
GENERAL CABLE PLC (GENERAL CABLE)
The boards of Telewest and General Cable announce that merger discussions
between their two companies are at an advanced stage which may result in a
recommended offer being made by Telewest for the outstanding ordinary shares of
General Cable.
General Utilities Holdings Limited (▇▇▇▇), a subsidiary of Compagnie Generale
des Eaux (CGE) has entered into an agreement with Telewest on 29 March 1998
whereby it has agreed that, if Telewest announces a firm intention to make an
offer within prescribed terms on or before 3.00 p.m. on 15 April 1998 (or such
later time or date as shall be agreed), ▇▇▇▇ will irrevocably accept such an
offer in respect of its entire holding of 146,785,916 General Cable ordinary
shares (representing approximately 40 per cent. of General Cable's issued share
capital). The prescribed terms referred to above include the following:
- an offer of 1.243 new Telewest shares and 65 ▇▇▇▇▇ in cash for every
General Cable share and 0.622 new Telewest ADSs and the equivalent in
US$ of 325 ▇▇▇▇▇ in cash for each General Cable ADS;
- a reorganisation of the board of directors of Telewest so that it will
initially consist of seven non-executive directors (designated by U S
WEST Inc., Tele-Communications Inc., ▇▇▇ Communications Inc., SBC
CableComms (UK) and CGE), four executives (to include one executive
member of the General Cable board) and three independent non-executive
directors (to include a nomination from the board of General Cable).
It is intended that the cash component of the offer would, if made, be provided
by means of an issue of up to 259 million new Telewest shares, to be
underwritten by major shareholders of Telewest at 92.5 ▇▇▇▇▇ per share. It is
envisaged that arrangements will be made to enable Telewest's shareholders to
participate in this issue.
If made on the above terms, an Offer would currently value each General Cable
ordinary share at approximately 182.5 ▇▇▇▇▇ per share (based on the closing
price in London of 94.5 ▇▇▇▇▇ per Telewest ordinary share on Friday 27 March
1998) and the whole of General Cable's issued ordinary share capital at
approximately (pound)666 million.
The board of General Cable has welcomed these developments and has indicated
that it will recommend the proposed offer if made. Likewise, U S WEST Inc.,
Tele-Communications Inc., SBC CableComms (UK) and ▇▇▇ Communications Inc. have
indicated their support for the proposed merger.
Page 8
Further details of the proposed merger will be given as soon as possible. It
must be emphasised, however, that there can be no certainty that these
discussions will result in any proposal being put to General Cable's
shareholders.
PRESS ENQUIRIES
Telewest 01483 750900 General Cable 0171 393 2828
▇▇▇▇ ▇▇▇▇ (0171 333 8866) ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Cob Stenham (0171 494 4956) ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Schroders 0171 658 6597 NatWest Securities 0171 375 8720
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ 0171 982 3720
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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SCHEDULE 2
PART A
1. TERMS
FOR EVERY GENERAL CABLE SHARE 1.243 NEW TELEWEST SHARES
AND
65 ▇▇▇▇▇ IN CASH
FOR EVERY GENERAL CABLE ADS 0.622 NEW TELEWEST ADSS
AND
THE EQUIVALENT IN US$ OF
325 ▇▇▇▇▇ IN CASH
The terms will incorporate a mix and match facility to permit preferences
amongst General Cable's securityholders as between cash and new Telewest shares
and new Telewest ADSs to be met, so far as possible, within the overall limits
of approximately 458 million new Telewest shares (whether in share or ADS form)
and (pound)240 million cash.
2. BOARD STRUCTURE AND MANAGEMENT
(A) COMPOSITION
The Board of the enlarged group would initially consist of 14 directors
comprising:
- seven non-executive directors designated by the five major
corporate shareholders (including CGE);
- four executives (to include one executive member of the General
Cable board in a senior role to be agreed); and
- three independent non-executive directors, to include a
nomination from the board of General Cable.
(B) CORPORATE SHAREHOLDER REPRESENTATION ON THE BOARD
U S WEST and TCI will each have the right to designate two Telewest
Board members. Cox, SBC and CGE will each have the right to designate
one Telewest Board member.
Page 10
(C) CHAIRMAN
The enlarged group would initially be chaired by ▇▇▇▇ ▇▇▇▇, a U S WEST
designated director, with Cob Stenham as Deputy Chairman. The Articles
would provide that future chairmen would be elected by the Board in the
ordinary course; there would be no requirement for the chairman to be a
member of any particular director group.
(D) BOARD COMMITTEES
The Telewest Articles would provide that each of U S WEST and TCI would
be entitled to appoint a member of each Board committee. The Articles
would further provide that the Chairman of each Board committee would
be appointed from amongst the independent non-executive directors and
that a majority of the members of each committee would be independent
of U S WEST and TCI.
(E) QUORUM
The special quorum requirements in the existing Telewest Articles would
be removed.
(F) VOTING
The special two thirds voting requirement in the existing Telewest
Articles would be removed.
3. COVENANTS IN FAVOUR OF U S WEST AND TCI
In exchange for TCI and U S WEST agreeing to change the Articles of
Telewest, Telewest would agree and undertake with TCI and U S WEST that
Telewest will not undertake any of the following without the written
consent in advance of TCI and U S WEST:
- any major acquisition or disposal outside the ordinary course of
business;
- borrowing or granting of security in excess of (pound)50 million
in aggregate;
- any new issues of shares;
- the appointment or removal of Telewest's Chief Executive
Officer; and
- appointment of new directors (other than shareholder
representatives).
Page 11
The agreement of TCI and U S WEST in relation to these matters will
only be required so long as that shareholder retains a holding of 15%
or more of Telewest's voting shares.
4. IRREVOCABLE COMMITMENTS TO VOTE
Each of U S WEST, TCI, SBC and Cox will irrevocably undertake (except to the
extent precluded by The London Stock Exchange or the Panel) to vote in favour of
all shareholder resolutions required to implement the Offer, the revisions of
the Telewest Articles and the other proposals set out in this Schedule.
Page 12
PART B
CONDITIONS AND FURTHER TERMS OF THE OFFER
CONDITIONS
The posting of the Offer will be subject to the following pre-conditions:
1. the completion of Telewest's financing and the obtaining of appropriate
consents for the purposes of making the Offer;
2. the re-financing of General Cable's existing financing and leasing
facilities or the waiver by the providers of such facilities of their
rights to withdraw such facilities in the event of an acquisition of
General Cable by Telewest, in each case on terms overall materially no
less favourable to those currently applying to such facilities.
Telewest reserves the right to waive all or any of the conditions above, in
whole or in part.
The Offer will be subject to the following conditions:
1. valid acceptances being received (and not, where permitted, withdrawn)
by 3.00 p.m. on the first closing date (or such later time(s) and/or
date(s) as Telewest may, subject to the rules of the City Code, decide)
in respect of not less than 90 per cent. in nominal value (or such
lesser percentage as Telewest may decide) of the General Cable Shares to
which the Offer relates, provided that unless agreed by the Panel this
condition will not be satisfied unless Telewest (together with any of
its wholly owned subsidiaries) shall have acquired or agreed to acquire,
whether pursuant to the Offer or otherwise, General Cable Shares
carrying, in aggregate, more than 50 per cent. of the voting rights then
exercisable at general meetings of General Cable.
For the purposes of this condition:
(a) shares which have been unconditionally allotted but not issued
shall be deemed to carry the voting rights they will carry upon
issue; and
(b) the expression "General Cable Shares1 to which the Offer
relates" shall mean (i) General Cable Shares which have been
issued or allotted on or before the date the Offer is made; and
(ii) General Cable Shares issued or allotted after that date but
before the time at which the Offer closes (or such earlier date,
not being earlier than the date on which the Offer becomes or is
declared unconditional as to acceptances or, if later, the first
--------------------------------------------------------------------------------
1 Definition of General Cable shares to include General Cable shares
evidenced by ADSs.
Page 13
closing date of the Offer, as Telewest may decide) but excluding
any General Cable Shares which, on the date the Offer is made,
are held or (otherwise than under such a contract as described
in Section 428(5) of the Companies ▇▇▇ ▇▇▇▇ (the ACT))
contracted to be acquired by Telewest and/or its associates
(within the meaning of Section 430E of the Act);
2. the passing at an extraordinary general meeting of Telewest (or at any
adjournment thereof) of such resolutions as may be necessary or
incidental to approve, implement and effect the Offer and the
acquisition by Telewest of General Cable pursuant thereto;
3. the London Stock Exchange admitting, or (if determined by Telewest and
subject to the consent of the Panel) agreeing to admit, to the Official
List, the new Telewest Shares to be issued pursuant to the Offer and
such admission becoming effective in accordance with the Listing Rules;
4. the new Telewest ADSs issuable pursuant to the Offer having been
approved for quotation on the NASDAQ National Market, subject to
official notice of issuance of such new Telewest ADSs being given to
NASDAQ;
5. necessary registration statements with respect to the Offer having been
declared and remaining effective under the US Securities Act of 1933,
as amended, and no stop order suspending the effectiveness of such
registration statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the US
Securities and Exchange Commission;
6. it being indicated in terms satisfactory to Telewest that it is not the
intention of the Secretary of State for Trade and Industry to refer the
proposed acquisition of General Cable by Telewest, or any matters
arising therefrom, to the Monopolies and Mergers Commission;
7. all necessary filings having been made and all applicable waiting
periods under the United States ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ Antitrust
Improvements Act of 1976 and the regulations thereunder having expired,
lapsed or been terminated as appropriate in each case in connection
with the Offer and the acquisition or proposed acquisition of any
shares in, or control of, General Cable by Telewest;
8. no relevant authority having:
(a) withdrawn or refused to renew, or threatened to withdraw
or to refuse to renew, any licence or permission; or
Page 14
(b) instituted, implemented or taken, or threatened to take any
other action;
the effect of which would adversely affect the businesses, assets,
prospects or profits of any member of the wider Telewest Group to an
extent which is material in the context of the Telewest Group taken as
a whole or of General Cable or any member of the wider General Cable
Group to an extent which is material in the context of the General
Cable Group taken as a whole, and no such licences or permissions
terminating or otherwise becoming invalid as a result of the Offer or
its implementation the effect of which would adversely affect the
businesses, assets, prospects or profits of General Cable or Telewest
or any member of the wider General Cable Group or the wider Telewest
Group to an extent which is material in the context of the General
Cable Group or the Telewest Group, as the case may be, taken as a
whole;
9. no relevant authority having intervened in a way which would or might:
(a) make the Offer, its implementation or the acquisition or
proposed acquisition by any member of the Telewest Group of any
shares in, or control of, General Cable by any member of the
Telewest Group, illegal, void and/or unenforceable in or under
the laws of any relevant jurisdiction, or otherwise materially,
whether directly or indirectly, restrict, restrain, prohibit,
delay, or otherwise materially interfere with or challenge the
implementation of, or impose additional conditions or
obligations with respect to, or otherwise challenge or interfere
with the Offer or such acquisition;
(b) require, prevent or materially delay the divestiture or
materially alter the terms envisaged for any proposed
divestiture by any member of the wider Telewest Group or any
member of the wider General Cable Group of all or any portion of
their respective businesses, assets or properties or impose any
limitation on the ability of any of them to conduct any of their
respective businesses or to own any of their respective assets
or property or any part thereof in each case to an extent which
is material in the context of the Telewest Group taken as a
whole or the General Cable Group taken as a whole;
(c) impose any limitation on, or result in any material delay in,
the ability of any member of the wider Telewest Group or of the
wider General Cable Group to acquire or to hold or to exercise
effectively, directly or indirectly, any rights of ownership in
respect of shares or other securities in, or to exercise
management control over, any member of the wider General Cable
Group or the wider Telewest Group, in each case to an extent
which is material in the context of the Telewest Group taken as
a whole or the General Cable Group taken as a whole;
Page 15
(d) require any member of the wider Telewest Group or of the wider
General Cable Group to offer to acquire any shares or securities
in any member of the wider General Cable Group (other than
General Cable) or any member of the wider Telewest Group owned
by a third party, in each case to an extent which would be
material in the context of the Telewest Group or the General
Cable Group, as the case may be, taken as a whole;
(e) result in a material delay in the ability of any member of the
Telewest Group, or render any member of the Telewest Group
unable to acquire some or all of the General Cable Shares;
(f) require, prevent or materially delay the divestiture by any
member of the wider Telewest Group of any shares or other
securities in General Cable;
(g) otherwise adversely affect any or all of the businesses, assets,
prospects or profits of any member of the wider General Cable
Group or the wider Telewest Group in each case to an extent
which is material in the context of the General Cable Group or
the Telewest Group, as the case may be, taken as a whole;
(h) impose any limitation on the ability of any member of the wider
General Cable Group or the wider Telewest Group to co-ordinate
its business, or any part of it, with the businesses of any
other member of the wider General Cable Group or the wider
Telewest Group, as the case may be, to an extent which is
material in the context of the General Cable Group or the
Telewest Group taken as a whole, as the case may be; or
(i) result in any member of the General Cable Group ceasing to be
able to carry on business under any name which it presently does
so,
and all applicable waiting and other time periods during which any
relevant authority could intervene in such a way having expired, lapsed
or been terminated;
10. all necessary filings having been made, all appropriate waiting periods
under any applicable legislation or regulation of any jurisdiction
having expired, lapsed or been terminated, in each case in connection
with the Offer or the acquisition of any shares or other securities in,
or control of, General Cable by Telewest, and all authorisations,
waivers and determinations which Telewest reasonably deems necessary or
Page 16
appropriate in any relevant jurisdiction for or in respect of the Offer
or the acquisition or proposed acquisition of any shares in, or control
of, General Cable by Telewest having been obtained in a form reasonably
satisfactory to Telewest, from all relevant authorities or (without
prejudice to the generality of the foregoing) from any persons or bodies
with whom any member of the wider General Cable Group has entered into
contractual arrangements and such authorisations, waivers and
determinations together with all authorisations, waivers and
determinations necessary or appropriate for any member of the wider
General Cable Group to carry on its business (where such business is
material in the context of the General Cable Group taken as a whole and
where the absence of such authorisation waiver or determination would
have a material adverse effect on the General Cable Group taken as a
whole) remaining in full force and effect and all filings necessary for
such purpose having been made and there being no notice or intimation of
any intention to revoke or not to renew any of the same, and all
necessary statutory or regulatory obligations in all relevant
jurisdictions having been complied with;
11. except as publicly announced (by the delivery of an announcement to the
Company Announcement Office of the London Stock Exchange) before
[Announcement Date], there being no provision of any arrangement,
agreement, licence, permit, franchise or other instrument to which any
member of the wider General Cable Group is a party, or by or to which
any such member or any of its assets is or are or may be bound, entitled
or subject or any circumstance, which, in each case as a consequence of
the Offer or the acquisition or proposed acquisition by any member of
the Telewest Group of any shares in, or change in the control or
management of, General Cable, would or might reasonably be expected to
result in (to an extent which in each case is material in the context of
the General Cable Group taken as a whole):
(a) any such arrangement, agreement, licence, permit, franchise or
instrument being terminated or adversely modified or affected
or any obligation or liability arising or any adverse action
being taken or arising thereunder;
(b) the rights, liabilities, obligations or interests of any
member of the wider General Cable Group under any such
arrangement, agreement, licence or instrument or the interests
or business of any such member in or with any other firm or
company or body or person (or any arrangement or arrangements
relating to such business or interests) being terminated,
modified or adversely affected;
(c) any material assets or interests of any such member of the
wider General Cable Group being or falling to be disposed of
or charged or any right arising under which any such asset or
Page 17
interest could be required to be disposed of or charged
otherwise than in the ordinary course of business;
(d) any material amount of moneys borrowed by, or any other
material indebtedness, actual or contingent, of, or grant
available to, any member of the wider General Cable Group
being or becoming repayable, or capable of being declared
repayable immediately or prior to its stated repayment date,
or the ability of any such member to borrow moneys or incur
any material indebtedness being withdrawn or inhibited or
becoming capable of being withdrawn;
(e) the financial or trading position or prospects or value of any
member of the wider General Cable Group being prejudiced or
adversely affected;
(f) any member of the wider General Cable Group ceasing to be able
to carry on business under any name under which it presently
does so; or
(g) the creation or enforcement of any mortgage, charge or other
security interest over the whole or any part of the business,
property, assets or interests of any member of the wider
General Cable Group,
and no event having occurred which, under any provision of any
arrangement, agreement, licence, permit or other instrument to which
any member of the wider General Cable Group is a party or by which any
such member or any of its assets may be bound, entitled or be subject,
could result in any of the events or circumstances as are referred to
in sub-paragraphs (a) to (g) of this condition 11 in any case where
such result would be material in the context of the General Cable Group
taken as a whole;
12. except as publicly announced by General Cable (by the delivery of an
announcement to the Company Announcements Office of the London Stock
Exchange) prior to [Announcement Date], no member of the General Cable
Group having, since 31 December 1996:
(a) issued or agreed to issue, authorised or proposed the issue of
additional shares of any class, or securities convertible into,
or rights, warrants or options to subscribe for or acquire, any
such shares or convertible securities (save as between General
Cable and wholly-owned subsidiaries of General Cable and save
for shares issued or options granted pursuant to the [General
Cable Share Option Schemes] before [Announcement Date]) or
redeemed, purchased or reduced any part of its share capital or
proposed the redemption, purchase or reduction of any part of
its share capital;
Page 18
(b) merged with or demerged any body corporate or acquired or (other
than in the ordinary course of business) disposed of, or
transferred, mortgaged or charged or created any security
interest over, any assets or any right, title or interest in any
assets (including shares and trade investments other than in the
ordinary course of business) or made any change in its loan or
share capital, authorised or proposed or announced any intention
to propose any merger, demerger, acquisition, disposal,
transfer, mortgage, charge or security interest (other than in
the ordinary course of business) which, in any case, is material
in the context of the General Cable Group taken as a whole;
(c) entered into or varied or announced its intention to enter into
or vary any contract, transaction, arrangement or commitment
(whether in respect of capital expenditure or otherwise)
otherwise than in the ordinary course of business which is, in
any case, material in the context of the General Cable Group
taken as a whole;
(d) issued, authorised or proposed the issue of any debentures or
incurred or increased any indebtedness or contingent liability
which is, in any case, material in the context of the General
Cable Group taken as a whole and not in the ordinary course of
business;
(e) recommended, declared, paid or made, or proposed the
recommendation, declaration, paying or making of, any bonus,
dividend, or other distribution whether in cash or otherwise
other than to General Cable or to a wholly-owned subsidiary of
General Cable;
(f) been unable, or admitted in writing that it is unable, to pay
its debts or having stopped or suspended (or threatened to stop
or suspend) payment of its debts generally or ceased or
threatened to cease carrying on all or a substantial part of its
business;
(g) waived or compromised any claim which is material in the context
of the relevant member of the wider General Cable Group;
(h) proposed any voluntary winding up;
Page 19
(i) entered into or varied or made any offer (which remains open for
acceptance) to enter into or materially vary the terms of any
service agreements with any of the directors of any member of
the General Cable Group;
(j) entered into any contract, reconstruction, amalgamation,
commitment or other transaction or arrangement which would be
materially restrictive on the business of any member of the
General Cable Group or the Telewest Group;
(k) made by alteration to its memorandum or articles of association
or other incorporation documents; or
(l) entered into any contract, commitment, agreement or arrangement
or passed any resolution or made any offer (which remains open
for acceptance) with respect to or announced an intention to
effect or to propose any of the transactions, matters or events
referred to in this condition 12;
13. since 31 December 1996 and except as announced publicly by General
Cable (by the delivery of an announcement to the Company Announcements
Office of the London Stock Exchange):
(a) there having been no receiver, administrative receiver or other
encumbrancer appointed over any material portion of the assets
of any member of the wider General Cable Group or any analogous
proceedings or steps having taken place under the laws of any
relevant jurisdiction and there having been no petition
presented for the administration of any member of the wider
General Cable Group or any equivalent proceedings or steps taken
under the laws of any other jurisdictions;
(b) no adverse change or deterioration having occurred in the
business, assets, financial or trading position or profits of
prospects of any member of the wider General Cable Group which
is material in the context of the General Cable Group taken as a
whole;
(c) save for matters fully and fairly disclosed to Telewest before
[Announcement Date] no litigation or arbitration proceedings,
prosecution or other legal proceedings having been instituted,
announced or threatened by or against or remaining outstanding
against any member of the wider General Cable Group which is
material in the context of the General Cable Group taken as a
whole;
Page 20
(d) no contingent or other liability having arisen or become
apparent or increased which would or might be likely adversely
to affect any member of the wider General Cable Group which is
material in the context of the General Cable Group taken as a
whole; and
(e) no investigation by any relevant authority having been
threatened, announced, implemented or instituted or remaining
outstanding in respect of any member of the wider General Cable
Group which, in any such case, is material in the context of the
General Cable Group taken as a whole;
14. Telewest not having discovered:
(a) that any financial, business or other information concerning the
wider General Cable Group disclosed at any time by or on behalf
of any member of the wider General Cable Group either is
misleading or contains a misrepresentation of fact which is
material in the context of the Offer or omits to state a fact
necessary to make any information contained therein not
misleading to an extent which is so material; or
(b) that any member of the General Cable Group is subject to any
liability (contingent or otherwise) which is not disclosed in
the annual report and accounts of General Cable for the year
ended 31 December 1996 or the interim report for the six months
ended 30 June 1997 and which is material in the context of the
General Cable Group taken as a whole;
(c) that any past or present member of the wider General Cable Group
has not complied with all applicable laws of any relevant
jurisdiction relating to environmental matters which
non-compliance would be likely to give rise to a material
liability (whether actual or contingent) or cost on the part of
any member of the wider General Cable Group which is, or would
be, material in the context of the General Cable Group taken as
a whole;
(d) that there has been an emission, disposal, discharge, deposit,
spillage or leak of waste or hazardous or harmful substances on
or about or from any property now or previously owned, or
occupied or made use of by any past or present member of the
wider General Cable Group which would be likely to give rise to
any liability (whether actual or contingent) or cost on the part
of any member of the wider General Cable Group which is, or
would be, material in the context of the General Cable Group
taken as a whole;
Page 21
(e) that there is or is likely to be any material liability (whether
actual or contingent) or requirement to make good, repair,
re-instate or clean-up any property now or previously owned,
occupied or made use of by any past or present member of the
wider General Cable Group;
(f) any information which affects the import of any information
disclosed at any time by or on behalf of any member of the wider
General Cable Group which is material in the context of the
Offer.
For the purposes of these conditions: (a) "relevant authority" means any central
bank, government, government department or governmental, quasi-governmental,
supranational, statutory or regulatory body, court, trade agency, association,
institution or professional or environmental association in any relevant
jurisdiction; (b) a relevant authority shall be regarded as having "intervened"
if it has instituted, implemented, threatened or decided to taken any action,
proceedings, suit, investigation or enquiry, or made, enacted or proposed any
statute, regulation, decision or order, or taken any measures or other steps and
"intervene" shall be construed accordingly; (c) "authorisations" means
authorisations, orders, grants, recognitions, confirmations, consents, licences,
clearances, permissions and approvals; (d) "Telewest Group" means Telewest and
its subsidiary undertakings and the "wider Telewest Group" means Telewest and
its subsidiary undertakings, associated undertakings and any other undertaking
in which Telewest and such undertakings (aggregating their interests) have a
substantial interest; (e) "General Cable Group" means General Cable and its
subsidiary undertakings and "wider General Cable Group" means General Cable and
its subsidiary undertakings, associated undertakings and any other undertaking
in which General Cable and such undertakings (aggregating their interests) have
a substantial interest and, for these purposes, "subsidiary undertaking",
"associated undertaking" and "undertaking" have the meanings given by the Act
and "substantial interest" means a direct or indirect interest in 20 per cent.
or more of the voting equity capital of an undertaking.
Telewest reserves the right to waive all or any of conditions 6 to 14
(inclusive) above, in whole or in part.
Conditions 6 to 14 (inclusive), if not waived, must be fulfilled or satisfied on
or before midnight on the day which is the later of (a) 21 days after the first
closing date of the Offer and (b) 21 days after the date on which condition 1 is
fulfilled (or in each case such later date as the Panel may agree) failing which
the Offer will lapse. Telewest shall be under no obligation to waive or treat as
satisfied any of conditions 6 to 14 (inclusive) by a date earlier than the
latest date specified above for the satisfaction thereof notwithstanding that
the other conditions of the Offer may at such earlier date have been waived or
fulfilled or satisfied and that there are at such earlier date no circumstances
indicating that any of such conditions may not be capable of fulfilment or
satisfaction.
Page 22
If Telewest is required by the Panel to make an offer for General Cable Shares
under the provisions of Rule 9 of the City Code, Telewest may make such
alterations to the conditions of the Offer, including to condition 1 above, as
are necessary to comply with the provisions of that Rule.
The Offer will lapse if the acquisition of General Cable is referred to the
Monopolies and Mergers Commission before the later of 3.00 p.m. on the first
closing date of the Offer and the date when the Offer becomes or is declared
unconditional as to acceptances. In such circumstances, the Offer will cease to
be capable of further acceptance and persons accepting the Offer and Telewest
shall thereupon cease to be bound by acceptances delivered on or before the date
on which the Offer so lapses.
The Offer will comply with the rules and regulations of the London Stock
Exchange and with the City Code.
Fractions of new Telewest Shares and ADSs will not be allocated or issued to
accepting General Cable shareholders. Fractional entitlements to the new
Telewest Shares and ADSs will be aggregated and sold in the market and the net
proceeds of sales distributed pro rata to the holders of General Cable Shares
entitled to them. However, individual entitlements to amounts of less than
(pound)3.00 will not be paid to holders of General Cable Shares but will be
retained for the benefit of the enlarged Telewest group.
The General Cable Shares are to be acquired by Telewest fully paid and free from
all liens, charges and encumbrances and together with all rights attaching
thereto, including the right to all dividends or other distributions declared,
made or paid after [Announcement Date].
The new Telewest Shares and ADSs will be issued free from all liens, charges and
encumbrances. New Telewest Shares and ADSs will rank pari passu in all respects
with existing Telewest Shares and ADSs.
Page 23
DULY DELIVERED as a deed by Compagnie Generale des Eaux and General Utilities
Holdings Limited on the day and year first before written.
SIGNED by Cob Stenham and ) Cob Stenham
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
For and on behalf of )
TELEWEST COMMUNICATIONS PLC )
SIGNED by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
For and on behalf of )
GENERAL CABLE PLC )
SIGNED as a DEED and DELIVERED )
on behalf of Compagnie Generale des Eaux )
in Chamonix, France by Michel Villaneau ) Michel Villaneau
being a person who in accordance with the laws )
of France, is acting under the authority of )
Compagnie Generale des Eaux )
EXECUTED as a DEED and DELIVERED )
by General Utilities Holdings Limited acting )
by two directors/a director and secretary )
Director ▇ ▇ ▇▇▇▇▇
Director/Secretary Michel Villaneau
Page 24
