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As Of Filer Filing For·On·As Docs:Size Issuer Agent 2/10/16 Deutsche Telekom AG SC 13D 6:4.8M BT Group PLC Clifford Chan… US LLP/FA |
Document/Exhibit Description Pages Size 1: SC 13D General Statement of Beneficial Ownership HTML 138K 2: EX-1 Executed Sale and Purchase Agreement HTML 1.47M 3: EX-2 Side Letter HTML 42K 4: EX-3 Side Letter HTML 25K 5: EX-4 Relationship Agreement HTML 310K 6: EX-5 Contingent Purchase Agreement HTML 68K
Clause
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Page
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Interpretation and Definitions
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1
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2.
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Right of First Offer
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4
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3.
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Overriding Obligations
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5
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4.
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Termination of the Agreement
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5
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5.
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Notices
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5
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6.
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General
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6
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7.
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Further Assurances
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6
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8.
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Waivers, Rights and Remedies
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6
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9.
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Counterparts
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6
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10.
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Variations
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7
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11.
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Invalidity
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7
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12.
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Third party rights
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7
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13.
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Governing law and disputes
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7
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(2)
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T-Mobile Holdings Limited of Hatfield Business Park, Hatfield, Hertfordshire AL10 9BW (company no. 03836708) (DT Holdings); and
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(A)
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The parties (amongst other parties) entered into a sale and purchase agreement (the SPA) on 5 February 2015, in relation to the sale by DT Holdings and Orange Telecommunications Group Limited to BT of their respective shareholdings in EE Limited (EE), pursuant to which, at Closing (as defined in the SPA), BT will issue to DT Holdings (or its nominee) certain new ordinary shares of 5 pence each in the capital of BT.
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(B)
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Pursuant to the terms of a relationship agreement (the Relationship Agreement) to be entered into on the same date as this Agreement between DT Holdings, Deutsche Telekom and BT, DT Holdings and Deutsche Telekom will grant to BT a right of first offer if Deutsche Telekom (or any of its Affiliates) wishes to dispose of its Shares in the circumstances set out in the Relationship Agreement.
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1.1
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In this Agreement unless the context otherwise requires, the following words and expressions shall have the following meanings:
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(a)
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references to a person include any individual, firm, body corporate (wherever incorporated), government, state or agency of a state or any joint venture, association, partnership, works council or employee representative body (whether or not having separate legal personality);
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1.3
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Except as otherwise expressly provided in this Agreement, any express reference to an enactment (which includes any legislation in any jurisdiction) includes references to (i) that enactment as amended, consolidated or re-enacted by or under any other enactment before or after the date of this Agreement; (ii) any enactment which that enactment re-enacts (with or without modification); and (iii) any subordinate legislation (including regulations) made (before or after the date of this Agreement) under that enactment, as amended, consolidated or re-enacted as described in (i) or (ii) above, except to the extent that any of the matters referred to in (i) to (iii) occurs after the date of this Agreement and increases or alters the liability of the parties under this Agreement.
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1.4
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Where there is any inconsistency between the definitions set out in this Clause and the definitions set out in any other clause, then, for the purposes of construing such clause, the definitions set out in such clause shall prevail.
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2.1
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Prior to any Disposal pursuant to clause 3.2(f) of the Relationship Agreement, Deutsche Telekom shall invite BT to make an offer for the relevant Shares by issuing a notice to BT specifying the number of Shares directly or indirectly proposed to be sold or transferred (the Transfer Notice).
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2.2
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On receipt of a Transfer Notice, BT shall have the right to make an offer to Deutsche Telekom to buy all (but not some only) of the Shares detailed within such Transfer Notice by giving written notice to Deutsche Telekom no later than 7.00 am on the ninth Business Day after delivery of the Transfer Notice (the Offer Notice). If no Offer Notice is given within such period, BT shall be deemed to have waived its right to make an offer in respect of the relevant Disposal.
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2.3
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The Offer Notice will constitute BT’s unconditional and irrevocable offer (the Offer) to purchase the Shares specified in the Transfer Notice and will specify:
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(c)
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that the relevant Shares are to be sold by Deutsche Telekom with full title guarantee (within the meaning of the Law of Property (Miscellaneous Provisions) Act 1994) free from all security interests and other third party rights, together with all rights of any nature attaching to or in respect of them on and from the date of the Offer Notice; and
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2.4
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The Offer shall be at no more than the higher of the BT Closing Price on (i) the date of the Offer Notice or (ii) the Business Day prior to the date of the proposed transfer if later. If Deutsche Telekom wishes to accept the Offer, it shall notify BT (a Notice) no later than 6.00 pm on the date of the Offer Notice (if that date is the proposed transfer date) or 6.00 pm on the Business Day prior to the proposed transfer date if later. The Notice shall state whether Deutsche Telekom accepts or rejects the Offer and, in the case of acceptance, shall constitute Deutsche Telekom’s irrevocable acceptance of the Offer on the terms specified in the Offer Notice. For the avoidance of doubt, Deutsche Telekom shall not be obliged to accept any offer made by BT pursuant to this Clause 2. If the Offer is accepted, the transfer shall be announced by
BT on the proposed transfer date, with settlement to occur no later than 5 Business Days thereafter.
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2.5
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If BT serves an Offer Notice in accordance with Clauses 2.2 and 2.3 and Deutsche Telekom elects not to accept the Offer, Deutsche Telekom shall be permitted to effect the Disposal (otherwise in accordance with the provisions of the Relationship Agreement) on or prior to the date falling three months after the date of the Transfer Notice (the Long Stop Date), provided that the cash consideration per Share of that Disposal is at no greater a discount to the BT Closing Price on the Business Day prior to such Disposal, than any discount expressed in the Offer Notice or any discount implied by the consideration proposed in the Offer Notice (by reference to the BT Closing Price on the Business Day prior to the date of the Offer Notice). If such Disposal is not effected on or prior to the
Long Stop Date, the procedure set out in Clauses 2.1 to 2.4 shall apply to any further relevant proposed Disposal by Deutsche Telekom (or any of its Affiliates).
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4.2
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Following termination of this Agreement under Clause 4.1, save in respect of any antecedent breach of this Agreement, no party hereto shall thereafter have any rights or obligations hereunder.
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5.1
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Any notice in connection with this Agreement shall be in writing in English and delivered by hand, email, registered post or courier using an internationally recognised courier company. A notice shall be effective upon receipt and shall be deemed to have been received (i) at the time of delivery, if delivered by hand, registered post or courier or (ii) at the time of sending if delivered by email provided that, in either case, where delivery occurs outside Working Hours, notice shall be deemed to have been received at the start of Working Hours on the next following Business Day. Any notice delivered by email must also be delivered in hard copy by registered post or courier within two Business Days of such email delivery.
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13.1
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This Agreement and any non-contractual obligations arising out of or in connection with this Agreement shall be governed by, and interpreted in accordance with, English law.
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13.2
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Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, or any non-contractual obligation arising out of or in connection with this Agreement (a Dispute) shall be referred to and finally resolved by arbitration under the Arbitration Rules of the International Chamber of Commerce (ICC), which are deemed to be incorporated by reference into this Clause. The tribunal shall consist of three arbitrators. The claimant(s) and the respondent(s) shall nominate an arbitrator respectively. The third arbitrator, who shall be the chairman of the tribunal, shall be nominated by the two party-nominated arbitrators within thirty (30) days of the last of their appointments.
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13.3
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The seat of the arbitration shall be London, England. The language of the arbitration shall be English. Any award of the tribunal shall be binding from the day it is made and judgment on the award rendered by the tribunal may be entered in any court having jurisdiction thereof. The governing law of this arbitration agreement shall be the substantive law of England. Nothing in these dispute resolution provisions shall be construed as preventing either party from seeking conservatory or similar interim relief in any court of competent jurisdiction. The parties agree to keep confidential all matters relating to the arbitration, including related court proceedings, to the greatest extent practicable.
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13.4
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Each party irrevocably consents to service of process or any other documents in connection with any Dispute by facsimile transmission, personal service, delivery at any address specified in this agreement or any other usual address, mail or in any other manner permitted by the law of the place of service or the law of the jurisdiction where proceedings are instituted.
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13.5
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Deutsche Telekom 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 DT Holdings and any claim form, judgment or other notice of legal process shall be sufficiently served on Deutsche Telekom if delivered to DT Holdings at its address for the time being. Deutsche Telekom irrevocably undertakes not to revoke the authority of this agent and if, for any reason, BT reasonably requests Deutsche Telekom to do so it shall promptly appoint another agent with an address in England and advise BT. If, following such a request, Deutsche Telekom fails to appoint another agent, BT shall be entitled to appoint one on behalf of Deutsche Telekom at Deutsche Telekom’s expense.
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The common seal of BT GROUP PLC affixed to this DEED is authenticated by:
/s/ Dan Fitz
Authorised Signatory
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BTG 16/133 |
EXECUTED as a DEED and DELIVERED
on behalf of DEUTSCHE TELEKOM A.G.
a company incorporated in Germany
being a person who, in accordance
with the laws of that territory, is duly
authorised to act on behalf of the company
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)
)
)
)
)
)
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/s/ Philipp Pohlmann
Signature
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and by Axel Lützner
being a person who, in accordance
with the laws of that territory, is duly
authorised to act on behalf of the company
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)
)
)
)
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/s/ Axel Lützner
Signature
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This ‘SC 13D’ Filing | Date | Other Filings | ||
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Filed as of: | 2/10/16 | |||
Filed on: | 2/9/16 | SC 13D | ||
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