Amendment to General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D/A Schedule 13D Amendment 17 64K
2: EX-3 Articles of Assn -- Friedland (No.1) 24 97K
3: EX-4 Articles of Assn -- Friedland (No.2) 24 95K
4: EX-5 Subscription Agreement -- Friedland (No. 1) 11 40K
5: EX-6 Subscription Agreement -- Friedland (No. 2) 11 40K
6: EX-7 Exchangeable Note -- Friedland (No. 1) 20 75K
7: EX-8 Exchangeable Note -- Friedland (No. 2) 20 75K
8: EX-9 Irrevocable Sale Mandate -- Friedland (No. 1) 6 27K
9: EX-10 Irrevocable Sale Mandate -- Friedland (No. 2) 6 27K
10: EX-11 Letter Agreement 18± 59K
EX-9 — Irrevocable Sale Mandate — Friedland (No. 1)
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EXHIBIT 9
FRIEDLAND FINANCE (NUMBER ONE) LIMITED
IRREVOCABLE SALE MANDATE IN RESPECT OF BSKYB SHARES
To: Morgan Grenfell & Co. Ltd
Winchester House
1 Great Winchester Street
London
EC2N 2DB
(the "Agent")
8 October 2001
Dear Sirs,
1 We refer to the L1,239,062,086.87 Exchangeable Note due 2005 (the
"Note") issued by Friedland Finance (Number One) Limited (the "Issuer")
which is exchangeable for ordinary shares of British Sky Broadcasting
Group plc (the "Company").
2 This letter agreement (the "Agreement") sets out the terms and conditions
upon and subject to which the Issuer irrevocably appoints the Agent, and
the Agent accepts the appointment, to act as agent for the Issuer in
relation to the sale of the Shares (as defined in paragraph 3(d)).
3 In this Agreement:
(a) "Conditions" mean the terms and conditions of the Note;
(b) "Security Trustee" means Bankers Trustee Company Limited, in its capacity
as security trustee under a deed of security dated 8 October 2001 made
between the Issuer (1) and Bankers Trustee Company Limited (2), under
which the Issuer has granted security over, inter alia, certain ordinary
shares of the Company as security for its obligations under the Note;
(c) "Other Issuer" means Friedland Finance (Number Two) Limited;
(d) "Shares" means any of the ordinary shares of the Company which remain in
the beneficial ownership of the Issuer after the Note has been redeemed
(whether under Condition 6 (Redemption at the Option of the Noteholder),
8 (Redemption and Purchase) or 11 (Events of Default and Illegality); and
(e) expressions defined in the Note or the Conditions have the same meanings
when used in this Agreement.
4 The respective obligations hereunder of the Issuer and the Agent are in
all respects conditional upon there being any Shares remaining in the
beneficial ownership of the Issuer after the Note has been redeemed. If
this condition is not satisfied, this Agreement and the respective
obligations hereunder of the Issuer and the Agent shall lapse and be of
no effect.
5
(a) The Issuer hereby irrevocably appoints Morgan Grenfell & Co. Ltd as Agent
for the Issuer, and Morgan Grenfell & Co. Ltd, relying on the warranties
and indemnities set out in this Agreement, agrees to act as agent for the
Issuer, to take, for the Issuer's account, the actions described in this
Agreement.
(b) For the avoidance of doubt, it is hereby confirmed that the appointment
of the Agent as provided in paragraph 5(a) shall apply irrespective of
the identity of the holder of the Note immediately prior to the
redemption of the Note.
6 On the date of redemption (the "Redemption Date") of the Note, the Issuer
shall instruct the Security Trustee to transfer the Shares to the Agent,
whereupon the Agent (or its nominees) shall be registered as the owner of
the Shares.
7 During the period commencing on the date falling one month after the
Redemption Date and ending no later than the date falling five months
after the Redemption Date, the Agent shall, subject as provided in
paragraph 8, sell the Shares, in one or more transactions, on the
conditions set forth below:
(a) the Agent shall immediately prior to the sale of the Shares concerned
obtain three price indications net of costs and expenses (the "Price
Indications") from three major international reputable financial
institutions conducting investment business in the United Kingdom (the
"Bidding Institutions"); and
(b) upon receipt of the Price Indications, the Agent will endeavour to either
(i) sell the Shares concerned at a price at least equal to the highest
Price Indication so received, or (ii) instruct the Bidding Institution
with the highest Price Indication to sell the Shares concerned at a price
at least equal to such Price Indication.
Any sale under sub-paragraph (a) or (b) shall be effective with a value
date not to exceed two business days immediately following the receipt of
the Price Indications.
8 No sale of the Shares or any part thereof, pursuant to paragraph 7, shall
be made to:
(a) Vivendi Universal S.A. or any of its subsidiaries or affiliates; or
(b) to one single identified purchaser or to several connected purchasers
acting in concert, if such sale comprises at the time of such sale more
than 1 per cent. of the issued share capital of the Company, unless the
European Commission has given its prior approval to such sale.
9 The proceeds of sale of the Shares shall be applied by the Agent as
follows:
(a) first, in payment or satisfaction of the fees, costs, charges and
expenses, reasonably and properly incurred by the Agent in the
performance of its obligations under this Agreement; and
(b) secondly, in payment of the balance to the Issuer or as it may, by
written notice to the Agent, direct.
10 All moneys received by the Agent in respect of Dividend Rights shall be
paid promptly by it to the Issuer.
11 The Agent shall at all times refrain from exercising in respect of the
Shares any voting rights and any powers or rights under the terms thereof
or otherwise which may be exercised by the person or persons in whose
name or names the Shares are registered or who is the holder thereof.
12 During the period that the Agent is acting as agent hereunder, the Issuer
will make all payments which may become due in respect of any of the
Shares.
13 The Issuer warrants and undertakes that the Shares will be sold by the
Agent free from all liens, charges, encumbrances or other third party
interests whatsoever.
2
14 The Issuer shall at its own expense execute and do all such assurances,
acts and things as the Agent may reasonably require for facilitating the
sale of the Shares or any part thereof and exercising all powers,
authorities and discretions vested in the Agent pursuant to this
Agreement. To that intent, the Issuer shall in particular execute all
transfers, conveyances, assignments and assurances, give all notices,
orders and directions, and make all registrations, which the Agent may
reasonably think expedient.
15
(a) The Issuer agrees to indemnify, defend and hold the Agent and its
officers, directors, employees and agents harmless from and against any
and all losses, claims, damages, demands, expenses, costs, causes of
action, judgments or liabilities that may be incurred by it and its
officers, directors, employees and agents arising directly or indirectly
out of or in connection with this Agreement, including the legal costs
and expenses as such expenses are incurred (including, without
limitation, the expenses of any experts, counsel or agents) of
investigating, preparing for or defending itself against any action,
claim or liability in connection with its performance hereunder. In no
event, however, shall the Issuer be obliged to indemnify the Agent
harmless from any fees, expenses, charges and/or liabilities incurred by
the Agent as a result of its own bad faith, wilful misconduct, negligence
or breach by it of the terms of this Agreement.
(b) The Agent shall indemnify the Issuer for, and hold it harmless against,
any loss, liability or expense properly incurred as a result of the
negligence, bad faith or wilful misconduct of the Agent or breach of the
terms of this Agreement, except such as may result from the Issuer's
negligence, bad faith or wilful misconduct or that of its directors,
officers, employees or agents.
16
(a) The Agent shall be responsible only for the performance of the duties and
obligations expressly imposed upon it herein together with such other
duties as are reasonably incidental thereto. The Agent shall have no
implied duties or obligations other than the duty to act honestly and in
good faith and to exercise the diligence of a reasonably prudent agent in
comparable circumstances. The Agent shall not be under any obligation to
take any action hereunder which may tend to involve it in any expense or
liability, the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it.
(b) The Agent's affiliates may engage or be interested in any business
transaction with the Issuer without being liable to account to the
Noteholder for any resulting profit, and may act on, or as depositary,
trustee or agent for, any committee or body of holders of obligations of
the Issuer as freely as if it were not a party to, or connected with a
party to, this Agreement.
(c) The Agent may consult with legal or other professional advisers
satisfactory to it and the written opinion of such advisers shall be full
and complete authorisation and protection in respect of any action taken
or omitted to be taken by it hereunder in good faith and in accordance
with the opinion of such advisers provided it exercised due care in the
appointment of such advisers. The Issuer agrees to reimburse the Agent
for all expenses incurred by it in consulting such legal or other
professional advisers.
(d) The Agent shall be protected and shall incur no liability for or in
respect of any action taken or omitted to be taken or anything suffered
by it in reliance upon any notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it
to be genuine and to have been presented or signed by the proper parties.
3
(e) In this Agreement, "successor" in relation to a party hereto means an
assignee or successor in title of such party or any person who, under the
laws of its jurisdiction of incorporation or domicile, has assumed the
rights and obligations of such party hereunder to which under such laws
the same has been transferred as the same shall have been approved in
writing by the Issuer.
(f) The Agent shall be able to rely without enquiry on the certificate of any
party as to any statement of such party which the Agent requires under
the terms of this Agreement to carry out its duties hereunder.
17
(a)
(i) Subject to paragraph 17(a)(iii), the Agent may resign its
appointment hereunder at any time by giving to the Issuer at least
45 days' written notice to that effect provided that no such notice
shall take effect until a new Agent has agreed to exercise the
powers and undertake the duties hereby conferred and imposed upon
the Agent as contemplated by paragraph 17(d).
(ii) No resignation pursuant to paragraph 17(a)(i) shall take effect
unless:
(A) simultaneously with such resignation becoming effective the
Agent resigns its appointment as Agent by the Other Issuer; and
(B) a replacement Agent is appointed on substantially the same
terms as the terms set forth in this Agreement and
simultaneously with, and on the same terms, mutatis mutandis,
as apply to the appointment of, the replacement Agent by the
Other Issuer.
(iii) If the Agent gives notice of its resignation in accordance with
this paragraph 17(a) and by the tenth day before the expiration of
such notice a replacement Agent has not been duly appointed, the
resigning Agent shall appoint as its replacement any reputable and
experienced financial institution. Immediately following such
appointment, the Agent shall give notice of such appointment to the
Issuer, whereupon the Issuer, the replacement Agent shall acquire
and become subject to the same rights and obligations between
themselves as if they had entered into an agreement in the form
mutatis mutandis of this Agreement.
(b) Upon its resignation becoming effective:
(i) the Agent shall forthwith transfer all records kept in connection
with its duties hereunder to the successor Agent, but shall have no
other duties or responsibilities hereunder, and shall be entitled to
the payment by the Issuer of its remuneration for the services
previously rendered hereunder in accordance with the terms of
paragraph 18 and to the reimbursement of all reasonable expenses
(including legal fees) incurred in connection therewith; and
(ii) the Agent shall repay to the Issuer (or to the Issuer's order) such
proportion of the fees paid to it hereunder as they may have agreed
between them prior to the date hereof as being refundable in the
circumstances.
4
(c) A corporation into which the Agent is merged or converted or with which
it is consolidated or which results from a merger, conversion or
consolidation to which it is a party shall, to the extent permitted by
applicable law, be the successor Agent under this Agreement. The Agent
agrees to do all such further acts and things (if any) as are necessary
to give effect to this paragraph 17(c). The Agent shall forthwith notify
the Issuer as soon as practicable after it becomes aware that any such
event is to occur, giving details of the date on which such event is to
occur and of the successor Agent.
(d) Upon any successor Agent appointed hereunder executing, acknowledging and
delivering to the Issuer an instrument accepting such appointment
hereunder, it shall, without any further act, deed or conveyance (but
only if simultaneously the same occurs with respect to it in its capacity
as successor Agent for the Other Issuer), become vested with all
authority, rights, powers, trusts, indemnities, duties and obligations of
the Agent hereunder.
(e) If the Agent shall change its specified office, it shall give to the
Issuer not less than 30 days' prior written notice to that effect giving
the address of the changed specified office. On behalf of the Issuer, the
Agent (failing whom the Issuer) shall (unless the appointment of the
Agent is to terminate pursuant to paragraph 17(b) on or prior to the date
of such change) give to the Noteholder at least 15 days' notice of such
change and of the address of the changed specified office.
18
(a) The Issuer shall, in respect of the services to be performed by the Agent
under this Agreement, pay to the Agent the fees (together with any
applicable value added tax thereon which may be imposed in any relevant
jurisdiction) separately agreed between them. At the request of the
Agent, the parties to this Agreement may, from time to time during the
continuation of this Agreement, review the fees agreed initially pursuant
to this paragraph 18(a) with a view to determining whether the parties
can mutually agree upon any changes to such fees.
(b) The Issuer shall also pay (against presentation of the relevant invoices)
from time to time on demand of the Agent all out-of-pocket expenses
(including, by way of example only, legal, advertising, cable and postage
expenses and insurance costs) reasonably and properly incurred by the
Agent in connection with its services hereunder, together with any
applicable value added tax as aforesaid.
(c) The Issuer agrees to pay any and all stamp and other documentary taxes or
duties which may be incurred by the Agent in connection with the
execution, delivery, performance and enforcement of this Agreement.
19 Any notice or demand to be given, made or served for any purposes under
this Agreement shall be given, made or served by sending the same by
pre-paid post (first class if inland, first class airmail if overseas) or
facsimile transmission or by delivering it by hand as follows:
to the Issuer: 15 Appold Street
London
EC2A 2HB
Fax: +44 (0)20 7814 8141/2
Attention: Directors/Company Secretary
5
to the Agent: Winchester House
1 Great Winchester Street
LONDON
EC2N 2DB
Fax: +44(0)20 7547 6149
Attention:
or to such other address or facsimile number as shall have been notified
(in accordance with this paragraph 19) to the other parties hereto and
any notice or demand sent by post as aforesaid shall be deemed to have
been given, made or served three days in the case of inland post or seven
days in the case of overseas post after despatch and any notice or demand
sent by facsimile transmission as aforesaid shall be deemed to have been
given, made or served 24 hours after the time of despatch. A notice or
demand given by facsimile transmission shall forthwith be confirmed by
post provided that the failure of the addressee to receive such
confirmation shall not invalidate the relevant notice or demand given by
facsimile transmission.
20 This Agreement is governed by and shall be construed in accordance with
English law.
Please confirm your agreement to the foregoing by countersigning and returning
to the Issuer the enclosed duplicate copy of this Agreement.
Yours faithfully
/s/ Richard M. Constant
-----------------------------
(Director)
For and on behalf of
FRIEDLAND FINANCE (NUMBER ONE) LIMITED
/s/ Phil Bland
-----------------------------
Accepted and agreed
For and on behalf of
MORGAN GRENFELL & CO. LTD
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