Exhibit 2.5
IN THE ROYAL COURT OF JERSEY
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SAMEDI DIVISION
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IN THE YEAR TWO THOUSAND AND FOUR, THE EIGHTEENTH DAY OF JUNE.
Before Francis Charles Hamon, O.B.E., Commissioner, assisted by
Jurats Roy Malcolm Bullen, M.B.E. and John Lyndon Le Breton.
Telewest Finance (Jersey) Limited (hereinafter "the Representor")
presented to the Court a representation in the following terms:
"1. The Representor was incorporated under the Companies (Jersey) Law
1991, as amended (the "Companies Law"), on 16th May 2000 with
registered number 77278 as a public company limited by shares.
2. The Representor is a wholly owned subsidiary of Telewest
Communications plc (Telewest) and was incorporated in Jersey on 16 May
2000 as a public company with limited liability under the Jersey
Companies Law with the registered number 77278.
3. The registered office of the Representor is at Whiteley Chambers, Don
Street, St Helier, Jersey, JE4 9WG, Channel Islands.
4. As at 11 June 2004, the authorised share capital of the Representor
was(pound)2.00 and $1.6 million divided into two founders' shares
of(pound)1.00 each and 1.6 million unclassified shares of $1.00 each.
The unclassified shares may be issued as exchangeable redeemable
preference shares, having a nominal value of $1.00 each or as nominal
shares of $1.00 each. As at 11 June 2004, two founders' shares
of(pound)1.00 each have been issued fully paid and are legally and
beneficially owned by Telewest. There are no unclassified shares in
issue.
5. The main intermediate holding company of the operating companies in
the Telewest group is Telewest Communications Networks Limited (TCN)
and at 31 March 2004 it owed some (pound)8.2 billion to Telewest. The
Telewest group's external borrowing consist principally of the bonds
and bank debt comprising a senior secured credit facility guaranteed
by Telewest under which about (pound)2 billion has been drawn down.
6. The relevant creditors are principally bondholders. In the case of the
Representor, the relevant creditors are the holders of a single series
of unsecured bonds with a total nominal value of $500 million. In the
case of Telewest, they are the holders of ten series of unsecured
bonds, six of which are denominated in US dollars with a total nominal
value of $3.987 billion and four of which are denominated in sterling
with a total nominal value of $1.099 billion.
Trading History of the Telewest Group and Financial Position
7. Since the flotation of Telewest in 1994, the Telewest group has
incurred substantial operating and net losses and has incurred
substantial borrowings principally to fund the capital costs of the
Telewest group's network construction and operations and the
acquisition of UK cable assets, leading in March and April 2002 to a
downgrading of Telewest's corporate credit ratings. This severely
limited Telewest's access to financing and consequently impaired
Telewest's ability to service its debt and refinance its existing debt
obligation. The Representor is a special purpose vehicle with no other
source of funds than those received from Telewest.
8. In response to these developments, in April 2002 Telewest began
exploring a number of options to address its funding requirements,
including discussions with, among others, the bondholder committee and
its senior lenders.
9. A non-binding agreement of the main terms of compromise with
bondholders was approved and signed in September 2003 by parties then
holding over 66% of the principal amount of the bonds and 41% of
Telewest's shares. The principal feature of the agreement is a debt
for equity swap involving the cancellation of the bonds in exchange
for 98.5% of the shares in a new holding company, Telewest Global,
Inc. (Telewest Global), with the balance of 1.5% to be held by the
shareholders of Telewest. The detailed terms of the proposal were
further developed by the bondholder committee, Telewest and others and
were announced on 12 December 2003. They form part of a comprehensive
restructuring which involves also the transfer of substantially all of
Telewest's assets to Telewest UK Limited (Telewest UK), a subsidiary
of Telewest Global, in consideration for the assumption of
substantially all of Telewest's remaining liabilities and new
arrangements with the senior lenders or such alternative financing
arrangements as may be implemented instead of the Amended Senior
Secured Credit Facility Agreement (as defined in the Explanatory
Statement).
The Key Terms Of The Financial Restructuring
10. The Representor Scheme of Arrangement (Jersey Scheme) is part of a
larger group Financial Restructuring consisting of:
(a) the incorporation of Telewest Global and Telewest UK (companies
which are currently wholly owned subsidiaries of Telewest and
Telewest Global respectively, but which will become the new
holding companies of the Telewest group following the Financial
Restructuring);
(b) a transfer agreement, which will transfer substantially all of
Telewest's assets to Telewest UK in consideration for the
assumption by Telewest UK of substantially all of Telewest's
remaining liabilities following the Effective Date (as defined in
the Explanatory Statement), the issue to Telewest Global of
shares in Telewest UK and the issue of shares in Telewest Global
to The Bank of New York (the Escrow Agent) by Telewest Global
conditional upon the Effective Date to be held in accordance with
the terms of the Escrow Agent Agreement (the Transfer Agreement);
(c) the Amended Senior Secured Credit Facility Agreement between TCN
and the senior lenders to amend and restate the senior secured
credit facility agreement dated 16 March 2001 for credit
facilities of(pound)2 billion together with an institutional
facility of up to(pound)250 million between, inter alia, TCN and
the senior lenders or an alternative financing to refinance the
entire amount of the indebtedness under the senior secured credit
facility agreement dated 16 March 2001 (the Senior Secured Credit
Facility Agreement)
(d) the first Extraordinary General Meeting of Telewest shareholders
at which a resolution was passed to authorise the transfer by
Telewest of all its assets pursuant to the Transfer Agreement;
(e) a scheme of arrangement under section 425 of the Act proposed by
Telewest aiming to extinguish approximately (pound)4.3 billion of
Telewest's indebtedness and cancelling the Telewest Notes in
return for an entitlement to receive shares in Telewest Global;
and
(f) schemes of arrangement under section 425 of the Companies Act
1985 and article 125 of the Companies (Jersey) Law 1991 proposed
by the Representor aiming to extinguish the Company's
indebtedness of approximately(pound)334.6 million and cancelling
the Jersey Notes (as defined in the Explanatory Statement) in
return for an entitlement to receive the shares in Telewest
Global that the Representor is entitled to receive under the
Telewest Scheme.
11. Following the completion of the Financial Restructuring, Telewest's
assets will consist of an indemnity granted by Telewest UK, the
outstanding shares of the Representor and one share of Telewest Global
common stock. Telewest's limited remaining liabilities (after the
Financial Restructuring) are expected to be covered by the above
indemnity, other than certain liabilities which are to be covered by a
cash amount to be held on trust by Telewest. Telewest will also no
longer have any relationship with the restructured business and,
subject to shareholder approval, is expected to be put into solvent
liquidation. The Representor is also expected to be put into solvent
liquidation.
Conditions To The Implementation Of The Jersey Scheme
12. In order to ensure that the Jersey Scheme does not become effective
until all other principal elements of the Financial Restructuring have
become effective (or are capable of becoming effective), the
Representor's directors will confirm by way of an undertaking to the
Royal Court that the Jersey Scheme will not be made effective under
the Jersey law through the delivery of the office copy of the
Representor's order sanctioning the Jersey Scheme to the Jersey
Registrar of Companies unless and until the Representor's directors
are satisfied that all of the following have occurred and are
unconditional, or would occur or become unconditional on the Jersey
Effective Date (as defined in the Explanatory Statement), or have been
waived (to the extent possible):
(a) the order of the High Court which sanctions the Telewest scheme
of arrangement (Telewest Scheme) has been delivered to the
English Registrar of Companies (thereby making the Telewest
Scheme effective);
(b) the Representor, Telewest, Telewest Global, Telewest UK and the
Escrow Agent have entered into the Escrow Agent Agreement (as
defined in the Explanatory Statement) substantially in accordance
with the terms of the Jersey Scheme; and
(c) the Representor has obtained a permanent injunction and order of
the US Bankruptcy Court under section 304 of the US Bankruptcy
Code in substantially the same form as that described in
paragraph 9 of Part II of the Explanatory Statement pursuant to
which Jersey Scheme Creditors (as defined in the Explanatory
Statement) are restrained from commencing or continuing actions
or proceedings against, inter alia, the Representor in respect of
Jersey Scheme Claims (as defined in the Explanatory Statement)
(unless more than half of all Bondholders (as defined in the
Explanatory Statement) by Principal Amount (as defined in the
Explanatory Statement), as at the Record Date (as defined in the
Explanatory Statement), have notified the Representor that they
consent to the waiver of this condition).
13. The Representor's directors will also undertake to the Royal Court
that the Jersey Scheme will not be made effective unless it can be
made so effective by 31 July 2004.
Jersey Scheme
14. A copy of the Jersey Scheme is set out at pages 271 to 311 of the
Explanatory Statement.
15. The Jersey Scheme will involve all persons (including persons who are
not currently Bondholders of the Representor) with any claim in
respect of any liability of the Representor arising directly or
indirectly in relation to or arising out of or in connection with the
Jersey Indenture (as defined in the Explanatory Statement), the Jersey
Notes (as defined in the Explanatory Statement), the Jersey
Intercompany Debt (as defined in the Explanatory Statement) and the
Jersey Guarantee Liability (as defined in the Explanatory Statement),
including any liability of the Representor in respect of loss or
damage suffered or incurred as a result of or in connection with any
such liability, including all Holders of Jersey Notes (as defined in
the Explanatory Statement) and any other Jersey Scheme Creditors with
a Jersey Ancillary Claim (as defined in the Explanatory Statement).
Each Jersey Scheme Creditor will have its Jersey Scheme Claim
compromised under the terms of the Jersey Scheme.
16. Jersey Scheme Creditors with Jersey Ancillary Claims must notify the
Representor (or the Escrow Agent by submitting a duly completed Claim
Form) of their Jersey Ancillary Claims (as described in more detail in
paragraph 4 of Part III of the Explanatory Statement on or before the
Bar Date (as defined in the Explanatory Statement) in order to obtain
an entitlement to receive the shares in Telewest Global.
17. The Bar Date has been set to be only one day after the Effective Date
in order to minimise the serious disruption to trading of the shares
in Telewest Global which would be likely to ensue if the period of
time between the Effective Date and the Bar Date were to be any
longer.
18. Despite the considerable amount of press coverage that the proposed
restructuring has received, the announcements that have been made and
the various advertisements for claims that have been placed by
Telewest and the Representor on 16 December 2003, 8 January 2004, 6
February 2004, 8 April 2004, 30 April 2004 and 8 June 2004, neither
Telewest nor the Representor have been notified of the existence of
any Ancillary Claim that would require to be compromised by the Jersey
Scheme.
19. The Jersey Scheme comprises two separate schemes of arrangement under
English and Jersey law. Both schemes are on identical terms and are
intended to take place simultaneously.
20. The Jersey Scheme is also proposed under Jersey law to ensure that, in
the event that such a scheme of arrangement is agreed upon by the
requisite number of creditors and sanctioned by the Jersey Royal
Court, such scheme of arrangement may not be subject to challenge by
any Jersey Scheme Creditor seeking to claim that they had not
submitted to the jurisdiction of the High Court or the US Bankruptcy
Code or that such jurisdiction was not exclusive and that they are
therefore not bound by the terms of the Jersey Scheme. It is further
considered that since the Representor is a company incorporated under
the laws of Jersey, it should subject its compromise to the discretion
of the Jersey Royal Court as well as the High Court.
21. Whilst the Representor is a company incorporated in Jersey, Channel
Islands, it is tax resident in the UK and operates through UK based
management. As a UK tax resident company it is therefore within the
charge of UK corporation tax. However by virtue of paragraph 5(3),
Schedule 9, Finance Act 1996, no such charge will arise if the release
is pursuant to a scheme of arrangement which has taken effect under
section 425 of the Companies Act 1985. With this in mind, it is
intended that the Jersey Scheme will take effect both under Article
125 of the Jersey Companies Law and under section 425 of the Companies
Act 1985.
The Scheme Meeting
22. By an Order made by this Court in the above matters on 27 April 2004
it was ordered that the Representor should convene in the manner
therein mentioned a meeting of Jersey Scheme Creditors (the Meeting)
for the purpose of considering and if thought fit approving (with or
without modification) the Jersey Scheme, and the Court appointed Mr.
Anthony Stenham or, failing him, Mr. Stephen Cook to act as chairman
of the Meeting and directed the chairman to report the results of the
Meeting to the Court.
23. The Meeting was advertised on 30 April 2004, in accordance with the
Order given by Mr. Justice David Richards, in the international
edition of the Financial Times and the global edition of the Wall
Street Journal (and a copy of such notice was sent to DTC, Euroclear
and Clearstream for transmission to their registered holders for
onward ultimate transmission to the ultimate beneficial owners).
24. The Meeting was held on 1 June 2004 at The Lincoln Centre, 18
Lincoln's Inn Fields, London WC2A 3ED in accordance with the Order
given by Mr. Justice David Richards and Mr. Anthony Stenham acted as
the chairman.
25. At the Meeting the resolution submitted was that the Jersey Scheme be
approved and such resolution was passed at the Meeting and the Jersey
Scheme was approved accordingly.
26. The number of Jersey Scheme Creditors entitled to vote and present and
voting at the Meeting for and against the Jersey Scheme were as stated
in the following table:
TABLE
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How present Voted for the Resolution Voted against the Resolution
- -------------------------------------------------------------------------------
Number Value Number Value
- -------------------------------------------------------------------------------
By proxy 100% 100% - -
- -------------------------------------------------------------------------------
27. No proxies lodged for use at the above Meeting were rejected by the
Chairman, all such proxies being in order.
28. By his Affidavit dated 14 June 2004, Anthony Stenham reported to the
Court the result of the Meeting.
29. It will be for the benefit of the Representor and of the Jersey Scheme
Creditors taken as a whole that the Jersey Scheme should be sanctioned
by this Honourable Court.
WHEREFORE the Representor humbly prays that the Honourable Court makes the
following directions:
(1) that the Jersey Scheme set out in the Schedule hereto may be
sanctioned by this Honourable Court so as to be binding upon the
Representor and the Jersey Scheme Creditors as therein defined; or
(2) that such other Order may be made as the Court shall see fit."
Upon reading the above Representation and the Affidavits of Anthony
Stenham, Stephen Cook and Charles Norton Lloyd Maunder with accompanying
exhibits, and the Scheme of Arrangement and the Explanatory Statement, and
upon the directors of the Representor confirming by way of undertaking to
the Jersey Court that the Jersey Scheme will not be made effective under
Jersey law (through delivering, or procuring the delivery of, the office
copy of the Jersey Order of the Royal Court approving the Jersey Scheme to
the Jersey Registrar of Companies) unless and until the directors of the
Representor are satisfied that all of the following have occurred and are
unconditional, or would occur or become unconditional on the effective
date, or have been waived (to the extent possible):
(a) the order of the High Court which sanctions the Telewest
Communications plc (Telewest) scheme of arrangement (Telewest
Scheme) has been delivered to the English Registrar of Companies
(thereby making the Telewest Scheme effective);
(b) the Representor, Telewest, Telewest Global, Inc., Telewest UK
Limited and the Escrow Agent have entered into the Escrow Agent
Agreement (as defined in the Explanatory Statement) substantially
in accordance with the terms of the Jersey Scheme; and
(c) the Representor has obtained a permanent injunction and order of
the US Bankruptcy Court under section 304 of the US Bankruptcy
Code in substantially the same form as that described in
paragraph 9 of Part II of the Explanatory Statement pursuant to
which Jersey Scheme Creditors (as defined in the Explanatory
Statement) are restrained from commencing or continuing actions
or proceedings against, inter alia, the Representor in respect of
Jersey Scheme Claims (as defined in the Explanatory Statement)
(unless more than half of all Bondholders (as defined in the
Explanatory Statement) by Principal Amount (as defined in the
Explanatory Statement), as at the Record Date (as defined in the
Explanatory Statement), have notified the Representor that they
consent to the waiver of this condition);
and upon hearing the advocate for the Representor, the Court
ordered:-
1. that this Court hereby sanctions the Scheme of Arrangement as set out
in the Schedule hereto;
2. that the Representor deliver the office copy of this order sanctioning
the Scheme of Arrangement to the Registrar of the Jersey Registrar of
Companies for registration on or as soon as reasonably practicable
after the date on which the conditions described in the recitals to
the Scheme of Arrangement and the outlined undertaking described in
this order above, are satisfied or waived; and
3. that if the conditions outlined above in the order are not satisfied
by 31 July, 2004, or if it appears before that date that such
conditions are incapable of being satisfied, the Representor is at
liberty to apply for this order to be revoked.
/s/ Greffier Substitute
O&LeM (RJMeR)
SCHEDULE
THE SCHEME OF ARRANGEMENT
THE JERSEY SCHEME
SCHEME OF ARRANGEMENT
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IN THE ROYAL COURT OF THE ISLAND OF JERSEY
(Samedi Division)
IN THE MATTER OF TELEWEST FINANCE (JERSEY) LIMITED
-and -
IN THE MATTER OF THE COMPANIES (JERSEY) LAW 1991
SCHEME OF ARRANGEMENT
UNDER ARTICLE 125 OF THE COMPANIES (JERSEY) LAW 1991
-and -
IN THE HIGH COURT OF JUSTICE OF ENGLAND AND WALES CHANCERY
DIVISION
IN THE MATTER OF TELEWEST FINANCE (JERSEY) LIMITED
-and-
IN THE MATTER OF THE COMPANIES ACT 1985
SCHEME OF ARRANGEMENT
UNDER SECTION 425 OF THE COMPANIES ACT 1985
between
TELEWEST FINANCE (JERSEY) LIMITED
and
THE JERSEY SCHEME CREDITORS
(as defined in the Scheme of Arrangement)
1. PRELIMINARY
DEFINITIONS
1.2 In this Scheme, the following expressions shall, unless the context
otherwise requires, have the following meanings:
"ACCOUNT DESIGNATION" shall have the meaning given to it in
Clause 4.22;
"ADJUDICATION REFERENCE DATE" in respect of each Jersey Ancillary Claim
(or part thereof) the date falling 60
days after the submission of a Claim
Form in respect thereof;
"ADMISSION" the approval for quotation of the New
Shares, on Nasdaq, subject to notice of
issuance;
"ADVISERS" (i) Baker Botts LLP; (ii) Cadwalader
Wickersham & Taft LLP; (iii) Citigroup
Global Markets Limited; (iv) Freshfields
Bruckhaus Deringer; (v) Fried Frank
Harris Shiver & Jacobson LLP; (vi)
Gleacher Shacklock Limited; (vii) Jones
Day; (viii) KPMG LLP; (ix) Ogier & Le
Masurier; (x) Proskauer Rose LLP; (xi)
UBS Securities, LLC; and (xii) Weil,
Gotshal & Manges;
"AFFILIATES" TCN and Telewest Jersey;
"BAR DATE" 5.00 p.m. (London time) on 16 July
2004, or such other date as shall be
notified to Jersey Scheme Creditors by
announcement on a Regulatory Information
Service or on Telewest's website at
www.telewest.co.uk, being approximately
one Business Day after the Jersey
Effective Date;
"BONDHOLDER" a person with the ultimate economic
interest in any of the Telewest Notes
(other than the Eurobell Notes) and
holding such interest in such Telewest
Notes through one of the Clearing
Systems or as a Definitive Holder (as
defined in the Telewest Scheme) from
time to time;
"BONDHOLDER COMMITTEE" the ad hoc committee from time to time
of certain Bondholders, Jersey
Bondholders and Telewest Scheme
Creditors, as at 26 April 2004
consisting of Angelo Gordon & Co L.P.,
Franklin Mutual Advisors, LLC; Fidelity
Management & Research Co.; Goldentree
Asset Management, LP; Oaktree Capital
Management LLC; and OZ Management LLC;
"BUSINESS DAY" any day other than a Saturday, Sunday or
any other day which is a public holiday in
England and Wales, Jersey or New York;
"CLAIM FORM" in relation to Jersey Scheme Creditors,
who are not Jersey Bondholders in respect of
their Jersey Known Scheme Claims, the form
which is set out in Appendix 2 to this
Scheme;
"CLEARING SYSTEM" each or all of DTC, Euroclear and
Clearstream and any other system
designed for similar and/or analogous
purposes, as appropriate;
"CLEARSTREAM" Clearstream Banking, societe anonyme,
Luxembourg;
"COURTS" together the English Court and the
Jersey Court and a reference to "Court"
means one of them;
"DEED OF RELEASE" a deed to be entered into by
Telewest Jersey following the Jersey
Effective Date on behalf of Jersey
Scheme Creditors pursuant to the
authorisation given at Clause 3.5;
"DEPOSIT AGREEMENTS" the Telewest Deposit Agreements and the
Jersey Deposit Agreement, and each of
them;
"DEPOSITARY" The Bank of New York in its capacity as
book-entry depositary for the Jersey
Notes and any successor thereto;
"DESIGNATED DTC ACCOUNT" the DTC account designated in a Claim
Form as being that into which a Jersey
Scheme Creditor submitting a Claim Form
wishes New Shares comprised in its
Initial Share Entitlement and any Final
Distribution to be credited (and, if
there is more than one, any of them) in
accordance with the terms of this
Scheme;
"DIRECTORS AND FORMER any person who is, or who has been at
DIRECTORS" any time since 13 May 2002, a director
of Telewest, the Affiliates, Liberty
Media, Telewest UK or New Telewest;
"DISTRIBUTION NOTICE" the notice to be served by Telewest
Jersey on the Escrow Agent directing the
Escrow Agent to make a transfer of New
Shares or cash (as appropriate), as
required by the terms of the Escrow
Agent Agreement;
"DTC" the Depository Trust Company of New York,
a New York corporation;
"ENGLISH COMPANIES ACT" the Companies Act 1985 of England and
Wales, as amended;
"ENGLISH COURT" the High Court of Justice of England and
Wales;
"ENGLISH ORDER" the order of the English Court which
sanctions the English Scheme;
"ENGLISH REGISTRAR OF COMPANIES" the registrar of companies of England
and Wales within the meaning of the
English Companies Act;
"ENGLISH SCHEME" the scheme of arrangement pursuant to
section 425 of the English Companies Act
between Telewest Jersey and the Jersey
Scheme Creditors in the form set out
herein or with any modification,
addition or condition which the English
Court may think fit to approve or
impose;
"ESCROW AGENT" The Bank of New York, in its capacity as
escrow agent, as appointed by Telewest
and Telewest Jersey pursuant to the
Escrow Agent Agreement, and any
successor thereto;
"ESCROW AGENT AGREEMENT" the agreement entered into between
Telewest, Telewest Jersey, New Telewest,
Telewest UK and the Escrow Agent in
accordance with the terms of Clause 5;
"EUROBELL NOTES" the 5 per cent. accreting convertible
notes due 2003 issued by Telewest on 1
November 2000 with an Initial Principal
Amount (as defined therein) of
(pound)220,000,000, on 15 January 2001
with an Initial Principal Amount (as
defined therein) of(pound)30,000,000 and
on 2 April 2001 with an Initial
Principal Amount (as defined therein)
of(pound)3,500,000 as, in each case,
cancelled and reissued on 30 May 2003;
"EUROCLEAR" Euroclear Bank S.A./N.V., as operator of
the Euroclear system;
"EXPLANATORY STATEMENT" the explanatory statement dated 30 April
2004 required to be furnished to Jersey
Scheme Creditors pursuant to section 426
of the English Companies Act and article
126 of the Jersey Companies Law;
"FINAL DISTRIBUTION" the distribution of New Shares or cash
to be made pursuant to Clauses 4.16 and
4.17;
"FINANCIAL RESTRUCTURING" the proposed overall restructuring and
compromise of certain of the debts and
other financial obligations of Telewest,
TCN and Telewest Jersey pursuant to,
inter alia, the Telewest Scheme and this
Scheme;
"FSMA" the Financial Services and Markets Act 2000;
"HOLDER" a holder of a Jersey Note including, for
the avoidance of doubt, but without
double counting, the Depositary, the
registered holder of a Jersey Note in
definitive registered form and any
person who becomes a Jersey Definitive
Holder after the Record Date;
"INDEPENDENT ADJUDICATOR" in respect of a Jersey Disputed Scheme
Claim, the individual appointed to act
as independent adjudicator in respect of
such Jersey Disputed Scheme Claim in
accordance with Clause 4.8;
"INITIAL DISTRIBUTION" the distribution of New Shares to be
made pursuant to Clauses 4.12 to 4.15;
"INITIAL SHARE ENTITLEMENT" in respect of each Jersey Agreed Scheme
Creditor, the number of New Shares
calculated using the formula set out at
Clause 4.12;
"JERSEY AGREED SCHEME CLAIM" a Jersey Notified Scheme Claim, the
Total Amount of which is liquidated in
amount and has either (i) been agreed by
Telewest Jersey; or (ii) otherwise been
determined in accordance with the
provisions of Clauses 4.8 to 4.1 1;
"JERSEY AGREED SCHEME CREDITOR" a Jersey Scheme Creditor with a Jersey
Agreed Scheme Claim. For the avoidance
of doubt, if a Jersey Scheme Creditor
has both a Jersey Agreed Scheme Claim
and a Jersey Scheme Claim which has not
yet been agreed, it shall be treated for
the purposes of this Scheme as a Jersey
Agreed Scheme Creditor only in respect
of its Jersey Agreed Scheme Claim;
"JERSEY ANCILLARY CLAIM" a Jersey Scheme Claim which is not a
Jersey Known Scheme Claim;
"JERSEY ANCILLARY SCHEME CREDITOR" a Jersey Scheme Creditor with a Jersey
Ancillary Claim;
"JERSEY BONDHOLDER" a person with the ultimate economic
interest in any of the Jersey Notes and
holding such interest in such Jersey
Notes through one of the Clearing
Systems or as a Jersey Definitive Holder
from time to time;
"JERSEY COMPANIES LAW" the Companies (Jersey) Law 1991, as
amended;
"JERSEY COURT" the Royal Court of Jersey;
"JERSEY DEFINITIVE HOLDER" the registered holder of a Jersey Note
in definitive registered form that became a
definitive registered holder of such
Jersey Note pursuant to the mechanics
for voting described at Recital (f);
"JERSEY DEPOSIT AGREEMENT" with respect to the Jersey Notes, as
defined in the Jersey Indenture;
"JERSEY DIRECTORS" the directors of Telewest Jersey from
time to time;
"JERSEY DISPUTED SCHEME a Jersey Notified Ancillary Scheme
CLAIM" Claim and/or a Jersey Unresolved Claim which
has not been agreed by Telewest Jersey
on or before the Adjudication Reference
Date and is referred (either in whole or
in part) to the Independent Adjudicator;
"JERSEY EFFECTIVE DATE" the time and date on which the office
copies of the Orders are delivered to
the relevant Registrar of Companies for
registration;
"JERSEY ESCROW ACCOUNT" the account into which the Escrow Agent
will transfer all and any New Shares to
which Telewest Jersey becomes entitled
from time to time under the terms of the
Telewest Scheme;
"JERSEY GUARANTEE any and all amounts due or capable of
LIABILITY" becoming due now or in the future from
Telewest under or in respect of the
Jersey Notes;
"JERSEY INDENTURE" the indenture dated 7 July 2000 between
Telewest Jersey (as issuer), Telewest
(as guarantor) and the Jersey
Noteholders' Trustee relating to the 6
per cent. senior convertible notes due
2005 issued by Telewest Jersey, as
amended, revised or supplemented from
time to time;
"JERSEY INTERCOMPANY DEBT" the debt in the principal amount of
US$500,000,000 owing to Telewest Jersey
by Telewest pursuant to an agreement
between Telewest and Telewest Jersey
dated 7 July 2000 as amended, revised or
supplemented from time to time;
"JERSEY KNOWN SCHEME the Jersey Scheme Claims as at the
CLAIMS" Record Date of the Holders of the
Jersey Notes, or any of them, as to
principal and interest that has accrued
and remains unpaid thereon;
"JERSEY KNOWN SCHEME Jersey Scheme Creditors with Jersey
CREDITORS" Known Scheme Claims. For the avoidance
of doubt, if a Jersey Scheme Creditor
has both a Jersey Known Scheme Claim and
a Jersey Notified Ancillary Scheme
Claim, it shall be treated for the
purposes of this Scheme as a Jersey
Known Scheme Creditor in respect of its
Jersey Known Scheme Claim and a Jersey
Notified Ancillary Scheme Creditor in
respect of its Jersey Notified Ancillary
Scheme Claim;
"JERSEY NOTEHOLDERS' Law Debenture Trust Company of New
TRUSTEE" York, as successor trustee to The Bank
of New York, or any successor trustee
appointed in accordance with the
provisions of the Jersey Indenture;
"JERSEY NOTES" each and every note in issue from time
to time under any series of notes issued
by Telewest Jersey pursuant to the terms
of the Jersey Indenture;
"JERSEY NOTIFIED a Jersey Ancillary Claim that has been
ANCILLARY SCHEME CLAIM" duly notified to Telewest Jersey or the
Escrow Agent at any time prior to the
Bar Date in accordance with Clause 4.1;
"JERSEY NOTIFIED a Jersey Scheme Creditor with a Jersey
ANCILLARY SCHEME CREDITOR" Notified Ancillary Scheme Claim. For
the avoidance of doubt, if a Jersey
Scheme Creditor has both a Jersey Known
Scheme Claim and a Jersey Notified
Ancillary Scheme Claim, it shall be
treated for the purposes of this Scheme
as a Jersey Known Scheme Creditor in
respect of its Jersey Known Scheme Claim
and a Jersey Notified Ancillary Scheme
Creditor in respect of its Jersey
Notified Ancillary Scheme Claim;
"JERSEY NOTIFIED SCHEME all Jersey Scheme Claims that have been
CLAIMS" notified in writing to Telewest Jersey
(or the Escrow Agent by sending a duly
completed Claim Form), at any time prior
to the Bar Date in accordance with
Clause 4.1, which shall include, for the
avoidance of doubt and without further
notification, all the Jersey Known
Scheme Claims;
"JERSEY NOTIFIED SCHEME Jersey Scheme Creditors with Jersey
CREDITORS" Notified Scheme Claims;
"JERSEY ORDER" the act issued by the Jersey Court which
sanctions the Jersey Scheme;
"JERSEY REGISTRAR OF the registrar of companies within the
COMPANIES" meaning of the Jersey Companies Law;
"JERSEY SCHEME" the scheme of arrangement under article
125 of the Jersey Companies Law between
Telewest Jersey and the Jersey Scheme
Creditors in the form set out herein or
with any modification, addition or
condition which the Jersey Court may
think fit to approve or impose;
"JERSEY SCHEME CLAIM" any claim in respect of any Liability
of Telewest Jersey to any person
arising directly or indirectly in
relation to or arising out of or in
connection with all or any of the
Jersey Indenture, the Jersey Notes, the
Jersey Intercompany Debt and the Jersey
Guarantee Liability, including any
Liability of Telewest Jersey in respect
of loss or damage suffered or incurred
as a result of or in connection with
such Liability in each case arising as
at the Record Date, or after that date
by reason of a Liability of Telewest
Jersey incurred before that date
(including, for the avoidance of doubt,
any interest accruing on, or accretions
arising in respect of, such claims
after the Record Date);
"JERSEY SCHEME CREDITOR" a creditor of Telewest Jersey in
respect of a Jersey Scheme Claim or
Jersey Scheme Claims including, for the
avoidance of doubt, but without double
counting in each case, the Depositary,
the registered holder of a Jersey Note
in definitive registered form and any
person who becomes a Jersey Definitive
Holder by virtue of an exchange of an
interest in Jersey Notes held by or on
behalf of that person on the Record
Date for a Jersey Note in definitive
registered form in that person's name;
"JERSEY SCHEME RATE" the average of the closing mid-point
spot rates in London for the conversion
of Sterling into US Dollars, as reported
by Bloomberg, L.P., for each trading day
in the period commencing 1 October 2002
up to and including 26 April 2004, being
$1.6650/(pound)1.00;
"JERSEY UNRESOLVED CLAIMS" Jersey Notified Ancillary Scheme Claims
which have not become Jersey Agreed
Scheme Claims as at the Bar Date and
which have not been withdrawn or
conclusively rejected;
"LCIA" London Court of International
Arbitration, or any successor thereto;
"LIABILITY" or any debt, liability or obligation
"LIABILITIES" whatsoever whether it is present,
future, prospective or contingent,
whether or not its amount is fixed or
undetermined, whether or not it involves
the payment of money or the performance
of an act or obligation and whether it
arises at common law, in equity or by
statute, in England and Wales, Jersey or
in any other jurisdiction, or in any
other manner whatsoever, but such
expression does not include any
liability which is barred by statute or
is otherwise unenforceable or arises
under a contract which is void or, being
voidable, has been duly avoided;
"LIBERTY MEDIA" Liberty Media Corporation, a Delaware
corporation;
"LISTING RULES" the listing rules of the UK Listing
Authority made under section 74(4) of
the FSMA, as amended from time to time;
"LONDON STOCK EXCHANGE" London Stock Exchange plc, a
company incorporated in England and
Wales with registered number 02075721,
together with any successor thereto;
"MEETING" the meeting of Jersey Scheme Creditors
convened in accordance with the leave
of the Jersey Court pursuant to article
125 of the Jersey Companies Law and the
leave of the English Court pursuant to
section 425 of the English Companies
Act to consider and, if thought fit,
approve this Scheme, including any
adjournment thereof;
"NASDAQ" the National Association of Securities
Dealers Automated Quotation System;
"NET PROCEEDS OF SALE" the proceeds of sale of the
relevant New Shares net of all associated
commissions, transfer taxes and other
costs, including the expenses and
compensation of the Escrow Agent in
effecting such sale;
"NEW SHARES" 245,000,000 new shares of common stock,
par value $0.01 per share, of New
Telewest, or such other number of New
Shares representing 100 per cent. (less
one share) of the issued share capital
of New Telewest as is authorised
pursuant to the Telewest Scheme;
"NEW TELEWEST" Telewest Global, Inc., a Delaware
corporation;
"NEW TELEWEST GROUP" New Telewest and its subsidiaries and
subsidiary and associated undertakings;
"NOMINATED RECIPIENT" the person specified as such in a Claim
Form;
"NOTEHOLDERS' TRUSTEE" in respect of each of the Telewest
Indentures, Law Debenture Trust Company
of New York, as successor trustee to The
Bank of New York, or any successor
trustee appointed in accordance with the
provisions of the relevant Telewest
Indentures;
"NSPCC" the National Society for the Prevention of
Cruelty to Children, a company
registered in England and Wales with
registered number 216401, together with
any successor thereto;
"OFFICIAL LIST" the Official List of the UK Listing
Authority;
"OPEN MARKET" to the extent that the New Shares, when
sold, are listed or quoted on any
securities exchange or inter-dealer
quotation system, the sale of the New
Shares on such exchange or through such
inter-dealer quotation system; and to
the extent that the New Shares, when
sold, are not listed or quoted on any
securities exchange or inter-dealer
quotation system, the sale of the New
Shares to a third party, such third
party, in any event, to be unrelated to
the New Telewest Group; and to the
extent the New Shares, when sold, are
not listed or quoted on any securities
exchange or inter-dealer quotation
system, and the Escrow Agent has used
all reasonable endeavours and is not
able to sell the New Shares to a third
party unrelated to the New Telewest
Group, the gift of the New Shares to the
NSPCC;
"ORDERS" the English Order and/or the Jersey
Order which sanction this Scheme;
"PARTICIPANT" in relation to the holder of the
particular nominal amount of the Jersey
Notes which were exchanged into
definitive registered certificates in
the name of a Jersey Definitive Holder,
the person shown in the records of DTC,
Euroclear or Clearstream (as the case
may be) or any other Clearing System
immediately preceding such exchange in
respect of such nominal amount of Jersey
Notes;
"POST" delivery by pre-paid first class post
or air mail;
"PRINCIPAL AMOUNT" in respect of each Jersey Known Scheme
Creditor, in respect of each of the
Jersey Notes held by it, the face value
of the Jersey Notes outstanding and in
issue on the Record Date as finally
determined in accordance with the terms
of this Scheme;
"PROCEEDING" any process, action, or other legal
proceeding (including, without
limitation, any demand, arbitration,
alternative dispute resolution,
judicial review, adjudication,
execution, seizure, distraint,
forfeiture, re-entry, lien, enforcement
of judgment or enforcement of any
security);
"RECORD DATE" 30 April 2004;
"REGISTRAR OF COMPANIES" in relation to the English Scheme, the
English Registrar of Companies and, in
relation to the Jersey Scheme, the
Jersey Registrar of Companies;
"RE-GLOBALISATION" in relation to the Jersey Notes, the
exchange of the definitive registered
certificates in respect of the Jersey
Notes held by Jersey Definitive Holders
into book-entry interests in a global
bearer form of the Jersey Notes held by
the Depositary in the Clearing Systems;
"REGULATORY INFORMATION SERVICE" any of the services set out in Schedule
12 to the Listing Rules;
"RELEASED PARTIES" (i) Neil Smith; (ii) John Malone; (iii)
Liberty TWSTY Bonds, Inc.; (iv) Liberty
Media International, Inc.; (v) Liberty
UK Holdings, Inc.; (vi) Liberty UK,
Inc.; (vii) IDT Corporation; (viii) IDT
Venture Capital, Inc.; (ix) IDT UK Cable
Inc. (formerly known as Microsoft UK
Cable, Inc.); (x) IDT Cable Partnership
Holdings, Inc. (formerly known as
Microsoft Cable Partnership Holdings,
Inc.); (xi) Liberty Flex Holdings; (xii)
Liberty TWSTY Holdings, Inc.; (xiii)
Liberty International B-LL-C; and (xiv)
Microsoft Corporation;
"SCHEME" the English Scheme and/or the Jersey
Scheme, as the context may require;
"SHARE ENTITLEMENT" the entitlement to New Shares of each
Jersey Agreed Scheme Creditor pursuant
to the terms of this Scheme;
"STERLING", "(POUND)" OR "PENCE" the lawful currency of the United
Kingdom for the time being;
"TCN" Telewest Communications Networks
Limited, a company incorporated in
England and Wales with registered
number 3071086;
"TELEWEST" Telewest Communications plc, a company
incorporated in England and Wales with
registered number 2983307;
"TELEWEST DEPOSIT with respect to each class of Telewest
AGREEMENTS" Notes (other than the Eurobell Notes),
as defined in the applicable Telewest
Indenture;
"TELEWEST EFFECTIVE DATE" the time and date on which an office
copy of the Telewest Order is delivered
to the English Registrar of Companies
for registration;
"TELEWEST INDENTURES" each of (a) the indenture dated as of 3
October 1995 between Telewest and the
Noteholders' Trustee relating to the
9.625 per cent. senior debentures due
2006 of Telewest; (b) the indenture
dated as of 19 February 1999 between
Telewest and the Noteholders' Trustee
relating to the 5.25 per cent. senior
convertible notes due 2007 of Telewest;
(c) the indenture dated as of 3 October
1995 between Telewest and the
Noteholders' Trustee relating to the 11
per cent. senior discount debentures due
2007 of Telewest; (d) the indenture
dated as of 9 November 1998 between
Telewest and the Noteholders' Trustee
relating to the 11.25 per cent. senior
notes due 2008 of Telewest; (e) the
indenture dated as of 15 April 1999
between Telewest and the Noteholders'
Trustee relating to the 9.25 per cent.
Dollar senior discount notes due 2009
and the 9.875 per cent. Sterling senior
discount notes due 2009 of Telewest; and
(f) the indenture dated as of 25 January
2000 between Telewest and the
Noteholders' Trustee relating to the
9.875 per cent. Dollar senior notes due
2010, the 11.375 per cent. Dollar senior
discount notes due 2010 and the 9.875
per cent. Sterling senior notes due 2010
of Telewest and, in each case, as
thereafter amended, revised or
supplemented from time to time;
"TELEWEST JERSEY" Telewest Finance (Jersey) Limited, a
wholly owned subsidiary of Telewest,
incorporated under the Jersey Companies
Law with registered number 77278;
"TELEWEST NOTES" each of the Eurobell Notes and each and
every note in issue from time to time
under any series of notes issued by
Telewest pursuant to the terms of any of
the Telewest Indentures;
"TELEWEST ORDER" the order of the English Court which
sanctions the Telewest Scheme;
"TELEWEST SCHEME" the scheme of arrangement under section
425 of the English Companies Act
between Telewest and the Telewest
Scheme Creditors with any modification,
addition or condition which the English
Court may think fit to approve or
impose;
"TELEWEST SCHEME CLAIM" any claim in respect of any Liability
of Telewest to any person arising
directly or indirectly in relation to or
arising out of or in connection with all
or any of the Telewest Indentures, the
Telewest Notes, the Jersey Indenture,
the Jersey Notes, the Jersey
Intercompany Debt and the Jersey
Guarantee Liability, including any
Liability of Telewest in respect of loss
or damage suffered or incurred as a
result of or in connection with such
Liability in each case arising as at the
Record Date, or after that date by
reason of a Liability of Telewest
incurred before that date (including,
for the avoidance of doubt, any interest
accruing on, or accretions arising in
respect of, such claims after the Record
Date);
"TELEWEST SCHEME a creditor of Telewest in respect of a
CREDITORS" Telewest Scheme Claim or Telewest
Scheme Claims;
"TELEWEST UK" Telewest UK Limited, a company
incorporated in England and Wales with
registered number 4925679;
"TERMINATION DATE" the sixth anniversary of the Jersey
Effective Date;
"TOTAL AMOUNT" shall have the meaning given to it in
Clause 4.6;
"UK" OR "UNITED KINGDOM" the United Kingdom of Great Britain and
Northern Ireland;
"UK LISTING AUTHORITY" the Financial Services Authority acting
in its capacity as the competent
authority for the purposes of Part VI of
the FSMA and in the exercise of its
functions in respect of the admission to
the Official List otherwise than in
accordance with Part VI of the FSMA;
"USA", "US" OR "UNITED the United States of America, its
STATES" territories and possessions, any State
of the United States of America and the
District of Columbia;
"US BANKRUPTCY CODE" Title 11 of the United States Code;
"US BANKRUPTCY COURT" the United States Bankruptcy Court for
the Southern District of New York or any
other United States court which may be
exercising jurisdiction over Telewest or
Telewest Jersey under the US Bankruptcy
Code;
"US DOLLAR", "DOLLAR" OR US Dollars or other lawful currency
"$" being the currency of the USA for the
time being;
"VOTING DEADLINE" 7.00 p.m. (prevailing Eastern time) in
New York on 27 May 2004; and
"W.R. HUFF" W. R. Huff Asset Management Co., L.L.C.
RECITALS
(a) Telewest is proposing a separate creditors' scheme of arrangement
(the Telewest Scheme) under section 425 of the English Companies
Act pursuant to which Telewest Scheme Creditors will release
claims against Telewest in respect of or arising out of or in
connection with the Telewest Indentures; the Telewest Notes; the
Jersey Indenture; the Jersey Notes; the release of the Jersey
Intercompany Debt and the Jersey Guarantee Liability pursuant to
the Telewest Scheme; and any Liability of Telewest in respect of
loss or damage suffered or incurred as a result of or in
connection with such liabilities.
(b) Under this Scheme, each Jersey Scheme Creditor shall become
entitled on the Jersey Effective Date to have transferred to it a
pro rata share of the New Shares to which Telewest Jersey will,
on its Telewest Scheme Claim becoming an Agreed Scheme Claim (as
defined in the Telewest Scheme) in the Telewest Scheme, become
entitled pursuant to the Telewest Scheme.
(c) The English Scheme and the Jersey Scheme are separate schemes of
arrangement but are in substantially identical terms and are
intended to take effect simultaneously. Neither the English Order
nor the Jersey Order will be delivered to the relevant Registrar
of Companies for registration unless both Orders are delivered on
the same date.
(d) The Jersey Directors undertook to the Jersey Court and the
English Court that this Scheme would not be made effective
(through Telewest Jersey delivering, or procuring the delivery
of, the office copy of the Orders to the relevant Registrar of
Companies) unless and until the Jersey Directors were satisfied
that all of the following had occurred and were unconditional, or
would occur or become unconditional on the Jersey Effective Date,
or had been waived (to the extent possible):
(i) the Telewest Order having been delivered to the English
Registrar of Companies (thereby making the Telewest Scheme
effective);
(ii) Telewest Jersey, Telewest, New Telewest, Telewest UK and the
Escrow Agent having entered into the Escrow Agent Agreement
substantially in accordance with the terms of Clause 5; and
(iii)Telewest Jersey having obtained a permanent injunction and
order of the US Bankruptcy Court under section 304 of the US
Bankruptcy Code pursuant to which Jersey Scheme Creditors
are restrained from commencing or continuing actions or
proceedings against, inter alia, Telewest Jersey in respect
of Jersey Scheme Claims (unless more than half of all
Bondholders and Jersey Bondholders by Principal Amount, as
at the Record Date, have notified Telewest Jersey that they
consent to the waiver of this condition).
(e) The Jersey Directors further undertook to the Jersey Court and
the English Court that this Scheme would not be made effective
(through Telewest Jersey delivering, or procuring the delivery
of, the office copy of the Orders to the relevant Registrar of
Companies) unless it could be made so effective by the later of
27 July 2004 or 60 days after the date of any vote by Jersey
Scheme Creditors to approve this Scheme and the Telewest Scheme,
subject to that vote occurring on or before 12 July 2004.
(f) The Jersey Notes were issued in global bearer form and were held
by the Depositary. At the request of certain registered holders
of Jersey Notes (acting under the authority of the relevant
Jersey Bondholders), arrangements were made for the global bearer
form of the Jersey Notes to be exchanged in whole or in part for
Jersey Notes in definitive form registered in the names of the
relevant Jersey Bondholders (who thereby became Jersey Definitive
Holders and are Jersey Scheme Creditors for the purposes of this
Scheme). Any unexchanged Jersey Notes continue to be held in
global bearer form by the Depositary (who remains the Jersey
Scheme Creditor for such amounts for the purpose of this Scheme).
(g) Following the Jersey Effective Date, and on the terms of this
Scheme, the registered notes held by Jersey Definitive Holders
will be converted back into global bearer form to be registered
in the name of the Holders of such Jersey Notes as at the time,
in each case, immediately prior to their conversion into
definitive registered form. This mechanism (herein defined as
"Re-globalisation") is put in place in order to allow New Shares
to be distributed pursuant to this Scheme through the Clearing
Systems without the need for Jersey Bondholders to complete any
details of how they would like to receive the New Shares in a
Claim Form.
(h) Each of New Telewest and Telewest UK appeared by counsel on the
hearings of the petitions to sanction this Scheme, consented to
this Scheme and undertook to be bound thereby and to execute and
do and/or procure to be executed and done all such documents,
acts or things as may be necessary or desirable to be executed
and done by it or on its behalf for the purpose of giving effect
to this Scheme.
(i) The Escrow Agent appeared by counsel on the hearings of the
petitions to sanction this Scheme and undertook to perform its
designated functions and comply with its obligations as Escrow
Agent subject to and in accordance with the terms of the Escrow
Agent Agreement.
(j) The Noteholders' Trustee and the Jersey Noteholders' Trustee
appeared by counsel on the hearings of the petitions to sanction
this Scheme and undertook to perform their duties and comply with
their obligations as Noteholders' Trustee and Jersey Noteholders'
Trustee subject to and in accordance with the terms of the
relevant Telewest Indentures and Jersey Indenture and applicable
law.
(k) The Depositary appeared by counsel on the hearings of the
petitions to sanction this Scheme and undertook to perform its
designated functions and comply with its obligations as
book-entry depositary subject to and in accordance with the terms
of the Deposit Agreements.
1 INTERPRETATION
In this Scheme, unless the context otherwise requires or otherwise
expressly provides for:
(a) references to Clauses, Appendices and Recitals are references to
the Clauses, Appendices and Recitals respectively of this Scheme;
(b) references to a "person" include references to an individual,
firm, partnership, company, corporation, unincorporated body of
persons or any state or state agency;
(c) references to a statute or a statutory provision include the same
as subsequently modified, amended or re-enacted from time to
time;
(d) the singular includes the plural and vice versa and words
importing one gender shall include all genders; and
(e) headings are for ease of reference only and shall not affect the
interpretation of this Scheme.
2 JERSEY EFFECTIVE DATE
2.1 This Scheme will come into effect on the Jersey Effective Date.
3 THE SCHEME
COMPROMISE OF JERSEY SCHEME CLAIMS
3.1 (a) Immediately following the Jersey Effective Date, and
once Re-globalisation has occurred in accordance with Clause
4.19, the Jersey Notes, the Jersey Intercompany Debt and the
Jersey Guarantee Liability shall be cancelled and all Jersey
Scheme Claims shall be satisfied and released fully and
absolutely, in each case so as to bind the Jersey Scheme
Creditors and any person who acquires any interest in or
arising out of a Jersey Scheme Claim after the Record Date.
(b) In consideration for the satisfaction and release referred
to in Clause 3.l(a), each Jersey Agreed Scheme Creditor
shall, subject to the other provisions of this Scheme,
become entitled on the Jersey Effective Date to have
transferred to it or to its Nominated Recipient a number of
New Shares equal to its Share Entitlement in accordance with
the procedures set out in this Scheme.
(c) The Share Entitlement (or part thereof) of any Jersey Agreed
Scheme Creditor, referred to in Clause 3.l(b), shall be
satisfied in accordance with the provisions of Clause 4.
INTEREST ON JERSEY SCHEME CLAIMS
3.2 For the avoidance of doubt, the compromise effected pursuant to
Clause 3.l(a) shall include a compromise of all interest and
accreted amounts howsoever arising on or in respect of a Jersey
Scheme Claim.
STAY OF PROCEEDINGS
3.3 For the avoidance of doubt, no Proceeding or other
judicial, quasi-judicial, administrative or
regulatory process whatsoever against Telewest Jersey
or its property shall be commenced or continued in
any jurisdiction whatsoever to recover any Jersey
Scheme Claim or to establish the existence or amount
of any Jersey Scheme Claim.
ASSIGNMENTS OR TRANSFERS AFTER THE RECORD DATE
3.4 (a) Telewest Jersey shall be under no obligation to
recognise any assignment or transfer of a Jersey Scheme
Claim after the Record Date for the purposes of determining
entitlements under this Scheme and has no obligations
hereunder to any person other than a Jersey Scheme Creditor,
provided that, where Telewest Jersey has received from the
relevant parties notice in writing of an assignment or
transfer, Telewest Jersey may, in its sole discretion and
subject to the production of such other evidence in relation
to such transfer or assignment as Telewest Jersey may
require and to any other terms and conditions which Telewest
Jersey may consider necessary or desirable, agree to
recognise such assignment or transfer for the purposes of
making distributions under this Scheme. Any assignee or
transferee of a Jersey Scheme Claim so recognised by
Telewest Jersey shall be bound by the terms of this Scheme.
(b) To the extent that any Jersey Notified Scheme Creditor
transfers or assigns all or part of its Jersey Notified
Scheme Claim after the Record Date, the transfer by or on
behalf of Telewest Jersey to the Jersey Notified Scheme
Creditor or its Participant or the Jersey Notified Scheme
Creditor's or its Participant's Nominated Recipient named in
any Claim Form submitted by such Jersey Notified Scheme
Creditor, or any assignee or transferee recognised by
Telewest Jersey in accordance with Clause 3.4(a), of its
entitlement to New Shares shall be effective to discharge
and extinguish any Liabilities as at the Jersey Effective
Date or thereafter of Telewest Jersey to any transferee or
assignee of such Jersey Notified Scheme Claim arising
directly or indirectly in relation to or arising out of or
in connection with the relevant Jersey Notified Scheme
Claim.
RELEASE
3.5 (a) Each of the Jersey Scheme Creditors hereby authorises
Telewest Jersey from the Jersey Effective Date to enter
into, execute and deliver as a deed on behalf of each Jersey
Scheme Creditor and any person to whom a Jersey Scheme
Creditor has transferred Jersey Notes after the Record Date
one or more Deeds of Release whereby any and all claims of
such persons against Telewest, the Affiliates, the Directors
and Former Directors, the Released Parties, the Bondholder
Committee, W. R. Huff, Liberty Media, Telewest UK, New
Telewest, the Noteholders' Trustee, the Jersey Noteholders'
Trustee and the Advisers in relation to or arising out of or
in connection with the Jersey Notes, the Telewest
Indentures, the Jersey Indenture, the Jersey Guarantee
Liability and the Jersey Intercompany Debt and/or the
implementation of the Telewest Scheme, this Scheme andlor
the Financial Restructuring shall be waived and released
fully and absolutely from the Jersey Effective Date.
(b) Any Deed of Release to be executed pursuant to the authority
conferred by Clause 3.5(a) above shall be substantially in
the form attached at Appendix 1 subject to any modifications
required or approved by the Courts and shall take effect in
relation to such claims and liabilities as the Courts
consider appropriate, provided only that the effect of any
such modification is not such as would require the release
of a claim that is not referred to in Clause 3.5(a) above.
4 DETERMINATION OF JERSEY AGREED SCHEME CLAIMS AND SHARE ENTITLEMENTS
OF JERSEY SCHEME CREDITORS
NOTIFICATION
4.1 (a) No Jersey Scheme Creditor shall be entitled to receive
any consideration under this Scheme in respect of any Jersey
Scheme Claim unless that Jersey Scheme Claim is (i) a Jersey
Notified Scheme Claim and (ii) subsequently becomes a Jersey
Agreed Scheme Claim either in whole or in part.
(b) Jersey Known Scheme Creditors are deemed to have Jersey
Notified Scheme Claims in respect of their Jersey Known
Scheme Claims for a value equal to the total amount of
principal of, and interest that has accrued and remains
unpaid on, the relevant Jersey Notes as at the Record Date.
(c) Jersey Scheme Creditors with Jersey Ancillary Claims must
notify Telewest Jersey of their Jersey Ancillary Claims in
writing. Notification will only be effective if it is
received by Telewest Jersey on or before the Bar Date and
includes details of (i) the identity of the Jersey Ancillary
Scheme Creditor, (ii) a description of the nature of its
Jersey Ancillary Claim and how such Jersey Ancillary Claim
arose; (iii) the value at which, and the dates on which, the
Jersey Notes on which its Jersey Ancillary Claim is based
were bought and sold (if applicable); (iv) the maximum
amount of its Jersey Ancillary Claim; and (v) the legal
basis of liability of Telewest Jersey. For the avoidance of
doubt, the transmission and receipt by the Escrow Agent or
Telewest Jersey of a duly completed Claim Form prior to the
Bar Date shall, subject to Clause 4.7 below, constitute
notification for these purposes.
(d) Jersey Ancillary Claims may be notified in any amount.
However, a Jersey Ancillary Scheme Creditor submitting a
Claim Form for an amount greater than the amount of
principal of, and interest that has accrued and remains
unpaid on, the Jersey Notes from which its Jersey Ancillary
Claim arises must, in addition to the information required
at Clause 4.l(c), also supply a memorandum which gives
particulars of the facts on which the Jersey Ancillary
Scheme Creditor relies and identifies the legal basis for
the Jersey Ancillary Claim and its quantum. If such
memorandum is not supplied prior to the Bar Date, the
relevant Jersey Ancillary Claim will, subject to Clause
4.l(c), be deemed to have been notified in an amount equal
to the amount of the principal of, and interest that, as at
the Record Date, has accrued and remains unpaid on, the
Jersey Notes from which the Jersey Ancillary Claim arises.
AGREEMENT OF JERSEY SCHEME CLAIMS
4.2 Each Jersey Scheme Creditor may submit either or both of a Jersey
Known Scheme Claim and a Jersey Ancillary Claim, each in any
amount. However, no Jersey Ancillary Claim may become a Jersey
Agreed Scheme Claim for a value greater than the aggregate amount
that has been validly notified to Telewest Jersey in accordance
with Clauses 4.l(c) and 4.l(d).
4.3 The value of Jersey Scheme Claims shall be determined as at the
Record Date.
4.4 A Jersey Scheme Creditor shall have no right after the Bar Date
to increase the amount of its Jersey Scheme Claim.
4.5 Jersey Known Scheme Claims shall automatically become Jersey
Agreed Scheme Claims on the Jersey Effective Date.
4.6 (a) The value of each Jersey Scheme Creditor's Jersey Agreed
Scheme Claim shall be equal to that Jersey Scheme Creditor's
Total Amount. For these purposes, "Total Amount" means (i)
in respect of the Jersey Known Scheme Claim of a Jersey
Scheme Creditor, the Principal Amount of the debt held by it
listed in column 1 of the table set out below, as multiplied
by the multiplier of that Principal Amount set out in column
2 of the table set out below; and (ii) in respect of a
Jersey Notified Ancillary Scheme Claim of a Jersey Scheme
Creditor, the total amount of its Jersey Notified Ancillary
Scheme Claim, as agreed by Telewest Jersey or otherwise
determined in accordance with the terms of this Scheme, if
necessary, as converted from Sterling into US Dollars at the
Jersey Scheme Rate.
---------------------------------------------------------------------
Column 1 Column 2
Debt Multiplier
---- ----------
Jersey Notes 1.113
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(b) Any Jersey Scheme Claim which at the Record Date is not
immediately due and payable but on Telewest Jersey going
into liquidation would, either automatically without further
action by any party or by the issue of any notice by the
relevant Jersey Scheme Creditor, be capable of being made
legally and immediately due and payable, shall be treated
for the purposes of calculating a Total Amount under this
Scheme as immediately due and payable as at the Record Date
(and hence not a debt payable at a future time).
4.7 (a) Jersey Notified Ancillary Scheme Claims may be
admitted or agreed by Telewest Jersey either for the whole
amount claimed or for part of that amount. Telewest Jersey
may reject a Jersey Notified Ancillary Scheme Claim in whole
or in part if the Claim Form is not correctly completed or
for any other reason whatsoever.
(b) Jersey Notified Ancillary Scheme Claims which have not
become Jersey Agreed Scheme Claims as at the Bar Date will
remain Jersey Unresolved Claims unless and until they become
Jersey Agreed Scheme Claims, are withdrawn or are
conclusively rejected in whole or in part.
(c) Jersey Ancillary Claims shall not be capable of becoming
Jersey Agreed Scheme Claims (in accordance with the
provisions of this Scheme) unless and until a duly completed
Claim Form in respect of that Jersey Ancillary Claim (or
part thereof) has been received by Telewest Jersey or the
Escrow Agent. Jersey Notified Ancillary Scheme Creditors
shall provide Telewest Jersey and the Escrow Agent with such
other information as they may reasonably require to enable
the relevant Jersey Notified Ancillary Scheme Claim to be
determined.
(d) Telewest Jersey may, at its sole discretion, send notice to
any Jersey Notified Ancillary Scheme Creditor to require it
to submit a duly completed Claim Form in respect of its
Jersey Notified Ancillary Scheme Claim within 30 days of the
date of such notice. If the relevant Jersey Notified
Ancillary Scheme Creditor fails to submit a duly completed
Claim Form within such 30 day period, the relevant Jersey
Notified Ancillary Scheme Claim will automatically be deemed
to have been irrevocably withdrawn.
(e) If Telewest Jersey rejects any Jersey Notified Ancillary
Scheme Claim either in whole or in part, it shall prepare a
written statement of its reasons for doing so and send this
as soon as reasonably practicable to the relevant Jersey
Notified Ancillary Scheme Creditor.
(f) Telewest Jersey shall endeavour to reach agreement with each
Jersey Notified Ancillary Scheme Creditor as to the validity
and amount of its Jersey Notified Ancillary Scheme Claim.
Any Jersey Notified Ancillary Scheme Claim so agreed shall
be treated as a Jersey Agreed Scheme Claim for the purposes
of this Scheme.
(g) Where more than one person seeks to assert an entitlement
pursuant to this Scheme in respect of the same Jersey
Notified Ancillary Scheme Claim (or part thereof), the
Jersey Notified Ancillary Scheme Claim shall not become a
Jersey Agreed Scheme Claim unless and until it shall have
been determined to Telewest Jersey's reasonable satisfaction
(or by the Independent Adjudicator in accordance with
Clauses 4.8 to 4.11) who is entitled to the relevant Share
Entitlement and in what proportions.
(h) In the event that the validity of a Jersey Notified
Ancillary Scheme Claim (or part thereof) and/or the amount
of a Jersey Notified Ancillary Scheme Claim (as included in
the relevant Claim Form) has not been agreed by Telewest
Jersey on or before the Adjudication Reference Date,
Telewest Jersey shall refer that Jersey Notified Ancillary
Scheme Claim (or disputed part thereof) to an Independent
Adjudicator as a Jersey Disputed Scheme Claim no later than
14 days thereafter, and send by Post to the Jersey Notified
Ancillary Scheme Creditor concerned a notice to the effect
that the Jersey Notified Ancillary Scheme Claim has become a
Jersey Disputed Scheme Claim. Thereafter, the dispute
between Telewest Jersey and the Jersey Notified Ancillary
Scheme Creditor concerned regarding the Jersey Notified
Ancillary Scheme Claim will be determined by an Independent
Adjudicator in accordance with Clauses 4.8 to 4.11.
ADJUDICATION OF JERSEY DISPUTED SCHEME CLAIMS
4.8 (a) Within 14 days of the first Adjudication Reference
Date to occur in respect of a Jersey Disputed Scheme Claim,
Telewest Jersey shall request the LCIA to nominate a fit and
proper person duly qualified to adjudicate on the points in
issue therein who will be the Independent Adjudicator for
the purposes of this Scheme.
(b) The Independent Adjudicator nominated in accordance with
Clause 4.8(a) shall act as Independent Adjudicator in
respect of any further Jersey Disputed Scheme Claims in
respect of which an Adjudication Reference Date has
occurred, unless (i) he, Telewest Jersey or the Jersey
Notified Ancillary Scheme Creditor concerned notifies the
LCIA that there is, or may be, a conflict of interest in
relation to his appointment to determine such Jersey
Disputed Scheme Claim; (ii) he considers and notifies the
LCIA that, in his sole opinion, due to the work he is
undertaking in respect of other Jersey Disputed Scheme
Claims, he will be unable to adjudicate upon a particular
Jersey Disputed Scheme Claim within two months from the date
on which the Jersey Disputed Scheme Claim is referred to him
by Telewest Jersey; or (iii) he is otherwise unable to
perform his duties as independent adjudicator by reason of
his death, incapacity, dismissal or resignation (on the
grounds of ill health or ceasing to be an adjudicator).
(c) If the Independent Adjudicator appointed pursuant to Clause
4.8(a) is unable to adjudicate upon a Jersey Disputed Scheme
Claim by reason of any circumstances described in Clause
4.8(b), Telewest Jersey shall request the LCIA to, within 14
days of receiving notification in accordance with that
Clause, appoint a further fit and proper person duly
qualified to adjudicate on the points in issue therein to
act as Independent Adjudicator in respect thereof.
4.9 (a) Telewest Jersey shall provide the Independent Adjudicator
with copies of the correspondence between the parties and/or
between Jersey Notified Ancillary Scheme Creditors relating
to the validity of a Jersey Disputed Scheme Claim and/or the
calculation of the quantum of a Jersey Disputed Scheme Claim
and/or the relative entitlements of Jersey Notified
Ancillary Scheme Creditors to a Jersey Disputed Scheme Claim
and any other relevant documentation. The Independent
Adjudicator shall be entitled to call for copies of any
further documentation he considers necessary to assist him
to reach a conclusion on the issue and Telewest Jersey and
the Jersey Notified Ancillary Scheme Creditor concerned (as
appropriate) shall co-operate in providing such information.
(b) In relation to any matter which is referred to the
Independent Adjudicator, the Independent Adjudicator shall
consider the papers and documents before him and shall,
within 14 days of receipt of the records and information
referred to in Clause 4.9(a), send a notice to the person
concerned stating whether the Independent Adjudicator
requires:
(i) further documents, data or information from the Jersey
Notified Ancillary Scheme Creditor or Telewest Jersey,
in which case the relevant person or persons shall
within 14 days after receipt of such request provide
the Independent Adjudicator with the required
documents, data or information; and/or
(ii) the Jersey Notified Ancillary Scheme Creditor (or his
duly authorised representative) or Telewest Jersey (or
its duly authorised representative) to appear before
him and address him on any matters he shall determine,
in which case the Jersey Notified Ancillary Scheme
Creditor (or his duly authorised representative) or
Telewest Jersey (or its duly authorised
representative), as appropriate, shall be at liberty to
so appear on such date and at such place as the
Independent Adjudicator shall prescribe.
(c) If the Independent Adjudicator requires a party (or his
representative) to appear before him pursuant to Clause
4.9(b)(ii), he shall also give notice of this request to the
other party and make arrangements to allow that other party
to appear before him to respond to the evidence brought by
such party, if desired by the other party, on such date and
at such place as the Independent Adjudicator shall
prescribe.
(d) If the Independent Adjudicator requires the parties to
appear before him pursuant to Clause 4.9(b)(ii), the
Independent Adjudicator shall be entitled to prescribe and
lay down such procedures or provisions as he in his absolute
discretion deems appropriate for the purposes of assisting
him in reaching his decision, and the Independent
Adjudicator shall be entitled to call for such evidence,
documents, data and information as he may require.
(e) The Independent Adjudicator shall be entitled to consult
with such advisers, including legal advisers and experts, as
he may deem appropriate and, for the avoidance of doubt, all
costs, charges and expenses of such advisers shall be paid
in accordance with Clause 4.10.
(f) If, after 14 days of the request for further information
pursuant to Clause 4.9(b)(i), none has been provided or,
after 14 days of the request for a person to appear before
him pursuant to Clause 4.9(b)(ii), the person concerned
fails to appear before the Independent Adjudicator, then the
Independent Adjudicator shall make such determination as he
sees fit on the basis of information then available to him.
(g) In the event that a Jersey Notified Ancillary Scheme
Creditor has a Jersey Disputed Scheme Claim that is in any
way connected with or arises out of a Disputed Scheme Claim
(as defined in the Telewest Scheme) in the Telewest Scheme,
such Jersey Disputed Scheme Claim and Disputed Scheme Claim
shall be referred to and determined by the same Independent
Adjudicator. In such circumstances, the Independent
Adjudicator shall also include in his determination a
direction as to which company should bear which proportions
of the Liability (if any).
(h) In adjudicating on any Jersey Disputed Scheme Claim being
referred to him, the Independent Adjudicator shall act as an
expert and not as an arbitrator.
(i) Upon any Jersey Disputed Scheme Claim being referred to the
Independent Adjudicator in accordance with Clause 4.7(h),
the Independent Adjudicator shall use his best endeavours
to, on or before the expiration of two months from the date
on which such claim was referred to him by Telewest Jersey,
certify in writing by Post to the Jersey Notified Ancillary
Scheme Creditor and Telewest Jersey his determination in
respect of the dispute concerning the Jersey Disputed Scheme
Claim. If the Independent Adjudicator requires an extension
of time in making his determination, he may, with the
consent of Telewest Jersey (such consent not to be
unreasonably withheld), extend the said period by such
amount of time as he and Telewest Jersey shall agree.
(j) Each determination made by the Independent Adjudicator
pursuant to this Clause 4.9 shall state the amount of the
Jersey Disputed Scheme Claim that should be rejected (if
any) and the Total Amount of the Jersey Disputed Scheme
Claim that should be admitted by Telewest Jersey as a Jersey
Agreed Scheme Claim (if any).
4.10 (a) On the production of a certificate (in accordance with Clause
4.9(i)) in relation to a Jersey Disputed Scheme Claim, the
Independent Adjudicator may make such directions in respect
of payment of his remuneration and in respect of the costs,
charges and expenses incurred by him, Telewest Jersey or the
relevant Jersey Notified Ancillary Scheme Creditor as he
shall think just. In particular, but without limitation, one
party may be directed to pay the remuneration and costs,
charges and expenses of another party if, in the opinion of
the Independent Adjudicator, any such party has made a
claim, relied on a defense or otherwise howsoever conducted
himself in relation to the adjudication in a manner which is
frivolous, vexatious, or had no reasonable prospect of
success.
(b) If the Independent Adjudicator shall direct that any such
remuneration, costs, charges and expenses be paid by
Telewest Jersey, the same shall forthwith be paid in full
by Telewest Jersey.
(c) If the Independent Adjudicator shall direct that any such
remuneration, costs, charges and expenses be paid by a
Jersey Notified Ancillary Scheme Creditor, the same shall
forthwith be paid in full by such party and, if not so paid,
then, for the purposes of determining whether such party is
entitled to participate in any distribution under this
Scheme, New Shares to which the relevant Jersey Notified
Ancillary Scheme Creditor would otherwise have been entitled
shall be sold, by the Escrow Agent, on the Open Market, to
the extent necessary to meet such remuneration, costs,
charges and expenses, and the Net Proceeds of Sale of such
sale required to meet such liability shall be transferred to
the relevant party and the relevant Jersey Notified
Ancillary Scheme Creditor's Share Entitlement shall
thereafter be reduced accordingly. The price, terms, timing
and manner of such sale, and any currency exchange effected
by the Escrow Agent in connection with or related to such
sale, shall be at the Escrow Agent's sole discretion and the
Escrow Agent shall not have any Liability for any loss or
alleged loss arising from such a sale.
(d) Subject to any directions which may be given by the
Independent Adjudicator in accordance with this Clause 4.10,
Telewest Jersey shall pay all reasonable costs, charges and
expenses incurred by the Independent Adjudicator in the
course of exercising and performing his powers, duties and
functions under this Scheme.
4.11 (a) The Independent Adjudicator's determination of the
issue shall, to the extent permitted by law, be final and
binding on Telewest Jersey and the Jersey Notified
Ancillary Scheme Creditor concerned.
(b) For the avoidance of doubt, to the extent permitted by law,
there shall be no right of appeal from a decision of the
Independent Adjudicator.
(c) The Independent Adjudicator is not liable for anything done
or omitted in the discharge or purported discharge of his
functions as the Independent Adjudicator and there shall be
no right to make any claim against the Independent
Adjudicator in respect thereof unless the act or omission is
shown to have been in bad faith. This applies to an employee
or agent of the Independent Adjudicator as it applies to the
Independent Adjudicator himself.
(d) Once a Jersey Disputed Scheme Claim, or part thereof, has
been referred to the Independent Adjudicator for
adjudication, and pending the determination of the
Independent Adjudicator, Telewest Jersey shall not treat the
Jersey Disputed Scheme Claim (or the relevant part thereof)
as a Jersey Agreed Scheme Claim. To the extent that the
Independent Adjudicator in accordance with the provisions of
Clause 4.9 determines the validity and the Total Amount of a
Jersey Disputed Scheme Claim (or the relevant part thereof),
that amount (if any) shall be treated as a Jersey Agreed
Scheme Claim for the purposes of this Scheme.
JERSEY SCHEME CREDITORS' SHARE ENTITLEMENT
Initial Distribution
4.12 Each Jersey Agreed Scheme Creditor will be entitled to receive
an Initial Distribution, being a number of New Shares equal to:
X x Z
--
Y
Where:
X equals its Total Amount;
Y equals the total aggregate amount of the Jersey Agreed
Scheme Claims as at the Bar Date plus the total
aggregate notified amount of all Jersey Disputed
Scheme Claims and Jersey Unresolved Claims as at the
Bar Date; and
Z equals the number of New Shares to which Telewest
Jersey becomes entitled, and which have been credited
to the Jersey Escrow Account, in respect of Telewest
Jersey's Initial Distribution (as defined in the
Telewest Scheme) in the Telewest Scheme.
4.13 Jersey Known Scheme Creditors will be entitled to receive
their Initial Distribution in respect of their Jersey Known
Scheme Claims as soon as is reasonably practicable after the
Bar Date. Following such time, Jersey Notified Ancillary
Scheme Creditors will be entitled to receive their Initial
Distributions in respect of their Jersey Notified Ancillary
Scheme Claims as soon as is reasonably practicable after the
later of (i) the Bar Date and (ii) the date on which their
Jersey Ancillary Claims become Jersey Agreed Scheme Claims.
A Jersey Scheme Creditor that has both a Jersey Known Scheme
Claim and a Jersey Notified Ancillary Scheme Claim shall be
entitled to receive an Initial Distribution in respect of
its Jersey Known Scheme Claim as soon as is reasonably
practicable after the Bar Date and an Initial Distribution
in respect of its Jersey Notified Ancillary Scheme Claim as
soon as is reasonably practicable after the later of (i) the
Bar Date and (ii) the date such claim becomes a Jersey
Agreed Scheme Claim.
4.14 Pending Jersey Unresolved Claims and Jersey Disputed Scheme
Claims becoming Jersey Agreed Scheme Claims (or otherwise
being conclusively determined in accordance with the terms
of this Scheme), the Escrow Agent shall retain New Shares
applicable to such claims in escrow. In the event that a
Jersey Unresolved Claim or Jersey Disputed Scheme Claim
becomes a Jersey Agreed Scheme Claim for an amount less than
the amount of such claim notified to Telewest Jersey or to
the Escrow Agent, in accordance with Clause 4.1, prior to
the Bar Date but not rejected, in whole or in part, prior to
the Bar Date, the New Shares held by the Escrow Agent in
respect of such Jersey Unresolved Claim or such Jersey
Disputed Scheme Claim attributable to the amount of such
difference shall be retained by the Escrow Agent in escrow
for distribution in accordance with Clauses 4.16 and 4.17.
4.15 In determining a Jersey Scheme Creditor's entitlement to an
Initial Distribution under this Scheme, fractions of New
Shares shall be disregarded and not transferred to the
relevant Jersey Scheme Creditor. The fractional entitlements
to which each Jersey Scheme Creditor would have been
entitled shall be aggregated and retained by the Escrow
Agent in escrow for distribution in accordance with Clauses
4.16 and 4.17.
Find Distribution
4.16 To the extent that any New Shares or cash remain in escrow
after:
(i) Telewest Jersey has become entitled to, and the Jersey
Escrow Account has been credited with, a number of New
Shares in respect of Telewest Jersey's Final
Distribution (as defined in the Telewest Scheme) in the
Telewest Scheme or Telewest has served the Escrow Agent
with a written notice confirming that there will be no
Final Distribution under the Telewest Scheme;
(ii) all Jersey Unresolved Claims and Jersey Disputed Scheme
Claims have become Jersey Agreed Scheme Claims, and
Jersey Scheme Creditors have received their Initial
Share Entitlements in respect thereof, or such claims
have been conclusively rejected or have been withdrawn;
and
(iii) the Escrow Agent has transferred all the New Shares
required pursuant to the Initial Distribution,
the Escrow Agent shall transfer all the remaining New Shares
and cash that the Escrow Agent holds in escrow to each of
the Jersey Scheme Creditors with Jersey Agreed Scheme Claims
pro rata to the amount of their Jersey Agreed Scheme Claims.
4.17 Fractional entitlements of all Jersey Scheme Creditors
entitled to a distribution under Clause 4.16 shall not be
transferred to Jersey Scheme Creditors in the Final
Distribution. The fractional entitlements of all Jersey
Scheme Creditors will be aggregated and sold on the Open
Market by the Escrow Agent on behalf of Jersey Scheme
Creditors. The Net Proceeds of Sale of such sale or New
Shares will be paid to the NSPCC.
METHOD OF DISTRIBUTION; FULL AND FINAL SETTLEMENT OF JERSEY SCHEME CLAIMS
4.18 On Telewest Jersey's Scheme Claim (as defined in the
Telewest Scheme) in the Telewest Scheme becoming an Agreed
Scheme Claim (as defined in the Telewest Scheme) in the
Telewest Scheme, the Escrow Agent shall transfer the New
Shares to which Telewest Jersey will thereby become
entitled, which will then be used by Telewest Jersey to
satisfy Telewest Jersey's obligations to the Jersey Scheme
Creditors under this Scheme, to the Jersey Escrow Account to
be held in escrow in accordance with the terms of this
Scheme.
4.19 Immediately following the Jersey Effective Date,
Re-globalisation will occur. Re-globalisation shall not
create any new debt, liability or obligation on the part of
Telewest Jersey and is solely for the purpose of
distributing the New Shares. Immediately following the
Initial Distribution of the New Shares to Jersey
Bondholders, the Jersey Notes shall be cancelled and removed
from the Clearing Systems.
4.20 Following Re-globalisation, in order to make the Initial
Distribution and the Final Distribution, if any, to Jersey
Bondholders, the Escrow Agent shall, in each case, aggregate
the total number of New Shares attributable to the Jersey
Notes and shall transfer such New Shares into DTC with
instructions that DTC distribute such New Shares in the
relevant proportions to the Holders of the Jersey Notes, all
as more particularly described in the Escrow Agent
Agreement.
4.21 Each Jersey Bondholder and the Depositary agrees that the
transfer of its Share Entitlement (whether by a single
Initial Distribution or by an Initial Distribution and a
Final Distribution) to DTC in the manner described at Clause
4.20 shall constitute full and final settlement of Telewest
Jersey's obligations to it under this Scheme.
4.22 A Holder of any Jersey Notes still held in definitive form
following Re-globalisation or a Jersey Notified Ancillary
Scheme Creditor with a Jersey Agreed Scheme Claim who
requires its Share Entitlement under the Initial
Distribution and the Final Distribution, if any, (or part
thereof) to be transferred to a Nominated Recipient or
credited to a Designated DTC Account shall make such a
designation (each an Account Designation) in a Claim Form.
In order to make the Initial Distribution and the Final
Distribution, if any, to each Holder of Jersey Notes still
held in definitive form following Re-globalisation or to a
Jersey Notified Ancillary Scheme Creditor with a Jersey
Agreed Scheme Claim, the Escrow Agent shall transfer the
relevant number of New Shares in accordance with the Account
Designation or other delivery instructions contained in the
relevant Claim Form.
4.23 Each Jersey Notified Ancillary Scheme Creditor and each
Holder of Jersey Notes still held in definitive form
following Re-globalisation agrees that the transfer to it,
or transfer in accordance with the instructions given by it
in a Claim Form, of its Share Entitlement (whether by a
single Initial Distribution or by an Initial Distribution
and a Final Distribution) shall constitute full and final
settlement of Telewest Jersey's obligations to it under this
Scheme.
4.24 If, for any reason, Telewest Jersey so wishes, the
obligations of Telewest Jersey to transfer (or procure the
transfer of) New Shares to a Jersey Notified Ancillary
Scheme Creditor with a Jersey Agreed Scheme Claim may be
discharged by the transfer of New Shares to the relevant
Jersey Scheme Creditor or the relevant Jersey Scheme
Creditor's Nominated Recipient (as appropriate) in
certificated form.
4.25 If, for any reason, a Jersey Scheme Creditor other than a
Jersey Bondholder in respect of his Jersey Known Scheme
Claim does not wish to, or is unable to, hold the New Shares
to which it is entitled, it may direct the Escrow Agent to
sell its Share Entitlement on the Open Market and account to
such Jersey Notified Ancillary Scheme Creditor for the Net
Proceeds of Sale thereof. The price, terms, timing and
manner of such sale, and any currency exchange effected by
the Escrow Agent in connection with or related to such sale,
or the Net Proceeds of Sale, shall be at the Escrow Agent's
sole discretion, or that of any agent the Escrow Agent shall
employ to effect such sale, and neither the Escrow Agent,
Telewest Jersey nor any of its advisers nor any person
acting on behalf of any or all of them shall have any
Liability for any loss or alleged loss arising from such
sale or a failure to procure any purchaser for such New
Shares.
4.26 New Shares will not be distributed to a Jersey Scheme
Creditor or a Jersey Scheme Creditor's Nominated Recipient
in jurisdictions, other than the US and the UK, where such
distributions would, or might, in the opinion of the Escrow
Agent (subject to the prior consent of Telewest Jersey), be
unduly onerous or where Telewest Jersey directs the Escrow
Agent that such distributions would, or might, be prohibited
by any relevant law. Instead, a Jersey Scheme Creditor or a
Jersey Scheme Creditor's Nominated Recipient in such a
jurisdiction will be entitled to receive the Net Proceeds of
Sale of the New Shares to which he would otherwise be
entitled. The Escrow Agent, if directed by Telewest Jersey,
will sell, or procure the sale of, such New Shares, on the
Open Market and will remit the Net Proceeds of Sale by
cheque in US Dollars to the relevant Jersey Scheme Creditor
or Jersey Scheme Creditor's Nominated Recipient in full
satisfaction of the relevant Jersey Scheme Creditor's rights
under this Scheme. The price, terms, timing and manner of
such sale, and any currency exchange effected by the Escrow
Agent in connection with or related to such sale, or the Net
Proceeds of Sale, shall be at the Escrow Agent's sole
discretion, or that of any agent the Escrow Agent shall
employ to effect such sale, and neither the Escrow Agent,
Telewest Jersey nor any of its advisers nor any person
acting on behalf of any or all of them shall have any
Liability for any loss or alleged loss arising from such
sale or a failure to procure any purchaser for such New
Shares.
4.27 To the extent that any Jersey Ancillary Scheme Creditor
transfers or assigns all or part of its Jersey Agreed Scheme
Claim after the Record Date, the transfer of the Jersey
Ancillary Scheme Creditor's Share Entitlement by or on
behalf of Telewest Jersey to the Jersey Ancillary Scheme
Creditor or its Nominated Recipient named in any Claim Form,
or to DTC in accordance with an Account Designation given in
any Claim Form submitted by such Jersey Ancillary Scheme
Creditor, or to any assignee or transferee recognised by
Telewest Jersey in accordance with Clause 3.4(a), shall be
effective to discharge and extinguish any Liabilities as at
the Jersey Effective Date or thereafter of Telewest Jersey
to any transferee or assignee of such Jersey Agreed Scheme
Claim arising directly or indirectly in relation to or
arising out of or in connection with the relevant Jersey
Agreed Scheme Claim.
4.28 No Jersey Scheme Creditor shall have any entitlement to any
distribution of New Shares, cash or otherwise, other than in
accordance with Clauses 4.12 to 4.27 inclusive.
5 ESCROW AGENT ARRANGEMENT
CONSENT TO ESCROW ARRANGEMENTS
5.1 Each Jersey Scheme Creditor agrees to the New Shares being
issued to the Escrow Agent pursuant to the Telewest Scheme
on the Telewest Effective Date (or as soon as reasonably
practicable thereafter). Each Jersey Scheme Creditor agrees
to the New Shares credited to the Jersey Escrow Account
pursuant to the Telewest Scheme being held in that account
pursuant to this Scheme, and being held in escrow by the
Escrow Agent in accordance with the Escrow Agent Agreement.
ESCROW AGENT AGREEMENT
5.2 Prior to the Jersey Effective Date, Telewest Jersey,
Telewest, New Telewest and Telewest UK will enter into an
agreement with the Escrow Agent, setting out the terms on
which the Escrow Agent will hold New Shares in the Jersey
Escrow Account on behalf of Jersey Notified Scheme Creditors
(to the extent that their Jersey Notified Scheme Claims
become Jersey Agreed Scheme Claims). The Escrow Agent
Agreement will include provisions to the following effect:
(a) New Shares and any cash held by the Escrow Agent
pursuant to this Scheme applicable to Jersey Notified
Scheme Claims will be held by the Escrow Agent on bare
trust absolutely for the relevant Jersey Notified
Scheme Creditors (to the extent that their Jersey
Notified Scheme Claims become Jersey Agreed Scheme
Claims). The Escrow Agent shall at no time whatsoever
either present or future have any beneficial interest
in the New Shares or any cash held by it pursuant to
this Scheme.
(b) Any dividends paid on any New Shares held in escrow by
the Escrow Agent, or any other payment whatsoever made
in respect of the New Shares held in the Jersey Escrow
Account by the Escrow Agent, shall be paid to and
received by the Escrow Agent as follows:
(i) in the case of New Shares relating to Jersey
Agreed Scheme Claims, to be held on bare trust
absolutely for the relevant Jersey Agreed Scheme
Creditor and to pay such amounts on to that Jersey
Agreed Scheme Creditor or to that Jersey Agreed
Scheme Creditor's Designated DTC Account andlor
that Jersey Agreed Scheme Creditor's Nominated
Recipient (as appropriate), together with any
interest which may have accrued thereon, at the
time any distribution of New Shares, or the Net
Proceeds of Sale thereof, is made to the relevant
Jersey Agreed Scheme Creditor; and
(ii) in the case of New Shares relating to Jersey
Notified Scheme Claims which do not, at the time
such dividend is paid or other payment is made,
constitute Jersey Agreed Scheme Claims, to be held
on bare trust absolutely for the relevant Jersey
Notified Scheme Creditor until the receipt of a
valid Distribution Notice. On receipt of a valid
Distribution Notice, the Escrow Agent shall pay
such amounts to the relevant Jersey Notified
Scheme Creditor or the Jersey Notified Scheme
Creditor's Designated DTC Account and/or that
Jersey Notified Scheme Creditor's Nominated
Recipient (as appropriate), together with any
interest which may have accrued thereon, at the
time any distribution of New Shares, or the Net
Proceeds of Sale thereof, is made to the relevant
Jersey Notified Scheme Creditor.
(c) The Escrow Agent shall be under no obligation to
exercise any of the voting rights attaching to any New
Shares held in the Jersey Escrow Account or exercise
any other right whatsoever in respect of the New Shares
(save as may be required by law).
(d) The Escrow Agent's liabilities shall be limited to
those set out in the Escrow Agent Agreement.
SALE AND TERMINATION
5.3 On the Termination Date (or, to the extent that any Jersey
Notified Scheme Claims are at that time in the process of being
determined by the Independent Adjudicator, on the date of final
determination of such Jersey Notified Scheme Claims by the
Independent Adjudicator), any New Shares remaining in the Jersey
Escrow Account and not attributable to any Jersey Agreed Scheme
Claim, and in relation to which the Escrow Agent has not received
any valid delivery instructions, shall be sold by the Escrow
Agent on the Open Market and the Net Proceeds of Sale of such New
Shares and any cash remaining in such escrow account shall be
transferred by the Escrow Agent to the NSPCC.
6 GENERAL SCHEME PROVISIONS
COSTS
6.1 Subject to Clause 4.10, Telewest Jersey will pay in full all
costs, charges, expenses and disbursements incurred by it in
connection with the negotiation, preparation and implementation
of this Scheme as and when they arise, including, but not limited
to, the costs of holding the Meeting, the costs of obtaining the
sanction of the English Court and the Jersey Court and the costs
of placing the notices required by this Scheme.
MODIFICATIONS OF THE SCHEME
6.2 Telewest Jersey may, at any hearing to sanction this Scheme,
consent on behalf of all Jersey Scheme Creditors to any
modification of this Scheme or any terms or conditions that the
Courts may think fit to approve or impose.
PAYMENTS ON DAYS OTHER THAN A BUSINESS DAY
6.3 If any sum is due or obligation is to be performed under the
terms of this Scheme on a date other than a Business Day, the
relevant payment shall be made, or obligation performed, on the
next Business Day.
NOTICE
6.4 (a) Any notice or other written communication to be given
under or in relation to this Scheme shall be given in
writing and shall be deemed to have been duly given if it is
delivered by hand or sent by Post, and by air mail where it
is addressed to a different country from that in which it is
posted, to:
(i) in the case of Telewest Jersey, its registered office,
marked for the attention of the company secretary;
(ii) in the case of a Jersey Scheme Creditor, its last known
address according to Telewest Jersey (which may be the
address given by such Jersey Scheme Creditor in a Claim
Form lodged in connection with this Scheme) or, at Telewest
Jersey's sole discretion, to the Jersey Noteholders'
Trustee; and
(iii) in the case of any other person, any address set forth for
that person in any agreement entered into, or Claim Form
lodged, in connection with this Scheme.
(b) Any notice or other written communication to be given under
this Scheme shall be deemed to have been served:
(i) if delivered by hand, on the first Business Day
following delivery; and
(ii) if sent by Post, on the second Business Day after posting
if the recipient is in the country of dispatch, otherwise
on the seventh Business Day after posting.
(c) In proving service, it shall be sufficient proof, in the
case of a notice sent by Post, that the envelope was
properly stamped, addressed and placed in the Post.
(d) The accidental omission to send any notice, written
communication or other document in accordance with this
Clause 6.4, or the non-receipt of any such notice by any
Jersey Scheme Creditor, shall not affect the provisions of
this Scheme.
ALLOCATION OF NEW SHARES
6.5 Without prejudice to the effect of the compromise effected by
Clause 3.1, New Shares received by Jersey Scheme Creditors
shall be allocated pro rata in respect of all Jersey Agreed
Scheme Claims.
FUTURE LIQUIDATION
6.6 In the event that Telewest Jersey enters into liquidation,
Telewest Jersey's obligations under this Scheme will
continue to be performed by Telewest Jersey in
liquidation. However, to the extent that the
liquidators of Telewest Jersey wish to close the
liquidation whilst the obligations of Telewest Jersey
under this Scheme remain to be performed, Telewest UK
has agreed to undertake to perform such obligations
in the place of Telewest Jersey provided always that
such obligations do not involve the exercise of
discretion on behalf of Telewest UK and, as such, are
wholly of a mechanical nature, or, to the extent that
such obligations would involve the exercise of
discretion on behalf of Telewest UK, that the
liquidators of Telewest Jersey set out detailed and
comprehensive instructions to Telewest UK as to how
that discretion should be exercised. In no event,
however, shall Telewest UK be obliged to perform any
such obligation to the extent that it would, or may
be likely to, prevent qualification of the Financial
Restructuring as a tax-free reorganisation for US
federal income tax purposes.
6.7 This Scheme shall be unaffected by Telewest Jersey entering
into solvent liquidation and shall, in these circumstances,
continue according to its terms.
GOVERNING LAW AND JURISDICTION
6.8 This Scheme shall be governed by, and construed in accordance
with, the laws of England and Wales and the Jersey Scheme
Creditors hereby agree that the Jersey Court and the English
Court shall have non-exclusive jurisdiction to hear and
determine any suit, action or proceeding and to settle any
dispute which may arise out of the Explanatory Statement or
any provision of this Scheme, or out of any action taken or
omitted to be taken under this Scheme or in connection with
the administration of this Scheme and, for such purposes,
the Jersey Scheme Creditors irrevocably submit to the
jurisdiction of the Jersey Court and the English Court,
provided, however, that nothing in this Clause 6.8 shall
affect the validity of other provisions determining
governing law and jurisdiction as between Telewest Jersey
and any of its Jersey Scheme Creditors, whether contained in
any contract or otherwise.
6.9 This Scheme shall take effect subject to any prohibition or
condition imposed by law.
APPENDIX 1: FORM OF DEED OF RELEASE
** 2004
TELEWEST COMMUNICATIONS PLC
TELEWEST FINANCE (JERSEY) LIMITED
THE SCHEME CREDITORS
as defined herein
and
THE JERSEY SCHEME CREDITORS
as defined herein
DEED OF RELEASE
CONTENTS
Page
----
CLAUSE
1. INTERPRETATION..........................................................25
2. WAIVER, RELEASE AND CONFIRMATION........................................28
3. FURTHER ASSURANCE.......................................................29
4. CONFLICT................................................................29
5. THIRD PARTIES...........................................................29
6. GOVERNING LAW...........................................................29
THIS DEED is made the day of ** 2004
BETWEEN:
(1) TELEWEST COMMUNICATIONS PLC, a company incorporated in England and
Wales under registered number 2983307 whose registered office is at
Export House, Cawsey Way, Woking, Surrey GU21 6QX (the Company);
(2) TELEWEST FINANCE (JERSEY) LIMITED, a company incorporated in Jersey
under registered number 77278 whose registered office is at Whiteley
Chambers, Don Street, St Helier, Jersey JE4 9WG (Telewest Jersey);
(3) THE SCHEME CREDITORS as defined herein acting by the Company pursuant
to the authority conferred upon the Company by the Scheme Creditors
under Clause 3.8 of the Scheme, as defined herein; and
(4) THE JERSEY SCHEME CREDITORS as defined herein acting by Telewest
Jersey pursuant to the authority conferred upon Telewest Jersey by
the Jersey Scheme Creditors under Clause 3.5 of the Jersey Scheme, as
defined herein.
WHEREAS:
(A) Pursuant to the terms of the Scheme and the Jersey Scheme, each
Scheme Creditor and Jersey Scheme Creditor has authorised the Company
and Telewest Jersey respectively to enter into and execute and
deliver this Deed on its behalf.
(B) The parties hereto have agreed to enter into and execute and deliver
this Deed on the terms set out below.
NOW IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Deed, unless the context otherwise requires, the following
words and expressions shall have the following meanings:
ACT means the Companies Act 1985, as amended;
ADVISERS means (i) Baker Botts LLP; (ii) Cadwalader Wickersham & Taft LLP;
(iii) Citigroup Global Markets Limited; (iv) Freshfields Bruckhaus
Deringer; (v) Fried Frank Harris Shriver & Jacobson LLP; (vi) Gleacher
Shacklock Limited; (vii) Jones Day; (viii) KPMG LLP; (ix) Ogier & Le
Masurier; (x) Proskauer Rose LLP; (xi) UBS Securities LLC; and (xii) Weil,
Gotshal & Manges;
AFFILIATES means TCN and Telewest Jersey;
BONDHOLDER means a person with the ultimate economic interest in any of the
Notes (other than the Eurobell Notes);
BONDHOLDER COMMITTEE means the ad hoc committee from time to time of
certain Bondholders, as at 26 April 2004 consisting of Angelo Gordon & Co,
L.P.; Franklin Mutual Advisors, LLC; Fidelity Management & Research Co.;
Goldentree Asset Management, LP; Oaktree Capital Management LLC; and OZ
Management LLC;
CLAIM or CLAIMS means all and any actions, claims, demands or rights
whatsoever or howsoever arising, whether present, future, prospective or
contingent, whether or not for a fixed or unliquidated amount, whether or
not involving the payment of money or the performance of an act or
obligation, whether arising at common law, in equity or by statute in
England and Wales or in any other jurisdiction or in any other manner
whatsoever;
COMPANY INDENTURES means each of (a) the Indenture dated as of 3 October
1995 between the Company and the Indenture Trustee relating to the 9.625
per cent. senior debentures due 2006 of the Company; (b) the Indenture
dated as of 19 February 1999 between the Company and the Indenture Trustee
relating to the 5.25 per cent. senior convertible notes due 2007 of the
Company; (c) the Indenture dated as of 3 October 1995 between the Company
and the Indenture Trustee relating to the 11 per cent. senior discount
debentures due 2007 of the Company; (d) the Indenture dated as of 9
November 1998 between the Company and the Indenture Trustee relating to the
11.25 per cent, senior notes due 2008 of the Company; (e) the Indenture
dated as of 15 April 1999 between the Company and the Indenture Trustee
relating to the 9.25 per cent. dollar senior discount notes due 2009 and
the 9.875 per cent. sterling senior discount notes due 2009 of the Company;
and (f) the Indenture dated as of 25 January 2000 between the Company and
the Indenture Trustee relating to the 9.875 per cent. dollar senior notes
due 2010, the 11.375 per cent. dollar senior discount notes due 2010 and
the 9.875 per cent. sterling senior notes due 2010 of the Company and, in
each case, as thereafter amended, revised or supplemented from time to
time;
COMPANY NOTES means each of the Eurobell Notes and each and every note in
issue from time to time under any series of notes issued by the Company
pursuant to the terms of any of the Company Indentures;
COMPANY ORDER means the order of the Court sanctioning the Scheme;
COURT means the High Court of Justice in England and Wales;
DEFINITIVE HOLDER means the registered holder of a Note (other than a
Eurobell Note) in definitive registered form that became a definitive
registered holder of such Note pursuant to the mechanics for voting
described in the Scheme;
DEPOSITARY means Citibank (Channel Islands) Limited in respect of the
Telewest Convertible Notes and The Bank of New York in respect of all of
the other Notes (other than the Eurobell Notes), each in its capacity as
book-entry depositary for the relevant Notes and, in each case, any
successor thereto;
DIRECTORS AND FORMER DIRECTORS means any person who is, or who has been at
any time since 13 May 2002, a director of the Company, the Affiliates,
Liberty Media, Telewest UK or New Telewest;
EFFECTIVE DATE means, in relation to the Scheme, the date upon which an
office copy of the Company Order is delivered to the Registrar of Companies
for registration and, in relation to the Jersey Scheme, the date upon which
the Jersey UK Order is delivered to the Registrar of Companies for
registration and the Jersey Order is delivered to the Jersey Registrar of
Companies for registration;
EUROBELL NOTES means the 5 per cent. accreting convertible notes issued by
the Company on 1 November 2000 with an Initial Principal Amount (as defined
therein) of (pound)220,000,000, on 15 January 2001 with an Initial
Principal Amount (as defined therein) of (pound)30,000,000 and on 2 April
2001 with an Initial Principal Amount (as defined therein) of
(pound)3,500,000 as, in each case, cancelled and reissued on 30 May 2003;
FINANCIAL RESTRUCTURING means the proposed overall restructuring and
compromise of certain of the debts and other financial obligations of the
Company, Telewest Jersey and TCN pursuant to, inter alia, the Scheme, the
Jersey Scheme and the restructuring of the obligations owed under the
Senior Secured Credit Facility Agreement to the Senior Lenders (as defined
therein) and associated documentation;
GROUP means, prior to the Effective Date, the Company and its subsidiaries
and subsidiary and associated undertakings and, following the Effective
Date, New Telewest and its subsidiaries and subsidiary and associated
undertakings;
INDENTURE TRUSTEE means Law Debenture Trust Company of New York, as
successor trustee to The Bank of New York, or any successor trustee
appointed in accordance with the provisions of the Indentures;
INDENTURES means the Company Indentures and the Jersey Indenture, and each
of them;
JERSEY COMPANIES LAW means the Companies (Jersey) Law 1991, as amended;
JERSEY COURT means the Royal Court of Jersey;
JERSEY INDENTURE means the Indenture dated 7 July 2000 between Telewest
Jersey (as issuer), the Company (as guarantor) and the Indenture Trustee
relating to the 6 per cent. senior convertible notes due 2005 of Telewest
Jersey, as amended, revised or supplemented from time to time;
JERSEY INTERCOMPANY DEBT means the debt in the principal amount of
US$500,000,000 owing to Telewest Jersey by the Company pursuant to an
agreement between Telewest Jersey and the Company dated 7 July 2000 as
amended, revised or supplemented from time to time;
JERSEY NOTES means each and every note in issue from time to time under any
series of notes issued by Telewest Jersey pursuant to the terms of the
Jersey Indenture;
JERSEY ORDER means the act issued by the Jersey Court which sanctions the
Jersey Scheme;
JERSEY REGISTRAR of Companies means the registrar of companies within the
meaning of the Jersey Companies Law;
JERSEY SCHEME means the scheme of arrangement under section 425 of the Act,
and the scheme of arrangement under article 125 of the Jersey Companies
Law, between Telewest Jersey and the Jersey Scheme Creditors and sanctioned
by the Court and the Jersey Court;
JERSEY SCHEME CLAIM means any claim in respect of any Liability of Telewest
Jersey to any person arising directly or indirectly in relation to or
arising out of or in connection with all or any of the Jersey Indenture,
the Jersey Notes, the Jersey Intercompany Debt and the Jersey Guarantee
Liability, including any Liability of Telewest Jersey in respect of loss or
damage suffered or incurred as a result of or in connection with such
Liability in each case arising as at the Record Date or after that date by
reason of a Liability of Telewest Jersey incurred before that date
(including, for the avoidance of doubt, any interest accruing on, or
accretions arising in respect of, such claims after the Record Date);
JERSEY SCHEME CREDITORS means a creditor of Telewest Jersey in respect of a
Jersey Scheme Claim including, for the avoidance of doubt, but without
double counting in each case, the Depositary, the registered holder of a
Jersey Note in definitive registered form and any person who becomes a
Definitive Holder by virtue of an exchange of an interest in Jersey Notes
held by or on behalf of that person on the Record Date for a Jersey Note in
definitive registered form in that person's name;
JERSEY UK ORDER means the order of the Court which sanctions the Jersey
Scheme;
LIABILITY or LIABILITIES means any debt, liability or obligation whatsoever
whether it is present, future, prospective or contingent, whether or not
its amount is fixed or undetermined, whether or not it involves the payment
of money or the performance of an act or obligation and whether it arises
at common law, in equity or by statute, in England and Wales, Jersey or in
any other jurisdiction, or in any other manner whatsoever, but such
expression does not include any liability which is barred by statute or is
otherwise unenforceable or arises under a contract which is void or, being
voidable, has been duly avoided;
LIBERTY MEDIA means Liberty Media Corporation, a Delaware corporation;
NEW SHARES means 245,000,000 new shares of common stock, par value $0.01
per share of New Telewest, or such other number of New Shares representing
100 per cent. (less one share) of the issued share capital of New Telewest
as is authorised pursuant to the Scheme;
NEW TELEWEST means Telewest Global, Inc., a Delaware corporation;
NOTES means the Company Notes and the Jersey Notes and any of them, as the
context requires;
RECORD DATE means 30 April 2004;
REGISTRAR OF COMPANIES means the registrar of companies within the meaning
of the Act;
RELEASED PARTIES means (i) Neil Smith; (ii) John Malone; (iii) Liberty
TWSTY Bonds, Inc.; (iv) Liberty Media International, Inc.; (v) Liberty UK
Holdings, Inc.; (vi) Liberty UK, Inc.; (vii) IDT Corporation; (viii) IDT
Venture Capital, Inc.; (ix) IDT UK Cable Inc. (formerly known as Microsoft
UK Cable, Inc.); (x) IDT Cable Partnership Holdings, Inc. (formerly known
as Microsoft Cable Partnership Holdings, Inc.); (xi) Liberty Flex Holdings;
(xii) Liberty TWSTY Holdings, Inc.; (xiii) Liberty International B-LL-C;
and (xiv) Microsoft Corporation;
SCHEME means the scheme of arrangement under section 425 of the Act between
the Company and the Scheme Creditors and sanctioned by the Court;
SCHEME CLAIM means any claim in respect of any Liability of the Company to
any person arising directly or indirectly in relation to or arising out of
or in connection with all or any of the Company Indentures, the Company
Notes, the Jersey Indenture, the Jersey Notes, the Jersey Intercompany Debt
and the Jersey Guarantee Liability, including any Liability of the Company
in respect of loss or damage suffered or incurred as a result of or in
connection with such Liability in each case arising as at the Record Date
or after that date by reason of a Liability of the Company incurred before
that date (including, for the avoidance of doubt, any interest accruing on,
or accretions arising in respect of, such claims after the Record Date);
SCHEME CREDITORS means a creditor of the Company in respect of a Scheme
Claim including, for the avoidance of doubt, but without double counting in
each case, the Depositary, the registered holder of a Company Note or
Jersey Note (other than a Eurobell Note) in definitive registered form and
any person who becomes a Definitive Holder by virtue of an exchange of an
interest in the Notes held by or on behalf of that person on the Record
Date for a Note in definitive registered form in that person's name;
SENIOR SECURED CREDIT FACILITY AGREEMENT means the agreement dated 16 March
2001 for credit facilities of (pound)2 billion together with an
institutional facility of up to (pound)250 million made between, inter
alia, TCN and the Senior Lenders (as defined therein);
TCN means Telewest Communications Networks Limited, a company incorporated
in England and Wales with registered number 3071086;
TELEWEST CONVERTIBLE NOTES means the 5.25 per cent. senior convertible
notes due 2007 of the Company;
TELEWEST UK means Telewest UK Limited, a company incorporated in England
and Wales with registered number 4925679; and
W. R. HUFF means W. R. Huff Asset Management Co., L.L.C.
1.2 In this Deed, unless the context otherwise requires or expressly
provides:
(a) references to any clause, without further designation, shall be
construed as a reference to the clause of this Deed so numbered;
(b) section headings and the front cover of this Deed are for
convenience only and shall not be taken into account in the
interpretation of this Deed;
(c) reference to any act, statute or statutory provision shall
include a reference to that provision as amended, re-enacted or
replaced from time to time whether before or after the date of
this Deed and any former statutory provision replaced (with or
without modification) by the provision referred to;
(d) words importing the plural shall include the singular and vice
versa; and
(e) reference to a person includes a reference to any body corporate,
unincorporated association or partnership and to that person's
legal personal representatives or successors.
2. WAIVER, RELEASE AND CONFIRMATION
2.1 The Scheme Creditors and the Jersey Scheme Creditors hereby
irrevocably and unconditionally waive, on their own behalf and on
behalf of any person to whom they may have transferred their Scheme
Claims or Jersey Scheme Claims after the Record Date, in each case to
the extent permitted as a matter of law, each and every Claim which
they or any of them have, or may have, against any or all of:
(a) the Company;
(b) the Affiliates;
(c) New Telewest;
(d) Telewest UK;
(e) the Directors and Former Directors;
(f) the Released Parties;
(g) the Bondholder Committee;
(h) W.R. Huff;
(i) Liberty Media;
(j) the Indenture Trustee; and
(k) the Advisers,
in relation to or arising out of or in connection with the Notes, the
Company Indentures, the Jersey Indenture, the Jersey Guarantee
Liability and the Jersey Intercompany Debt and/or the implementation
of the Scheme, the Jersey Scheme andlor the Financial Restructuring.
2.2 The Scheme Creditors and the Jersey Scheme Creditors hereby
irrevocably and unconditionally release on their own behalf and on
behalf of any person to whom they may have transferred their Scheme
Claims or Jersey Scheme Claims after the Record Date, in each case to
the extent permitted as a matter of law, each and all of:
(a) the Company;
(b) the Affiliates;
(c) New Telewest;
(d) Telewest UK;
(e) the Directors and Former Directors;
(f) the Released Parties;
(g) the Bondholder Committee;
(h) W.R. Huff;
(i) Liberty Media;
(j) the Indenture Trustee; and
(k) the Advisers,
from each and every Liability which they or any of them may have to a
Scheme Creditor, a Jersey Scheme Creditor or any person to whom they
may have transferred their Scheme Claims or Jersey Scheme Claims
after the Record Date in relation to, in connection with or in any
way arising out of the Notes or otherwise by virtue of such a
person's holding of Notes, the Company Indentures, the Jersey
Indenture, the Jersey Guarantee Liability, the Jersey Intercompany
Debt and/or the implementation of the Scheme, the Jersey Scheme
and/or the Financial Restructuring.
2.3 The Scheme Creditors and the Jersey Scheme Creditors hereby
acknowledge that their right to receive New Shares in accordance with
the provisions of the Scheme andlor the Jersey Scheme is accepted in
full and final settlement of all Claims and Liabilities waived and
released pursuant to this Deed.
3. FURTHER ASSURANCE
Each party shall at its own cost do and execute or procure to be done and
executed all necessary acts, deeds, documents and things reasonably within
its power to give effect to this Deed.
4. CONFLICT
This Deed is expressly intended to supplement the obligations set out in
the Scheme and the Jersey Scheme in relation to the releases to be given
thereunder. If at any time there shall be any conflict between the
provisions of this Deed and the provisions of the Scheme or the Jersey
Scheme, the provisions of the Scheme and/or the Jersey Scheme shall
prevail.
5. THIRD PARTIES
Subject to the Company, the Affiliates, the Directors and Former Directors,
the Released Parties, the Bondholder Committee, W. R. Huff, Liberty Media,
Telewest UK, New Telewest, the Indenture Trustee and the Advisers being
able to enforce the waivers and releases in Clauses 2.1 and 2.2
respectively, a person who is not a party to this Deed shall have no rights
under the Contracts Rights of Third Parties) Act 1999 to enforce any of its
terms.
6. GOVERNING LAW
This Deed shall be governed by and construed in accordance with English
law.
IN WITNESS of which this Deed has been duly executed and delivered on the
date first appearing on this Deed
SIGNED and DELIVERED as )
a deed by and on its own behalf )
by TELEWEST COMMUNICATIONS PLC )
SIGNED and DELIVERED as )
a deed by and on its own behalf )
by TELEWEST FINANCE (JERSEY) LIMITED )
SIGNED and DELIVERED as )
a deed by each Scheme Creditor by its )
duly appointed agent )
SIGNED and DELIVERED as )
a deed by each Jersey Scheme Creditor )
by its duly appointed agent )
APPENDIX 2: FORM OF CLAIM FORM FOR JERSEY SCHEME
SCHEMES OF ARRANGEMENT
UNDER SECTION 425 OF THE COMPANIES ACT 1985
and
UNDER ARTICLE 125 OF THE COMPAMES (JERSEY) LAW 1991
in respect of
TELEWEST FINANCE (JERSEY) LIMITED
CLAIM FORM
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE
ATTENTION.
THIS CLAIM FORM IS TO BE COMPLETED BY ALL JERSEY SCHEME CREDITORS
OTHER THAN JERSEY BONDHOLDERS IN RESPECT OF THEIR JERSEY SCHEME CLAIMS
ARISING OUT OF PRINCIPAL AND INTEREST UNDER THE JERSEY NOTES HELD, AS AT
THE RECORD DATE, IN THE CLEARING SYSTEMS.
Jersey Scheme Creditors with Jersey Ancillary Claims must have duly
notified Telewest Jersey of such Jersey Scheme Claim prior to the Bar Date.
The indicative date of the Bar Date is 16 July 2004, and should this date
change it will be notified to Jersey Scheme Creditors by announcement on a
Regulatory Information Service and on Telewest's website at
www.telewest.co.uk. In the event that Jersey Scheme Creditors with Jersey
Ancillary Claims do not duly notify Telewest Jersey prior to the Bar Date,
their Jersey Ancillary Claims will be compromised and they will not be
entitled to receive New Shares (or any other consideration) for such
compromise.
JERSEY BONDHOLDERS DO NOT NEED TO COMPLETE A CLAIM FORM IN RESPECT OF
JERSEY SCHEME CLAIMS ARISING OUT OF PRINCIPAL AND INTEREST UNDER JERSEY
NOTES HELD, AS AT THE RECORD DATE, IN THE CLEARING SYSTEMS.
Before completing and executing this Claim Form, you should read the
instructions below and the notes set out at the end of this Claim Form. If
the Claim Form is not completed and executed in accordance with the
instructions in the notes, you may not be eligible to receive your
entitlement under the Jersey Scheme.
If you have any questions relating to the completion of this document,
please contact the Escrow Agent at the address and telephone number set out
below during normal UK business hours. If you require further copies of
this document, the Explanatory Statement or relevant Form of Proxy referred
to below, please contact Innisfree on 877 750 2689 (toll free from the US),
0800 917 2009 (toll free from the UK) or +1 412 209 1704 (from outside the
US or the UK) or refer to Telewest's website (www.telewest.co.uk).
This Claim Form is to be read in conjunction with the Explanatory
Statement dated 30 April 2004 and the relevant Jersey Scheme document in
connection with the Financial Restructuring. The definitions contained in
the Explanatory Statement apply in this Claim Form. This Claim Form is
governed by, and shall be construed in accordance with, English law.
INSTRUCTIONS FOR COMPLETION AND RETURN OF THIS CLAIM FORM:
1. Detailed instructions regarding completion of this Claim Form are set
out at the end of this document.
2. If you have requested that your Share Entitlement is issued into a
DTC account, you must make sure that your DTC Participant has been
advised to accept the Share Entitlement into the relevant DTC
account.
3. If Jersey Scheme Creditors are unable to make all of the
representations and undertakings set out in Box 4 of this Claim Form,
their Claim Form will be rejected.
4. Escrow Agent details for return of Claim Forms and queries:
Contact: Trevor Blewer
Corporate Trust Administration
The Bank of New York
One Canada Square
London El4 5AL
Tel: +44-20-7964-5977
Fax: +44-20-7964-4895
5. Holders of definitive registered certificates of Jersey Notes (other
than those issued pursuant to the mechanism described in paragraph 2
of Part III of the Explanatory Statement) must tender the original
certificates representing such Jersey Notes with their duly completed
Claim Form.
AGREEMENT OF CLAIM FORMS:
1. In the event that the validity of a Jersey Notified Scheme
Claim (or part thereof) and/or the amount of a Jersey
Scheme Creditor's Jersey Notified Scheme Claim (as
included on the Claim Form) has not been agreed by
Telewest Jersey on or before the Adjudication Reference
Date, Telewest Jersey may refer the dispute to the
Independent Adjudicator, whose determination of the issue
will, to the extent permitted by law, be final and binding
on Telewest Jersey and the relevant Jersey Notified Scheme
Creditor.
2. In order that Share Entitlements are transferred to the
Jersey Scheme Creditor as soon as practicable after the
Bar Date (provided the relevant Jersey Notified Scheme
Claim is agreed), Jersey Scheme Creditors should ensure
that the Claim Form is received by the Escrow Agent at
least 14 days before the Bar Date. Claim Forms returned
after the Jersey Effective Date, provided the Jersey
Scheme Claim is a Jersey Notified Scheme Claim on or
before the Bar Date, will still be accepted by the Escrow
Agent and the Jersey Scheme Creditor will still be
entitled to its Share Entitlement once such Jersey
Notified Scheme Claim has been agreed by Telewest Jersey.
3. On the date falling six years after the Jersey Effective
Date (or, to the extent that any Jersey Notified Scheme
Claims are at that time in the process of being determined
by the Independent Adjudicator, on the date of final
determination of such Jersey Scheme Claims by the
Independent Adjudicator), any New Shares remaining in
escrow and not attributable to any Jersey Agreed Scheme
Claim, and in relation to which the Escrow Agent has not
received any valid delivery instructions, will be sold, by
the Escrow Agent, on the Open Market and the Net Proceeds
of Sale of such New Shares and any cash remaining in
escrow will be transferred to the NSPCC.
1 FULL NAME AND ADDRESS OF JERSEY SCHEME CREDITOR (BOX 1)
Jersey Scheme Creditor Name:______________________________________________
Contact Name with respect to this Claim Form:_____________________________
Contact Telephone Number:_________________________________________________
E-mail:___________________________________________________________________
Full Contact Address:_____________________________________________________
__________________________________________________________________________
__________________________________________________________________________
2 JERSEY SCHEME CLAIM (BOX 2)
-------------------
IF YOU HOLD JERSEY NOTES OTHER THAN THROUGH ONE OF DTC, EUROCLEAR OR
CLEARSTREAM, PLEASE CONTACT THE ESCROW AGENT.
Jersey Ancillary Claim (Please complete sections (i) to (iv) and use a
continuation sheet if necessary):
(i) Description of the nature of your Jersey Ancillary Claim and how it
arose:
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(ii) The value at which, and the dates on which, the Jersey Notes on which
your Jersey Ancillary Claim is based were bought and sold (if
applicable):
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(iii) Maximum Amount (stating currency):_______________________________________
(iv) The legal basis of liability of Telewest Jersey:
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
3 SETTLEMENT (Box 3)
PLEASE COMPLETE EITHER A OR B AND EITHER C OR D:
CHECK A OR B, AND PROVIDE DETAILS OF THE FORM AND MANNER OF THE
DISTRIBUTION OF NEW SHARES:
(A) CERTIFICATED FORM
/_/ In certificated form as directed immediately below (check one box):
/_/ to the Jersey Scheme Creditor at the address
shown in Box 1
OR
/_/ to the Jersey Scheme Creditor's Nominated
Recipient indicated below:
Name of Nominated Recipient:_________________________________________
Telephone Number of Nominated Recipient:_____________________________
Name to be entered on the Register of Members:_______________________
Full Address of Nominated Recipient:_________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
OR
(B) DTC ACCOUNT
/_/ Credit Share Entitlement to the following DTC Account (details
of Jersey Scheme Creditor's or its Nominated Recipient's account
to be provided. If necessary, continue on a separate sheet):
DTC Account Name:_________________________________________________________
DTC ID:___________________________________________________________________
Designation (if any):_____________________________________________________
Contact name for settlement:______________________________________________
Contact e-mail:___________________________________________________________
Contact fax number:_______________________________________________________
PLEASE COMPLETE EITHER C OR D:
Any cash payments will be made either to a US Dollar bank account or sent
by cheque to the Jersey Scheme Creditor or its Nominated Recipient
(C) If cash is to be paid direct to a Jersey Scheme Creditor's or its
Nominated Recipient's account with a bank in the United States, please
complete the following:
United States Bank name:__________________________________________________
United States Branch address:_____________________________________________
__________________________________________________________________________
United States Sort code:__________________________________________________
United States SWIFT Address:______________________________________________
US Dollar Account name:___________________________________________________
US Dollar Account number:_________________________________________________
OR
(D) If cash is to be paid by cheque and sent to the Jersey Scheme Creditor
or its Nominated Recipient by ordinary mail at the Jersey Scheme Creditor's
own risk, please complete the following:
Payee:____________________________________________________________________
Address to which cheque should be sent:___________________________________
__________________________________________________________________________
__________________________________________________________________________
4 REPRESENTATIONS AND UNDERTAKINGS (BOX 4)
--------------------------------
The Jersey Scheme Creditor represents and undertakes as follows:
(1) If a body corporate, the Jersey Scheme Creditor is duly
organised, validly existing and in good standing under the laws
of the jurisdiction of its organisation and has full power and
authority to execute this Claim Form.
(2) The execution and delivery of this Claim Form and the
fulfillment of the obligations in connection with the Jersey
Scheme do not and will not: (1) violate any law or regulation of
the jurisdiction under which the Jersey Scheme Creditor exists;
(2) violate any other law or regulation applicable to it; or (3)
constitute a breach or default of any provision of any document
under which, if a body corporate, the Jersey Scheme Creditor is
organised, or any other agreement to which it is a signatory or
by which it is bound, or to which any of its assets is subject.
(3) This Claim Form has been duly executed and delivered by the
Jersey Scheme Creditor and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with
the terms hereof, subject to the general principles of equity
and any applicable bankruptcy, insolvency, reorganisation or
similar law in any jurisdiction affecting creditors' rights
generally.
(4) The Jersey Scheme Creditor has not entered into any prior
assignment, sale, participation, grant, conveyance or other
transfer of, or any other agreement to assign, sell,
participate, grant, convey or otherwise transfer, in whole or in
part, any portion of the Jersey Scheme Claim to which this Claim
Form relates or any interest therein, and has good title to make
the Jersey Scheme Claim to which this Claim Form relates, free
and clear of all liens, claims, security interests and other
encumbrances of any kind save as mentioned in this Claim Form.
(5) The Jersey Scheme Creditor is a sophisticated person with respect
to the arrangements contemplated by the Jersey Scheme and has
adequate information concerning the Jersey Scheme Claim, and the
business and financial condition of Telewest and Telewest Jersey
to make an informed decision regarding the Jersey Scheme and the
entitlements to be received under the Jersey Scheme in exchange
for cancellation of the Jersey Scheme Claim.
(6) The Jersey Scheme Creditor understands that the entitlements to
be received in exchange for the cancellation of a Jersey Scheme
Claim pursuant to the Jersey Scheme have not been and may not be
offered or sold within the USA except pursuant to an effective
registration statement or an exemption from, or in a transaction
not subject to, the registration requirements of the Securities
Act.
5 EXECUTION (BOX 5)
PLEASE SEE NOTES AT THE BACK OF THIS CLAIM FORM REGARDING EVIDENCE TO BE
ATTACHED TO THE CLAIM FORM.
EXECUTE A, B OR C BELOW
(A) Execution by a company incorporated other than in England and Wales
(or other entity having its own legal personality)
This Claim Form has been executed on ______________________________ (date)
Executed by the company or other entity named below:
__________________________________________________________________________
Name of Jersey Scheme Creditor
acting by the person or persons named below, who is or are duly
authorised signatories of the company or entity named above under the
laws of the territory in which the company or entity is incorporated
or established:
____________________________ _____________________ _____________________
Name in full (please print) Title Signature
____________________________ _____________________ _____________________
Name in full (please print) Title Signature
(if two signatories are required) (if two signatories
are required)
Territory of incorporation or establishment_______________________________
(B) Execution by a company incorporated in ENGLAND AND WALES
EITHER (i) IF THE JERSEY SCHEME CREDITOR'S SEAL IS TO BE AFFIXED
This Claim Form has been executed on ______________________________ (date)
Executed by the Jersey Scheme Creditor named below:
_______________________________
Name of Jersey Scheme Creditor /____/ (Affix company seal)
In the presence of the persons named below who are duly authorised to
affix the seal of the company named above:
______________________________ _____________________ ________________
Name in full (please print) Director/Authorised Signature
signatory
(delete as applicable)
____________________________ _____________________ _____________________
Name in full (please print) Director/Authorised Signature
(if two signatories are required) signatory (if two signatories
(delete as applicable) are required)
OR (ii) IF THE JERSEY SCHEME CREDITOR'S SEAL IS NOT TO BE AFFIXED
This Claim Form has been executed on ______________________________ (date)
Executed by the Jersey Scheme Creditor named below:
Name of Jersey Scheme Creditor___________________________
Acting by the person (or persons) named below each of whom is duly
authorised on behalf of the Jersey Scheme Creditor named above:
______________________________ _____________________ ________________
Name in full (please print) Director/Authorised Signature
signatory
(delete as applicable)
____________________________ _____________________ _____________________
Name in full (please print) Director/Authorised Signature
(if two signatories are required) signatory (if two signatories
(delete as applicable) are required)
(C) Execution by individuals
------------------------
This Claim Form has been executed on ______________________________ (date)
Signed:
1. ____________________________ ______________________
Name in full (please print) Signature
2. ___________________________ ______________________
Name in full (please print) Signature
(if two signatories are required) (if two signatories are required)
NOTES FOR COMPLETION OF THIS CLAIM FORM
---------------------------------------
PLEASE FOLLOW THESE NOTES CAREFULLY WHEN COMPLETING THIS CLAIM
FORM. ALL BOXES MUST BE COMPLETED AS DESCRIBED IN THESE NOTES.
1 FULL NAME AND ADDRESS OF JERSEY SCHEME CREDITOR (BOX 1)
-----------------------------------------------
This Box must be completed by the Jersey Scheme Creditor. Please
provide all information requested.
2 JERSEY SCHEME CLAIM (BOX 2)
-------------------
The Jersey Scheme Creditor should detail the Jersey Ancillary Claim
arising other than under Jersey Notes held through a Clearing System.
The Jersey Scheme Creditor should provide full details of the Jersey
Ancillary Claim and a continuation sheet should be used, if necessary.
The Jersey Scheme Creditor should detail the maximum amount of the
Jersey Ancillary Claim as at, and including, the Record Date. The
amount of a Jersey Ancillary Claim set out in this form cannot be
revised upwards at any time after the Bar Date.
In respect of Jersey Ancillary Claims, please ensure you complete all
sections (i) to (iv). Failure to complete all sections will mean that,
although your Jersey Ancillary Claim will be compromised under the
Jersey Scheme, it will not be duly notified to Telewest Jersey and you
will not be eligible to receive any entitlement under the Jersey
Scheme in respect of your Jersey Ancillary Claim.
If you are notifying Telewest Jersey of a Jersey Ancillary Claim for
an amount greater than the amount of principal of, and interest that
has accrued and remains unpaid on, the relevant Jersey Notes, you must
also supply a memorandum which gives particulars of the facts on which
you rely and identifies the legal basis for the Jersey Ancillary Claim
and its quantum. If such memorandum is not supplied prior to the Bar
Date, the relevant Jersey Ancillary Claim will, provided the other
details required in this Claim Form are completed, be deemed notified
to Telewest Jersey in an amount equal to the amount of the principal
of, and interest that, as at the Record Date, has accrued and remains
unpaid on, the relevant Jersey Notes.
If the Jersey Scheme Claim arises under Jersey Notes held other than
through one of DTC, Euroclear 1 1 or Clearstream, please contact the
Escrow Agent.
3 SETTLEMENT (BOX 3)
----------
Box 3 must be completed by the Jersey Scheme Creditor. Provide details
of whether all or part of the Share Entitlement is to be held in
certificated form or transferred to a DTC account. The Jersey Scheme
Creditor may elect whether the Share Entitlement is to be transferred
to itself or to one or more Nominated Recipients, by completing (A) or
(B) of Box 3 as appropriate. If the Share Entitlement is to be divided
between more than one Nominated Recipient, full details of each
Nominated Recipient and, if appropriate, their DTC account and contact
details for settlement should be provided on a separate sheet.
Either section (C) or (D) should be completed by all Jersey Scheme
Creditors. Jersey Scheme Creditors should complete details of how they
wish to receive any cash distributions in either section (C) or (D).
Insert in section (C) of Box 3 the United States bank account details
of the Jersey Scheme Creditor to which any cash forming part of the
Net Proceeds of Sale should be credited. If the Jersey Scheme Creditor
wishes to receive payment by cheque, the account details section
should be left blank and the cheque payee and address details at
section (D) should be completed instead. Cheques will be sent by
ordinary uninsured mail at the risk of the recipient.
4 REPRESENTATIONS AND UNDERTAKINGS (BOX 4)
--------------------------------
Please read Box 4 carefully. IF BOX 4 IS AMENDED IN ANY WAY, THIS
CLAIM FORM WILL BE INVALID. If the representations and undertakings
cannot be made, please contact the Escrow Agent.
5 EXECUTION (BOX 5)
---------
Box 5 must be signed by each person who is named as a Jersey Scheme
Creditor as explained below.
Insert the date on which this Claim Form is executed. This date must
be the date on which the person who signs the Claim Form actually does
so. Where more than one person signs the Claim Form, the date inserted
should be the date on which the last person to sign the Claim Form
actually does so.
As described in the notes below, in most cases evidence of the
authority of the signatory(ies) to execute this Claim Form needs to be
submitted with the Claim Form.
COMPANIES NOT INCORPORATED IN ENGLAND AND WALES (AND
PARTNERSHIPS OR OTHER ENTITIES WHICH HAVE A SEPARATE LEGAL
PERSONALITY):
------------------------------------------------------------
Where a Jersey Scheme Creditor signing and executing Box 5 is a
company which is not incorporated in England and Wales (or a
partnership or other entity which has a separate legal personality
from its partners or members), then section (A) must be signed and
completed on behalf of that company, partnership or other entity by a
person or persons duly authorised by that company, partnership or
other entity in accordance with the laws of the territory in which
that company, partnership or other entity is incorporated or
established. The territory of incorporation or establishment must be
inserted.
The person(s) signing on behalf of the company, partnership or other
entity must submit evidence of their authority to sign as described in
the notes below.
COMPANIES INCORPORATED IN ENGLAND AND WALES:
--------------------------------------------
Where a person signing and executing Box 5 is a company
incorporated in England and Wales, then section (B) must
be executed as follows. Either:
(1) that company's seal may be affixed in accordance with the
company's articles of association. The person(s) witnessing the
affixing of the seal must also complete and sign Box 5 where
indicated; or
(2) authorised signatories of the company may sign Box 5 on behalf of
that company.
In either case, the persons signing on behalf of the company must
specify their position in that company and must submit evidence of
their authority to sign as described in the notes below.
PARTNERSHIPS ESTABLISHED IN ENGLAND AND WALES (AND OTHER PARTNERSHIPS
OR OTHER ENTITIES WHICH DO NOT HAVE A SEPARATE LEGAL PERSONALITY):
Where a Jersey Scheme Creditor signing and executing Box 5 is a
partnership established in England and Wales (or another partnership
or other entity which does not have a separate legal personality from
its partners or members), the partnership (or other entity) should
sign through one of its partners (or other representatives). If the
signing partner (or other representative) is an individual, he should
complete section (C) as an individual. If the signing partner (or
other representative) is a company or other entity, the applicable
section should be completed in the manner described above in these
notes.
The person(s) signing on behalf of the partnership (or other entity)
must submit evidence of their authority to sign as described in the
notes below.
INDIVIDUALS:
------------
Where a Jersey Scheme Creditor is an individual or individuals, that
person or persons must sign and complete Box 5, section (C).
If the person signing in section (C) as an individual is a Jersey
Scheme Creditor who is not holding a Jersey Scheme Claim solely for
his own account (for example, if he holds that Jersey Scheme Claim as
a trustee, executor or personal representative or a partner in a
partnership), evidence of his authority to sign the Claim Form must be
submitted as described in the notes below.
Even where an attorney has been appointed to sign the Claim Form in
Box 5 on behalf of a Jersey Scheme Creditor, the Jersey Scheme
Creditor must be named in Box 1.
In all cases, the attorney must submit evidence of his, her or its
authority to sign as described in the notes below.
POWERS OF ATTORNEY:
-------------------
This note applies if a person named as Jersey Scheme Creditor in Box 1
has appointed someone else to execute the Claim Form on his, her or
its behalf under a power of attorney. If the attorney so appointed is
an individual, he or she must (i) sign and complete section (C) as an
individual in the presence of a witness, as described above under
"Individuals", and (ii) when he or she prints his or her name in
section (C), also write the words "as attorney for X", X being the
name of the Jersey Scheme Creditor who has granted the power of
attorney. If the attorney so appointed is a company or a partnership
or other entity having its own legal personality, then (i) section (A)
or, as appropriate, section (B) must be completed and signed in the
manner described above, and (ii) when the name of the company (or
other entity) is inserted in section (A) or (B), the words "as
attorney for X" must be inserted, X being the name of the Jersey
Scheme Creditor who has granted the power of attorney.
Even where an attorney has been appointed to sign the Claim Form in
Box 5 on behalf of a Jersey Scheme Creditor, the Jersey Scheme
Creditor must be named in Box 1.
In all cases, the attorney must submit evidence of his, her or its
authority to sign as described in the notes below.
EVIDENCE TO BE SUBMITTED:
-------------------------
In all cases other than where an individual who signs the Claim Form
is claiming as a Jersey Scheme Creditor solely for his own account,
evidence of the authority of the signatory(ies) to execute the Claim
Form on behalf of the Jersey Scheme Creditor must be submitted with
the Claim Form.
Where the Jersey Scheme Creditor (or the person signing the Claim Form
on behalf of the Jersey Scheme Creditor) is a company, partnership or
other entity, this evidence must consist of:
(i) copies of, or extracts from, the company, partnership or entity's
constitutional documents (such as articles of association or
partnership agreement) indicating which officers or bodies of the
company, partnership or entity are authorised to execute
documents, or have the capacity to delegate authority to execute
documents, on behalf of that company, partnership or entity; and
(ii) copies of, or extracts from, minutes or resolutions of the
appropriate officers or bodies of the company, partnership or
entity, evidencing that such authority has been delegated to the
person(s) completing and signing the Claim Form on behalf of that
company, partnership or entity.
For other individuals (such as personal representatives or executors)
this evidence should show that the relevant individual is authorised
to sign the Claim Form.
Where a Jersey Scheme Creditor has appointed an attorney, a copy of
the power of attorney must be submitted with the Claim Form, together
with any other evidence of authority required to be submitted as
described in the notes above. The power of attorney must authorise the
attorney to execute this Claim Form. If the power of attorney has been
granted under English law, that power of attorney must be executed as
a deed.
Corrections and amendments:
---------------------------
IF, IN COMPLETING THIS CLAIM FORM, ANY CORRECTIONS OR AMENDMENTS,
HOWEVER MINOR, ARE MADE, EACH PERSON WHO SIGNS IN BOX 5 MUST ALSO SIGN
HIS OR HER INITIALS NEXT TO EACH CORRECTION OR AMENDMENT. NO AMENDMENT
MAY BE MADE TO THE WORDING IN BOX 4.
APPENDIX 3: NOTICE OF JERSEY MEETING
No. 2519 of 2004
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
COMPANIES COURT
AND
IN THE ROYAL COURT OF THE ISLAND OF JERSEY
(SAMEDI DIVISION)
IN THE MATTER OF TELEWEST FINANCE (JERSEY) LIMITED
AND
IN THE MATTER OF THE COMPANIES ACT 1985
IN THE MATTER OF TELEWEST FINANCE (JERSEY) LIMITED
AND
IN THE MATTER OF THE COMPANIES (JERSEY) LAW 1991
NOTICE IS HEREBY GIVEN that by an Order dated 26 April 2004 in the
above matters made by the High Court of Justice of England and Wales and by
an Act dated 27 April 2004 made by the Royal Court of the Island of Jersey
(the Courts), the Courts have directed that a meeting (the JERSEY MEETING)
be convened of the Jersey Scheme Creditors (as defined in the Explanatory
Statement referred to below (and, generally, being a person having a claim
against the aforementioned company (TELEWEST JERSEY) arising under or in
connection with notes issued by Telewest Jersey, a guarantee by Telewest
Communications plc (TELEWEST) of notes issued by Telewest Jersey and an
intercom any loan made by Telewest Jersey)) for the purpose of considering
and, if thought fit, approving (with or without modification) Schemes of
Arrangement proposed to be made between Telewest Jersey and the Jersey
Scheme Creditors (the JERSEY SCHEME) under Section 425 of the Companies Act
1985 and under Article 125 of the Companies (Jersey) Law 1991. The Jersey
Meeting will be held in London on 1 June 2004 at 10.00 a.m. (London time)
at The Lincoln Centre, 18 Lincoln's Inn Fields, London WC2A 3ED at which
place and time all the Jersey Scheme Creditors are requested to attend
either in person or by proxy. Registration will commence at 9.00 a.m.
(London time).
Jersey Scheme Creditors may vote in person at the Jersey Meeting or
they may appoint another person, whether a Jersey Scheme Creditor or not,
as their proxy to attend and vote in their place. Jersey Scheme Creditors
are requested to submit their form of proxy in accordance with the details
set out in the form of proxy included with the Explanatory Statement.
Jersey Bondholders who are beneficial owners of the relevant notes of
Telewest Jersey held through the Depository Trust Company (DTC) or through
Euroclear or Clearstream are requested to submit their form of proxy to
their relevant DTC, Euroclear or Clearstream participant in accordance with
the instructions in the Explanatory Statement.
The text of the Jersey Scheme document and of the Explanatory
Statement required to be furnished pursuant to Section 426 of the Companies
Act 1985 and Article 126 of the Companies (Jersey) Law 1991 are
incorporated in the Explanatory Statement of which this notice forms a
part. Additional copies of such Explanatory Statement are available to
Jersey Scheme Creditors on request by contacting Innisfree M&A Incorporated
on 877 750 2689 (from the US), 0800 917 2009 (from the UK) or +1 412 209
1704 (from outside the US). A blank form of proxy is enclosed with the
Explanatory Statement and further copies can be obtained from the Telewest
website (www.telewest.co.uk).
It is requested that forms of proxy be lodged with Telewest Jersey,
c/o Innisfree M&A Incorporated at 501 Madison Avenue, 20th Floor, New York,
NY 10022 by no later than 7.00 p.m. (prevailing Eastern time) on 27 May
2004, but if forms are not so lodged they may be accepted at the discretion
of the Chauman at any time prior to the Jersey Meeting.
By the Order and Act, the Courts have appointed Mr. Anthony Stenham
or, failing him Mr. Stephen Cook, to act as Chairman of the Jersey Meeting
and have directed the Chairman to report the results thereof to the
respective Courts.
The Jersey Scheme will be subject to the subsequent sanction of the
Courts. All Jersey Scheme Creditors are entitled to attend the court
hearings for sanction in person or by counsel to support or oppose the
sanction of the Jersey Scheme. The hearings are expected to take place at
the Royal Courts of Justice and the Royal Court of the Island of Jersey in
the week commencing 14 June 2004. The exact date of such hearings will be
announced on a Regulatory Information Service and on Telewest's website at
least two business days in advance of such hearings.
DATED 30 April 2004
Telewest Finance (Jersey) Limited
Whiteley Chambers
Don Street
St Helier
Jersey
Channel Islands