EXHIBIT 4.25
CONFORMED COPY
NOVATION AND AMENDMENT DEED
DATED 26TH MARCH, 2003
BETWEEN
MARCONI PLC
MARCONI CORPORATION PLC
MARCONI (BRUTON STREET) LIMITED
AND
FINMECCANICA S.P.A.
IN RESPECT OF AN AGREEMENT FOR THE SALE AND PURCHASE
OF THE ENTIRE ISSUED SHARE CAPITAL OF MMH
DATED AS OF 2ND AUGUST 2002
ALLEN & OVERY
London
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.................................... 1
2. Representations and Warranties.................................... 2
3. Novation.......................................................... 2
4. Agreement Amendment............................................... 3
5. Notices........................................................... 4
6. Counterparts...................................................... 4
7. Third Parties..................................................... 4
8. Governing law..................................................... 4
THIS DEED is made on 26th March, 2003
BETWEEN:
(1) MARCONI PLC, having its registered office at New Century Park, PO Box
53, Coventry CV3 1HJ, England (EXISTING GUARANTOR);
(2) MARCONI CORPORATION PLC, having its registered office at New Century
Park, PO Box 53, Coventry CV3 1HJ, England (NEW GUARANTOR);
(3) MARCONI (BRUTON STREET) LIMITED, having its registered office at New
Century Park, PO Box 53, Coventry CV3 1HJ, England (MARCONI); and
(4) FINMECCANICA S.P.A., having its registered office at Piazza Monte
Grappa 4, Rome, Italy (the PURCHASER).
WHEREAS
(A) By an agreement dated 2nd August 2002 between the Existing Guarantor,
Marconi and the Purchaser (the AGREEMENT), Marconi agreed to sell and
transfer, and the Purchaser agreed to purchase, the MMH Shares. In
accordance with clause 12 of the Agreement, the Existing Guarantor
unconditionally and irrevocably (i) guaranteed to the Purchaser the
full, due and punctual payment and observation by Marconi of all its
obligations under the Agreement and the Share Purchase Documents to
which Marconi was a party and (ii) indemnified the Purchaser
immediately on demand against any cost, loss or liability suffered by
it if any obligation guaranteed by it is or becomes unenforceable,
invalid or illegal.
(B) The Marconi Corporate Restructuring (as defined in sub-clause 12.7 of
the Agreement) will be effected, as from the Effective Time, pursuant
to the New Guarantor Scheme (as such terms are defined below).
(C) In accordance with sub-clause 12.7 of the Agreement, the parties have
agreed that with effect from the Effective Time, the Existing Guarantor
(upon ceasing to be the ultimate parent company of the Marconi Group)
shall be released from, and the New Guarantor shall assume, the
Existing Guarantor's rights, obligations, duties and liabilities under
the Agreement, on the terms and subject to the conditions hereinafter
provided.
(D) The Existing Guarantor, the New Guarantor, Marconi and the Purchaser
have agreed to enter into this Deed novating and amending the
Agreement.
In consideration of the provisions and mutual covenants contained in this Deed
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by each of the parties hereto,
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Deed the following expressions shall have the following
meanings:
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EFFECTIVE TIME means for the purposes of this Deed in relation to the
New Guarantor Scheme the date upon which an office copy of the order of
the High Court of England and Wales sanctioning that New Guarantor
Scheme shall have been delivered to the Registrar of Companies for
registration.
NEW GUARANTOR SCHEME means the proposed scheme of arrangement in
respect of the New Guarantor pursuant to section 425 of the Companies
Act 1985 (as amended) to be sanctioned on or around May 2003.
NOVATED AGREEMENT shall mean the AGREEMENT as novated, amended and
supplemented by this Deed.
REGISTRAR OF COMPANIES means the registrar or other officer performing
under the Companies Act 1985 (as amended) the duty of registration of
companies in England and Wales including a deputy registrar.
1.2 In this Deed, unless the contrary appears, a reference to:
(a) PARTY is a party to this Deed;
(b) a person includes its successors and assigns;
(c) a provision of law is a reference to that provision as amended
or re-enacted; and
(d) a time of day is a reference to London time.
1.3 Unless the contrary intention appears a term defined in the Agreement
has the same meaning where used in this Deed.
1.4 The clause and sub-clause headings in this Deed are for convenience
only and are to be ignored in construing this Deed.
2. REPRESENTATIONS AND WARRANTIES
2.1 The New Guarantor represents and warrants to the Purchaser on the terms
set out in the Schedule to this Deed as at the Effective Time, by
reference to the circumstances then existing.
2.2 The Existing Guarantor warrants, for the benefit of the New Guarantor,
that save in relation to claims already notified to it by the
Purchaser, it is not aware of any claim (actual or threatened) by the
Purchaser against the Existing Guarantor under the Agreement.
2.3 In consideration for the representations and warranties given by the
New Guarantor in sub-clause 2.1 above, with effect from the Effective
Time, the parties agree that the New Guarantor shall have no liability
in respect of the Warranties given under paragraph 1 of schedule 4 of
the Agreement in respect of the Existing Guarantor.
2.4 The representations and warranties set out in sub-clause 2.1 above
shall survive the execution and delivery of this Deed.
3. NOVATION
3.1 With effect from the Effective Time:
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(a) the Existing Guarantor is released and discharged from its
obligations, duties and liabilities under the Agreement;
(b) the Existing Guarantor agrees that it has no rights under the
Agreement;
(c) the New Guarantor agrees to (i) assume the rights,
obligations, duties and liabilities of the Existing Guarantor
under the Agreement and (ii) perform all the obligations of
the Existing Guarantor under the Agreement in favour of the
Purchaser as if the New Guarantor had been a party to the
Agreement in place of the Existing Guarantor;
(d) the parties consent to and accept the assumption by the New
Guarantor of the Existing Guarantor's rights, obligations,
duties and liabilities under the Agreement and the release and
discharge of the Existing Guarantor from its obligations,
duties and liabilities under the Agreement;
(e) each of the other parties to the Novated Agreement agrees with
the New Guarantor to perform its obligations under the
Agreement (as amended and supplemented by this Deed) in favour
of the New Guarantor,
each of the foregoing events and agreements being conditional on, and
taking effect simultaneously with, the others.
3.2 With effect from the Effective Time, the New Guarantor hereby agrees
that all of the Purchaser's rights, claims, actions, demands and
proceedings whatsoever and howsoever arising out of or in respect of
the Share Purchase Documents, (including any such accrued rights which
have arisen against the Existing Guarantor prior to the Effective Time,
and any such rights arising against the New Guarantor after the
Effective Time) shall be enforceable by the Purchaser against the New
Guarantor.
3.3 Notwithstanding clause 3.1 above, the Existing Guarantor and the New
Guarantor are each released from any obligations under the Novated
Agreement to the extent that such obligations have been fully
performed, satisfied or otherwise fully complied with in accordance
with the Agreement by the Existing Guarantor as at the Effective Time.
4. AGREEMENT AMENDMENT
4.1 With effect from the Effective Time the Agreement will be amended as
follows:
(a) the expression "MARCONI PLC" wherever it appears in the
Agreement will be deleted and replaced with "MARCONI
CORPORATION PLC";
(b) where the context so permits, the expression "THIS AGREEMENT"
wherever it appears in the Agreement shall be treated as
though it referred to the Novated Agreement;
(c) for the purposes of sub-clause 18.4 of the Agreement, the
address details for the New Guarantor shall be as follows:
Name of party Addressee Address Facsimile No. E-mail address
Marconi The Company 4th Floor, +44 20 7306 1395 Mary.Skelly@
Corporation plc Secretary Regents Place,
338 Euston Rd, marconi.com
London NW1 3BT,
England
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4.2 The parties agree that, with effect from the Effective Time the
Agreement is novated and constitutes an agreement between New Guarantor
(as guarantor), Marconi and the Purchaser on the terms and conditions
of the Novated Agreement. In particular, the New Guarantor shall
perform all the guarantee and indemnification obligations in favour of
the Purchaser under sub-clauses 12.1 to 12.6 of the Novated Agreement.
4.3 Save as amended hereby, the Agreement as novated remains in full force
and effect.
5. NOTICES
All notices under or in connection with this Deed will, unless
otherwise stated, be given in accordance with the Novated Agreement.
6. COUNTERPARTS
This Deed may be executed in any number of counterparts, and by the
parties on separate counterparts. Each counterpart shall constitute an
original of this Deed, and the counterparts together shall constitute
one and the same document.
7. THIRD PARTIES
A person who is not a party to this Deed has no rights under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of
this Deed, but this does not affect any right or remedy of a third
party which exists or is available apart from that Act.
8. GOVERNING LAW
This Deed shall be governed by and construed in accordance with English
law. Any disputes that may arise out of or in connection with this Deed
will settled by arbitration as provided in clause 28 of the Novated
Agreement.
IN WITNESS of which this deed has been executed and has been delivered on the
date stated at the beginning of this Deed.
EXISTING GUARANTOR
EXECUTED as a deed by ) C. HOLDEN
Marconi plc ) Director
acting by C. HOLDEN ) M. SKELLY
and M. SKELLY ) Director/Secretary
NEW GUARANTOR
EXECUTED as a deed by ) C. HOLDEN
Marconi Corporation plc ) Director
acting by C. HOLDEN ) M. SKELLY
and M. SKELLY ) Director/Secretary
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MARCONI
EXECUTED as a deed by ) C. DONALDSON
Marconi (Bruton Street) Limited ) Director
Acting by C. ) M. SKELLY
DONALDSON ) Director/Secretary
and M. SKELLY
PURCHASER
EXECUTED as a deed by ) M. ORLANDO
Finmeccanica S.p.A ) Director
acting by M. ORLANDO ) V. SICA
and V. SICA ) Director/Secretary
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SCHEDULE 1
WARRANTIES
(a) The New Guarantor is duly incorporated and validly existing
under the laws of England, and has the requisite power and
authority to enter into and perform its obligations under this
Deed and the Novated Agreement.
(b) This Deed and the Novated Agreement constitute binding
obligations of the New Guarantor.
(c) The execution and delivery of this Deed, and the performance
by the New Guarantor of its obligations under this Deed and
the Novated Agreement will (or with the giving of notice or
lapse of time or both would) not:
(i) result in a breach of any provision of the memorandum
or articles of association of the New Guarantor; or
(ii) result in a breach of any order, judgment or decree
of any court or governmental agency to which the New
Guarantor is a party or by which the New Guarantor is
bound or of any other contractual commitment to which
the New Guarantor is a party.
(d) The New Guarantor has full knowledge of the Agreement and is
fully aware of its terms and conditions, in particular of the
provisions contained in sub-clauses 12.1 to 12.6 thereof which
constitute the Marconi Guarantee .
(e) The New Guarantor shall be immediately after the Effective
Time, the ultimate parent company of the Marconi Group and the
company owning (directly or indirectly as a result of its
direct or indirect shareholdings in the members of the Marconi
Group) all or substantially all of the assets of the Marconi
Group.
(f) Each of Marconi and the Existing Guarantor have not assigned
or transferred any of their respective benefits or obligations
under any of the Share Purchase Documents to which they are a
party.
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