AMENDMENT NO. 1 TO
SHARE EXCHANGE AGREEMENT
Amendment No. 1, dated as of December 21, 1998 (the "Amendment"), to the
Share Exchange Agreement, dated as of June 16, 1998 (the "Share Exchange
Agreement"), among NTL Incorporated ("NTL") and the shareholders of Diamond
Cable Communications plc ("Diamond").
W I T N E S S E T H:
WHEREAS, on June 16, 1998, the parties hereto entered into the Share
Exchange Agreement; and
WHEREAS, the parties hereto now desire to amend certain provisions of the
Share Exchange Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 1.2 of the Share Exchange Agreement is hereby amended in its
entirety to read as follows:
Section 1.2 Consideration for Shares. Upon the terms and subject to
the conditions contained herein, as consideration for the acquisition of
the Shares, on the Closing Date, NTL shall transfer to each Transferor
consideration consisting of one share of common stock, par value $.01 per
share, of NTL (the "NTL Common Stock") for (i) each deferred share in
Diamond and (ii) each four ordinary shares in Diamond; provided, however,
that such consideration shall be adjusted as follows: (A) if the Closing
Date shall have occurred within four months of the date hereof, and the NTL
Average Stock Price is $52.00 (the "Maximum Average Stock Price") or more,
then the consideration for each four ordinary shares shall be the number of
shares of NTL Common Stock equal in value (at the NTL Average Stock Price)
to the Maximum Average Stock Price; (B) if the Closing Date shall have
occurred after the four month anniversary date of the date hereof and prior
to February 1, 1999, then the Maximum Average Stock Price shall increase by
$.50 on the four month anniversary date of the date hereof and on each
subsequent monthly anniversary date thereof until the Closing Date; and (C)
if the Closing Date shall have occurred on February 1, 1999 or thereafter,
the Maximum Average Stock Price shall be $65.00.
2. Section 5.3(b) of the Share Exchange Agreement is hereby amended in its
entirety to read as follows:
(b) With respect to the NTL Options issued as contemplated in
paragraph (a), 100% of each holder's NTL Options shall be exercisable from
the Closing Date. Further, such NTL Options shall also be exercisable in
full in the event that the holder of a Stock Option ceases to be an
employee or director of any company in the NTL or Diamond group, except if
such employee is dismissed as a result of his or her gross misconduct in
circumstances entitling the NTL or Diamond group summarily to dismiss the
employee without prior notice under such employee's or director's service
agreement and applicable law.
3. Section 5.8 of the Share Exchange Agreement is hereby amended in its
entirety to read as follows:
Section 5.8 Covenant of NTL. As promptly as practicable after the date
of the Amendment, NTL shall take all necessary actions to convene a special
meeting of its shareholders to authorize the transaction contemplated
hereby.
4. Section 6.1(c) of the Share Exchange Agreement is hereby amended in its
entirety to read as follows:
(c) NTL Shareholders' Approval. A resolution shall have been passed at
a special meeting of shareholders of NTL, convened after proper notice to,
and/or waiver of such notice by, the shareholders, with a quorum of the
shareholders present or represented, to approve the transactions
contemplated hereby.
5. Section 7.1(b)(i) of the Share Exchange Agreement is hereby amended in
its entirety as follows:
(i) if the Closing shall not have been consummated by April 30, 1999
(the "End Date"), except if such failure is due to a material breach of
this Agreement by the party seeking to terminate;
6. Unless otherwise specifically defined herein, each term used herein
which is defined in the Share Exchange Agreement shall have the meaning assigned
to such term in the Share Exchange Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each similar reference contained in the Share
Exchange Agreement shall from and after the date hereof refer to the Share
Exchange Agreement as amended hereby.
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7. This Amendment shall be governed by, and construed in accordance with,
the laws of the State of New York, regardless of the laws that might otherwise
govern under applicable principles of conflict of laws thereof.
8. This Amendment may be executed in one or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other parties.
9. Except as amended hereby, all of the terms of the Share Exchange
Agreement shall remain and continue in full force and effect and are hereby
confirmed in all respects.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
NTL INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
MAJORITY TRANSFERORS:
EUROPEAN CABLE CAPITAL
PARTNERS, L.P.
By: /s/ Xxxxxxx X'Xxxxx
Name: Xxxxxxx X'Xxxxx
Title:
GS CAPITAL PARTNERS, L.P.
By: /s/ Xxxxxxx X'Xxxxx
Name: Xxxxxxx X'Xxxxx
Title:
STONE STREET FUND 1996, L.P.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title:
BOOTH ENGLISH CABLE, INC.
By: /s/ Xxxxx X. Xxxxx, XX
Name: Xxxxx X. Xxxxx, XX
Title: President
BRIDGE STREET FUND 1996, L.P.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title:
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