Virgin Entertainment Investment Holdings Ltd. Craigmuir Chambers Road Town Tortola British Virgin Islands Fax +1 284 494 2233 Copy: RBC Secretaries (CI) Limited La Motte Chambers La Motte Street St Helier JE1 1BJ Jersey Attention: Paul Fauvel Fax...
Exhibit 99.15
10
December 2009
Xxxxxxxxx
Xxxxxxxx
X.X. Xxx
00
Xxxx
Xxxx
Xxxxxxx
Xxxxxxx
Xxxxxx Xxxxxxx
Fax x0
000 000 0000
Copy:
RBC
Secretaries (CI) Limited
La Xxxxx
Xxxxxxxx
Xx Xxxxx
Xxxxxx
Xx
Xxxxxx
XX0
0XX
Jersey
Attention:
Xxxx Xxxxxx
Fax 00000
000 000
Deutsche
Bank AG, acting through its London branch
Dear Sir
or Madam,
The
purpose of this letter agreement (this “Confirmation”) is to confirm
the terms and conditions of the Transaction entered into between us on the Trade
Date specified below (the “Transaction”). This
Confirmation constitutes a “Confirmation” as referred to in the Agreement
specified below.
In this
Confirmation, “DB” means
Deutsche Bank AG, acting through its London branch and “Counterparty” means Virgin
Entertainment Investment Holdings Ltd.
1.
|
The
definitions and provisions contained in the 2006 ISDA Definitions (the
“2006
Definitions”) and the 2002 ISDA Equity Derivatives Definitions (the
“2002 Definitions”
and, together with the 2006 Definitions, the “Definitions”), each as
published by the International Swaps and Derivatives Association, Inc.
(“ISDA”), are
incorporated into this Confirmation. In the event of any
inconsistency between the 2006 Definitions and the 2002 Definitions, the
2002 Definitions will govern. In the event of any inconsistency
between the Definitions and this Confirmation, this Confirmation will
govern. The Transaction shall be deemed to be a Share Forward Transaction
within the meaning set forth in the 2002
Definitions.
|
This
Confirmation supplements, forms part of, and is subject to, the ISDA
2002 Master Agreement dated as of 10 December, 2009, as amended and supplemented
from time to time (the “Agreement”),
between
you and
us which by its terms shall apply only to the Transaction and not to any other
transaction between the parties. All provisions contained in the Agreement
govern this Confirmation except as expressly modified below.
If there
exists any ISDA Master Agreement between DB and Counterparty or any confirmation
or other agreement between DB and Counterparty pursuant to which an ISDA Master
Agreement is deemed to exist between DB and Counterparty, then notwithstanding
anything to the contrary in such ISDA Master Agreement, such confirmation or
agreement or any other agreement to which DB and Counterparty are parties, this
Transaction shall not be considered a Transaction under, or otherwise governed
by, such existing or deemed ISDA Master Agreement.
2.
|
The
terms of the particular Transaction to which this Confirmation relates are
as follows:
|
General Terms:
|
Trade
Date:
|
10
December, 2009
|
|
Seller:
|
Counterparty
|
|
Buyer:
|
DB
|
|
Shares:
|
Common
stock of Virgin Media Inc. (the “Issuer”) (Exchange
Symbol: “VMED”).
|
|
Number
of Shares:
|
6,419,549
|
|
Prepayment:
|
Applicable
|
Conditions
to DB’s Obligation
|
||
|
to
Pay Prepayment Amount:
|
It
shall be a condition to DB’s obligation to pay any Prepayment Amount
hereunder on any Prepayment Date that Counterparty shall have performed
its obligations under paragraph 3 (Other Provisions), “Agreements to
Deliver Documents,” below and the Credit Support
Deed.
|
|
Prepayment
Amount:
|
As
of the Prepayment Date, the present value of the result of:
(A)
the Forward Floor Price multiplied by the Number of Shares;
minus
(B)
USD 9,094,000,
where
this present value is calculated by the Calculation Agent using a discount
rate equal to the Interpolated LIBOR Rate for a period equivalent to the
remaining term of this Transaction
|
|
Interpolated
LIBOR Rate:
|
A
discount rate equal to (i) for any period of 6 months or less, the rate
determined by the Calculation Agent using USD-LIBOR-BBA for the Designated
Maturity of such period, and,
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2
|
|
if
appropriate, using linear interpolation between USD-LIBOR-BBA for the
Designated Maturity that corresponds most closely to, but is longer than,
such period, and USD-LIBOR-BBA for the Designated Maturity that
corresponds most closely to, but is shorter than, such period, or (ii) for
any period of more than 6 months, the rate determined by the Calculation
Agent using linear interpolation between the 1 year “offer side” U.S.
Dollar Swap rate as shown for Bloomberg ticker "USSW1 Index" (or any
successor or replacement ticker ) and 6 month
USD-LIBOR-BBA.
|
|
Prepayment
Date:
|
The
earlier of:
|
|
(i)
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the
date specified by Counterparty to DB by written notice, such notice to be
delivered to DB not less than two (2) Business Days prior to such
specified date; and
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|
(ii)
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the
Settlement Date.
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Variable
Obligation:
|
Applicable
|
|
Forward
Floor Price:
|
USD
14.918
|
|
Forward
Cap Price:
|
USD
21.548
|
|
Exchange:
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NASDAQ
Global Select Market
|
|
Related
Exchange(s):
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NASDAQ
Global Select Market, Chicago Board Options Exchange, Philadelphia Stock
Exchange, American Stock Exchange, Pacific Stock Exchange, Boston Stock
Exchange and International Securities
Exchange
|
Valuation:
|
Valuation
Date:
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10
December, 2010
|
|
Market
Disruption Event:
|
Section
6.3(a) of the 2002 Definitions is hereby amended by deleting the words
“during the one hour period that ends at the relevant Valuation Time” and
replacing them with “on the relevant date prior to the relevant Valuation
Time” in clause (ii) thereof.
|
|
Relevant
Price:
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The
‘Volume Weighted Average Price’ per Share on each Averaging Date with
respect to the period from 9:30 a.m. to 4:00 p.m. (New York City time), as
determined by the Calculation Agent by reference to the Bloomberg Page
|
3
|
|
‘VMED
Q <Equity> AQR <Go>’ (or any successor thereto) on such
Averaging Date.
|
|
Averaging
Dates:
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Each
of the 20 Scheduled Trading Days from and including the date falling 19
Scheduled Trading Days prior to the Valuation Date to and including the
Valuation Date.
|
|
Averaging
Date Disruption:
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Modified
Postponement
|
Settlement
Terms:
|
Settlement
Method Election:
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Applicable
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Electing
Party:
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Counterparty
|
|
Settlement
Method
|
|
Election
Date:
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The
date that is 25 Scheduled Trading Days prior to the first Averaging
Date
|
|
Default
Settlement Method:
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Cash
Settlement
|
|
Settlement
Price:
|
An
amount equal to the arithmetic mean of the Relevant Prices on each
Averaging Date.
|
|
Settlement
Currency:
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USD
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Dividends:
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Extraordinary
Dividend:
|
Any
dividend or distribution on the Shares (other than any dividend or
distribution of the type described in Section 11.2(e)(i) or Section
11.2(e)(ii)(A), (B) (C) or (D) of the 2002 Definitions) the amount or
value of which differs in amount from the Ordinary Dividend Amount (by
virtue of being a greater amount) for such dividend or distribution (and,
therefore, the amount of any such Extraordinary Dividend being the
difference in value between the gross dividend or distribution and the
related gross Ordinary Dividend Amount). On the ex-dividend date for any
Extraordinary Dividend, Counterparty shall pay to DB an amount calculated
by the Calculation Agent equal to the aggregate Extraordinary Dividend in
respect of the number of Shares which DB is theoretically deemed to be
short in respect of this Transaction as of the relevant ex-dividend date
(such amount, the “Delta
Hedge Extraordinary
Dividends”).
|
|
Ordinary
Dividend Amount:
|
USD
0.04 per Share for the first dividend or distribution on the Shares for
which the ex-dividend date falls within a regular quarterly dividend
period of the Issuer, and zero for
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4
|
|
any
subsequent dividend or distribution on the Shares for which the
ex-dividend date falls within the same regular quarterly dividend period
of the Issuer.
|
|
Excess
Dividend Amount:
|
For
the avoidance of doubt, all references to the Excess Dividend Amount shall
be deleted from Section 8.4(b) and 9.2(a)(iii) of the 2002
Definitions.
|
Share
Adjustments:
Potential
Adjustment Events:
|
If
an event occurs that constitutes both a Potential Adjustment Event under
Section 11.2(e)(ii)(C) of the 2002 Definitions and a Spin-off as described
below, it shall be treated hereunder as a Spin-off and not as a Potential
Adjustment Event.
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Method
of Adjustment:
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Calculation
Agent Adjustment, provided, however, that
in the case of an Extraordinary Dividend no adjustment will be made to
this Transaction to account for such Extraordinary
Dividend.
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Spin-off:
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A
distribution of New Shares (the “Spin-off Shares”) of a
subsidiary of the Issuer (the “Spin-off Issuer”) to
holders of the Shares (the “Original
Shares”). With respect to a Spin-off, “New Shares” shall have the
meaning provided in Section 12.1(i) of the 2002 Definitions except that
the phrase immediately preceding clause (i) thereof shall be replaced by
the following: “‘New Shares” means ordinary
or common shares of the Spin-off Issuer that are, or that as of the
ex-dividend date of such Spin-off are scheduled promptly to
be,”.
|
|
Consequences
of Spin-offs:
|
As
of the ex-dividend date of a Spin-off, (i) “Shares” shall mean the
Original Shares and the Spin-off Shares; (ii) the Transaction shall
continue but as a Share Basket Forward Transaction with a Number of
Baskets equal to the Number of Shares prior to such Spin-off, and each
Basket shall consist of one Original Share and a number of Spin-off Shares
that a holder of one Original Share would have been entitled to receive in
such Spin-off; and (iii) the Calculation Agent shall make such adjustments
to the exercise, settlement, payment or any other terms of the Transaction
as the Calculation Agent determines appropriate to account for the
economic effect on the Transaction of such Spin-off (provided that no
adjustments will be made to account solely for changes in volatility,
expected dividends, stock loan rate or liquidity relevant to the Shares or
to the Transaction), which may, but need not, be determined by reference
to the adjustment(s) made in respect of such Spin-off by an options
exchange to options on the Shares traded on such options
exchange. As of the ex-dividend date of any subsequent
Spin-off, the Calculation
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5
Agent
shall make adjustments to the composition of the Basket and other terms of
the Transaction in accordance with the immediately preceding
sentence.
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Extraordinary
Events:
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New
Shares
|
In
the definition of New Shares in Section 12.1(i) of the 2002 Definitions,
the text in clause (i) shall be deleted in its entirety and replaced with
“publicly quoted, traded or listed on any of the New York Stock Exchange,
the American Stock Exchange, the NASDAQ Global Select Market or the London
Stock Exchange (or their respective
successors).”
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Consequences
of Merger Events:
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Share-for-Share:
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Calculation
Agent Adjustment
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Share-for-Other:
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Cancellation
and Payment
|
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Share-for-Combined:
|
Component
Adjustment
|
Composition
of
|
||
|
Combined
Consideration:
|
Not
Applicable
|
|
Tender
Offer:
|
Applicable
|
|
Consequences
of Tender Offers:
|
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Share-for-Share:
|
Calculation
Agent Adjustment
|
|
Share-for-Other:
|
Calculation
Agent Adjustment
|
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Share-for-Combined:
|
Calculation
Agent Adjustment
|
Nationalization,
Insolvency
|
or
Delisting:
|
Cancellation
and Payment. Notwithstanding Section 12.6(c)(ii) of the 2002
Definitions, Cancellation and Payment shall mean that the Transaction
shall be cancelled as of the Announcement Date, provided that Counterparty
may, by notice to DB on the first Business Day after the Announcement
Date, elect to deliver, in lieu of paying the Cancellation Amount, a
number of Shares equal to the Number of Shares on the second Business Day
after the Announcement Date. For the avoidance of doubt, the
Cancellation and Payment as described in this paragraph shall only apply
as a consequence of Nationalization, Insolvency or
Delisting.
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Additional
Disruption Events:
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6
|
Change
in Law:
|
Applicable
|
|
Failure
to Deliver:
|
Applicable
|
|
Insolvency
Filing:
|
Applicable
|
|
Hedging
Disruption:
|
Not
Applicable
|
|
Increased
Cost of Hedging:
|
Not
Applicable
|
|
Loss
of Stock Borrow:
|
Applicable,
and, for the avoidance of doubt, for purposes of determining any
Cancellation Amount payable as the result of a Loss of Stock Borrow, the
Determining Party may take into account any amounts payable by the Hedging
Party under any buy-in provisions contained in any securities loan
agreements governing loans of Shares borrowed in respect of the
Transaction. Further, any Shares forming part of the
Posted Collateral (as defined in the Credit Support Document) in respect
of which the Hedging Party has exercised its Right of Use pursuant to
Paragraph 6(c) of the Credit Support Document (as amended by Paragraph 13)
shall be deemed to be Shares “borrowed” by the Hedging Party for the
purposes of this Additional Disruption
Event.
|
|
Maximum
Stock Loan Rate:
|
0.4%
|
|
Increased
Cost of Stock Borrow:
|
Not
Applicable
|
|
Hedging
Party:
|
DB
|
|
Determining
Party:
|
DB
|
|
Non-Reliance:
|
Applicable
|
Agreements
and Acknowledgments
|
||
|
Regarding
Hedging Activities:
|
Applicable
|
|
Additional
Acknowledgments:
|
Applicable
|
Account
Details:
|
Payments
to DB:
|
To
be advised under separate cover prior to the Trade
Date
|
|
Payments
to Counterparty:
|
To
be advised under separate cover prior to the Trade
Date
|
|
Delivery
of Shares to DB:
|
To
be advised under separate cover prior to the Trade
Date
|
7
|
Office:
|
DB
is acting through its London Office for the purposes of the Transaction;
neither party is a Multibranch
Party.
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|
Calculation
Agent:
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DB.
|
3. Other
Provisions:
Optional Early Termination by
Counterparty:
At any
time, Counterparty may terminate the Transaction in whole or in part upon twenty
(20) Exchange Business Days’ prior written notice to DB (the termination date
specified in such notice, the “Optional Termination Date”);
provided, that Counterparty is not on the date of such notice in possession of
any material non-public information relating to the Shares or the
Issuer. If Counterparty terminates the Transaction in part,
Counterparty shall specify in the notice of optional early termination, the
number of Shares with respect to which the Transaction is to be
terminated.
If
Counterparty notifies DB that it wishes to terminate the Transaction in whole or
in part, DB shall provide Counterparty with a price (the “Optional Termination Price”)
for such optional early termination which shall be calculated by DB (acting in
good faith and in a commercially reasonable manner) as the amount equivalent to
(a) the cost to DB of unwinding the derivative embedded in the Transaction
(taking into account, for the avoidance of doubt, the Prepayment Amount or, in
the case of partial early termination, the relevant pro rata portion thereof)
and (b) the cost to DB of unwinding its Hedge Positions in the market or
otherwise on or prior to the Optional Termination Date. If
Counterparty accepts the Optional Termination Price quoted by DB, the
Transaction will terminate on the Optional Termination Date and Counterparty
shall make a cash payment to DB (or vice versa, as the case may
be) on the Optional Termination Date in an amount equal to the Optional
Termination Price.
If
Counterparty terminates the Transaction in part, the Number of Shares shall be
reduced by such number of Shares with respect to which such Transaction has been
terminated.
For the
avoidance of doubt, the termination of the Transaction on the Optional
Termination Date as specified above, unless otherwise agreed by the parties,
shall not extinguish any payment rights and obligations of the parties which
were due and payable prior to the Optional Termination Date and have not yet
been satisfied pursuant to the Agreement.
Additional Representations and
Warranties:
Counterparty
hereby represents and warrants to DB as of the Trade Date that:
1.
|
Neither
Counterparty nor any entity which beneficially owns (within the meaning of
Rule 13d-3(a) of the U.S. Securities and Exchange Act of 1934, as amended
(the “Exchange
Act”)) substantially all of the Counterparty’s outstanding voting
securities, is organized or incorporated under the laws of the United
States. The person making the investment decision and/or
placing the order for the Transaction on behalf of Counterparty is not
located in the United States.
|
2.
|
From
the three months prior to the Trade Date, neither Counterparty nor any
person who would be considered to be the same “person” as Counterparty or
“acting in concert” with Counterparty (as such terms are used in clauses
(a)(2) and (e)(3)(vi) of Rule 144 under the U.S. Securities Act of 1933,
as amended (the “Securities Act”)) has,
without the written consent of DB, sold any Shares or hedged (through
swaps, options, short sales or otherwise) any long position in the
Shares. Counterparty does not know or have any reason to
believe that the Issuer has not complied with the reporting requirements
contained in Rule 144(c)(1) under the Securities
Act.
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8
3.
|
Counterparty
is not, on the Trade Date, in possession of any material non-public
information regarding the Shares or the Issuer. None of the
transactions contemplated herein will violate any corporate policy of the
Issuer or other rules or regulations of the Issuer applicable to
Counterparty or its affiliates, including, but not limited to, the
Issuer’s window period policy.
|
4.
|
Counterparty
has filed, in the manner contemplated by Rule 144(h) under the Securities
Act, a notice on Form 144 relating to the Transaction contemplated hereby
in form and substance that DB has informed Counterparty is acceptable to
DB.
|
5.
|
Counterparty
acquired the Posted Collateral in the form of Shares on 4 July,
2006. Counterparty agrees that Counterparty has not (i) created
or permitted to exist any lien, mortgage, interest, pledge, charge or
encumbrance of any kind (other than the security interest created by the
Credit Support Deed) (a “Lien”) or any Transfer
Restriction (other than the Existing Transfer Restrictions, as defined
below) upon or with respect to the Posted Collateral in the form of
Shares, (ii) sold or otherwise disposed of, or granted any option with
respect to, any of the Posted Collateral in the form of
Shares or (iii) entered into or consented to any agreement
(other than the Right of Use as set out in Paragraph 13(h) of the Credit
Support Deed and, in the case of clause (x), this Confirmation) (x) that
restricts in any manner the rights of any present or future owner of any
Posted Collateral in the form of Shares with respect thereto or
(y) pursuant to which any person other than Counterparty, DB and any
securities intermediary through whom any of the Posted Collateral in the
form of Shares is held (but in the case of any such securities
intermediary only in respect of Posted Collateral in the form of Shares
held through it) has or will have Control in respect of any Posted
Collateral in the form of Shares. “Control” means “control”
as defined in Section 8-106 and 9-106 of the Uniform Commercial Code as in
effect in the State of New York (“UCC”).
“Transfer Restriction”
means, with respect to any item of Posted Collateral, any condition to or
restriction on the ability of the owner thereof to sell, assign or
otherwise transfer such item of Posted Collateral or enforce the
provisions thereof or of any document related thereto whether set forth in
such item of collateral itself or in any document related thereto,
including, without limitation, (i) any requirement that any sale,
assignment or other transfer or enforcement of such item of Posted
Collateral be consented to or approved by any Person, including, without
limitation, the issuer thereof or any other obligor thereon, (ii) any
limitations on the type or status, financial or otherwise, of any
purchaser, pledgee, assignee or transferee of such item of Posted
Collateral, (iii) any requirement of the delivery of any certificate,
consent, agreement, opinion of counsel, notice or any other document of
any Person to the issuer of, any other obligor on or any registrar or
transfer agent for, such item of Posted Collateral, prior to the sale,
pledge, assignment or other transfer or enforcement of such item of Posted
Collateral and (iv) any registration or qualification requirement or
prospectus delivery requirement for such item of Posted Collateral
pursuant to any federal, state or foreign securities law (including,
without limitation, any such requirement arising under Section 5 of the
Securities Act as a result of Counterparty being an “affiliate” of the
issuer of such security, as such term is defined in Rule 144 under the
Securities Act, or as a result of the sale of such security being subject
to paragraph (c) of Rule 145 under the Securities
Act); provided that the required delivery of any assignment,
instruction or entitlement order from
|
9
the
seller, Counterparty, assignor or transferor of such item of Posted
Collateral, together with any evidence of the corporate or other authority
of such Person, shall not constitute a “Transfer
Restriction”.
“Existing Transfer
Restrictions” means Transfer Restrictions existing with respect to
any securities by virtue of the fact that (i) Counterparty is an
“affiliate”, within the meaning of Rule 144 under the Securities Act, of
the Issuer, (ii) the items of Posted Collateral in the form of Shares were
acquired by the Counterparty in a transaction within the meaning of Rule
145 of the Securities Act and (iii) the items of Posted Collateral in the
form of Shares were formerly subject to lock-up provisions under an
Investment Agreement between, for the purposes of such provisions, the
Counterparty and the Issuer.
“Person” means an
individual, a corporation, a limited liability company, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
|
|
6.
|
Other
than financing statements or other similar or equivalent documents or
instruments with respect to the security interests in the Posted
Collateral, no financing statement, security agreement or similar or
equivalent document or instrument covering all or any part of the Posted
Collateral is on file or of record in any jurisdiction in which such
filing or recording would be effective to perfect a lien, security
interest or other encumbrance of any kind on any such Posted
Collateral.
|
7.
|
No
registration, recordation or filing with any governmental body, agency or
official is required or necessary for the validity or enforceability
hereof or for the perfection or enforcement of the security interests in
the Posted Collateral, other than the filing of financing statement in any
appropriate jurisdiction.
|
8.
|
Counterparty
has not performed and will not perform any acts that might prevent DB from
enforcing any of the terms of the Agreement or the Credit Support Deed or
that might limit DB in any such
enforcement.
|
9.
|
Counterparty
has taken independent legal advice with regard to the Transaction and to
the warranties, representations and undertakings made herein and its
obligations under all applicable laws and regulations and agreements
entered into by Counterparty.
|
10.
|
Each
of DB and Counterparty hereby represents and warrants to the other party
as of the Trade Date that:
|
(a)
|
It
is an “accredited investor” (as defined in Regulation D under the
Securities Act) and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of
the Transaction, and it is able to bear the economic risk of the
Transaction.
|
(b)
|
It
is entering into the Transaction for its own account and not with a view
to the distribution or resale of the Transaction or its rights thereunder
except pursuant to a registration statement declared effective under, or
an exemption from the registration requirements of, the Securities
Act.
|
(c)
|
It
has not taken and will not take any action that could cause such sale to
fail to meet all applicable requirements of Rule 144 or Rule 145(d), as
applicable.
|
(d)
|
It
has and will at all times comply in all material respects with all laws
and regulations in each relevant jurisdiction applicable to it with regard
to the
|
10
|
Transaction,
including without limitation prohibitions on insider dealing, market
manipulation and market abuse and disclosure obligations under law
applicable to it (this representation and warranty shall be deemed to be
continuing and repeated for the period up until immediately after the
termination of the Transaction).
|
(e)
|
Its
reasons and objectives in entering into the Transaction are within its
corporate powers and constitute a genuine and legitimate business and
commercial purpose.
|
Representations, Warranties and
Covenants of DB:
1.
|
DB
represents to Counterparty that an affiliate of DB (the “DB Affiliate”) is
registered as a broker and a dealer with the Securities and Exchange
Commission and is a “market maker” or a “block positioner”, as such terms
are used in Rule 144 under the Securities Act, with respect to the
Shares.
|
2.
|
DB
agrees that DB or a DB Affiliate shall, as promptly as practicable
consistent with market conditions, introduce into the public market a
quantity of securities of the same class as the Shares equal to the Number
of Shares minus
the number of securities of such class sold in connection with DB’s
initial Hedge Position.
|
Covenants of
Counterparty:
1.
|
Counterparty
agrees that each of Counterparty and its affiliates will comply with all
applicable disclosure or reporting requirements in respect of the
Transaction, including, without limitation, any requirement imposed by
Section 13 or Section 16 of the Exchange Act, if any, and Counterparty
will provide DB with a copy of any report filed in respect of the
Transaction promptly upon filing
thereof.
|
2.
|
Counterparty
is aware of and agrees to be bound by the rules of the Financial Industry
Regulatory Authority (“FINRA”) applicable to
option trading and is aware of and agrees not to violate, either alone or
in concert with others, the position or exercise limits established by
FINRA.
|
3.
|
Counterparty
agrees that Counterparty shall not enter into or alter any hedging
transaction relating to the Shares corresponding to or offsetting the
Transaction. Counterparty also acknowledges and agrees that any
amendment, modification, waiver or termination of this Confirmation or the
Agreement must be effected in accordance with the requirements for the
amendment or termination of a “plan” as defined in Rule 10b5-1(c) under
the Exchange Act. Without limiting the generality of the
foregoing, any such amendment, modification, waiver or termination shall
be made in good faith and not as part of a plan or scheme to evade the
prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment,
modification, waiver or termination shall be made at any time at which
Counterparty or, if Counterparty is not an individual, any officer,
director, general partner, manager or similar person of Seller is aware or
any material non-public information regarding the
Issuer.
|
Binding
Commitment:
The
parties intend that this Confirmation constitutes a “Final Agreement” as
described in the letter dated December 14, 1999 submitted by Xxxxxx X. Xxxxxx
and Xxxx X. Xxxxxx to Xxxxxxx Xxxxxx of the staff of the Securities and Exchange
Commission (the “Staff”)
to which the Staff responded in an interpretative letter dated December 20,
1999.
Securities
Contract:
11
The
parties hereto agree and acknowledge that DB is a “financial institution,” “swap
participant” and “financial participant” within the meaning of Sections 101(22),
101(53C) and 101(22A) of Title 11 of the United States Code (the “Bankruptcy
Code”). The parties hereto further agree and acknowledge (A)
that this Confirmation is (i) a “securities contract,” as such term is defined
in Section 741(7) of the Bankruptcy Code, with respect to which each payment and
delivery hereunder or in connection herewith is a “termination value,” “payment
amount” or “other transfer obligation” within the meaning of Section 362 of the
Bankruptcy Code and a “settlement payment” within the meaning of Section 546 of
the Bankruptcy Code, and (ii) a “swap agreement,” as such term is defined in
Section 101(53B) of the Bankruptcy Code, with respect to which each payment and
delivery hereunder or in connection herewith is a “termination value,” a
“payment amount” or “other transfer obligation” within the meaning of Section
362 of the Bankruptcy Code and a “transfer” within the meaning of Section 546 of
the Bankruptcy Code, and (B) that DB is entitled to the protections afforded by,
among other sections, Section 362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e),
546(g), 546(j), 548(d)(2), 555, 560 and 561 of the Bankruptcy Code.
Assignment:
The
rights and duties under the Agreement may not be assigned or transferred by any
party hereto without the prior written consent of the other party
hereto; provided, that:
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1.
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Notwithstanding
Section 7 of the Agreement, DB may at any time assign, novate or otherwise
transfer its rights, interests and obligations under the Agreement (in
whole but not in part) to any of its Affiliates without the prior written
consent of Counterparty so long as (i) the senior unsecured debt rating of
such Affiliate has a credit rating assigned by any Rating Agency that is
equal to, or higher than, the senior unsecured debt rating of DB as at the
time of such assignment or transfer and (ii) such assignment or transfer
does not result in (a) any additional payment becoming due and payable or
accruing from the Counterparty under Section 2(d) of the Agreement; (b)
the inability of the Counterparty to deduct for corporation tax purposes
any payments/deliveries made to the assignee or any xxxx to market loss on
the Transaction; or (c) any deduction or withholding for or on account of
any Tax in respect of any payment by DB where such Tax is not an
Indemnifiable Tax. Any such transfer shall be fully effective
on the date notice is given to Counterparty, and DB shall be released and
discharged from all of its obligations hereunder from such
date. For the purposes of this provision, a "Rating Agency"
shall mean any of (i) Xxxxx'x Investors Service Limited, (ii) Standard
& Poor's Rating Services, a division of The XxXxxx-Xxxx Companies Inc.
and (iii) Fitch Ratings;
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2.
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Counterparty
may at any time assign, novate or otherwise transfer its rights and
obligations under the Agreement (in whole but not in part) (a "Transfer") to a third
party (the "Third
Party") subject to the following
conditions:
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(a)
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DB
confirms (acting in good faith and in a commercially reasonably manner)
that the standard credit lines and policies of DB (including but not
limited to the client adoption policies of DB) allow it to
trade with the Third Party; and
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(b)
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the
Third Party or its Credit Support Provider enters into a Credit Support
Document in form and substance acceptable to DB and provides such other
evidence and opinions in support of that Credit Support Document and the
transferred obligations as DB may reasonably
require.
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Counterparty
and DB agree to execute all relevant documentation to effect any transfer
pursuant to the above.
12
Non-Confidentiality:
The
parties hereby agree that (i) effective from the date of commencement of
discussions concerning the Transaction, Counterparty and each of its employees,
representatives, or other agents may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the Transaction
and all materials of any kind, including opinions or other tax analyses,
provided by DB and its affiliates to Counterparty relating to such tax treatment
and tax structure (provided that the foregoing
does not constitute an authorization to disclose the identity of DB or its
affiliates, agents or advisers, or, except to the extent relating to such tax
structure or tax treatment, any specific pricing terms or commercial or
financial information) and (ii) DB does not assert any claim of proprietary
ownership in respect of any description contained herein or therein relating to
the use of any entities, plans or arrangements to give rise to a particular
United States federal income tax treatment for Counterparty.
Agreements to Deliver
Documents. For the purpose of Sections 4(a)(i) and (ii) of the
Agreement, Counterparty agrees to deliver the following document.
The
Counterparty shall have procured that the Issuer shall have executed, and the
Counterparty shall have delivered to DB, upon execution of this Confirmation, an
Issuer Acknowledgment in the form attached as Annex A hereto.
DB is
authorised and regulated by the Financial Services Authority and has entered
into this transaction as principal. The time at which the above
transaction was executed will be notified on request.
13
Please
confirm that the foregoing correctly sets forth the terms of our agreement by
signing and returning this Confirmation.
Yours
faithfully,
DEUTSCHE
BANK AG, acting through its London branch
By:
Name:
Title:
By:
Name:
Title:
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Confirmed
as of the date first written above:
VIRGIN
ENTERTAINMENT INVESTMENT HOLDINGS LIMITED
By:________________________________
Name:
Title:
14
Annex
A
[Virgin
Media Inc. Letterhead]
[l], 2009
Deutsche
Bank AG, acting through its London branch
Re:
Proposed Transaction by Virgin Entertainment Investment Holdings
Limited
Ladies
and Gentlemen:
DB (“the
Bank” or “you”) and Virgin Entertainment Investment Holdings Limited (“XXXXX”)
have advised us of your intention to enter into an equity derivative hedging
transaction (the “Transaction”) that may involve, among other things, a transfer
by XXXXX to you of ____________ shares of our Common Stock (the “Transfer”) and
pledge by XXXXX to you of ________ shares of our Common Stock (the “Pledge”) to
secure XXXXX’x obligations pursuant to the Transaction.
We note
that XXXXX is entitled to enter into a disposal (including in a hedging
transaction) in respect of this number of shares of our Common Stock in
accordance with Section 3.1(g) of its Investment Agreement with us dated as of
April 3, 2006 (the “Investment Agreement”). We note, however, XXXXX’x
obligation to carry out the Transaction in accordance with, inter alia, Section
3.1(h) of the Investment Agreement. Additionally, the shares of our
Common Stock issued to XXXXX were issued in a transaction exempt from
registration under the Securities Act of 1933 in accordance with Section
3(a)(10) of the Act, and consequently cannot be transferred without registration
under the Act except pursuant to Rule 145(d) promulgated under the Act or
another applicable exemption from registration under the Act. You
should obtain your own advice in respect of subsequent transfers by you of
shares of our Common Stock acquired in the Transaction.
We agree
that, subject to applicable law (including but not limited to the U.S. federal
securities laws) and court orders: (i) if the equity derivative hedging
transaction is to be settled by way of transfer of shares, we shall cause the
transfer agent for the Common Stock promptly to register such transfer to you;
and (ii) if you foreclose on any shares of Common Stock pursuant to the Pledge,
we shall, subject to the satisfaction by you of all preconditions to such
transfer set forth in Section 8-401 of the Uniform Commercial Code of the State
of Delaware, cause the transfer agent for the Common Stock promptly to register
the transfer of the shares of Common Stock subject to such foreclosure from
XXXXX to you, or to the buyer in any foreclosure sale, as directed by
you.
Sincerely,
Virgin
Media Inc.
By:____________________________
Name:
Title: