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Exhibit 4.8
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$1,150,000,000 6 3/4% CONVERTIBLE SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
Dated as of May 15, 2001
by and among
NTL COMMUNICATIONS CORP.
and
NTL INCORPORATED
and
XXXXXX XXXXXXX & CO. INCORPORATED
X.X. XXXXXX SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
and
XXXXXXX XXXXX XXXXXX INC.
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This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of May 15, 2001 by and among NTL Communications Corp., a
Delaware corporation ("NTL COMMUNICATIONS"), NTL Incorporated and a Delaware
corporation ( "NTL INCORPORATED") and Xxxxxx Xxxxxxx & Co. Incorporated, X.X.
Xxxxxx Securities Inc., Credit Suisse First Boston Corporation, and Xxxxxxx
Xxxxx Xxxxxx Inc. (each an "INITIAL PURCHASER" and collectively, the "INITIAL
PURCHASERS"). NTL Communications and NTL Incorporated propose to issue and sell
to the Initial Purchasers (the "INITIAL PLACEMENT") $1,150,000,000 6 3/4%
Convertible Senior Notes Due 2008 (the "NOTES"). As an inducement to the Initial
Purchasers to enter into the purchase agreement, dated as of May 9, 2001 ( the
"PURCHASE AGREEMENT"), and in satisfaction of a condition to the Initial
Purchasers' obligations thereunder, each of NTL Communications and NTL
Incorporated agrees with the Initial Purchasers, (i) for the benefit of the
Initial Purchasers and (ii) for the benefit of the holders from time to time of
the Notes whose names appear in the register maintained by the Registrar in
accordance with the provisions of the Indenture (as defined in Section 1 hereof)
(including the Initial Purchasers), as follows:
1. DEFINITIONS
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"AFFILIATE" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"CLOSING DATE" has the meaning set forth in the Purchase Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock of NTL Incorporated, par value
$0.01 per share, issuable upon the conversion of the Notes.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"HOLDER" has the meaning set forth in Section 2 hereof.
"INDENTURE" means the Indenture, dated as of May [15], 2001, between
NTL Incorporated, NTL Communications and the Trustee, relating to the Notes, as
the same may be amended from time to time in accordance with the terms thereof.
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"INITIAL PLACEMENT" has the meaning set forth in the preamble hereto.
"LOSSES" has the meaning set forth in Section 7(d) hereof.
"MAJORITY HOLDERS" means the Holders of a majority of the aggregate
principal amount at maturity of securities registered under a Shelf Registration
Statement.
"MANAGING UNDERWRITERS" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"NOTES" has the meaning set forth in the preamble hereto.
"PROSPECTUS" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of Transfer Restricted Securities covered by such Shelf
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"SHELF REGISTRATION" means a registration effected pursuant to Section
3 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 3(b)
hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
of NTL Communications and NTL Incorporated pursuant to the provisions of Section
3 hereof that covers some or all of the Transfer Restricted Securities as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, and in each case,
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SUPPLEMENT DELAY PERIOD" means any period commencing on the date of
receipt by a Holder of Transfer Restricted Securities of any notice from either
of NTL Communications or NTL Incorporated of the existence of any fact or event
of the kind described in Section 4(b)(2) hereof and ending on the date of
receipt by such Holder of an amended or supplemented Shelf Registration
Statement or Prospectus, as contemplated by Section 4(h) hereof, or the receipt
by such Holder of written notice from NTL Communications or NTL Incorporated, as
applicable, (the "ADVICE") that the use of the Prospectus may be resumed, and
the receipt of copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus.
"TRANSFER RESTRICTED SECURITIES" means each Note and the Common Stock
issuable upon conversion thereof until (i) the date on which such Note or Common
Stock issuable upon conversion thereof has been effectively registered under the
Act and disposed of in accordance with the Shelf Registration Statement (ii) the
date on which such Note or Common Stock issuable upon conversion thereof is
distributed to the public pursuant to Rule 144 under the Act (or any similar
provision then in effect) or is saleable pursuant to Rule 144(k) under the Act
or
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(iii) the date upon which such Note is converted into Common Stock in
accordance with the terms and provisions of the Indenture or otherwise ceases to
be outstanding.
"TRUSTEE" means the trustee with respect to the Notes under the
Indenture.
"UNDERWRITER" means any underwriter of Notes in connection with an
offering thereof under a Shelf Registration Statement.
2. HOLDERS
A person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such person becomes the registered holder of such
Notes under the Indenture and includes broker-dealers that hold Transfer
Restricted Securities (i) as a result of market making activities and other
trading activities and (ii) which were acquired directly from either of NTL
Incorporated or NTL Communications or any of their respective Affiliates.
3. SHELF REGISTRATION
NTL Communications and NTL Incorporated shall, within 135 days of the
date of original issuance of the Notes, file with the Commission and thereafter
shall use their respective best efforts to cause to be declared effective under
the Act on or prior to 255 days after the date of original issuance of the
Notes, a Shelf Registration Statement relating to the offer and sale of the
Transfer Restricted Securities by the Holders from time to time in accordance
with the methods of distribution elected by such Holders and set forth in such
Shelf Registration Statement.
NTL Communications and NTL Incorporated shall use their respective best
efforts to keep the Shelf Registration Statement continuously effective in order
to permit the Prospectus forming part thereof to be usable by Holders for a
period of two years from the date the Shelf Registration statement is declared
effective by the Commission (or until one year after such effective date if such
Shelf Registration Statement is filed at the request of an Initial Purchaser) or
such shorter period that will terminate when (i) all the Transfer Restricted
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement, (ii) the date on which, in the opinion of
counsel to NTL Incorporated and NTL Communiations, all of the Transfer
Restricted Securities then held by the Holders may be sold by such Holders in
the public United States securities markets in the absence of a registration
statement covering such sales or (iii) the date on which there ceases to be
outstanding any Transfer Restricted Securities (in any such case, such period
being called the "SHELF REGISTRATION PERIOD"). NTL Communications and NTL
Incorporated shall be deemed not to have used their respective best efforts to
keep the Shelf Registration Statement effective during the requisite period if
either of them voluntarily takes any action that would result in Holders of
Transfer Restricted Securities covered thereby not being able to offer and sell
such securities during that period, unless (i) such action is required by
applicable law, (ii) such action is taken by NTL Communications and/or NTL
Incorporated in good faith and for valid business reasons (not including
avoidance of their respective obligations hereunder), including the acquisition
or divestiture of assets, so long as NTL Communications and/or NTL Incorporated,
as applicable, promptly thereafter complies
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with the requirements of Section 4(h) hereof, if applicable or (iii) such action
is taken because of any fact or circumstance giving rise to a Supplement Delay
Period.
4. REGISTRATION PROCEDURES
In connection with any Shelf Registration Statement, the following
provisions shall apply:
(a) NTL Communications and NTL Incorporated shall ensure that
(i) any Shelf Registration Statement and any amendment thereto
and any Prospectus forming part thereof and any amendment or
supplement thereto complies in all material respects with the
Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any Shelf
Registration Statement, and any amendment or supplement to
such Prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements, in the light of the
circumstances under which they were made, not misleading.
(b) (1) NTL Communications or NTL Incorporated shall advise
the Initial Purchasers and the Holders of Transfer Restricted
Securities covered thereby, and, if requested by the Initial
Purchasers or any such Holder, confirm such advice in writing
when a Shelf Registration Statement and any amendment thereto
has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto
has become effective.
(2) NTL Communications or NTL Incorporated shall
advise the Initial Purchasers and the Holders of Transfer
Restricted Securities covered thereby, and, if requested by the
Initial Purchasers or any such Holder, confirm such advice in
writing:
(i) of any request by the Commission for amendments
or supplements to the Shelf Registration Statement or
the Prospectus included therein or for additional
information;
(ii) of the initiation by the Commission of
proceedings relating to a stop order suspending the
effectiveness of the Shelf Registration Statement;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf
Registration Statement;
(iv) of the receipt by NTL Communications and/or NTL
Incorporated of any notification with respect to the
suspension of the qualification of the securities
included therein for sale in any
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jurisdiction or the initiation or threatening of any
roceeding for such purpose; and
(v) of the existence of any fact and the happening of
any event (including, without limitation, pending
negotiations relating to, or the consummation of, a
transaction or the occurrence of any event which
would require additional disclosure of material
non-public information by NTL Communications and/or
NTL Incorporated in the Shelf Registration Statement
as to which NTL Communications and/or NTL
Incorporated, as applicable, has a bona fide business
purpose for preserving confidential or which renders
NTL Communications and/or NTL Incorporated, as
applicable, unable to comply with Commission
requirements) that, in the opinion of NTL
Communications or NTL Incorporated, as applicable,
makes untrue any statement of a material fact made in
the Shelf Registration Statement, the Prospectus or
any amendment or supplement thereto or any document
incorporated by reference therein or requires the
making of any changes in the Shelf Registration
Statement or the Prospectus so that, as of such date,
the statements therein are not misleading and do not
omit to state a material fact required to be stated
therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the
circumstances under which they were made) not
misleading.
Such advice may be accompanied by an instruction to suspend the use of
the Prospectus until the requisite changes have been made.
(c) NTL Communications and NTL Incorporated shall use their
respective best efforts to obtain the withdrawal of any order
suspending the effectiveness of any Shelf Registration
Statement at the earliest possible time.
(d) NTL Communications and NTL Incorporated shall use their
respective best efforts to furnish to each selling Holder
included within the coverage of any Shelf Registration
Statement who so requests in writing and who has provided to
NTL Communications an address for notices, without charge, at
least one conformed copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial
statements and, if the Holder so requests in writing, all
exhibits and schedules (including those incorporated by
reference).
(e) NTL Communications or NTL Incorporated shall, during the
Shelf Registration Period, deliver to each Holder of Transfer
Restricted Securities covered by any Shelf Registration
Statement and who has provided to NTL Communications an
address for notices, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) contained
in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request;
subject to any notice by NTL Communications and/or
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NTL Incorporated in accordance with Section 5(b) hereof, each
of NTL Communications and NTL Incorporated consents to the use
of the Prospectus or any amendment or supplement thereto by
each of the selling Holders for the purposes of offering and
resale of the Transfer Restricted Securities covered by the
Prospectus in accordance with the applicable regulations
promulgated under the Act.
(f) Prior to any offering of Transfer Restricted Securities
pursuant to any Shelf Registration Statement, NTL
Communications and NTL Incorporated shall register or qualify
or cooperate with the Holders of Transfer Restricted
Securities named therein and their respective counsel in
connection with the registration or qualification of such
Transfer Restricted Securities for offer and sale under the
securities or blue sky laws of such jurisdictions of the
United States as any such Holders reasonably request in
writing not later than the date that is five business days
prior to the date upon which this Agreement specifies that the
Shelf Registration Statement shall become effective; provided,
however, that neither NTL Incorporated nor NTL Communications
will be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or
to taxation in any such jurisdiction where it is not then so
subject.
(g) NTL Communications and NTL Incorporated shall endeavor to
cooperate with the Holders of Transfer Restricted Securities
to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be
sold pursuant to any Shelf Registration Statement free of any
restrictive legends and in such denominations and registered
in such names as Holders may request in writing at least two
business days prior to sales of securities pursuant to such
Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraph
(b)(2)(v) hereof, NTL Communications and/or NTL Incorporated,
as applicable, shall promptly prepare a post-effective
amendment to any Shelf Registration Statement or an amendment
or supplement to the related Prospectus or file any other
required document so that as thereafter delivered to
purchasers of the Transfer Restricted Securities covered
thereby, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that in the event of a material business transaction
(including, without limitation, pending negotiations relating
to such a transaction) which would, in the opinion of counsel
to NTL Communications and/or NTL Incorporated, as applicable,
require disclosure by NTL Communications and/or NTL
Incorporated, as applicable, in the Shelf Registration
Statement of material non-public information for which NTL
Communications and/or NTL Incorporated, as applicable, has a
bona fide business purpose for not disclosing or which
information is not available for filing with the Commission,
then for so long as such circumstances exist, NTL
Communications and/or NTL
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Incorporated, as applicable, shall not be required to prepare
and file a supplement or post-effective amendment hereunder.
(i) Not later than the effective date of any such Shelf
Registration Statement hereunder, NTL Communications and NTL
Incorporated shall cause to be provided a CUSIP/ISIN number
for the Notes registered under such Shelf Registration
Statement, and provide the applicable trustee with printed
certificates for such Notes in a form eligible for deposit
with DTC.
(j) Each of NTL Communications and NTL Incorporated shall use
their respective best efforts to comply with all applicable
rules and regulations of the Commission and shall make
generally available to their security holders in a regular
filing on Form 10-Q or 10-K an earnings statement satisfying
the provisions of Rule 158 (which need not be audited) for the
twelve-month period commencing after effectiveness of the
Shelf Registration Statement.
(k) NTL Communications and NTL Incorporated shall cause the
Indenture to be qualified under the Trust Indenture Act in a
timely manner.
(l) NTL Communications and/or NTL Incorporated may require
each Holder of Transfer Restricted Securities, which are to be
sold pursuant to any Shelf Registration Statement, to furnish
to it within 20 business days after written request for such
information has been made by it, such information regarding
the Holder and the distribution of such securities as either
NTL Communications and/or NTL Incorporated, as applicable, may
from time to time reasonably require for inclusion in such
Shelf Registration Statement and such other information as may
be necessary or advisable in the reasonable opinion of NTL
Incorporated, NTL Communications and their counsel, in
connection with such Shelf Registration Statement. No Holder
of Transfer Restricted Securities shall be entitled to use the
Prospectus unless and until such Holder shall have furnished
the information required by this Section 4(l) and all such
information required to be disclosed in order to make the
information previously furnished to NTL Communications and/or
NTL Incorporated, as applicable, by such Holder not materially
misleading.
(m) NTL Communications and/or NTL Incorporated shall, if
requested, promptly incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement,
such information as the Managing Underwriters and Majority
Holders reasonably agree should be included therein and shall
make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to
be incorporated in such Prospectus supplement or
post-effective amendment; provided, however, that neither NTL
Incorporated nor NTL Communications shall be required to take
any action pursuant to this Section l(m) that would, in the
opinion of counsel for NTL Communications and/or NTL
Incorporated, as applicable, violate applicable law or to
include information the disclosure of which at the time would
have an adverse effect on
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the business or operations of NTL Communications and/or NTL
Incorporated or their respective subsidiaries, as determined
in good faith by NTL Communications and/or NTL Incorporated,
as applicable.
(n) In the case of any Shelf Registration Statement, NTL
Communications and NTL Incorporated shall enter into such
agreements (including underwriting agreements) and take all
other reasonably appropriate actions in order to expedite or
facilitate the registration or the disposition of the Transfer
Restricted Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures no less
favorable than those set forth in Section 7 (or such other
provisions and procedures acceptable to the Majority Holders
and the Managing Underwriters, if any), with respect to all
parties to be indemnified pursuant to Section 7 from Holders
of Notes to NTL Communications and NTL Incorporated.
(o) In the case of any Shelf Registration Statement, NTL
Communications and NTL Incorporated shall:
(i) make reasonably available for inspection by
representatives of the Holders of Transfer Restricted
Securities to be registered thereunder, the Managing
Underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and any
attorney, accountant or other agent retained by the
Holders or any such Managing Underwriter, at the
office where normally kept during normal business
hours, all financial and other records, pertinent
corporate documents and properties of NTL
Communications and NTL Incorporated and their
respective subsidiaries, and cause the their
respective officers, directors and employees to
supply all relevant information reasonably requested
by the Holders or any Managing Underwriter, attorney,
accountant or other agent in connection with any such
Shelf Registration Statement as is customary for
similar due diligence examinations; provided,
however, that the foregoing inspection and
information gathering shall be coordinated by the
Managing Underwriters, if any, or by one counsel
designated by the Holders and that such persons shall
first agree in writing with NTL Communications and/or
NTL Incorporated, as applicable, that any information
that is designated in writing by NTL Communications
and/or NTL Incorporated, as applicable, in good
faith, as confidential at the time of delivery of
such information shall be kept confidential by such
person, unless such disclosure is made in connection
with a court proceeding or required by law, or such
information becomes available to the public generally
or through a third party without an accompanying
obligation of confidentiality;
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(ii) make such representations and warranties to the
Holders of Transfer Restricted Securities registered
thereunder and the underwriters, if any, in form,
substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and
covering matters including, but not limited to, those
set forth in the Purchase Agreement;
(iii) obtain opinions of counsel to NTL Incorporated
and NTL Communications and updates thereof (which
counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing
Underwriters, if any), addressed to each selling
Holder and the underwriters, if any, covering such
matters as are customarily covered in opinions
requested in underwritten offerings and such other
matters as may be reasonably requested by such
Holders and underwriters;
(iv) obtain "cold comfort" letters (or, in the case
of any person that does not satisfy the conditions
for receipt of a "cold comfort" letter specified in
Statement on Auditing Standards No. 72, an
"agreed-upon procedures letter") and updates thereof
from the independent certified public accountants of
NTL Communications and NTL Incorporated (and, if
necessary, any other independent certified public
accountants of any subsidiary of NTL Communications
and/or NTL Incorporated, as applicable, or of any
business acquired by NTL Communications and/or NTL
Incorporated, as applicable, for which financial
statements and financial data are, or are required to
be, included in the Shelf Registration Statement),
addressed where reasonably practicable to each
selling Holder of Transfer Restricted Securities
registered thereunder and the underwriters, if any,
in customary form and covering matters of the type
customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and
(v) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to
evidence compliance with Section 4(j) and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by NTL
Communications and/or NTL Incorporated.
The foregoing actions set forth in clauses (ii),
(iii), (iv) and (v) of this Section 4(o) shall, if reasonably
requested by the Majority Holder or the Majority Underwriters, be
performed at (A) the effectiveness of such Shelf Registration Statement
and each post-effective amendment thereto and (B) each closing under
any underwriting or similar agreement, as to the extent required
thereunder.
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(vi) NTL Communications and/or NTL Incorporated may
offer securities of NTL Communications and/or NTL
Incorporated, as applicable, other than the Notes
under the Shelf Registration Statement, except where
such offer would conflict with the terms of the
Purchase Agreement.
5. HOLDERS' AGREEMENTS
Each Holder of Transfer Restricted Securities, by the acquisition of
such Transfer Restricted Securities, agrees:
(a) To furnish the information required to be furnished
pursuant to Section 4(n) hereof within the time period set
forth therein.
(b) That upon receipt of a notice of the commencement of a
Supplement Delay Period, it will keep the fact of such notice
confidential, forthwith discontinue disposition of its
Transfer Restricted Securities pursuant to the Shelf
Registration Statement, and will not deliver any Prospectus
forming a part thereof until receipt of the amended or
supplemented Shelf Registration Statement or Prospectus, as
applicable, as contemplated by Section 4(h) hereof, or until
receipt of the Advice. If a Supplement Delay Period should
occur, the Shelf Registration Period shall be extended by the
number of days of which the Supplement Delay Period is
comprised; provided that the Shelf Registration Period shall
not be extended if NTL Communications and/or NTL Incorporated
has received an opinion of counsel (which counsel, if
different from counsel to NTL Communications and NTL
Incorporated referred to in Sections 8 (a) and 8(b) of the
Purchase Agreement, shall be reasonably satisfactory to the
Majority Holders of the Transfer Restricted Securities named
in the Shelf Registration Period) to the effect that the
Transfer Restricted Securities can be freely tradeable without
the continued effectiveness of the Shelf Registration
Statement.
(c) If so directed by NTL Communications or NTL Incorporated
in a notice of the commencement of a Supplement Delay Period,
each Holder of Transfer Restricted Securities will deliver to
NTL Communications (at NTL Communications' expense) all
copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering the Transfer Restricted
Securities.
(d) Sales of such Transfer Restricted Securities pursuant to a
Shelf Registration Statement shall only be made in the manner
set forth in such currently effective Shelf Registration
Statement.
6. REGISTRATION EXPENSES
NTL Communications and NTL Incorporated shall bear all expenses
incurred in connection with the performance of their obligations under Sections
2, 3 and 4 hereof and, in the
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event of any Shelf Registration Statement, will reimburse the Holders for the
reasonable fees and disbursements of one firm or counsel designated by the
Majority Holders to act as counsel for the Holders in connection therewith.
Notwithstanding the foregoing or anything in this Agreement to the contrary,
each Holder shall pay all underwriting discounts and commission of any
underwriters with respect to any Transfer Restricted Securities sold by it.
7. INDEMNIFICATION AND CONTRIBUTION
(a) In connection with any Shelf Registration Statement, each
of NTL Communications and NTL Incorporated jointly and
severally agree to indemnify and hold harmless each Holder of
Transfer Restricted Securities covered thereby (including each
Initial Purchaser), the directors, officers, employees,
partners, representatives and agents of each such Holder and
each person who controls any such Holder within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act
against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of, or are based upon,
any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement as
originally filed or in any amendment thereof, or in any
preliminary Prospectus or Prospectus, or in any amendment
thereof or supplement thereto, or arise out of, or are based
upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and to reimburse
each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) neither NTL
Incorporated nor NTL Communications will be liable in any case
to the extent that any such loss, claim, damage or liability
arises out of, or is based upon, any such untrue statement or
alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information with respect to such Holder furnished to NTL
Communications or NTL Incorporated by or on behalf of any such
Holder or by the Managing Underwriters specifically for
inclusion therein and (ii) neither NTL Incorporated nor NTL
Communications will be liable to any indemnified party under
this indemnity agreement with respect to the Shelf
Registration Statement or Prospectus to the extent that any
such loss, claim, damage or liability of such indemnified
party results solely from an untrue statement of a material
fact contained in, or the omission of a material fact from,
the Shelf Registration Statement or Prospectus, which untrue
statement or omission was corrected in an amended or
supplemented Shelf Registration Statement or Prospectus, if
the person alleging such loss, claim, damage or liability was
not sent or given, at or prior to the written confirmation of
such sale, a copy of the amended or supplemented Shelf
Registration Statement or Prospectus if NTL Communications or
NTL Incorporated had previously furnished copies thereof to
such indemnified party and if delivery of a prospectus is
required by the Act and
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was not so made. This indemnity agreement will be in addition
to any liability which NTL Communications or NTL Incorporated
may otherwise have.
Each of NTL Communications and NTL Incorporated jointly and
severally also agree to indemnify or contribute to Losses of, as provided in
Section 7(d), any underwriters of Notes registered under a Shelf Registration
Statement, their officers and directors and each person who controls such
underwriters on substantially the same basis as that of the indemnification of
the Initial Purchasers and the selling Holders provided in this Section 7(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 4(p) hereof.
(b) Each Holder of Transfer Restricted Securities covered by a
Shelf Registration Statement (including each Initial
Purchaser) severally and not jointly agrees to indemnify and
hold harmless (i) NTL Incorporated, (ii) NTL Communications,
(iii) each of their respective directors, (iv) each of their
officers who signs such Shelf Registration Statement and (v)
each person who controls either of NTL Communications or NTL
Incorporated within the meaning of either the Act or the
Exchange Act to the same extent as the foregoing indemnity
from each of NTL Communications and NTL Incorporated to each
such Holder, but only with reference to written information
relating to such Holder furnished to NTL Communications and/or
NTL Incorporated by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have. In no
event shall any Holder, its directors, officers or any person
who controls such Holder be liable or responsible for any
amount in excess of the amount by which the total amount
received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Shelf Registration
Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any
damages that such Holder, its directors, officers or any
person who controls such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this
Section 7 or notice of the commencement of any action, the
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7,
notify the indemnifying party in writing of the commencement
thereof; but the failure to so notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or
(b) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the
indemnifying
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party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to
the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party,
and the indemnified party reasonably concluded that there may
be legal defenses available to it and/or other indemnified
parties that are different from or additional to those
available to the indemnifying party, (iii) the indemnifying
party did not employ counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv)
the indemnifying party authorized the indemnified party to
employ separate counsel at the expense of the indemnifying
party. An indemnifying party shall not, without the prior
written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or
proceeding for which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action), unless
such settlement, compromise or consent includes an
unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or
proceeding and does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on
behalf of the indemnified party.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 7 is unavailable or insufficient to
hold harmless an indemnified party for any reason, then each
applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall have a joint and several obligation
to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "LOSSES") to which such indemnified party may be
subject in such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party, on the
one hand, and such indemnified party, on the other hand, from
the Initial Placement and the Shelf Registration Statement
that resulted in such Losses; provided, however, that in no
case shall any Initial Purchaser or any subsequent Holder of
any Note be responsible, in the aggregate, for any amount in
excess of the purchase discount on the initial offering price
of such Notes or commission applicable to such Note, nor shall
any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the
securities purchased by such underwriter under the Shelf
Registration Statement that resulted in such Losses. If the
allocation provided by
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the immediately preceding sentence is unavailable for any
reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not
only such relative benefits, but also the relative fault of
such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or
omissions which resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by NTL
Communications or NTL Incorporated shall be deemed to be equal
to the sum of (x) the total net proceeds from the Initial
Placement (before deducting expenses) (which shall be
$970,000,000) and (y) the total amount of additional interest
that NTL Communications and/or NTL Incorporated was not
required to pay as a result of registering the securities
covered by the Shelf Registration Statement that resulted in
such Losses. Benefits received by the Initial Purchasers shall
be deemed to be equal to the total purchase discounts and
commissions in connection with the Initial Placement, and
benefits received by any other Holders shall be deemed to be
equal to the value of receiving Notes registered under the
Act. Benefits received by any underwriter shall be deemed to
be equal to the total underwriting discounts and commissions,
as set forth on the cover page of the Prospectus forming a
part of the Shelf Registration Statement that resulted in such
Losses. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any
other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any
person who was guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person who controls a
Holder within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of such
Holder shall have the same rights to contribution as such
Holder, and each person who controls NTL Communications or NTL
Incorporated within the meaning of either the Act or the
Exchange Act, each officer of NTL Communications or NTL
Incorporated who shall have signed the Shelf Registration
Statement and each director of NTL Communications or NTL
Incorporated shall have the same rights to contribution as NTL
Communications and/or NTL Incorporated, subject in each case
to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 7 shall remain in full
force and effect, regardless of any investigation made by or
on behalf of any Holder or NTL Communications or NTL
Incorporated or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive the
sale by a Holder of Transfer Restricted Securities.
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8. RULE 144A AND RULE 144
Each of NTL Communications and NTL Incorporated agrees with each
Holder, for so long as any Transfer Restricted Securities remain outstanding and
during any period in which NTL Communications and/or NTL Incorporated, as
applicable, (i) is not subject to Section 13 or 15(d) of the Exchange Act, to
make available, upon request of any Holder, to such Holder or beneficial owner
of Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
9. MISCELLANEOUS
(a) No Inconsistent Agreements. Neither NTL Incorporated nor
NTL Communications has, as of the date hereof, entered into,
nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent
with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given,
unless NTL Communications and NTL Incorporated have obtained
the written consent of the Holders of at least a majority of
the then outstanding aggregate principal amount of Notes;
provided, however, that with respect to any matter that
directly or indirectly affects the rights of any Initial
Purchaser hereunder, NTL Communications and NTL Incorporated
shall obtain the written consent of each such Initial
Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso),
a waiver or consent to depart from the provisions hereof, with
respect to a matter, which relates exclusively to the rights
of Holders whose securities are being sold pursuant to a Shelf
Registration Statement and does not directly or indirectly
affect the rights of other Holders, may be given by the
Majority Holders, determined on the basis of Notes being sold
rather than registered under such Shelf Registration
Statement.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by
hand-delivery, first-class mail, telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given
by such holder to NTL Communications in accordance
with the provisions of this Section 9(c), which
address initially is, with respect to each Holder,
the address of such Holder maintained by the
registrar
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under the Indenture, with a copy in like manner to
Xxxxxx Xxxxxxx & Co. Incorporated;
(ii) if to the Initial Purchasers, initially at the
respective addresses set forth in the Purchase
Agreement; and
(iii) if to NTL Communications or NTL Incorporated,
initially at its address set forth in the Purchase
Agreement.
All such notices and communications shall be deemed
to have been duly given when received.
The Initial Purchasers or NTL Communications or NTL
Incorporated by notice to the other may designate additional or different
addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall
inure to the benefit of, and be binding upon, the
successors and assigns of each of the parties hereto,
including, without the need for an express assignment
or any consent by NTL Communications or NTL
Incorporated thereto, subsequent Holders of Notes.
Each of NTL Communications and NTL Incorporated
hereby agrees to extend the benefits of this
Agreement to any Holder of Notes and any such Holder
may specifically enforce the provisions of this
Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in
any number of counterparts and by the parties hereto
in separate counterparts, each of which when so
executed shall be deemed to be an original, and all
of which taken together shall constitute one and the
same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed
by and construed in accordance with the internal laws
of the State of New York applicable to agreements
made and to be performed in said State (without
reference to the conflict of law rules thereof).
(h) Severability. In the event that any one or more
of the provisions contained herein, or the
application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability
of any such provision in every other respect and the
remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that
all of the rights and privileges of the parties shall
be enforceable to the fullest extent permitted by
law.
(i) Notes Held by NTL Communications and/or NTL
Incorporated, etc. Whenever the consent or approval
of Holders of a specified percentage of
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principal amount of Notes is required hereunder,
Notes held by NTL Incorporated, NTL Communications or
their Affiliates (other than subsequent Holders of
Notes if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such
Notes) shall not be counted in determining whether
such consent or approval was given by the Holders of
such required percentage.
(j) Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement
and intended to be a complete and exclusive statement
of the agreement and understanding of the parties
hereto with respect to the subject matter contained
herein. There are no restrictions, promises,
warranties or undertakings, other than those set
forth or referred to herein with respect to the
registration rights granted with respect to the
Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings
between the parties with respect to such subject
matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NTL Incorporated
By:
------------------------------------------
Name:
Title:
NTL COMMUNICATIONS CORP.
By:
------------------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
X.X. XXXXXX SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX XXXXXX INC.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By:
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
D-1
