Exhibit 4.5
THIS AGREEMENT is made on 1999.
BETWEEN:
(1) ______________________ whose address is at______________________
(the "Optionholder");
(2) PREMIUM TV LIMITED incorporated in England and Wales with
registered number 3426471 and whose registered office is at Xxxxxxx
Xxxxx, 0 Xxxxxxxx Xxxx, Xxxxxxxxxxx Aerospace Centre, Farnborough,
Hampshire GU14 6XP (the "Company");
(3) NTL DIGITAL LIMITED whose address is at Xxxxxxx Xxxxx, Xxxxxxxxxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx XX00 0XX;
(4) NTL COMMUNICATIONS CORP. (FORMERLY KNOWN AS NTL INCORPORATED)
whose principal place of business is at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000;
(5) DE FACTO 770 LIMITED (AS TRUSTEE OF THE NTL INCORPORATED EMPLOYEE
INCENTIVE TRUST) (the "Trust") whose address is at Xxxxxxx Xxxxx,
Xxxxxxxxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, XX00 0XX; and
(6) NTL INCORPORATED whose principal place of business is at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 ("NTL")
WHEREAS:
(A) The Optionholder holds the option (the "Option") granted to him by
the Company on the terms of the share option agreement dated 3rd
July 1998 between the parties to this Agreement (other than the
Trust), as amended by a deed dated 2 November 1998 ("the Option
Agreement").
(B) The Trust wishes to offer ("the Option Release Offer") the
Optionholder in consideration of the surrender to the Company of
all the Optionholder's rights under the Option, the option ("the
Warrant") the terms of which are described in the warrant agreement
attached hereto ("the Warrant Agreement").
IT IS AGREED as follows:
1. The Optionholder accepts the Option Release Offer in respect of the
Option and in consideration of the granting to the Optionholder of the
Warrant, releases the Company and the other parties to the Option
Agreement from all obligations under the Option Agreement so that all
the Optionholder's rights arising out of it or deriving from it shall
cease.
2. The Optionholder, the Company and the Trust agree that the Warrant is
intended to be equivalent in value to the Option but that the total
value of the Warrant is no greater than the total value of the Option.
3. In connection with the Option and this Agreement, the Optionholder has
no claim or right outstanding whatsoever against the Company or the
other parties to the Option Agreement.
4. NTL agrees that promptly after the date hereof, it will register with
the Securities and Exchange Commission, pursuant to the Securities Act
of 1933, as amended, (the "Act") the shares subject to the Warrant, on
Form S-8 or such other form as NTL deems necessary. Until the time that
such registration is effective, and is not subject to a stop order
suspending such effectiveness, the shares will be restricted in
accordance with the Act.
5. The Trust, in consideration for the surrender to the Company and the
other parties to the Option Agreement of all the Optionholder's rights
under the Option Agreement, releases the Optionholder from all
obligations under the Option Agreement OTHER THAN those contained in
clauses 1, 2 and 15 to 17 (inclusive) of that agreement which shall
continue unaffected by this Agreement.
6. In consideration of the Optionholder entering into this Agreement NTL
guarantees the full, prompt and complete performance by the Trust of its
obligations to the Optionholder under the Warrant Agreement.
IN WITNESS of which the parties have executed this Agreement as a Deed on
the date first mentioned above.
SIGNED and DELIVERED as a DEED )
by )
__________________________ )
in the presence of ) ____________________________________
______________________
EXECUTED as a DEED by )
PREMIUM TV LIMITED )
acting by: ) ____________________________________
Director
____________________________________
Director/Secretary
EXECUTED as a DEED by )
NTL DIGITAL LIMITED )
acting by: ) ____________________________________
Director
____________________________________
Director/Secretary
EXECUTED as a DEED by )
NTL COMMUNICATIONS CORP. )
acting by: ) ____________________________________
Authorised signatory
EXECUTED as a DEED by )
DE FACTO 770 LIMITED )
(as trustee of the NTL Incorporated )
Employee Incentive Trust) )
acting by: )
_____________________________________
Director
_____________________________________
Director/Secretary
EXECUTED as a DEED by )
NTL INCORPORATED )
acting by: ) _____________________________________
Authorised signatory
EXERCISABLE ON OR AFTER THE DATE OF THIS CERTIFICATE AND ON OR BEFORE JULY 3,
2003
___________ Warrants
WARRANT CERTIFICATE
NTL INCORPORATED
This Warrant Certificate certifies that (the "Warrant Holder") is
the registered holder of 47170 Warrants (the "Warrants") expiring on July
3, 2003 to acquire shares of the common stock, par value $.01 (the "Common
Stock"), of NTL Incorporated, a Delaware corporation (the "Company"), each
of which shall be fully vested and non-transferable. Each Warrant entitles
the Warrant Holder upon exercise at any time from 9:00 a.m. on the date of
this Warrant Certificate to 5:00 p.m. New York, New York time, on July 3,
2003 to receive from the Trustee of the NTL Incorporated Employee Incentive
Trust (the "Trustee") one fully paid and non-assessable share of Common
Stock (each a "Warrant Share") for each Warrant. The number of Warrant
Shares issuable upon exercise of the Warrants are subject to adjustment
upon the occurrence of certain events set forth below. The Warrant Holder
consents to the terms herein by his signature below.
No Warrant may be exercised after 5:00 p.m., New York Time on July
3, 2003 and to the extent not exercised by such time such Warrants shall
become void.
Reference is hereby made to the further provisions of this Warrant
Certificate attached hereto and such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Trustee has caused this Warrant Certificate
to be signed as a deed by two Directors of the Board.
Date: ___________, 1999
EXECUTED as a DEED by
DE FACTO 770 LIMITED (as trustee of the
NTL Incorporated Employee Incentive Trust)
acting by: __________________________
Director
__________________________
Director
Warrant Certificate
The Warrant Holder shall be bound by the terms and provisions
herein.
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of Warrants expiring on July 3, 2003, entitling the
Warrant Holder upon exercise to receive shares of Common Stock of the
Company (the "Common Stock").
The Warrants are being granted as a rollover of options originally
granted pursuant to an agreement dated July 3, 1998 among Premium TV
Limited, the Warrant Holder, NTL Digital Limited and NTL Incorporated, and
are being granted to reflect the parties' original understanding and
intentions in the original transaction.
The holder of the Warrants evidenced by this Warrant Certificate may
exercise them by surrendering this Warrant Certificate, with the form of
election set forth below on this Warrant Certificate properly completed and
executed in accordance with the provisions set forth on this Warrant
Certificate. In the event that upon any exercise of Warrants evidenced
hereby the number of Warrants exercised shall be less than the total number
of Warrants evidenced hereby, there shall be issued to the holder hereof a
new Warrant Certificate evidencing the number of Warrants not exercised. No
adjustment shall be made for any dividends on any Common Stock issuable
upon exercise of this Warrant.
Warrant Certificates, when surrendered at the principal corporate
office of the Trustee by the registered holder thereof in person or by
legal representative or attorney duly authorized in writing, may be
exchanged without payment of any service charge, for another Warrant
Certificate or Warrant Certificates of like tenor evidencing in the
aggregate a like number of Warrants.
The Trustee may deem and treat the registered holder(s) hereof as
the absolute owner(s) of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof, of any distribution to the holder(s)
hereof, and for all other purposes, and the Trustee shall not be affected
by any notice to the contrary. Neither the Warrants nor this Warrant
Certificate entitles any holder hereof to any rights of a stockholder of
the Company.
In the event of the death of the Warrant Holder the personal
representatives of the Warrant Holder shall be entitled to exercise the
outstanding Warrants in full at any time during the period commencing on
and including the date of death and ending on the date which is three
calendar months after such date.
If the outstanding shares of Common Stock are subdivided,
consolidated, increased, decreased, changed into or exchanged for a
different number or kind of shares or securities of the Company through
reorganization, merger, recapitalization, reclassification, capital
adjustment or otherwise, or if the Company issues Common Stock as a
dividend or upon a stock split, or if there is a distribution upon the
Common Stock of the Company by way of a spin-off of any shares of capital
stock or other securities of any subsidiary or other corporation or entity,
then the number and kind of shares or securities subject to the Warrants
shall be appropriately adjusted so that after the record date for
determination of the holders of Common Stock of the Company entitled to
participate in any such event, the Warrant Holder shall be entitled to
receive such kind and number of shares of Common Stock of the Company or
other securities as he would have been entitled to receive had he owned the
Common Stock issuable upon exercise of the Warrants on that record date.
In any case where the Trustee of the Company or any company within
the same group of companies as the Company is obliged to account:
(a) for any tax (or similar liabilities) (in any jurisdiction) for
which the Warrant Holder is liable by virtue of the exercise of the
Warrants; and/or
(b) for any employees (but not employers) social security
contributions recoverable from the person in question (together the
"Tax Liability") the Trustee or relevant company may recover
the tax from the Warrant Holder in such manner as the Trustee or relevant
company shall think fit and (without prejudice to the generality of the
foregoing) no Common Stock shall, unless the Trustee or relevant company
otherwise agrees, be issued or transferred to the Warrant Holder unless the
Warrant Holder has either:
(i) made a payment to the Trustee or relevant company of an amount
equal to the Tax Liability; or
(ii) entered into arrangements with the Trustee or relevant company
to secure that such a payment is made (whether by authorising the Trustee
to procure the sale or some or all of the shares of Common Stock on his
behalf and authorising the payment to the Trustee or relevant company of
the relevant amount out of the proceeds of sale or otherwise).
If the Warrant Holder shall not have complied with all his
obligations under this clause in respect of any exercise of the Warrant
within 10 days of the date on which the relevant shares of Common Stock
were otherwise due to be issued or transferred to him, such part of the
Option which the Optionholder has so exercised shall (unless the Trustee
otherwise agrees) lapse and the Optionholder shall thereupon cease to have
any entitlement to such Option Shares.
Form of Election to Exercise
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive shares of Common Stock.
The undersigned requests that a certificate for such shares be
registered in the name ___________________, whose address is __________________
and that shares be delivered to _____________________________________ whose
address is _________________________________________.
If said number of shares is less than all of the shares of Common
Stock available hereunder, the undersigned requests that a new Warrant
Certificate representing the remaining balance of such shares be registered
in the name of _________________, whose address is ___________________________,
, and that such Warrant Certificate be delivered to
whose address is __________________________________________.
Date: _______________
Your Signature:
(Sign exactly as your name appears on the
face of this Warrant)
Signature Guarantee:
