Exhibit II
REGISTRATION RIGHTS AGREEMENT
by and among
NTL EUROPE, INC.
and
THE STOCKHOLDERS LISTED ON THE SIGNATURE PAGES HERETO
dated as of
January 10, 2003
REGISTRATION RIGHTS AGREEMENT, dated as of January 10, 2003, by
and among NTL Europe, Inc., a Delaware corporation (the "Company") and the
stockholders listed on the signatures pages hereto.
WHEREAS, the Company proposes to issue and deliver shares of
Common Stock (as defined below) to certain entities pursuant to the
Company's Second Amended Joint Plan of Reorganization under Chapter 11 of
the Bankruptcy Code (the "Plan"), confirmed by order of the United States
Bankruptcy Court for the Southern District of New York, entered on
September 5, 2002; and
WHEREAS, in connection with and pursuant to the Plan, the Company
has agreed to grant the registration rights described in this Agreement to
the holders of shares of Common Stock issued pursuant to Article IV.C.2. of
the Plan. All capitalized terms used and not otherwise defined herein shall
have the meanings assigned them in the Plan.
Accordingly, the parties hereto agree as follows:
1. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Certificate of Incorporation" means the Certificate of
Incorporation of the Company, as it may be amended or restated hereafter
from time to time.
"Commission" means the Securities and Exchange Commission or any
other United States federal agency at the time administering the Securities
Act.
"Common Stock" means any shares of common stock, par value $0.01
per share, of the Company, now or hereafter authorized to be issued and any
and all securities of any kind whatsoever of the Company which may be
exchanged for or converted into Common Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar United States federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time. Reference to a particular section of the Exchange Act
shall include a reference to the comparable section, if any, of any such
similar United States federal statute.
"Holder" means a registered holder of Registrable Securities.
"Majority Participating Holders" means, subject to the subsequent
sentence, Participating Holders holding at least a majority of the
Registrable Securities proposed to be included in any offering of
Registrable Securities by such Participating Holders pursuant to Section
3.1 or Section 3.2 hereto. The previous sentence notwithstanding, if both
Common Stock and Preferred Stock are proposed to be offered pursuant to a
single registration statement, then "Majority Participating Holders" shall
mean in that instance, holders of (i) a majority of the shares of Common
Stock proposed to be included in such offering and (ii) a majority of the
shares of Preferred Stock proposed to be included in such offering.
"Participating Holders" means any Holder participating in any
offering of Registrable Securities pursuant to Section 3.1 or Section 3.2
hereto.
"Person" means a corporation, an association, a partnership, an
organization, a business, a trust, an individual, or any other entity or
organization, including a government or political subdivision or an
instrumentality or agency thereof.
"Preferred Stock" means any shares of 10% Fixed Coupon Redeemable
Preferred Stock, Series A, par value $0.01 per share, of the Company, now
or hereafter authorized to be issued and any and all securities of any kind
whatsoever of the Company which may be exchanged for or converted into
Preferred Stock.
"Registrable Securities" means (i) any shares of Common Stock
issued pursuant to the Plan, (ii) any Common Stock issued with respect to
the Common Stock referred to in clause (i) by way of a stock dividend,
stock split or reverse stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or otherwise, (iii) any
shares of Preferred Stock issued pursuant to the Plan, and (iv) any
Preferred Stock issued with respect to the Preferred Stock referred to in
clause (iii) by way of a stock dividend, stock split or reverse stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation or otherwise. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when (i) a
registration statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement or
(ii) such securities shall have been disposed of pursuant to Rule 144 or
Rule 145 under the Securities Act.
"Registration Expenses" means all expenses incident to the
registration and disposition of the Registrable Securities pursuant to
Section 3 hereof, including, without limitation, all registration, filing
and applicable national securities exchange fees, all fees and expenses of
complying with state securities or blue sky laws (including reasonable fees
and disbursements of counsel to the underwriters and the Holders in
connection with "blue sky" qualification of the Registrable Securities and
determination of their eligibility for investment under the laws of the
various jurisdictions), all word processing, duplicating and printing
expenses, all messenger and delivery expenses, the fees and disbursements
of counsel for the Company and of its independent public accountants,
including the expenses of "cold comfort" letters or any special audits
required by, or incident to, such registration, all transfer taxes, and the
reasonable fees and expenses of one counsel to the Holders; provided,
however, that Registration Expenses shall exclude, and the Holders shall
pay, underwriting discounts and commissions in respect of the Registrable
Securities being registered for such Person.
"Required Filing Date" means the first to occur of (i) the
forty-fifth (45th) day following the date on which the Company files its
Annual Report on Form 10-K for the year ended December 31, 2002 with the
Commission, and (ii) May 15, 2003.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar United States federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
References to a particular section of the Securities Act shall include a
reference to the comparable section, if any, of any such similar United
States federal statute.
2. Shelf Registration.
(a) No later than the Required Filing Date, the Company
shall file with the Commission a registration statement (the "Shelf
Registration Statement") relating to the offer and sale of Registrable
Securities by the Holders to the public, from time to time, on a delayed or
continuous basis (but not involving any underwriting); provided, however,
that the Shelf Registration Statement shall only cover Registrable
Securities of Holders who (1) beneficially (within the meaning of Rule
13d-3 under the Exchange Act) own 10% or more of the Common Stock or
Preferred Stock of the Company or (2) provide to the Company a written
statement indicating that such Holder is deemed, or might reasonably be
considered to be, an "underwriter" under Section 1145(b)(1) of the
Bankruptcy Code. The Company shall use its reasonable best efforts to cause
the Shelf Registration Statement to be declared effective by the Commission
as soon as practicable thereafter.
(b) The Company agrees to use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective and not to
suspend use of the prospectus included therein in order to permit the
prospectus included therein to be usable by the Holders until the earlier
of : (1) the date all Holders call sell shares free of any volume
limitations imposed by Rule 144 of the Securities Act; (2) the date all
Holders have disposed of all Registrable Securities; or (3) three years
from the date on which such Shelf Registration Statement was declared
effective; provided, that the Company shall be deemed not to have used its
reasonable best efforts to keep the Shelf Registration Statement effective
during the requisite period if it voluntarily takes any action that would
result in Holders of the Registrable Securities covered thereby not being
able to offer and sell such Registrable Securities during that period,
unless such action is required by applicable law, and provided, further,
that the foregoing shall not apply to actions if the Company determines, in
its reasonable judgment, as authorized by a resolution of its Board of
Directors, that the filing of such Shelf Registration Statement or the
maintenance of effectiveness of such Shelf Registration Statement or
prospectus included therein would materially interfere with any material
financing, corporate reorganization or other material transaction involving
the Company or any subsidiary, or would require premature disclosure
thereof, and the Company promptly gives the Participating Holders written
notice of such determination, containing a general statement of the reasons
for such postponement or suspension and an approximation of the anticipated
delay; provided, however, that the failure to keep the Shelf Registration
Statement effective and usable for offers and sales of Registrable
Securities for such reasons shall last no longer than 120 days in the
aggregate in any 12-month period.
3. Registration Under Securities Act, etc.
3.1 Registration on Request.
(a) Request. At any time or from time to time, a Holder
or Holders holding Registrable Securities, shall have the right to require
the Company to effect the registration under the Securities Act of all or
part of their respective Registrable Securities, by delivering a written
request (a "Holder Request") therefor to the Company specifying the number
of shares of Registrable Securities and the intended method of
distribution. The party or parties delivering a Holder Request shall be
referred to as the "Initiating Holder." As promptly as practicable, but no
later than ten days after receipt of a Holder Request, the Company shall
given written notice of the Holder Request to all Holders (the "Demand
Exercise Notice"). The Company shall as expeditiously as possible (but in
any event within 120 days of receipt of a Holder Request) use its best
efforts to effect the registration under the Securities Act of the
Registrable Securities which the Company has been so requested to register
by the Initiating Holder and any other Holders which have made a written
request to the Company for inclusion in such registration (which request
shall specify the maximum number of Registrable Securities intended to be
disposed of by such Holder) within 30 days after the receipt of the Demand
Exercise Notice (or, 15 days if, at the request of the Initiating Holder
participating in such registration, the Company states in such written
notice or gives telephonic notice to all Holders, with written confirmation
to follow promptly thereafter, that such registration will be on a Form S-3
under the Securities Act). The Company shall (i) use its best efforts to
effect the registration of Registrable Securities for distribution in
accordance with the intended method of distribution set forth in a written
request delivered by the Majority Participating Holders, and (ii) if
requested by the Majority Participating Holders, obtain acceleration of the
effective date of the registration statement relating to such registration.
(b) Registration of Other Securities. Whenever the
Company shall effect a registration pursuant to this Section 3.1 in
connection with an underwritten offering by Holders, no securities other
than Registrable Securities shall be included among the securities covered
by such registration unless the Majority Participating Holders shall have
consented in writing to the inclusion therein of such other securities,
which consent may be subject to terms and conditions determined by the
Majority Participating Holders in their sole discretion.
(c) Registration Statement Form. Registrations under
this Section 3.1 shall be on the registration form of the Commission as
shall be selected by the Company which form shall be reasonably acceptable
to the Majority Participating Holders. The Company agrees to include in any
such registration statement all information which, in the reasonable
opinion of counsel to the Participating Holders and counsel to the Company,
is necessary or desirable to be included therein.
(d) Expenses. The Company shall pay, and shall be
responsible for, all Registration Expenses in connection with any
registration requested pursuant to this Section 3.1. Notwithstanding the
foregoing, the provisions of this Section 3.1(d) shall be deemed amended to
the extent necessary to cause these expense provisions to comply with "blue
sky" laws of each state or the securities laws of any other jurisdiction in
the United States and its territories in which the offering is made.
(e) Effective Registration Statement. A registration
requested pursuant to this Section 3.1 shall not be deemed to have been
effected (including for purposes of paragraph (h) of this Section 3.1) (i)
unless a registration statement with respect thereto has become effective
and has been kept continuously effective for a period of at least 120 days
(or such shorter period which shall terminate when all the Registrable
Securities covered by such registration statement have been sold pursuant
thereto), (ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement
of the Commission or other governmental agency or court for any reason not
attributable to the Participating Holder and has not thereafter become
effective, or (iii) if the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived.
(f) Selection of Underwriters. The underwriters of each
underwritten offering of the Registrable Securities so to be registered
shall be selected by the Majority Participating Holders and shall be
reasonably acceptable to the Company, taking into account any contractual
obligations of the Company with respect to the engagement of underwriters
by the Company for such transactions.
(g) Right to Withdraw. If the managing underwriter of
any underwritten offering shall advise the Participating Holders that the
Registrable Securities covered by the registration statement cannot be sold
in such offering within a price range acceptable to the Majority
Participating Holders, then the Majority Participating Holders shall have
the right to notify the Company in writing that it has determined that the
registration statement be abandoned or withdrawn, in which event the
Company shall abandon or withdraw such registration statement. In the event
of such abandonment or withdrawal at the request of the Majority
Participating Holders, the Initiating Holder's request for registration
pursuant to this Section 3.1 shall not be counted for purposes of the
requests for registration to which the Holders are entitled pursuant to
this Section 3.1.
(h) Limitations on Registration on Request. The Holders
shall be entitled to require the Company to effect, and the Company shall
be required to effect, four registrations in the aggregate pursuant to this
Section 3.1 with respect to shares of Common Stock and four registrations
in the aggregate pursuant to this Section 3.1 with respect to shares of
Preferred Stock, provided, however, that (x) the aggregate offering value
of the shares to be registered pursuant to any such registration shall be
at least $5,000,000 (based on the market price on the date the demand is
made) and (y) and that only one such demand registration with respect to
Common Stock and only one such demand registration with respect to
Preferred Stock shall be required to become effective in any 180-day
period.
(i) Priority in Registrations on Request. If any
registration pursuant to a Holder Request involves an underwritten offering
and the managing underwriter of such offering shall inform the Company in
writing of its belief that the number of Registrable Securities requested
to be included in such registration pursuant to this Section 3.1, when
added to the number of any other securities to be offered in such
registration, would materially adversely affect such offering, then the
Participating Holders shall be entitled to participate on a pro rata basis
based on the number of shares of Registrable Securities requested to be
included in the offering by each such Participating Holder. The Company and
any other Company stockholders that have not expressly been given pari
passu or senior rights of participation in accordance with Section 3.1(b)
hereof shall have no right to participate in this event, without the
consent of the Majority Participating Holders.
(j) Postponement. The Company shall be entitled once in
any twelve-month period to postpone for a reasonable period of time (but
not exceeding 90 days) (the "Postponement Period") the filing of any
registration statement required to be prepared and filed by it pursuant to
this Section 3.1 if the Company determines, in its reasonable judgment, as
authorized by a resolution of its Board of Directors, that such
registration and offering would materially interfere with any material
financing, corporate reorganization or other material transaction involving
the Company or any subsidiary, or would require premature disclosure
thereof, and promptly gives the Participating Holders written notice of
such determination, containing a general statement of the reasons for such
postponement and an approximation of the anticipated delay. If the Company
shall so postpone the filing of a registration statement, the Majority
Participating Holders shall have the right to withdraw the request for
registration by giving written notice to the Company at any time during
such Postponement Period and, in the event of such withdrawal, such request
shall not be counted for purposes of the requests for registration to which
the Holders are entitled pursuant to this Section 3.1.
3.2 Incidental Registration.
(a) Right to Include Registrable Securities. If the
Company at any time proposes to register any of its equity securities under
the Securities Act by registration on Form X-0, X-0 or S-3 or any successor
or similar form(s) (except registrations on any such Form or similar
form(s) solely for registration of securities in connection with an
employee benefit plan or dividend reinvestment plan or a merger or
consolidation), whether or not for sale for its own account, it will each
such time give prompt written notice to each of the Holders of its
intention to do so and of the Holders' rights under this Section 3.2. Upon
the written request of any of the Holders (which request shall specify the
maximum number of Registrable Securities intended to be disposed of by such
Holder), made as promptly as practicable and in any event within 30 days
after the receipt of any such notice (15 days if the Company states in such
written notice or gives telephonic notice to each Holder, with written
confirmation to follow promptly thereafter, stating that (i) such
registration will be on Form S-3 under the Securities Act and (ii) such
shorter period of time is required because of a planned filing date), the
Company shall use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by each Holder; provided, however, that if, at any
time after giving written notice of its intention to register any equity
securities and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine for
any reason not to register or to delay registration of such equity
securities, the Company shall give written notice of such determination and
its reasons therefor to the Holders and in the case of a determination not
to register, shall be relieved of its obligation to register any
Registrable Securities in connection with such registration (but not from
any obligation of the Company to pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of the
Holders to request that such registration be effected as a registration
under Section 3.1. No registration effected under this Section 3.2 shall
relieve the Company of its obligation to effect any registration upon
request under Section 3.1. The Company will pay all Registration Expenses
in connection with any registration of Registrable Securities requested
pursuant to this Section 3.2.
(b) Right to Withdraw. Any Holder shall have the right
to withdraw its request for inclusion of Registrable Securities in any
registration statement pursuant to this Section 3.2 at any time prior to
the execution of an underwriting agreement with respect thereto by giving
written notice to the Company of its request to withdraw.
(c) Priority in Incidental Registrations. If any
registration pursuant to this Section 3.2 involves an underwritten offering
and the managing underwriter of such offering shall inform the Company in
writing of its belief that the number of Registrable Securities requested
to be included in such registration, when added to the number of other
equity securities to be offered in such registration, would materially
adversely affect such offering, then the Company shall include in such
registration, to the extent of the number and type which the Company is so
advised can be sold in (or during the time of) such offering without so
materially adversely affecting such offering (the "Section 3.2 Sale
Amount"), (i) all of the equity securities proposed by the Company to be
sold for its own account; (ii) thereafter, to the extent the Section 3.2
Sale Amount is not exceeded, the Registrable Securities requested by the
Participating Holders (provided that if all of the Registrable Securities
requested by the Participating Holders may not be included, the
Participating Holders shall be entitled to participate on a pro rata basis
based on the aggregate number of shares of Registrable Securities requested
by the Participating Holders to be registered); and (iii) thereafter, to
the extent the Section 3.2 Sale Amount is not exceeded, any other equity
securities of the Company requested to be included by Company stockholders
holding other such registration rights.
(d) Plan of Distribution. Any participation by Holders
in a registration by the Company shall be in accordance with the Company's
plan of distribution, provided that the Majority Participating Holders
shall have the right to select a co-managing underwriter, taking into
account any contractual obligations of the Company with respect to the
engagement of underwriters by the Company for such transactions.
3.3 Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections 2,
3.1 and 3.2 hereof, the Company shall as expeditiously as possible:
(a) prepare and file with the Commission as soon as
practicable the requisite registration statement to effect such
registration (and shall include all financial statements required by the
Commission to be filed therewith) and thereafter use its best efforts to
cause such registration statement to become effective; provided, however,
that before filing such registration statement (including all exhibits) or
any amendment or supplement thereto or comparable statements under
securities or blue sky laws of any jurisdiction, the Company shall furnish
such documents to each Participating Holder and each underwriter, and
counsel to the Participating Holders, which documents will be subject to
the review and comments of each Participating Holder, each underwriter and
their respective counsel; and provided, further, however, that the Company
may discontinue any registration of its securities which are not
Registrable Securities at any time prior to the effective date of the
registration statement relating thereto;
(b) notify the Participating Holders of the
Commission's requests for amending or supplementing the registration
statement and the prospectus, and prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable
Securities covered by such registration statement for such period as shall
be required for the disposition of all of such Registrable Securities in
accordance with the intended method of distribution thereof; provided, that
except with respect to any such registration statement filed pursuant to
Rule 415 under the Securities Act, such period need not exceed 90 days;
(c) furnish, without charge, to each Participating
Holder and each underwriter such number of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, as the
Participating Holders and such underwriters may reasonably request;
(d) use its best efforts (i) to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such securities or blue sky laws of such States of the
United States of America where an exemption is not available and as the
Participating Holders or any managing underwriter shall reasonably request,
(ii) to keep such registration or qualification in effect for so long as
such registration statement remains in effect, and (iii) to take any other
action which may be reasonably necessary or advisable to enable the
Participating Holders to consummate the disposition in such jurisdictions
of the securities to be sold by the Participating Holders, except that the
Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this subsection (d) (i) be obligated to be
so qualified or to consent to general service of process in any such
jurisdiction or (ii) be subject to additional taxes (other than de minimus
amounts);
(e) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to the Company
and counsel to each of the Participating Holders to consummate the
disposition of such Registrable Securities;
(f) if requested by the lead underwriter, furnish to
each Participating Holder and each underwriter, if any, participating in
the offering of the securities covered by such registration statement, a
signed counterpart of (i) an opinion of counsel for the Company, and (ii) a
"comfort" letter signed by the independent public accountants who have
certified the Company's financial statements included or incorporated by
reference in such registration statement, covering substantially the same
matters with respect to such registration statement (and the prospectus
included therein) and, in the case of the accountants' comfort letter, with
respect to events subsequent to the date of such financial statements, as
are customarily covered in opinions of issuer's counsel and in accountants'
comfort letters delivered to the underwriters in underwritten public
offerings of securities (and dated the dates such opinions and comfort
letters are customarily dated) and, in the case of the legal opinion, such
other legal matters, and, in the case of the accountants' comfort letter,
such other financial matters as the underwriters may reasonably request;
(g) promptly notify each Participating Holder and each
managing underwriter, if any, participating in the offering of the
securities covered by such registration statement (i) when such
registration statement, any pre-effective amendment, the prospectus or any
prospectus supplement related thereto or post-effective amendment to such
registration statement has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same has
become effective; (ii) of any request by the Commission for amendments or
supplements to such registration statement or the prospectus related
thereto or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation of any proceedings for that
purpose; (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any of the Registrable
Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose; (v) at
any time when a prospectus relating thereto is required to be delivered
under the Securities Act, upon discovery that, or upon the happening of any
event as a result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, in the light of
the circumstances under which they were made, and in the case of this
clause (v), at the request of a Participating Holder promptly prepare and
furnish to each Participating Holder and each managing underwriter, if any,
participating in the offering of the Registrable Securities, a reasonable
number of copies of a supplement to or an amendment of such prospectus as
may be necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include 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 in the
light of the circumstances under which they were made; and (vi) at any time
when the representations and warranties of the Company contemplated by
Section 3.4(a) or (b) hereof cease to be true and correct;
(h) otherwise comply with all applicable rules and
regulations of the Commission, and make available to its security holders,
as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months beginning with the first full calendar
month after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder, and promptly furnish to
each Participating Holder a copy of any amendment or supplement to such
registration statement or prospectus;
(i) provide and cause to be maintained a transfer agent
and registrar (which, in each case, may be the Company) for all Registrable
Securities covered by such registration statement from and after a date not
later than the effective date of such registration statement;
(j) (i) use its best efforts to cause all Registrable
Securities covered by such registration statement to be listed on the
principal securities exchange on which similar securities issued by the
Company are then listed (if any), if the listing of such Registrable
Securities is then permitted under the rules of such exchange, or (ii) if
no similar securities are then so listed, use its reasonable best efforts
to (x) cause all such Registrable Securities to be listed on a national
securities exchange or (y) failing that, secure designation of all such
Registrable Securities as a National Association of Securities Dealers,
Inc. Automated Quotation System ("NASDAQ") "national market system
security" within the meaning of Rule 11Aa2-1 of the Commission or (z)
failing that, to secure NASDAQ authorization for such shares and, without
limiting the generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such shares with the
National Association of Securities Dealers, Inc.;
(k) deliver promptly to counsel to the Participating
Holders and each underwriter, if any, participating in the offering of the
Registrable Securities, copies of all correspondence between the Commission
and the Company with respect to such registration statement;
(l) use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Registrable
Securities, no later than the effective date of the registration statement;
and
(n) make available its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking into
account the needs of the Company's business) in their marketing of
Registrable Securities.
The Company may require the Participating Holders to furnish
the Company such information regarding such Participating Holders and the
distribution of the Registrable Securities as the Company may from time to
time reasonably request in writing and the Company shall not be obligated
to effect the registration of any Registrable Securities of a particular
Participating Holder unless such information regarding such Participating
Holder is provided to the Company.
Each Participating Holder agrees that upon receipt of any
notice from the Company of the happening of any event of the kind described
in paragraph (g)(iii) or (v) of this Section 3.3, each Participating Holder
will, to the extent appropriate, discontinue its disposition of Registrable
Securities pursuant to the registration statement relating to such
Registrable Securities until, in the case of paragraph (g)(v) of this
Section 3.3, its receipt of the copies of the supplemented or amended
prospectus contemplated by paragraph (g)(v) of this Section 3.3 and, if so
directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in its
possession, of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice. If the disposition by a
Participating Holder of its securities is discontinued pursuant to the
foregoing sentence, the Company shall extend the period of effectiveness of
the registration statement by the number of days during the period from and
including the date of the giving of notice to and including the date when
the Participating Holder shall have received copies of the supplemented or
amended prospectus contemplated by paragraph (g)(v) of this Section 3.3;
and, if the Company shall not so extend such period, the Participating
Holder's request pursuant to which such registration statement was filed
shall not be counted for purposes of the requests for registration to which
the Participating Holder is entitled pursuant to Section 3.1 hereof.
3.4 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by
the underwriters for any underwritten offering by the Participating Holders
pursuant to a registration requested under Section 3.1, the Company shall
enter into a customary underwriting agreement with a managing underwriter
or underwriters selected by the Majority Participating Holders (in
accordance with Section 3.1(f) hereto). Such underwriting agreement shall
be satisfactory in form and substance to the Majority Participating Holders
and shall contain such representations and warranties by, and such other
agreements on the part of, the Company and such other terms as are
generally prevailing in agreements of that type, including, without
limitation, customary provisions relating to indemnification and
contribution. Each Participating Holder shall be a party to such
underwriting agreement and may, at their option, require that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of each
Participating Holder. No Participating Holder shall be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such Participating Holder, its ownership of and title to the Registrable
Securities, and its intended method of distribution; and any liability of
any Participating Holder to any underwriter or other person under such
underwriting agreement shall be limited to liability arising from breach of
its representations and warranties and shall be limited to an amount equal
to the proceeds (net of expenses and underwriting discounts and
commissions) that it derives from such registration.
(b) Incidental Underwritten Offerings. In the case of a
registration pursuant to Section 3.2 hereof, if the Company shall have
determined to enter into any underwriting agreements in connection
therewith, all of the Registrable Securities to be included in such
registration shall be subject to such underwriting agreements. The
Participating Holders may, at their option, require that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of the
Participating Holders. None of the Participating Holders shall be required
to make any representations or warranties to or agreements with the Company
or the underwriters other than representations, warranties or agreements
regarding such Participating Holder, its ownership of and title to the
Registrable Securities, and its intended method of distribution; and any
liability of any Participating Holder to any underwriter or other Person
under such underwriting agreement shall be limited to liability arising
from breach of its representations and warranties and shall be limited to
an amount equal to the proceeds (net of expenses and underwriting discounts
and commissions) that it derives from such registration.
3.5 Preparation; Reasonable Investigation. In connection
with the preparation and filing of each registration statement under the
Securities Act pursuant to this Agreement, the Company will give the
Participating Holders, their underwriters, if any, and their respective
counsel, accountants and other representatives and agents the opportunity
to participate in the preparation of such registration statement, each
prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and give each of them such access
to its books and records and such opportunities to discuss the business of
the Company with its officers and employees and the independent public
accountants who have certified its financial statements, and supply all
other information reasonably requested by each of them, as shall be
necessary or appropriate, in the opinion of the Participating Holders and
such underwriters' respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act provided that the
foregoing investigation shall be coordinated by one counsel to the
Participating Holders.
3.6 Indemnification.
(a) Indemnification by the Company. The Company agrees
that in the event of any registration of any securities of the Company
under the Securities Act, the Company shall, and hereby does, indemnify and
hold harmless each of the Participating Holders, and their respective
directors, officers, partners, agents and affiliates and each other Person
who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls such Participating
Holder or any such underwriter within the meaning of the Securities Act
(collectively, the "Indemnitees"), against any losses, claims, damages,
costs and reasonable expenses (including, without limitation, reasonable
attorney's fees) or liabilities, joint or several (or actions or
proceedings, whether commenced or threatened, in respect thereof)
("Losses"), to which such Indemnitee may become subject under the
Securities Act or otherwise, insofar as such Losses arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or
any amendment or supplement thereto or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances in
which they were made not misleading, and the Company shall reimburse such
Indemnitee for any reasonable legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such
Loss; provided that the Company shall not be liable in any such case to an
Indemnitee to the extent that any such Loss arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement
in reliance upon and in conformity with written information furnished to
the Company through an instrument duly executed by or on behalf of such
Indemnitee; and provided, further, that the Company shall not be liable to
any Person who participates as an underwriter in the offering or sale of
Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to
the extent that any such Loss (i) arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through
an instrument duly executed by or on behalf of such Person or (ii) arises
out of such Person's failure to send or give a copy of the final
prospectus, as the same may be then supplemented or amended, to the Person
asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus. Such indemnity shall remain in full
force regardless of any investigation made by or on behalf of any
Indemnitee and shall survive the transfer of such securities by such
seller.
(b) Indemnification by Participating Holders. As a
condition to including any Registrable Securities in any registration
statement, the Company shall have received an undertaking reasonably
satisfactory to it from each Participating Holder so including any
Registrable Securities to, severally and not jointly, indemnify and hold
harmless (in the same manner and to the same extent as set forth in
paragraph (a) of this Section 3.6) the Company, and each director of the
Company, each officer of the Company and each other Person, if any, who
controls the Company within the meaning of the Securities Act, with respect
to any statement or alleged statement in or omission or alleged omission
from such registration statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, but only to the extent such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such Participating Holder specifically stating
that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement; provided, however, that the liability of such indemnifying
party under this Section 3.6(b) shall be limited to the amount of proceeds
(net of expenses and underwriting discounts and commissions) received by
such indemnifying party in the offering giving rise to such liability. Such
indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such
securities by such Participating Holder.
(c) Notices of Claims, etc. Promptly after receipt by
an indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in the preceding subsections of
this Section 3.6, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to
the latter of the commencement of such action or proceeding; provided,
however, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under the preceding subsections of this Section 3.6, except to the extent
that the indemnifying party is actually prejudiced by such failure to give
notice, and shall not relieve the indemnifying party from any liability
which it may have to the indemnified party otherwise than under this
Section 3.6. In case any such action or proceeding is brought against an
indemnified party, the indemnifying party shall be entitled to participate
therein and, unless in the opinion of outside counsel to the indemnified
party a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, to assume the defense thereof,
jointly with any other indemnifying party similarly notified to the extent
that it may wish, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action or
proceeding include both the indemnified party and the indemnifying party
and if in the opinion of outside counsel to the indemnified party there may
be legal defenses available to such indemnified party and/or other
indemnified parties which are different from or in addition to those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to defend such action or
proceeding on behalf of such indemnified party or parties, provided,
however, that the indemnifying party shall be obligated to pay for only one
counsel for all indemnified parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof and approval by the indemnified party of such counsel, the
indemnifying party shall not be liable to such indemnified party for any
legal expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation (unless the
first proviso in the preceding sentence shall be applicable). No
indemnifying party shall be liable for any settlement of any action or
proceeding effected without its written consent. No indemnifying party
shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim
or litigation.
(d) Contribution. If the indemnification provided for
in this Section 3.6 shall for any reason be held by a court to be
unavailable to an indemnified party under subsection (a) or (b) hereof in
respect of any Loss, then, in lieu of the amount paid or payable under
subsection (a) or (b) hereof, the indemnified party and the indemnifying
party under subsection (a) or (b) hereof shall contribute to the aggregate
Losses (i) in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand, and the indemnified party
on the other, which resulted in such Loss, with respect to the statements
or omissions which resulted in such Loss, as well as any other relevant
equitable considerations, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law or if the allocation provided in
this clause (ii) provides a greater amount to the indemnified party than
clause (i) above, in such proportion as shall be appropriate to reflect not
only the relative fault but also the relative benefits received by the
indemnifying party and the indemnified party from the offering of the
securities covered by such registration statement as well as any other
relevant equitable considerations. The parties hereto agree that it would
not be just and equitable if contributions pursuant to this Section 3.6(d)
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to in the preceding sentence of this Section 3.6(d). No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. The Participating
Holders' obligations to contribute as provided in this subsection (d) are
several and not joint and shall be in proportion to the relative value of
their respective Registrable Securities covered by such registration
statement. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim
effected without such Person's consent, which consent shall not be
unreasonably withheld. Notwithstanding anything in this subsection (d) to
the contrary, no indemnifying party (other than the Company) shall be
required to contribute any amount in excess of the proceeds (net of
expenses and underwriting discounts and commissions) received by such party
from the sale of the Registrable Securities in the offering to which the
Losses of the indemnified parties relate.
(e) Other Indemnification. Indemnification and
contribution similar to that specified in the preceding subsections of this
Section 3.6 (with appropriate modifications) shall be given by the Company
and the Participating Holders with respect to any required registration or
other qualification of securities under any federal, state or blue sky law
or regulation of any governmental authority other than the Securities Act.
The indemnification agreements contained in this Section 3.6 shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made
by or on behalf of any indemnified party and shall survive the transfer of
any of the Registrable Securities by any such party.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 3.6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills with reasonably sufficient detail thereof are
received or a Loss is incurred.
3.7 Unlegended Certificates. In connection with the offering
of any Registrable Securities registered pursuant to this Section 3, the
Company shall (i) facilitate the timely preparation and delivery to the
Participating Holders and the underwriters, if any, participating in such
offering, of unlegended certificates representing ownership of such
Registrable Securities being sold in such denominations and registered in
such names as requested by the Participating Holders or such underwriters
and (ii) instruct any transfer agent and registrar of such Registrable
Securities to release any stop transfer orders with respect to any such
Registrable Securities.
3.8 Limitation on Sale of Securities. The Company hereby
agrees that if it shall previously have received a request for registration
pursuant to Sections 3.1 or 3.2 hereof, and if such previous registration
shall not have been withdrawn or abandoned, the Company shall not effect
any public or private offer, sale or distribution of its equity securities
or effect any registration of any of its equity securities under the
Securities Act (other than a registration on Form S-8 or any successor or
similar form which is then in effect), whether or not for sale for its own
account, until a period of 180 days (or such shorter period as the Holders
shall be advised by their managing underwriter) shall have elapsed from the
effective date of such previous registration, and the Company shall so
provide in any registration rights agreements hereafter entered into with
respect to any of its equity securities.
3.9 No Required Sale. Nothing in this Agreement shall be
deemed to create an independent obligation on the part of any of the
Holders to sell any Registrable Securities pursuant to any effective
registration statement.
4. Rule 144. The Company shall take all actions reasonably
necessary to enable holders of Registrable Securities to sell such
securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, or (b) any similar rule or regulation hereafter adopted by the
Commission including, without limiting the generality of the foregoing,
filing on a timely basis all reports required to be filed by the Exchange
Act. Upon the request of a Holder, the Company will promptly deliver to
such holder a written statement as to whether it has complied with such
requirements.
5. Amendments and Waivers. This Agreement may be amended, waived,
modified or supplemented only by written agreement of the Company and the
holders of (i) a majority of the shares of Common Stock then outstanding
which are also Registrable Securities and (ii) a majority of the shares of
Preferred Stock then outstanding which are also Registrable Securities;
provided, however, that any amendment, waiver, modification or supplement
of Section 3.6 hereto shall require the written agreement of the Company
and all Holders.
6. Limitations on Subsequent Registration Rights. From and after
the date hereof until the Holders shall no longer hold any Registrable
Securities, the Company shall not, without the prior written consent of the
holders of (i) a majority of the shares of Common Stock then outstanding
which are also Registrable Securities and (ii) a majority of the shares of
Preferred Stock then outstanding which are also Registrable Securities,
enter into any agreement with any holder or prospective holder of any
equity securities of the Company giving such holder or prospective holder
demand or incidental registration rights containing cut-back provisions
that are by their terms not subordinate to the registration rights granted
in this Agreement.
7. Notice. All notices and other communications hereunder shall
be in writing or via facsimile and, unless otherwise provided herein, shall
be deemed to have been given when received by the party to whom such notice
is to be given at its address set forth below, or such other address for
the party as shall be specified by notice given pursuant hereto:
(a) If to any of the Holders, at its last address as it appears
upon the Company's registry books.
(b) If to the Company:
NTL Europe, Inc.
00 Xxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Facsimile: 000-000-0000
8. Assignment; Third Party Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns. This
Agreement may not be assigned by the Company without the prior written
consent of the holders of (i) a majority of the shares of Common Stock then
outstanding which are also Registrable Securities and (ii) a majority of
the shares of Preferred Stock then outstanding which are also Registrable
Securities. Any Holder may, at its election, at any time or from time to
time, assign its rights under this Agreement, in whole or in part, to any
purchaser of shares of Registrable Securities held by it.
9. Remedies. The parties hereto agree that money damages or other
remedy at law would not be sufficient or adequate remedy for any breach or
violation of, or a default under, this Agreement by them and that, in
addition to all other remedies available to them, each of them shall be
entitled to an injunction restraining such breach, violation or default or
threatened breach, violation or default and to any other equitable relief,
including without limitation specific performance, without bond or other
security being required. In any action or proceeding brought to enforce any
provision of this Agreement (including the indemnification provisions
thereof), the successful party shall be entitled to recover reasonable
attorneys' fees in addition to its costs and expenses and any other
available remedy.
10. No Inconsistent Agreements. The Company will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof, other
than any customary lock-up agreement with the underwriters in connection
with any offering effected hereunder, pursuant to which the Company shall
agree not to register for sale, and the Company shall agree not to sell or
otherwise dispose of, Common Stock, Preferred Stock, any securities
convertible into or exercisable or exchangeable for Common Stock, or any
securities convertible into or exercisable or exchangeable for Preferred
Stock, for a specified period (not to exceed 180 days) following such
offering. The Company represents and warrants that the rights granted to
the Holders hereunder do not in any way conflict with and are not
inconsistent with any other agreements to which the Company is a party or
by which it is bound after the effective date of the Plan.
11. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only
and shall not control or otherwise affect the meaning hereof.
12. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights and obligations of the parties hereto
shall be governed by, the laws of the State of New York, without giving
effect to the conflicts of law principles thereof. Each of the parties
hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of New York and the
United States of America located in the State of New York for any action or
proceeding arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any action or
proceeding relating thereto except in such courts), and further agrees that
service of any process, summons, notice or document by U.S. registered mail
to its respective address set forth in Section 7 hereof shall be effective
service of process for any action or proceeding brought against it in any
such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any action
or proceeding arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of New York or the United
States of America located in the State of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such court
has been brought in an inconvenient forum.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
14. Invalidity of Provision. The invalidity or unenforceability
of any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction. If any restriction or provision
of this Agreement is held unreasonable, unlawful or unenforceable in any
respect, such restriction or provision shall be interpreted, revised or
applied in a manner that renders it lawful and enforceable to the fullest
extent possible under law.
15. Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all further acts and things and shall
execute and deliver all other agreements, certificates, instruments, and
documents as any other party hereto reasonably may request in order to
carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
16. Entire Agreement; Effectiveness. This Agreement constitutes
the entire agreement, and supersedes all prior agreements and
understandings, oral and written, between the parties hereto with respect
to the subject matter hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly
authorized.
NTL EUROPE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
XXXXXX, XXXXXX & CO. L.P.,
Solely on behalf of its advisory clients
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
APPALOOSA MANAGEMENT L.P.,
On behalf of certain funds for which it
acts as investment advisor
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
