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Exhibit 4.40
$100,000,000 5-3/4% CONVERTIBLE SUBORDINATED NOTES DUE 2011
REGISTRATION RIGHTS AGREEMENT
Dated as of June 22, 2001
by and among
NTL INCORPORATED
and
NTL (DELAWARE), INC.
and
SFG VI INC.
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This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of June 22, 2001 by and among NTL Incorporated, a Delaware
corporation ("NTL INCORPORATED" or the "COMPANY"), NTL (Delaware), Inc., a
Delaware corporation ("NTL DELAWARE" and, together with NTL Incorporated, the
"ISSUERS") and SFG VI Inc. (the "PURCHASER").
The Issuers propose to issue and sell to the Purchaser (the
"PLACEMENT") $100,000,000 aggregate principal amount of their 5-3/4% Convertible
Subordinated Notes Due 2011 (the "NOTES"). The Notes will be convertible into
shares of Common Stock of NTL Incorporated, par value $0.01 per share (the
"COMMON STOCK") subject to adjustment in accordance with the Indenture (as
defined in Section 1 hereof).
As an inducement to the Purchaser to enter into the purchase agreement,
dated as of June 22, 2001 (the "PURCHASE AGREEMENT"), and in satisfaction of a
condition to the Purchaser's obligations thereunder, the Issuers agree to
provide the Purchaser, 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 (including the Purchaser) and the registered holders
from time to time of the Underlying Common Stock issued upon conversion of the
Notes (each of the foregoing a "HOLDER" and together the "HOLDERS"), the
registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree 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" has the meaning set forth in the preamble hereto.
"COMPANY" has the meaning set forth in the preamble hereto.
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"DEPOSIT AGREEMENT" means the Deposit Agreement, dated June 22, 2001
between the Issuers and the Depositary.
"DEPOSITARY" means United States Trust Company of New York, as
Depositary under the Deposit Agreement.
"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 the preamble hereto.
"INDENTURE" means the Indenture, dated as of June 22, 2001, by and
among the Issuers and the Trustee, relating to the Notes, as the same may be
amended from time to time in accordance with the terms thereof.
"ISSUERS" has the meaning set forth in the preamble hereto.
"LIQUIDATED DAMAGES" has the meaning set forth in the Section 2 hereof.
"LOSSES" has the meaning set forth in Section 6(d) hereof.
"MAJORITY HOLDERS" means the Holders of a majority of the Transfer
Restricted 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.
"PLACEMENT" 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.
"PURCHASE AGREEMENT" means the meaning set forth in the preamble
hereto.
"PURCHASER" has the meaning set forth in the preamble hereto.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2 hereof.
"SHELF REGISTRATION" means a registration effected pursuant to Section
2 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 2
hereof.
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"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
of the Company pursuant to the provisions of Section 2 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 the
Company of the existence of any fact or event of the kind described in Section
3(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 3(h) hereof, or the receipt by such Holder of written notice from the
Company (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 the Common Stock issued or
issuable upon conversion of the Notes and any shares of Common Stock issued with
respect thereto upon any stock dividend, split or similar event until (i) the
date on which such Common Stock has been effectively registered under the Act
and disposed of in accordance with the Shelf Registration Statement (ii) the
date on which such Common Stock issued or issuable upon conversion of the Notes
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) (or any similar
provision then in effect) under the Act.
"TRUSTEE" means the trustee with respect to the Notes under the
Indenture.
"UNDERLYING COMMON STOCK" means the Common Stock of NTL Incorporated
into which the Notes are convertible.
"UNDERWRITER" means any underwriter in connection with an offering
thereof under a Shelf Registration Statement.
2. SHELF REGISTRATION
The Company shall, within 60 days of the date of original issuance of
the Notes, file with the Commission and thereafter shall use its best efforts to
cause to be declared effective under the Act as soon as reasonably practicable
thereafter but in any event on or prior to 270 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 thereof from time to
time in accordance with the methods of distribution elected by such Holders and
set forth in such Shelf Registration Statement. It is agreed that such Shelf
Registration Statement, if permitted by the rules and regulations of the
Commission, may be used for the offer and sale of Common Stock by the Depositary
(in the event that interest payments on the Notes are paid by the Issuers with
the cash proceeds from sales of Common Stock) in accordance with the Deposit
Agreement.
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The Company shall use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders from the date the Shelf Registration statement
is declared effective by the Commission until (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 the Company, 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"). The Company shall be deemed not to have used its 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 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 the Company in good faith and for valid business reasons
(not including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly thereafter
complies with the requirements of Section 3(h) hereof, if applicable or (iii)
such action is taken because of any fact or circumstance giving rise to a
Supplement Delay Period.
If (a) the Company fails to file the Shelf Registration Statement on or
before the date specified above for such filing, (b) such Shelf Registration
Statement is not declared effective by the Commission on or prior to the date
specified above for such effectiveness, or (c) the Shelf Registration Statement
is declared effective but thereafter ceases to be effective or useable in
connection with resales of Transfer Restricted Securities during the Shelf
Registration period (each such event referred to in clauses (a) through (c)
above a "REGISTRATION DEFAULT"), then the Issuers will pay liquidated damages
("LIQUIDATED DAMAGES"), following the occurrence of such Registration Default,
without duplication, (i) prior to the conversion of the Notes, to the registered
Holders of the Notes in an amount equal to $.25 per week per $1,000 principal
amount of such Notes held by such Holder and (ii) to the record Holders of
Underlying Common Stock issued upon conversion of Notes that are Transfer
Restricted Securities, in an amount of $.50 per week per the number of shares of
Underlying Common Stock constituting Transfer Restricted Securities held by such
Holder that such Holder would have received on such date upon conversion of
$1,000 principal amount of Notes at the effective Conversion Price on such date;
provided that a Registration Default referred to in clause (c) above shall be
deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if such Registration Default
has occurred solely as a result of one of the following: (x) the filing of a
post-effective amendment to the Shelf Registration Statement to incorporate
annual audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared effective
to permit Holders of Transfer Restricted Securities to use the related
Prospectus or (y) there has a occurred an event contemplated by Section
3(b)(2)(v) hereof, provided that, in the case of clause (y) the Company has
undertaken to comply with Section (3)(h) hereof and the Supplemental Delay
Period has not exceeded 45 days and the aggregate number of days under all
Supplemental Delay Periods has not exceeded 90 days in any twelve-month period;
provided further, that a Holder of Notes or a Holder of Transfer Restricted
Securities shall not be entitled to the benefit of any Liquidated
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Damages unless and until such Holder shall have furnished to the Company the
information required by Section 3(j) hereof.
Following the cure of all Registration Defaults, the accrual of
Liquidated Damages will cease. Notwithstanding the foregoing, no Liquidated
Damages shall accrue as to any Transfer Restricted Security from and after the
earlier of (x) the date such security is no longer a Transfer Restricted
Security and (y) the expiration of the Shelf Registration Period. All accrued
Liquidated Damages shall be paid by the Issuers on each Interest Payment Date
(as defined in the Indenture) for which Liquidated Damages are owed to the
Holders.
3. REGISTRATION PROCEDURES
In connection with any Shelf Registration Statement, the following
provisions shall apply:
(a) The Company 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) The Company shall advise the Purchaser and the Holders
of Transfer Restricted Securities covered thereby, and, if
requested by the Purchaser 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) The Company shall advise the Purchaser and the
Holders of Transfer Restricted Securities covered thereby,
and, if requested by the Purchaser 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;
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(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 the Company of any
notification with respect to the suspension of the
qualification of the securities included therein for
sale in any jurisdiction or the initiation or
threatening of any proceeding 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 the Company in the Shelf
Registration Statement as to which the Company has a
bona fide business purpose for preserving
confidential or which renders the Company unable to
comply with Commission requirements) that, in the
opinion of the Company, makes untrue any statement of
a material fact made in its 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) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any
Shelf Registration Statement at the earliest possible time.
(d) The Company shall furnish to each selling Holder included
within the coverage of any Shelf Registration Statement who so
requests in writing and who has provided to the Company 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) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Transfer Restricted Securities
covered by any Shelf Registration
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Statement and who has provided to the Company 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 the Company in accordance with Section 4(b) hereof,
the Company 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, the Company
shall (i) 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, (ii) keep each such
registration or qualification (or exemption therefrom)
effective during the period such Shelf Registration Statement
is required to be kept effective and (iii) do any and all
other acts or things necessary or advisable to enable the
disposition in such jurisdictions of such Transfer Restricted
Securities in the manner set forth in the applicable Shelf
Registration Statement and the related Prospectus; provided,
however, that the Company will not 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) The Company shall 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, the Company 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 the Company, require disclosure by the Company in the Shelf
Registration Statement
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of material non-public information for which the Company 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, the Company
shall not be required to prepare and file a supplement or
post-effective amendment hereunder.
(i) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall
make generally available to its 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.
(j) The Company may require each Holder of Transfer Restricted
Securities, which are to be sold pursuant to any Shelf
Registration Statement, to furnish to the Company within 20
business days after written request for such information has
been made by the Company, such information regarding the
Holder and the distribution of such securities as the Company
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 the
Company and its 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 3(j) and all such information
required to be disclosed in order to make the information
previously furnished to the Company by such Holder not
materially misleading.
(k) The Company shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective
amendment to a Shelf Registration Statement, such information
as the Managing Underwriters, if any, 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 included or incorporated in such Prospectus supplement or
post-effective amendment; provided, however, that the Company
shall not be required (i) to take any action pursuant to this
Section 3(k) that would, in the opinion of counsel for the
Company, violate applicable law or (ii) to include information
the disclosure of which at the time would have an adverse
effect on the business or operations of the Company and/or its
subsidiaries, as determined in good faith by the Company.
(l) In the case of any Shelf Registration Statement, the
Company shall enter into such agreements (including
underwriting agreements) and take all other reasonably
appropriate actions in order to expedite or facilitate the
registration and 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 6 (or such other provisions
and procedures acceptable to the Majority
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Holders and the Managing Underwriters, if any), with respect
to all parties to be indemnified pursuant to Section 6,
including the Holders, the underwriters, if any, and the
Company.
(m) In the case of any Shelf Registration Statement, the
Company 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 such
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 the Company and
its subsidiaries, and cause the Company's officers,
directors and employees to supply all relevant
information reasonably requested by the Holders of
such Transfer Restricted Securities 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 of such
Transfer Restricted Securities and that such persons
shall first agree in writing with the Company that
any information that is designated in writing by the
Company, 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 or otherwise customarily permitted;
(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 the Company 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
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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
the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the
Company or of any business acquired by the Company
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 3(h) and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by the
Company.
The foregoing actions set forth in clauses (ii),
(iii), (iv) and (v) of this Section 3(m) shall, if reasonably requested by the
Majority Holders or the Managing 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.
(vi) The Company may offer securities of the Company
and securities of the Company owned by other
securityholders of the Company under the Shelf
Registration Statement, except where such offer would
conflict with the terms of the Purchase Agreement or
would otherwise have a material adverse effect on the
ability of Holders to offer and sell their Transfer
Restricted Securities under such Shelf Registration
Statement.
4. HOLDERS' AGREEMENTS
Each Holder agrees, by the acquisition of the Notes and the Transfer
Restricted Securities:
(a) To furnish the information required to be furnished
pursuant to Section 3(j) hereof within the time period set
forth therein.
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(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 3(h) hereof, or until
receipt of the Advice. The Company will use its best efforts
to minimize the length of a Supplement Delay Period and will
terminate such period as soon as practicable but in no event
longer than 45 days.
(c) If so directed by the Company in a notice of the
commencement of a Supplement Delay Period, each Holder of
Transfer Restricted Securities will deliver to the Company (at
the Company's request and 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.
5. REGISTRATION EXPENSES
The Issuers shall bear all expenses incurred in connection with the
performance of its obligations under Sections 2 and 3 hereof and, in the 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 commissions of any
underwriters with respect to any Transfer Restricted Securities sold by it.
6. INDEMNIFICATION AND CONTRIBUTION
(a) In connection with any Shelf Registration Statement, the
Company agrees to indemnify and hold harmless each Holder of
Transfer Restricted Securities covered thereby (including the
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
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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) the Company
will not 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 furnished to the
Company by or on behalf of any such Holder or by the Managing
Underwriters specifically for inclusion therein and (ii) the
Company will not 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 the Company had previously furnished copies
thereof to such indemnified party and if delivery of a
prospectus is required by the Act and was not so made. This
indemnity agreement will be in addition to any liability which
the Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses
of, as provided in Section 6(d)), any underwriters of Transfer Restricted
Securities 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 Purchaser, the selling Holders
provided in this Section 6(a) and shall, if requested by any Holder, enter into
an underwriting agreement reflecting such agreement, as provided in Section 3(l)
hereof.
(b) Each Holder of Transfer Restricted Securities covered by a
Shelf Registration Statement (including the Purchaser)
severally and not jointly agrees to indemnify and hold
harmless (i) the Company, (ii) each of its directors, (iii)
each of its officers who signs such Shelf Registration
Statement and (iv) each person who controls the Company within
the meaning of either the Act or the Exchange Act to the same
extent as the foregoing indemnity from the Company to each
such Holder, but only with reference to written information
relating to such Holder furnished to the Company 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
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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 6 of 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 6,
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 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
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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 6 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
except for the Holders and their respective officers,
directors, employees, partners, representatives, agents and
controlling persons, whose obligations shall be several and
not joint) 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 Placement and the Shelf
Registration Statement that resulted in such Losses; provided,
however, that in no case shall any Holder be responsible, in
the aggregate, 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 the amount paid by such Holder
for 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, 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
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 the
Company shall be deemed to be equal to the sum of (x) the
total net proceeds from the Placement (before deducting
expenses) (which shall be $98,000,000) and (y) the total
amount of additional interest that the Company 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 Holders shall be deemed
to be equal to the value of receiving shares of Underlying
Common Stock that are 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
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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 not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, 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 the
Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the
Shelf Registration Statement and each director of the Company
shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of
this paragraph (d).
(e) The provisions of this Section 6 shall remain in full
force and effect, regardless of any investigation made by or
on behalf of any Holder or the Company or any of the officers,
directors or controlling persons referred to in Section 6
hereof, and will survive the sale by a Holder of Transfer
Restricted Securities.
7. RULE 144A AND RULE 144
Each of the Issuers agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding and during any period in which
the respective Issuer (i) is not subject to Section 13 or 15(d) of the Exchange
Act, to make available, upon request of any Holder of Transfer Restricted
Securities, to such Holder or beneficial owner of Transfer Restricted Securities
in connection with any sale thereof and to 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 Notes and Underlying Common Stock 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 Notes and
Underlying Common Stock pursuant to Rule 144.
8. MISCELLANEOUS
(a) No Conflicting Agreements. Neither of the Issuers has, as
of the date hereof, entered into, nor shall either of them, on
or after the date hereof, enter into, any agreement with
respect to their respective securities that 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 the Company has obtained the written consent of the
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Holders of at least a majority of the then outstanding shares
of the Underlying Common Stock constituting Transfer
Restricted Securities (with Holders of Notes deemed to be the
Holders, for purposes of this Section 8(b), of the number of
outstanding shares of Underlying Common Stock in which such
Notes are convertible). Notwithstanding the foregoing (except
the foregoing proviso), a waiver or consent to depart from the
provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Transfer Restricted
Securities 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 Transfer
Restricted Securities 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 of Transfer Restricted Securities,
at the most current address given by such Holder to
the Company in accordance with the provisions of this
Section 9(d);
(ii) if to the Purchaser, initially at its address
set forth in the Purchase Agreement; and
(iii) if to the Issuers, initially at their address
set forth in the Purchase Agreement;
(iv) or to such other address as such person may have
furnished to the other persons identified in this
Section 8(c) in writing in accordance herewith.
All such notices and communications shall be deemed
to have been duly given when received.
(d) Owner of Transfer Restricted Securities. The Company will
maintain, or cause its registrar to maintain, a register with
respect to the Transfer Restricted Securities in which all
transfers of Transfer Restricted Securities of which the
Company has received notice will be recorded. The Company may
deem and treat the person in whose name Transfer Restricted
Securities are registered in such register of the Company as
the owner thereof for all purposes, including, without
limitation, the giving of notices under this Agreement.
(e) 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 the Issuers thereto,
subsequent Holders of Transfer Restricted Securities. The
Issuers
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hereby agree to extend the benefits of this Agreement to any
Holder of Transfer Restricted Securities and any such Holder
may specifically enforce the provisions of this Agreement as
if an original party hereto.
(f) 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.
(g) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(h) 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).
(i) Submission to Jurisdiction. Each party hereto irrevocably
submits to the non-exclusive jurisdiction of the courts of the
United States District Court for the Southern District of New
York (or, if subject matter jurisdiction in that court is not
available, in any state court located within the city of New
York) over any dispute arising out of or relating to this
Agreement or any agreement or instrument contemplated hereby
or entered into in connection herewith or any of the
transactions contemplated hereby or thereby. Each party hereto
irrevocably consents to the service of any and all process in
any action or proceeding arising out of or relating to this
Agreement by the mailing of copies of such process to such
party at their address specified in Section 8(c).
(j) 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.
(k) Notes Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal
amount of Transfer Restricted Securities is required
hereunder, Transfer Restricted Securities held by the Company
or its Affiliates (other than subsequent Holders of Transfer
Restricted Securities if such subsequent Holders are deemed to
be Affiliates solely by reason of their holdings of such
Transfer Restricted Securities) shall not be counted in
determining whether such consent or approval was given by the
Holders of such required percentage.
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(l) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is
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. Except as provided in
the Purchase Agreement and the Indenture, 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 Notes and
Underlying Common Stock. 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 (DELAWARE), INC.
By:
--------------------------------------
Name:
Title:
SFG VI INC.
By:
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Name:
Title:
D-1
