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Exhibit 2.1
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AGREEMENT AND PLAN OF MERGER
by and among
NTL INCORPORATED
(a Delaware corporation)
and
NTL COMMUNICATIONS CORP.
(a Delaware corporation)
and
NTL MERGERCO, INC.
(a Delaware corporation)
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Dated as of March 26, 1999
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of March 26, 1999 (the
"Agreement"), by and among NTL INCORPORATED, a Delaware corporation ("NTL" or,
with regard to the period upon and after the Effective Time (as hereinafter
defined), the "Surviving Corporation"), NTL COMMUNICATIONS CORP., a Delaware
corporation ("Holdco"), which is a direct wholly-owned subsidiary of NTL, and
NTL MERGERCO, INC., a Delaware corporation ("Holdco Sub"), which is a direct
wholly-owned subsidiary of Holdco and an indirect wholly-owned subsidiary of NTL
(NTL and Holdco Sub, collectively, the "Constituent Corporations" and each, a
"Constituent Corporation".)
W I T N E S S E T H:
WHEREAS, NTL is a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "DGCL") and is authorized
to issue a total of 410,000,000 shares, consisting of: (i) 400,000,000 shares of
common stock, par value $.01 per share ("NTL Common Stock"); (ii) 10,000,000
shares of preferred stock, par value $.01 per share ("NTL Preferred Stock"), of
which (A) 250,000 shares have been designated 13% Senior Redeemable Exchangeable
Preferred Stock, par value $.01 per share ("NTL 13% Series A Preferred Stock"),
(B) 250,000 shares have been designated 13% Series B Senior Redeemable
Exchangeable Preferred Stock, par value $.01 per share ("NTL 13% Series B
Preferred Stock"), (C) 125,280 shares have been designated 9.90% Nonvoting
Mandatorily Redeemable Preferred Stock, Series A, par value $.01 per share ("NTL
9.90% Series A Preferred Stock"), (D) 52,217 shares have been designated 9.90%
Non-voting Mandatorily Redeemable Preferred Stock, Series B, par value $.01 per
share ("NTL 9.90% Series B Preferred Stock"), (E) 500,000 shares have been
designated 5 1/4% Convertible Preferred Stock, Series A, par value $.01 per
share ("NTL 5 1/4% Series A Preferred Stock"), (F) 4,447.92 shares have been
designated 5 1/4% Convertible Preferred Stock, Series B, par value $.01 per
share ("NTL 5 1/4% Series B Preferred Stock") and (G) 1,000,000 shares have been
designated Series A Junior Participating Preferred Stock, par value $.01 per
share ("NTL Junior Participating Preferred Stock") (all classes of preferred
stock, collectively, "NTL Preferred Stock"). As of the close of business on
March 23, 1999, there were (i) 73,303,103 shares of NTL Common Stock issued and
out standing, each including an associated right to purchase NTL Junior
Participating Preferred Stock, (the "Outstanding NTL Common Shares"); (ii) (A)
6.06 shares of NTL 13% Series A Preferred Stock issued and outstanding (the
"Outstanding NTL
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13% Series A Shares"), (B) 125,219.22 shares of NTL 13% Series B Preferred Stock
issued and outstanding (the "Outstanding NTL 13% Series B Shares"), (C) 125,280
shares of NTL 9.90% Series A Preferred Stock issued and outstanding (the
"Outstanding NTL 9.90% Series A Shares"), (D) 52,217 shares of NTL 9.90% Series
B Preferred Stock issued and outstanding (the "Outstanding NTL 9.90% Series B
Shares"), (E) 500,000 shares of NTL 5 1/4% Series A Preferred Stock issued and
outstanding (the "Outstanding NTL 5 1/4% Series A Shares"), (F) no shares of NTL
5 1/4% Series B Preferred Stock issued and outstanding but 4,447.92 shares
thereof are expected to be issued and outstanding as of the Closing Date (the
"Outstanding 5 1/4% Series B Shares") and (G) no shares of NTL Junior
Participating Preferred Stock issued and outstanding; (iii) 24,237,000 shares of
NTL Common Stock reserved for issuance upon exercise of stock options of NTL
outstanding or which may be granted pursuant to employee stock option and
similar plans; (iv) 8,139,800 shares of NTL Common Stock reserved for issuance
upon the conversion of NTL Preferred Stock; (v) 2,869,574 shares of NTL Common
Stock reserved for issuance upon the exercise NTL Warrants (as herein after
defined) outstanding; and (vi) 17,055,588 shares of NTL Common Stock reserved
for issuance upon conversion of certain NTL 7% Convertible Notes (as hereinafter
defined) outstanding;
WHEREAS, Holdco Sub is a corporation organized and existing under
the DGCL and is authorized to issue a total of 100 shares, in a single class of
common stock, $.01 par value per share ("Holdco Sub Common Stock"), of which, as
of the date hereof, 100 shares are issued and outstanding (the "Outstanding
Holdco Sub Common Shares");
WHEREAS, as of the date hereof, Holdco holds of record all of the
Outstanding Holdco Sub Common Shares and no shares of Holco Sub Common Stock are
issued but not outstanding;
WHEREAS, Holdco is a corporation organized and existing under the
DGCL and is authorized to issue a total of 100 shares of common stock, par value
$.01 per share ("Holdco Common Stock"), and prior to the Effective Time will be
authorized to issue a total of 410,000,000 shares, consisting of: (i)
400,000,000 shares of Holdco Common Stock; (ii) 10,000,000 shares of preferred
stock, par value $.01 per share ("Holdco Preferred Stock"), of which (A) 250,000
shares will constitute, prior to the Effective Time, a series of Holdco
Preferred Stock identical to NTL 13% Series A Preferred Stock, having the
designation "13% Senior Redeemable Exchangeable Preferred Stock" ("Holdco 13%
Series A
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Preferred Stock"), (B) 250,000 shares will constitute, prior to the Effective
Time, a series of Holdco Preferred Stock identical to NTL 13% Series B Preferred
Stock, having the designation "13% Series B Senior Redeemable Exchangeable
Preferred Stock" ("Holdco 13% Series B Preferred Stock"), (C) 125,280 shares
will constitute, prior to the Effective Time, a series of Holdco Preferred Stock
identical to NTL 9.90% Series A Preferred Stock, having the designation "9.90%
Non-Voting Mandatorily Redeemable Preferred Stock, Series A" ("Holdco 9.90%
Series A Preferred Stock"), (D) 52,217 shares will constitute, prior to the
Effective Time, a series of Holdco Preferred Stock identical to NTL 9.90% Series
B Preferred Stock, having the designation "9.90% Non-voting Mandatorily
Redeemable Preferred Stock, Series B" ("Holdco 9.90% Series B Preferred Stock"),
(E) 500,000 shares will constitute, prior to the Effective Time, a series of
Holdco Preferred Stock identical to NTL 5 1/4% Series A Preferred Stock, having
the designation "5 1/4% Convertible Preferred Stock, Series A" ("Holdco 5 1/4%
Series A Preferred Stock"), (F) 4,447.92 shares will constitute, prior to the
Effective Time, a series of Holdco Preferred Stock identical to NTL 5 1/4%
Series B Preferred Stock, having the designation "5 1/4% Convertible Preferred
Stock, Series B" ("Holdco 5 1/4% Series B Preferred Stock") and (G) 1,000,000
shares will constitute prior to the Effective Time a series of Holdco Preferred
Stock, identical to NTL Junior Participating Preferred Stock, having the
designation "Series A Junior Participating Preferred Stock" ("Holdco Junior
Participating Preferred Stock"). As of the date hereof, there are 100 shares
issued and outstanding of Holdco Common Stock (the "Outstanding Holdco Common
Shares");
WHEREAS, as of the date hereof, NTL holds of record all of the
Outstanding Holdco Common Shares and no shares of Holdco Common Stock are issued
but not outstanding;
WHEREAS, the respective Boards of Directors of NTL, Holdco Sub and
Holdco have determined that it is advisable and in the best interests of each of
NTL, Holdco Sub and Holdco and their respective stockholders that Holdco Sub be
merged with and into NTL, with NTL continuing as the Surviving Corporation, in
accordance with the terms and conditions of this Agreement (the "Merger"), and
accordingly the Boards of Directors of each of NTL, Holdco Sub and Holdco have
approved and authorized this Agreement and the transactions contemplated hereby,
including the Merger;
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WHEREAS, it is contemplated that the Merger will be effected in
accordance with Section 251(g) of the DGCL, and that the Merger and the ex
change of shares of capital stock of NTL for shares of capital stock of Holdco
shall be a transaction described in Section 351(a) and/or Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and that no income or
gain will be recognized by NTL or Holdco or their respective stockholders as a
result of the Merger; and
NOW, THEREFORE, in consideration of the premises, the mutual
agreements, promises, covenants, representations, warranties, acknowledgments
and other terms, conditions, and provisions set forth herein, and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
THE MERGER
1. The Merger.
1.1 The Merger; Filing and Effective Time. Subject to and in
accordance with the terms and conditions of this Agreement and the DGCL, this
Agreement and the certificates of the respective secretaries of NTL and Holdco
Sub attached hereto as Exhibits A and B, duly executed, shall be filed with the
Secretary of State of the State of Delaware (the "Delaware Secretary of State")
by the Surviving Corporation at or as soon as practicable after the Closing (as
defined below). The Merger shall become effective at the time when this
Agreement is so filed with the Delaware Secretary of State (the "Effective
Time").
1.2 Closing. Subject to and in accordance with the terms and
conditions of this Agreement, the closing of the Merger (the "Closing") shall
take place as soon as practicable after satisfaction of the latest to occur of
the conditions set forth in Article IV hereof (the "Closing Date"), at the
office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
XX 00000, unless another date or place is agreed to in writing by the parties
hereto.
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1.3 Effects of the Merger. The Merger shall have the effects set
forth in Section 259 of the DGCL.
1.4 Certificate of Incorporation of the Surviving Corporation. The
Restated Certificate of Incorporation of NTL, as in effect immediately prior to
the Effective Time (the "NTL Charter"), shall be the certificate of
incorporation of the Surviving Corporation (the "Surviving Corporation
Charter"), except that the following amendments thereto are to be effected by
the Merger upon the Effective Time:
A. The Surviving Corporation Charter shall be amended by deleting
Article FIRST thereof in its entirety and inserting in lieu thereof the
following: "FIRST: The name of the Corporation is NTL Communications Corp.
(hereinafter called, the "Corporation").";
B. The Surviving Corporation Charter shall be amended by deleting
Article FOURTH thereof in its entirety and inserting in lieu thereof the
following: "FOURTH: The total number of shares of stock which the
Corporation has authority to issue is 100 shares of Common Stock, par
value $0.01 per share (the "Common Stock")."; and
C. The Surviving Corporation Charter shall be amended by adding and
inserting, immediately following Article THIRTEENTH thereof, a new Article
FOURTEENTH thereof, to read in its entirety as follows:
FOURTEENTH: Any act or transaction by or involving the Corporation
that requires for its adoption under the GCL or this Restated
Certificate of Incorporation the approval of stockholders of the
Corporation shall, pursuant to subsection (g) of Section 251 of the
GCL, require, in addition, the approval of the stockholders of NTL
Incorporated, a Delaware corporation, or any successor thereto by
merger, by the same vote as if required by the GCL and/or this
Restated Certificate of Incorporation.
1.5 Bylaws of the Surviving Corporation. The Bylaws of NTL as in
effect immediately prior to the Effective Time (the "NTL Bylaws"), shall be and
continue in full force and effect as the bylaws of the Surviving Corporation
upon and after the Effective Time, unless and until duly amended, altered,
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changed, repealed, and/or supplemented in accordance with the DGCL (which power
and right to amend, alter, change, repeal, and/or supplement, at any time and
from time to time after the Effective Time, are hereby expressly reserved).
1.6 Directors and Officers of the Surviving Corporation.
A. The respective members constituting the whole Board of Directors
of NTL (the "NTL Board") immediately prior to the Effective Time shall be
and continue as the respective members constituting the whole Board of
Directors of the Surviving Corporation upon and after the Effective Time,
until such members' respective successors are duly elected and qualified
or until such members' earlier death, resignation, disqualification or
removal and unless and until the number of members of such Board of
Directors shall be duly increased or decreased in accordance with the DGCL
(which power and right to increase and decrease, at any time and from time
to time after the Effective Time, are hereby expressly reserved).
B. Each person serving as an officer of NTL immediately prior to the
Effective Time shall be and continue as an officer of the Surviving
Corporation, holding the same office or offices, upon and after the
Effective Time, until such person's successor is chosen and qualified or
until such person's earlier death, resignation, disqualification, or
removal (which power and right to remove are hereby expressly reserved).
1.7 Further Assurances. At any time and from time to time upon and
after the Effective Time, as and when required or deemed desirable by the
Surviving Corporation or its successors or assigns, there shall be executed,
acknowledged, certified, sealed, delivered, filed, and/or recorded, in the name
and on behalf of any and each Constituent Corporation, such deeds, contracts,
consents, certificates, notices, and other documents and instruments, and there
shall be done or taken or caused to be done or taken, in the name and on behalf
of any and each Constituent Corporation, such further and other things and
actions as shall be appropriate, necessary, or convenient to acknowledge, vest,
effect, perfect, conform of record, or otherwise confirm the Surviving
Corporation's (or its successors' or assigns') right, title, and interest in
kind to, and possession of, all the property, interests, assets, rights,
privileges, immunities, powers, franchises, and authority of each Constituent
Corporation held immediately prior to the Effective Time, and otherwise to carry
out and effect the intent and purposes of this Agreement and the Merger. The
officers and directors of the Surviving Corporation (or its successors or
assigns), and each of them, upon and after the
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Effective Time, are and shall be fully authorized, in the name and on behalf of
each Constituent Corporation, to do and take and cause to be done and taken any
and all such things and actions, and to execute, acknowledge, certify, seal,
deliver, file, and/or record any and all such deeds, contracts, consents,
certificates, notices, and other documents and instruments.
ARTICLE II
EFFECT OF THE MERGER ON THE
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2. Effect on Capital Stock. Upon and as of the Effective Time, by
virtue of the Merger and without any action on the part of the holders of the
respective shares:
2.1 Conversion of Holdco Sub Shares. Each Outstanding Holdco Sub
Common Share shall be converted into one validly issued, fully paid and
nonassessable share of common stock, par value $0.01 per share (the "Surviving
Corporation Common Stock"), of the Surviving Corporation, to be issued and
deemed to have been issued by the Surviving Corporation automatically and
immediately upon and as of the Effective Time; the capital of the Surviving
Corporation in respect of each share of Surviving Corporation Common Stock to be
an amount equal to the par value thereof as permitted under the DGCL and such
Outstanding Holdco Sub Common Shares shall be canceled and cease to exist.
2.2 Conversion of NTL Shares.
A. Each of the Outstanding NTL Common Shares shall be
converted into the right to receive one validly issued, fully paid and
nonassessable share of Holdco Common Stock, including an associated right
to purchase Holdco Junior Participating Preferred Stock, which right shall
be governed by the Holdco Stockholder Rights Plan assumed by Holdco
pursuant to Section 3.9 hereof; and the Outstanding NTL Common Shares
shall be canceled and cease to exist.
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B. Each of the Outstanding NTL 13% Series A Preferred Shares
shall be converted into the right to receive one validly issued, fully
paid and nonassessable share of Holdco 13% Series A Preferred Stock (with
rights to accrued, accumulated and unpaid dividends on each Outstanding
NTL 13% Series A Preferred Share (the "13% Series A Accumulated
Dividends") being preserved, unimpaired, unchanged, and unaffected by such
conversion in the Merger, such 13% Series A Accumulated Dividends carrying
over and pertaining to and being accrued, accumulated, and unpaid
dividends on each such share of Holdco 13% Series A Preferred Stock, and
each such share of Holdco 13% Series A Preferred Stock carrying and having
such 13% Series A Accumulated Dividends as accrued, accumulated, and
unpaid dividends thereon, notwithstanding that such dividends shall have
accrued and accumulated from a date prior to the issuance of such shares
of Holdco 13% Series A Preferred Stock) and such Outstanding NTL 13%
Series A Preferred Shares shall no longer be outstanding and automatically
shall be canceled and cease to exist.
C. Each of the Outstanding NTL 13% Series B Preferred Shares
shall be converted into the right to receive one validly issued, fully
paid and nonassessable share of Holdco 13% Series B Preferred Stock (with
rights to accrued, accumulated and unpaid dividends on each Outstanding
NTL 13% Series B Preferred Share (the "13% Series B Accumulated
Dividends") being preserved, unimpaired, unchanged, and unaffected by such
conversion in the Merger, such 13% Series B Accumulated Dividends carrying
over and pertaining to and being accrued, accumulated, and unpaid
dividends on each such share of Holdco 13% Series B Preferred Stock, and
each such share of Holdco 13% Series B Preferred Stock carrying and having
such 13% Series B Accumulated Dividends as accrued, accumulated, and
unpaid dividends thereon, notwithstanding that such dividends shall have
accrued and accumulated from a date prior to the issuance of such shares
of Holdco 13% Series B Preferred Stock) and such Outstanding NTL 13%
Series B Preferred Shares shall no longer be outstanding and automatically
shall be canceled and cease to exist.
D. Each of the Outstanding NTL 9.90% Series A Preferred Shares
shall be converted into the right to receive one validly issued, fully
paid and nonassessable share of Holdco 9.90% Series A Preferred Stock
(with rights to accrued, accumulated and unpaid dividends on each Out-
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standing NTL 9.90% Series A Preferred Share (the "9.90% Series A
Accumulated Dividends") being preserved, unimpaired, unchanged, and
unaffected by such conversion in the Merger, such 9.90% Series A
Accumulated Dividends carrying over and pertaining to and being accrued,
accumulated, and unpaid dividends on each such share of Holdco Series C
Preferred Stock, and each such share of Holdco 9.90% Series A Preferred
Stock carrying and having such Series C Accumulated Dividends as accrued,
accumulated, and unpaid dividends thereon, notwithstanding that such
dividends shall have accrued and accumulated from a date prior to the
issuance of such shares of Holdco 9.90% Series A Preferred Stock) and such
Outstanding NTL 9.90% Series A Preferred Shares shall no longer be
outstanding and automatically shall be canceled and cease to exist.
E. Each of the Outstanding NTL 9.90% Series B Preferred Shares
shall be converted into the right to receive one validly issued, fully
paid and nonassessable share of Holdco 9.90% Series B Preferred Stock
(with rights to accrued, accumulated and unpaid dividends on each
Outstanding NTL 9.90% Series B Preferred Share (the "9.90% Series B
Accumulated Dividends") being preserved, unimpaired, unchanged, and
unaffected by such conversion in the Merger, such 9.90% Series B
Accumulated Dividends carrying over and pertaining to and being accrued,
accumulated, and unpaid dividends on each such share of Holdco 9.90%
Series B Preferred Stock, and each such share of Holdco 9.90% Series B
Preferred Stock carrying and having such 9.90% Series B Accumulated
Dividends as accrued, accumulated, and unpaid dividends thereon,
notwithstanding that such dividends shall have accrued and accumulated
from a date prior to the issuance of such shares of Holdco 9.90% Series B
Preferred Stock) and such Outstanding NTL 9.90% Series B Preferred Shares
shall no longer be outstanding and automatically shall be canceled and
cease to exist.
F. Each of the Outstanding NTL 5 1/4% Series A Preferred
Shares shall be converted into the right to receive one validly issued,
fully paid and nonassessable share of Holdco 5 1/4% Series A Preferred
Stock (with rights to accrued, accumulated and unpaid dividends on each
Out standing NTL 5 1/4% Series A Preferred Share (the "5 1/4% Series A
Accumulated Dividends") being preserved, unimpaired, unchanged, and
unaffected by such conversion in the Merger, such 5 1/4% Series A
Accumulated Dividends carrying over and pertaining to and being accrued,
accumulated,
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and unpaid dividends on each such share of Holdco 5 1/4% Series A
Preferred Stock, and each such share of Holdco 5 1/4% Series A Preferred
Stock carrying and having such 5 1/4% Series A Accumulated Dividends as
accrued, accumulated, and unpaid dividends thereon, notwithstanding that
such dividends shall have accrued and accumulated from a date prior to the
issuance of such shares of Holdco 5 1/4% Series A Preferred Stock) and
such Outstanding NTL 5 1/4% Series A Preferred Shares shall no longer be
outstanding and automatically shall be canceled and cease to exist.
G. Each of the Outstanding NTL 5 1/4% Series B Preferred
Shares shall be converted into the right to receive one validly issued,
fully paid and nonassessable share of Holdco 5 1/4% Series B Preferred
Stock (with rights to accrued, accumulated and unpaid dividends on each
Outstanding NTL 5 1/4% Series B Preferred Share (the "5 1/4% Series B
Accumulated Dividends") being preserved, unimpaired, unchanged, and
unaffected by such conversion in the Merger, such 5 1/4% Series B
Accumulated Dividends carrying over and pertaining to and being accrued,
accumulated, and unpaid dividends on each such share of Holdco 5 1/4%
Series B Preferred Stock, and each such share of Holdco 5 1/4% Series B
Preferred Stock carrying and having such 5 1/4% Series B Accumulated
Dividends as accrued, accumulated, and unpaid dividends thereon,
notwithstanding that such dividends shall have accrued and accumulated
from a date prior to the issuance of such shares of Holdco 5 1/4% Series B
Preferred Stock) and such Outstanding NTL 5 1/4% Series B Preferred Shares
shall no longer be outstanding and automatically shall be canceled and
cease to exist.
2.3 Notification of Transfer Agent. Prior to the Closing Date,
Holdco Sub and NTL shall notify their respective transfer agents of the
conversions of shares of NTL stock and of shares of Holdco Sub stock and the
cancellation of shares of NTL stock pursuant to Section 2.2 hereof.
2.4 Stock Certificates. Upon and as of the Effective Time, by virtue
of the Merger and without any action on the part of either of the Constituent
Corporations or Holdco, the holders of the respective shares, or any other
person:
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A. Holdco. The shares of Holdco Common Stock and the shares of
Holdco Preferred Stock into which the Outstanding NTL Common Shares, the
Outstanding NTL 13% Series A Shares, the Outstanding NTL 13% Series B
Shares, the Outstanding NTL 9.90% Series A Shares, the Out standing NTL
9.90% Series B Shares, the Outstanding NTL 5 1/4% Series A Shares and the
Outstanding 5 1/4% Series B Shares shall have been converted pursuant to
Section 2.2 hereof shall be represented and evidenced by the same stock
certificates that previously represented and evidenced such Outstanding
NTL Common Shares, such Outstanding NTL 13% Series A Shares, such
Outstanding NTL 13% Series B Shares, such Outstanding NTL 9.90% Series A
Shares, such Outstanding NTL 9.90% Series B Shares, such Outstanding NTL 5
1/4% Series A Shares, and such Outstanding 5 1/4% Series B Shares; and
B. NTL. Holdco, as the holder of the certificate (the "Holdco Sub
Common Stock Certificate") that immediately prior to the Effective Time
evidences the Outstanding Holdco Sub Common Shares may, at Holdco's
option, surrender the same to the Surviving Corporation for cancellation,
and Holdco shall be entitled to receive from the Surviving Corporation in
exchange therefor a certificate representing and evidencing the shares of
Surviving Corporation Common Stock into which Holdco's Outstanding Holdco
Sub Common Shares shall have been converted; until surrendered, the Holdco
Sub Common Stock Certificate shall represent and evidence the shares of
Surviving Corporation Common Stock into which the Outstanding Holdco Sub
Common Shares theretofore represented and evidenced thereby shall have
been converted pursuant to Section 2.2 hereof.
ARTICLE III
ADDITIONAL AGREEMENTS
3.1 Directors and Officers of Holdco Upon the Effective Time.
A. Directors. As of the Effective Time: (i) the number of members
constituting the whole Board of Directors of Holdco (the "Holdco Board") shall
be equal to the number of members constituting the whole NTL Board immediately
prior to the Effective Time; and (ii) the Holdco Board shall consist of all the
persons serving as members of the NTL Board immediately prior to the Effective
Time.
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B. Officers. As of the Effective Time, the officers of Holdco shall
be the persons serving as officers of NTL immediately prior to the Effective
Time.
3.2 Holdco Certificate of Incorporation. As of the Effective Time,
the certificate of incorporation of Holdco shall contain provisions identical to
the NTL Charter immediately prior to the Effective Time, which provisions shall,
among other things, reflect the change of Holdco's name to "NTL Incorporated"
(the "Holdco Charter").
3.3 Holdco Bylaws. As of the Effective Time, the bylaws of Holdco
shall contain provisions identical to the NTL Bylaws immediately prior to the
Effective Time (the "Holdco Bylaws"). To that end, prior to the Effective Time,
to the extent necessary to give effect to the intent of the preceding sentence,
Holdco shall take all requisite action to cause the Holdco Bylaws, as the same
theretofore may have been amended, altered, changed and/or supplemented, to be
duly amended and restated in accordance with the DGCL to contain provisions
identical to the NTL Bylaws immediately prior to the Effective Time, and as so
amended and restated such Holdco Bylaws shall be and remain the Holdco Bylaws
upon and after the Effective Time, unless and until thereafter duly amended,
altered, changed, repealed and/or supplemented in accordance with the DGCL
(which power and right to amend, alter, change, repeal, and/or supplement, at
any time and from time to time after the Effective Time, are hereby expressly
reserved).
3.4 No NTL Stockholder Meeting; Holdco Sub Stockholder Written
Consent. The parties understand and acknowledge that it is contemplated that the
Merger will be effected in accordance with Section 251(g) of the DGCL and that
no vote of NTL's stockholders adopting, approving or authorizing this Agreement
and the transactions contemplated hereby, including the Merger, will be required
under the DGCL. Holdco, in its capacity as the sole stockholder of Holdco Sub,
as promptly as practicable on or after the date hereof, shall execute and
deliver to Holdco Sub a written consent in lieu of a stockholder meeting
adopting, approving and authorizing this Agreement and the transactions
contemplated hereby, including the Merger, in accordance with Section 228 of the
DGCL.
3.5 Employee and Director NTL Stock Options. Upon and as of the
Effective Time, to the fullest extent permitted by applicable law, Holdco shall
assume all of NTL's obligations, and NTL shall have no further obligations, with
respect to any then-outstanding option (each, if any, an "NTL Option") to
acquire
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shares of NTL Common Stock issued under any employee or non-employee director
stock option plan, agreement or similar arrangement of NTL and the due exercise
of rights under any such NTL Option shall entitle the holder thereof to acquire,
upon the same terms and conditions that were applicable under the corresponding
NTL Option, a number of shares of Holdco Common Stock identical to the class and
number of shares of NTL Common Stock that were subject to such corresponding NTL
Option (a "Holdco Option"). NTL and Holdco agree to take all corporate and other
action as shall be necessary to effectuate the foregoing, and NTL shall use its
best efforts to obtain, if required, prior to the Closing Date, such consent of
each holder of an NTL Option as shall be necessary to effectuate the foregoing.
Holdco shall take all corporate and other action necessary to reserve and make
available for issuance upon the due exercise of rights under the Holdco Options
a sufficient number of shares of Holdco Common Stock, and as soon as practicable
following the Effective Time, shall provide to the record holders of the Holdco
Options appropriate notice of such holder's rights thereunder.
3.6 NTL Warrants. Upon and as of the Effective Time and in
connection with the Merger, Holdco shall assume NTL's obligations to issue
securities deliverable upon the exercise of any then-outstanding warrants to
acquire shares of NTL Common Stock (each, an "NTL Warrant") that were issued by
NTL pursuant to Warrant Agreements dated as of October 14, 1993, February 14,
1996, October 14, 1998 and January 28, 1999, respectively, and accordingly, the
due exercise of rights under any such NTL Warrant shall entitle the holder
thereof to acquire, upon the same terms and conditions that were applicable
under the corresponding NTL Warrant, a number of shares of Holdco Common Stock
identical to the class and number of shares of NTL Common Stock that were
subject to such corresponding NTL Warrant. NTL and Holdco agree to take all
corporate and other action as shall be necessary to effectuate the foregoing,
including the execution of supplemental warrant agreements as required. Holdco
shall take all corporate and other action necessary to reserve and make
available for issuance upon the due exercise of rights under the NTL Warrants a
sufficient number of shares of Holdco Common Stock, and as soon as practicable
following the Effective Time, shall provide to the record holders of the NTL
Warrants appropriate notice of such holder's rights thereunder.
3.7 NTL Convertible Notes. Upon and as of the Effective Time and in
connection with the Merger, Holdco shall assume NTL's obligations with respect
to the rights of holders of any then-outstanding 7% Xxxxxxxxxxx Xxxxxxx-
00
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nated Notes due 2008 (each, if any, an "NTL 7% Convertible Note") to convert
such NTL 7% Convertible Notes into NTL Common Stock under the terms of either
the Indenture, dated June 12, 1996, between NTL (formerly known as International
CableTel Incorporated) and The Chase Manhattan Bank (formerly known as Chemical
Bank), as Trustee or the Indenture, dated December 16, 1998, between NTL and The
Chase Manhattan Bank, as Trustee (collectively, the "Indentures"); and, upon and
as of the Effective Time, the due exercise of the conversion privileges of any
holder under any such NTL 7% Convertible Note shall entitle the holder thereof
to acquire, upon the same terms and conditions that were applicable under the
corresponding NTL 7% Convertible Note, a number of shares of Holdco Common Stock
identical to the class and number of shares of NTL Common Stock that were
subject to such corresponding NTL 7% Convertible Note. NTL and Holdco agree to
take all corporate and other action as shall be necessary to effectuate the
foregoing, including entering into supplemental indentures as required and
delivering certain officers' certificates as required under the Indentures.
Holdco shall take all corporate and other action necessary to reserve and make
available for issuance upon the due exercise of conversion rights under the NTL
7% Convertible Notes a sufficient number of shares of Holdco Common Stock, and
as soon as practicable following the Effective Time, shall provide to the record
holders of the NTL 7% Convertible Notes appropriate notice of such holder's
rights thereunder.
3.8 Outstanding Holdco Common Shares. Upon and as of the Effective
Time, NTL shall surrender to Holdco the certificate representing the Outstanding
Holdco Common Shares, and the Outstanding Holdco Common Shares shall be retired
as permitted under the DGCL and resume the status of authorized and unissued
shares of Holdco Common Stock.
3.9 Holdco Stockholder Rights Plan. Upon and as of the Effective
Time, Holdco shall assume the rights and obligations of NTL under the Rights
Agreement, dated as of October 13, 1993, between NTL and Continental Stock
Transfer & Trust Company, as Rights Agent (the "Holdco Stockholder Rights
Plan"), and as a result of the share-for-share conversion of NTL Common Stock
for Holdco Common Stock pursuant to the Merger, each right to purchase NTL
Junior Participating Preferred Stock will be converted into an identical right
to purchase Holdco Junior Participating Preferred Stock.
3.10 Other Agreements. At the Effective Time, Holdco shall assume
any obligation of NTL to deliver or make available shares of NTL Com-
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mon Stock under any instrument, agreement or employee benefit plan not referred
to in this Section 3 to which NTL or any of its subsidiaries is a party. Any
reference to NTL Common Stock under any such instrument, agreement or employee
benefit plan shall be deemed to be a reference to Holdco Common Stock and one
share of Holdco Common Stock shall be issuable in lieu of each share of NTL
Common Stock required to be issued by any such instrument, agreement or employee
benefit plan, subject to subsequent adjustment as provided in any such
instrument, agreement or employee benefit plan.
3.11 Holdco as Successor Registrant to NTL. It is the intent of the
parties hereto that Holdco, as of the Effective Time, be deemed a "successor
issuer" for purposes rule 12g - 3(a) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), so that Holdco Common Stock shall be deemed
registered under Section 12 of the Exchange Act.
3.12 Listing of Holdco Common Stock. The Holdco Common Stock to be
issued and initially reserved for issuance pursuant to the transactions
contemplated herein shall have been approved for quotation, upon official notice
of issuance, by The Nasdaq Stock Market, Inc. and The Easdaq Stock Market, Inc.
3.13 Filings. At the Effective Time, the Surviving Corporation shall
cause a certified copy of this Agreement to be executed and filed with the
Delaware Secretary of State. At the Effective Time, to the extent necessary to
effectuate the amendments to the Surviving Corporation Charter and the Holdco
Charter contemplated by this Agreement, each of the Surviving Corporation and
Holdco shall cause to be filed with the Delaware Secretary of State such
certificates or documents required to give effect thereto.
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ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of each party under this Agreement shall be subject to
the satisfaction at or prior to the Closing of the following conditions:
A. Stockholder Approval. This Agreement shall have been
approved by the written consent of the holder of the Outstanding Holdco
Sub Shares.
B. Legal Action. No judgment, order, decree, statute, law,
ordinance, rule or regulation, entered, enacted, promulgated, enforced or
issued by any foreign, United States, state or local governmental entity
or municipality or subdivision thereof or court, tribunal, commission,
board, bureau, agency or legislative, executive, governmental or
regulatory authority or agency ( a "Governmental Entity") of competent
jurisdiction or other legal restraint or prohibition shall be in effect
preventing the consummation of the Closing.
C. Statutes. No statute, rule or regulation shall have been
enacted by any Governmental Entity that would make the consummation of the
Merger illegal.
D. NTL Board Determination. The NTL Board shall not have
altered or rescinded its determination that the NTL stockholders shall not
recognize gain or loss for United States Federal income tax purposes as a
result of the transactions contemplated hereby and that the Merger and the
exchange of shares of capital stock of NTL for shares of capital stock of
Holdco shall be deemed a transaction described in Section 351(a) and/or
368(a) of the Code.
4.2 Conditions to the Obligations of NTL and Holdco Sub to Effect
the Merger. The obligations of NTL and Holdco Sub to effect the Merger shall be
subject to the satisfaction of the condition that immediately prior to the
Effective Time, Holdco shall have fully performed its obligations under Article
III hereof.
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ARTICLE V
TERMINATION AND AMENDMENT
5.1 Amendment. At any time prior to the Effective Time, this
Agreement may be supplemented, amended or modified by the mutual consent of the
Boards of Directors of the parties hereto.
5.2 Termination. This Agreement may be terminated and the Merger
contemplated hereby abandoned at any time prior to the Effective Time by action
of either the NTL Board, the Holdco Board or the Board of Directors of Holdco
Sub, if such Board of Directors shall determined that for any reason the
completion of the transactions provided for herein would be inadvisable or not
in the best interest of such corporation and its stockholders. In the event of
such termination and abandonment, this Agreement shall become void and neither
NTL, Holdco, or Holdco Sub nor their respective stockholders, directors or
officers shall have any liability with respect to such termination and
abandonment.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Severability. If any term or other provision of this Agreement
is invalid, illegal, or incapable of being enforced by any rule of law or public
policy, all other terms, conditions, and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal, or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
6.2 Entire Agreement. This Agreement, including the Exhibits
attached hereto, constitutes the entire agreement among the parties regarding
the subject matter hereof, and supercedes all prior agreements and undertakings,
both written and oral, among the parties or of any of them regarding such
subject matter.
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6.3 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware.
6.4 Headings. The headings set forth herein are for convenience only
and shall not be used in interpreting the text of the section in which they
appear.
6.5 Counterparts. This Agreement may be executed in one or more
counterparts which together shall constitute a single agreement.
6.6 Certificates of Secretaries. The certificates of the respective
secretaries of NTL and Holdco Sub to be attached hereto are hereby incorporated
by reference and shall be deemed on and part of this Agreement.
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IN WITNESS WHEREOF, NTL, Holdco and Holdco Sub, pursuant to the
approval and authority duly given by resolutions adopted by their respective
Boards of Directors, have caused this Agreement to be executed as of the date
first above written by their respective officers thereunto duly authorized.
NTL INCORPORATED
By: /s/Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President, General Counsel
and Secretary
NTL COMMUNICATIONS CORP.
By: /s/Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President, General Counsel
and Secretary
NTL MERGERCO, INC.
By: /s/Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President, General Counsel
and Secretary
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Exhibit A
CERTIFICATE OF THE SECRETARY OF NTL INCORPORATED
The undersigned, Assistant Secretary of NTL, a corporation organized
and existing under the laws of the State of Delaware (the "Corporation"), hereby
certifies that the Agreement and Plan of Merger (the "Agreement") to which this
Certificate is attached has been executed on behalf of the Corporation by the
Senior Vice President-General Counsel and Secretary, on behalf of NTL Mergerco,
Inc., a Delaware corporation, by the Senior Vice President-General Counsel and
Secretary, and on behalf of NTL Communications Corp., a Delaware corporation, by
the Senior Vice President-General Counsel and Secretary. The Agreement has been
adopted by the Board of Directors of the Corporation pursuant to Section 251(g)
of the Delaware General Corporation Law and the conditions specified in the
first sentence of such subsection have been satisfied.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of this 26th day of March, 1999.
/s/ Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Secretary
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Exhibit B
CERTIFICATE OF THE SECRETARY OF NTL MERGERCO, INC.
The undersigned, Assistant Secretary of NTL Mergerco, Inc., a Delaware
Corporation (the "Corporation"), hereby certifies that the Agreement and Plan of
Merger (the "Agreement") to which this Certificate is attached has been executed
on behalf of the Corporation by the Senior Vice President-General Counsel and
Secretary, on behalf of NTL Incorporated, Inc., a Delaware corporation, by the
Senior Vice President-General Counsel and Secretary, and on behalf of NTL
Communications Corp., a Delaware corporation, by the Senior Vice
President-General Counsel and Secretary. The Agreement was duly adopted by the
Board of Directors of the Corporation in accordance with Section 251 of the
Delaware Corporation Law and by the written consent of the sole stockholder of
the Corporation in accordance with Section 228 of the Delaware General
Corporation Law.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of this 26th day of March, 1999.
/s/ Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Secretary
