AMENDMENT TO RIGHTS AGREEMENT
Amendment, dated as of September 26, 2003, between NTL
Incorporated, a Delaware corporation ("NTL" or the "Company"), and
Continental Stock Transfer & Trust Company, a New York corporation (the
"Rights Agent").
W I T N E S S E T H :
WHEREAS, the Company and the Rights Agent entered into a Rights
Agreement dated as of January 10, 2003 (the "Rights Agreement");
WHEREAS, the Board of Directors of the Company has determined
that it is desirable and in the best interests of the Company and its
stockholders to amend the Rights Agreement as set forth herein; and
WHEREAS, on the date of this Amendment an appropriate officer of
the Company has delivered a certificate to the Rights Agent which states
that this Amendment is in compliance with the terms of Section 27 of the
Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties hereby agree as follows:
1. Section 1 of the Rights Agreement is hereby amended by adding
the following definitions:
(xx) "Exempt Rights Offering Participant" means any Person who
acquires (A) shares of Common Stock in the Rights Offering who satisfies
each of the following conditions: (i) beneficially owned more than 7.5% of
the shares of Common Stock outstanding as of the close of business on the
last trading day prior to the date (the "Filing Date") that the Rights
Offering Registration Statement was initially filed with the Securities and
Exchange Commission; (ii) beneficially owned less than 15% of the shares of
Common Stock outstanding at any time after the Filing Date and prior to
such Person first purchasing shares of Common Stock in the Rights Offering;
and (iii) as a result of its purchase or purchases of shares of Common
Stock in the Rights Offering (whether pursuant to the basic subscription
privilege or the over-subscription privilege) (as those terms are defined
in the Rights Offering Registration Statement), such Persons became the
beneficial owner of no more than the lesser of (a) a percentage of the
shares of Common Stock outstanding after completion of the Rights Offering
(taking into account any shares to be issued to the Rights Offering
Underwriters) that is 7.5% more than the percentage of that Person's
beneficial ownership of the shares of Common Stock outstanding as of the
Filing Date or (b) 19.9% of the shares of Common Stock outstanding at such
time of purchase (taking into account any shares to be issued to the Rights
Offering Underwriter) or (B) Beneficial Ownership of more than 14.9% of the
shares of Common Stock outstanding as a result of issuance of shares of
Common Stock to that Person by the Company as a result of the Rights
Offering but would not have Beneficially Owned more than 14.9% of the
shares of Common Stock outstanding had all shares of Common Stock to be
issued in the Rights Offering (including to the Rights Offering
Underwriter) been issued at that time.
(yy) "Rights Offering" means the transaction pursuant to which
the Company distributes to holders of its Common Stock of record on a date
on or around the date the Rights Offering Registration Statement is
declared effective by the Securities and Exchange Commission rights to
purchase shares of Common Stock on the terms described in the prospectus
included in such Rights Offering Registration Statement at the time such
Registration Statement is declared effective (taking into account any
amendment or supplement thereto).
(zz) "Rights Offering Registration Statement" means a
registration statement on Form S-1 prepared in connection with the Rights
Offering and filed with the Securities and Exchange Commission, including
all exhibits thereto.
(aaa) "Rights Offering Underwriters" shall mean the signatories,
other than the Company, to the Underwriting Agreement entered into in
connection with the Rights Offering.
2. Section 1(a)(x)(vii) of the Rights Agreement is hereby amended
to substitute the following in place of the existing Section 1(a)(x)(vii):
"any Person, who or which together with all Affiliates and
Associates of such Person becomes the Beneficial Owner of 15% or more of
the then outstanding shares of Common Stock as a result of the acquisition
of shares of Common Stock directly from the Company in a transaction
approved by a majority of the disinterested members of the Board of
Directors of the Company, other than (x) in a transaction contemplated by
clause (iii) above or (y) the acquisition of shares of Common Stock
pursuant to the Rights Offering (provided that this clause (y) shall not
apply to any Exempt Rights Offering Participant or the Rights Offering
Underwriters)."
3. Section 1(b) of the Rights Agreement is hereby amended by
adding the following at the end of the sentence:
"provided that, for the avoidance of doubt, this clause (z) shall
not apply to an Exempt Rights Offering Participant or the Rights Offering
Underwriter as a result of its acquisition of shares of Common Stock
pursuant to the Rights Offering."
4. All references in the Rights Agreement (including the exhibits
thereto) are hereby amended to refer to the Rights Agreement as amended.
5. This Amendment shall not take effect until the Rights Offering
Registration Statement is filed with the Securities and Exchange
Commission, and in the event the Rights Offering Registration Statement is
not filed by December 31, 2003, this Agreement shall be terminated without
any action by the parties and shall no longer have any effect.
6. This Agreement may be executed in counterparts each of which
shall be an original with the same effect as if the signatures hereto and
thereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the date first above written.
NTL INCORPORATED
By: /s/ Scott E. Schubert
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Name: Scott E. Schubert
Title: Chief Financial Officer
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By: /s/ William F. Seegraber
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Name: William F. Seegraber
Title: Vice President