Exhibit 2.1
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - x
:
In re :
: Chapter 11
NTL INCORPORATED, et al., : Case No. 02-41316 (ALG)
: (Jointly Administered)
Debtors. :
:
- - - - - - - - - - - - - - - - - - - - - - - x
SECOND AMENDED JOINT REORGANIZATION PLAN
OF NTL INCORPORATED AND CERTAIN SUBSIDIARIES
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Kayalyn A. Marafioti (KM 9362)
Jay M. Goffman (JG 6722)
Lawrence V. Gelber (LG 9384)
Four Times Square
New York, New York 10036-6522
(212) 735-3000
Attorneys for NTL Incorporated, et al.,
Debtors and Debtors-in-Possession
Dated: New York, New York
July 15, 2002
(As modified September 5, 2002)
TABLE OF CONTENTS
INTRODUCTION.................................................................................................PLAN-1
ARTICLE I.
DEFINITIONS, RULES OF INTERPRETATION,
AND COMPUTATION OF TIME......................................................................................PLAN-1
A. Scope Of Definitions; Rules Of Construction...................................................PLAN-1
B. Definitions...................................................................................PLAN-1
C. Rules Of Interpretation......................................................................PLAN-18
1. General.................................................................................PLAN-18
2. "Including".............................................................................PLAN-18
3. "On"....................................................................................PLAN-18
4. "Contra Proferentum" Rule Not Applicable................................................PLAN-18
D. Computation Of Time..........................................................................PLAN-18
ARTICLE II.
CLASSIFICATION OF CLAIMS AND INTERESTS......................................................................PLAN-19
A. Introduction.................................................................................PLAN-19
B. Unclassified Claims..........................................................................PLAN-19
1. Administrative Claims...................................................................PLAN-19
2. Priority Tax Claims.....................................................................PLAN-19
C. Unimpaired Classes Of Claims.................................................................PLAN-19
1. Class 1: Other Priority Claims (All Debtors)...........................................PLAN-19
2. Class 2: Secured Claims (All Debtors)..................................................PLAN-19
3. Class 3: General Unsecured Claims (All Debtors)........................................PLAN-20
4. Class 4: Diamond Holdings Notes Claims.................................................PLAN-20
D. Impaired Classes Of Claims And Interests.....................................................PLAN-20
1. Class 5: Subsidiary Common Stock Interests.............................................PLAN-20
2. Class 6: Diamond Cable Notes Claims....................................................PLAN-20
3. Class 7: NTL CC Senior Notes Claims....................................................PLAN-20
4. Class 8: NTL CC Subordinated Notes Claims..............................................PLAN-20
5. Class 9: NTL Delaware Subordinated Notes Claims........................................PLAN-21
6. Class 10: NTL Inc. Subordinated Notes Claims...........................................PLAN-21
7. Class 11: Intercompany Claims..........................................................PLAN-21
E. Impaired Classes Of Interests................................................................PLAN-21
1. Class 12: Old Senior Preferred Stock Interests.........................................PLAN-21
2. Class 13: Old Junior Preferred Stock Interests.........................................PLAN-21
3. Class 14: Old Common Stock Interests...................................................PLAN-22
F. Additional Impaired Classes..................................................................PLAN-22
1. Class 15: Securities Claims............................................................PLAN-22
2. Class 16: Other Old Equity Interests And Claims........................................PLAN-22
ARTICLE III.
TREATMENT OF CLAIMS AND INTERESTS...........................................................................PLAN-22
A. Unclassified Claims............................................................................PLAN-22
1. Administrative Claims...................................................................PLAN-22
2. Priority Tax Claims.....................................................................PLAN-23
B. Unimpaired Classes Of Claims.................................................................PLAN-23
1. Class 1: Other Priority Claims (All Debtors)...........................................PLAN-23
2. Class 2: Secured Claims................................................................PLAN-23
3. Class 3: General Unsecured Claims......................................................PLAN-24
4. Class 4: Diamond Holdings Notes Claims.................................................PLAN-24
C. Impaired Classes Of Claims And Interests.....................................................PLAN-24
1. Class 5: Subsidiary Common Stock Interests.............................................PLAN-24
2. Class 6: Diamond Cable Notes Claims....................................................PLAN-25
3. Class 7: NTL CC Senior Notes Claims....................................................PLAN-25
4. Class 8: NTL CC Subordinated Notes Claims..............................................PLAN-26
5. Class 9: NTL Delaware Subordinated Notes Claims........................................PLAN-26
6. Class 10: NTL Inc. Subordinated Notes Claim............................................PLAN-26
7. Class 11: Intercompany Claims..........................................................PLAN-27
D. Impaired Classes Of Interests................................................................PLAN-27
1. Class 12: Old Senior Preferred Stock Interests.........................................PLAN-27
2. Class 13: Old Junior Preferred Stock Interests.........................................PLAN-28
3. Class 14: Old Common Stock Interests...................................................PLAN-28
E. Additional Impaired Classes..................................................................PLAN-29
1. Class 15: Securities Claims............................................................PLAN-29
2. Class 16: Other Old Equity Interests And Claims........................................PLAN-29
F. Additional Distributions With Respect To Allowed Claims In Classes 6, 7, 8, 9, And 10........PLAN-29
G. Special Provision Regarding Unimpaired Claims................................................PLAN-29
H. Allowed Claims And Interests.................................................................PLAN-30
I. Accrual Of Postpetition Interest.............................................................PLAN-30
J. Alternative Treatment........................................................................PLAN-30
ARTICLE IV.
MEANS FOR IMPLEMENTATION OF THE PLAN........................................................................PLAN-30
A. Continued Corporate Existence................................................................PLAN-30
B. Corporate Action.............................................................................PLAN-30
1. Amended Certificates Of Incorporation And By-laws.......................................PLAN-30
2. Cancellation Of Existing Securities And Agreements......................................PLAN-31
C. Restructuring Transactions...................................................................PLAN-31
1. Reorganization Into New NTL And Euroco..................................................PLAN-31
2. New Securities..........................................................................PLAN-32
3. Listing and Registration Rights.........................................................PLAN-33
4. Offerings...............................................................................PLAN-33
5. Exit Financing..........................................................................PLAN-34
6. Cancellation Of Certain Obligations.....................................................PLAN-34
7. Restructuring Expense Adjustment........................................................PLAN-34
D. New NTL Rights Agreement.....................................................................PLAN-35
E. Euroco Rights Agreement......................................................................PLAN-35
F. Directors And Officers.......................................................................PLAN-36
1. Current Board Of Directors Of NTL Inc...................................................PLAN-36
2. New NTL.................................................................................PLAN-36
3. Euroco..................................................................................PLAN-36
G. Revesting Of Assets..........................................................................PLAN-36
H. Preservation Of Rights Of Action; Settlement Of Causes Of Action.............................PLAN-36
I. Employment Agreements........................................................................PLAN-37
J. Management Incentive Plans...................................................................PLAN-37
K. Effectuating Documents; Further Transactions.................................................PLAN-37
L. Exemption From Certain Transfer Taxes........................................................PLAN-37
M. Transactions On Business Days................................................................PLAN-37
N. Implementation...............................................................................PLAN-37
ARTICLE V.
ACCEPTANCE OR REJECTION OF THE PLAN.........................................................................PLAN-38
A. Classes Entitled To Vote.....................................................................PLAN-38
B. Acceptance By Impaired Classes...............................................................PLAN-38
C. Elimination Of Classes.......................................................................PLAN-38
D. Cramdown.....................................................................................PLAN-38
ARTICLE VI.
SECURITIES TO BE ISSUED
IN CONNECTION WITH THE PLAN.................................................................................PLAN-38
ARTICLE VII.
PROVISIONS GOVERNING DISTRIBUTIONS..........................................................................PLAN-39
A. Distributions For Claims And Interests Allowed As Of The Effective Date......................PLAN-39
B. Special Distribution Procedures For Certain Persons..........................................PLAN-39
1. New NTL Chapter 11 Acquiring Persons....................................................PLAN-39
2. Distribution Procedures For Withheld Shares Of New NTL Common Stock.....................PLAN-39
3. Euroco Chapter 11 Acquiring Persons.....................................................PLAN-39
4. Distribution Procedures For Withheld Shares Of Euroco Common Stock......................PLAN-40
C. Allocation Of Consideration..................................................................PLAN-40
D. Disbursing Agent.............................................................................PLAN-40
E. Distributions By Indenture Trustees..........................................................PLAN-40
F. Surrender Of Securities Or Instruments.......................................................PLAN-41
G. Instructions To Disbursing Agent.............................................................PLAN-41
H. Services Of Indenture Trustees, Agents, And Servicers........................................PLAN-41
I. Record Date For Distributions To Holders Of Existing Securities..............................PLAN-41
J. Means Of Cash Payment........................................................................PLAN-41
K. Fractional Dollars; De Minimis Distributions.................................................PLAN-42
L. Calculation Of Distribution Amounts Of Certain New Securities................................PLAN-42
M. Delivery Of Distributions; Undeliverable Or Unclaimed Distributions..........................PLAN-42
N. Withholding And Reporting Requirements.......................................................PLAN-43
O. Setoffs......................................................................................PLAN-43
ARTICLE VIII.
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES........................................................................................PLAN-43
A. Assumed Contracts And Leases.................................................................PLAN-43
B. Payments Related To Assumption Of Contracts And Leases.......................................PLAN-43
C. Rejected Contracts And Leases................................................................PLAN-44
D. Claims Based On Rejection Of Executory Contracts Or Unexpired Leases.........................PLAN-44
E. Compensation And Benefit Plans...............................................................PLAN-44
ARTICLE IX.
PROCEDURES FOR RESOLVING DISPUTED,
CONTINGENT, AND UNLIQUIDATED CLAIMS.........................................................................PLAN-44
A. Objections To Claims; Disputed Claims........................................................PLAN-44
B. No Distribution Pending Allowance............................................................PLAN-45
C. Distributions After Allowance................................................................PLAN-45
ARTICLE X.
CONDITIONS PRECEDENT TO CONFIRMATION AND
CONSUMMATION OF THE PLAN....................................................................................PLAN-45
A. Conditions To Confirmation...................................................................PLAN-45
B. Conditions To Effective Date.................................................................PLAN-45
C. Waiver Of Conditions.........................................................................PLAN-46
D. Effects Of Failure Of Conditions.............................................................PLAN-47
ARTICLE XI.
MODIFICATIONS AND AMENDMENTS................................................................................PLAN-47
ARTICLE XII.
RETENTION OF JURISDICTION...................................................................................PLAN-47
ARTICLE XIII.
EFFECTS OF CONFIRMATION.....................................................................................PLAN-49
A. Binding Effect...............................................................................PLAN-49
B. Authorization Of Corporate Action............................................................PLAN-49
C. Discharge Of The Debtors.....................................................................PLAN-49
D. Injunction...................................................................................PLAN-49
E. Releases.....................................................................................PLAN-50
F. Insurance Proceeds...........................................................................PLAN-51
ARTICLE XIV.
COMPROMISES AND SETTLEMENTS.................................................................................PLAN-51
A. Generally....................................................................................PLAN-51
B. France Telecom Compromise And Settlement.....................................................PLAN-51
ARTICLE XV.
MISCELLANEOUS PROVISIONS....................................................................................PLAN-52
A. Bar Dates For Certain Claims.................................................................PLAN-52
1. Administrative Claims...................................................................PLAN-52
2. Professional Fee Claims; Substantial Contribution Claims................................PLAN-53
B. Payment Of Statutory Fees....................................................................PLAN-53
C. Severability Of Plan Provisions..............................................................PLAN-53
D. Successors And Assigns.......................................................................PLAN-53
E. Exculpation And Limitation Of Liability......................................................PLAN-53
F. Waiver Of Enforcement Of Subordination.......................................................PLAN-54
G. Term Of Injunctions Or Stays.................................................................PLAN-54
H. Revocation, Withdrawal, Or Non-Consummation..................................................PLAN-54
I. Committees...................................................................................PLAN-55
J. Plan Supplement..............................................................................PLAN-55
K. Notices To Debtors...........................................................................PLAN-55
L. Indemnification Obligations..................................................................PLAN-55
M. Governing Law................................................................................PLAN-56
N. Prepayment...................................................................................PLAN-57
TABLE OF EXHIBITS(1)
Exhibit
A Amended And Restated Certificate Of Incorporation And By-laws Of NTL CC*
B Amended And Restated Certificate Of Incorporation And By-laws Of NTL Inc.*
C List Of Subsidiaries As Of July 1, 2002
D Description Of New NTL Common Stock
E Series A Warrant Agreement*
F Equity Rights Offering Procedures*
G Noteholder Election Option Procedures*
H Description Of Euroco Common Stock
I Description Of Euroco Preferred Stock
J Terms Of Series A Warrants
K New NTL Registration Rights Agreement*
L Euroco Registration Rights Agreement*
M Form Of Employment Agreement*
N New NTL Rights Agreement*
O Euroco Rights Agreement*
P Effectuating Transactions*
Q Form Of New NTL Management Incentive Plan*
R Form Of Euroco Management Incentive Plan*
___________
(1) Exhibits marked with an asterisk are included in the Plan Supplement,
dated August 22, 2002.
INTRODUCTION
NTL Inc. and its Debtor Subsidiaries hereby propose the following
second amended joint reorganization plan (the "Plan") for the resolution of
their outstanding creditor Claims and equity Interests. This Plan amends and
supercedes the "Amended Joint Reorganization Plan Of NTL Incorporated And
Certain Subsidiaries," dated and filed with the Bankruptcy Court on May 24,
2002. Reference is made to the Disclosure Statement (as that term is defined
herein), distributed contemporaneously with this Plan, which contains a
discussion of the Debtors' history, businesses, properties, results of
operations, projections for future operations, risk factors, a summary and
analysis of the Plan, and certain related matters, each of which is a central
feature of the Plan. The Debtors urge all holders of Claims and/or Interests
to read this Plan and the Disclosure Statement in their entirety before voting
to accept or reject this Plan.
The Debtors are the proponents of this Plan within the meaning of
section 1129 of the Bankruptcy Code (as that term is defined herein). Subject
to certain restrictions and requirements set forth in section 1127 of the
Bankruptcy Code and Fed. R. Bankr. P. 3019, the Debtors reserve the right
(with the prior consent of the Creditors' Committee) to alter, amend or modify
this Plan, as the Debtors deem necessary, prior to its substantial
consummation.
ARTICLE I.
DEFINITIONS, RULES OF INTERPRETATION,
AND COMPUTATION OF TIME
A. Scope Of Definitions; Rules Of Construction
Except as expressly provided or unless the context otherwise
requires, capitalized terms used but not otherwise defined in this Plan shall
have the meanings ascribed to them in this Article I. Any term used in this
Plan that is not defined herein, but is defined in the Disclosure Statement,
the Bankruptcy Code, or the Bankruptcy Rules, shall have the meaning ascribed
to it therein. Whenever the context requires, such terms shall include the
plural as well as the singular number, the masculine gender shall include the
feminine, and the feminine gender shall include the masculine.
B. Definitions
1.1 "Administrative Bar Date" means the date designated by the
Bankruptcy Court as the last date for filing requests for payment of
Administrative Claims against the Debtors.
1.2 "Administrative Claim" means a Claim for payment of an
administrative expense of a kind specified in section 503(b) or 1114(e)(2) of
the Bankruptcy Code and entitled to priority under section 507(a)(1) of the
Bankruptcy Code, including (a) actual, necessary costs and expenses, incurred
after the Petition Date, of preserving the Debtors' Estates and operating
their businesses, including wages, salaries, or commissions for services
rendered after the Petition Date, (b) Professional Fees, (c) all fees and
charges assessed against the Estates under chapter 123 of title 28, United
States Code, (d) all Allowed Claims that are entitled to be treated as
Administrative Claims by virtue of a Final Order entered under section
546(c)(2)(A) of the Bankruptcy Code, and (e) the reasonable post-petition fees
and expenses of the Indenture Trustees, including successors thereto,
including reasonable attorney's fees and expenses of such Indenture Trustees.
1.3 "Aggregate Investments" means the sum of all investments made
between April 10, 2002 and the Effective Date in those assets that will become
the property of Euroco pursuant to this Plan.
1.4 "Aggregate Operating Expenses" means the aggregate corporate
overhead expenses (excluding Restructuring Expenses) at NTL Inc. and NTL
Delaware incurred during the period from April 10, 2002 to the Effective Date.
1.5 "Allowed" means, with respect to a Claim or Interest within a
particular class, an Allowed Claim or Allowed Interest of the type described
in such class.
1.6 "Allowed Claim" means any Claim against any Debtor, which is
listed by such Debtor in its books and records as liquidated in amount and not
disputed or contingent; provided, however, that to the extent that a Claim is
a Disputed Claim, the determination of whether such Claim shall be allowed
and/or the amount of any such Claim shall be determined, resolved, or
adjudicated, as the case may be, in the manner in which such Claim would have
been determined, resolved, or adjudicated if the Chapter 11 Cases had not been
commenced; provided further, however, that the Reorganized Debtors, in their
discretion may bring an objection or other motion before the Bankruptcy Court
with respect to a Disputed Claim for resolution. An Allowed Claim (a) includes
a Disputed Claim to the extent such Disputed Claim becomes Allowed after the
Effective Date and (b) shall be net of any valid setoff exercised with respect
to such Claim under the provisions of the Bankruptcy Code and applicable law.
Unless otherwise specified herein, in section 506(b) of the Bankruptcy Code,
or in any order of the Bankruptcy Court, "Allowed Claim" shall not, for
purposes of distributions under the Plan, include for prepetition Claims,
interest on such Claim, or Claims accruing from or after the Petition Date. In
addition, a Claim is an Allowed Claim if it is deemed Allowed by the
provisions of this Plan.
1.7 "Allowed Interest" means an Interest in any Debtor, which has
been or hereafter is listed by such Debtor in its books and records as
liquidated in an amount and not disputed or contingent; provided, however,
that to the extent an Interest is a Disputed Interest, the determination of
whether such Interest shall be allowed and/or the amount of any such Interest
shall be determined, resolved, or adjudicated, as the case may be, in the
manner in which such Interest would have been determined, resolved, or
adjudicated if the Chapter 11 Cases had not been commenced; and provided
further, however, that proofs of Interest need not and should not be filed in
the Bankruptcy Court with respect to any Interests; and provided further,
however, that the Reorganized Debtors, in their discretion, may bring an
objection or motion with respect to a Disputed Interest before the Bankruptcy
Court for resolution.
1.8 "Amended And Restated Certificate Of Incorporation And By-laws of
NTL CC" means Reorganized NTL CC's certificate of incorporation and by-laws in
effect under the laws of the State of Delaware, as amended and restated by the
Plan, in substantially the form of Exhibit A hereto.
1.9 "Amended And Restated Certificate Of Incorporation And By-laws of
NTL Inc." means Reorganized NTL Inc.'s certificate of incorporation and
by-laws in effect under the laws of the State of Delaware, as amended and
restated by the Plan, in substantially the form of Exhibit B hereto.
1.10 "Ballot" means each of the ballot forms distributed with the
Disclosure Statement to holders of Impaired Claims and Impaired Interests
entitled to vote under Article II hereof in connection with the solicitation
of acceptances of the Plan, for the purpose of indicating an acceptance or
rejection of this Plan.
1.11 "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
codified in title 11 of the United States Code, 11 U.S.C. ss.ss. 101-1330, as
now in effect or hereafter amended, and as applicable to these Chapter 11
Cases.
1.12 "Bankruptcy Court" means the United States Bankruptcy Court for
the Southern District of New York or any other court with jurisdiction over
the Chapter 11 Cases.
1.13 "Bankruptcy Rules" means, collectively, the Federal Rules of
Bankruptcy Procedure promulgated under section 2075 of title 28 of the United
States Code and the Official Bankruptcy Forms, the Federal Rules of Civil
Procedure, as applicable to the Chapter 11 Cases or proceedings therein, and
the Local Rules of the Bankruptcy Court, all as now in effect or hereafter
amended, and as applicable to these Chapter 11 Cases.
1.14 "Business Day" means any day, excluding Saturdays, Sundays, or
"legal holidays" (as defined in Bankruptcy Rule 9006(a)), on which commercial
banks are open for business in New York, New York or London, England, as the
context requires.
1.15 "Cable Funding" means Communications Cable Funding Corp., a
Delaware corporation, which is a wholly- owned subsidiary of NTL CC and the
immediate parent of NTL (UK) Group, Inc.
1.16 "Cablecom Credit Facility" means the credit agreement, dated
March 28, 2000, as amended on May 16, 2000 and as amended and restated as of
May 2, 2002, between, among others, NTL Delaware as parent, NTL Cablecom
Holding GmbH as shareholder, Cablecom GmbH as principal borrower, J.P. Morgan
plc and Morgan Stanley Senior Funding, Inc. as arrangers and joint book
managers, J.P. Morgan Europe Limited as agent, and the lenders party thereto,
as may be further amended and/or restated from time to time.
1.17 "Case Interest Rate" means the federal judgment rate described
in 28 U.S.C. ss. 1961 in effect on the Petition Date, compounded annually on
each anniversary of the Petition Date.
1.18 "Cash" means United States currency, a certified check, a
cashier's check, or a wire transfer of good funds from any source, or a check
drawn on a United States or UK bank by the Debtors or any other Person making
any payment or distribution under this Plan.
1.19 "Cause of Action" means any and all actions, causes of action,
suits, accounts, controversies, agreements, promises, rights to legal
remedies, rights to equitable remedies, rights to payment, and claims, whether
known or unknown, reduced to judgment, not reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
secured, unsecured, and whether asserted or assertable directly or
derivatively, in law, equity, or otherwise.
1.20 "Chapter 11 Acquiring Person" means any holder of an Allowed
Claim or Interest or any Person or group of affiliated or associated Persons
to such holder who, with respect to any determination date, would beneficially
own 15% or more of the outstanding shares of New NTL Common Stock on account
of such Allowed Claim or Interest, assuming that the Plan is consummated on
such determination date.
1.21 "Chapter 11 Case(s)" means, individually, the Chapter 11 Case of
any of NTL Inc., NTL Delaware, NTL CC, Cable Funding, Diamond Cable, and
Diamond Holdings, and, collectively, the jointly administered Chapter 11 Cases
of NTL Inc., NTL Delaware, NTL CC, Cable Funding, Diamond Cable, and Diamond
Holdings.
1.22 "Claim" means a claim against any Debtor, whether or not
asserted, as defined in section 101(5) of the Bankruptcy Code.
1.23 "Class" means one of the classes of Claims or Interests listed
in Article III of this Plan.
1.24 "Class 7 Euroco Value" means the value of 331,222 shares of
Euroco Common Stock.
1.25 "Class . . . Noteholder Election Option" means the Pro Rata
share of the Noteholder Election Option allocable to the identified Class.
1.26 "Confirmation" means entry by the Bankruptcy Court of the
Confirmation Order.
1.27 "Confirmation Date" means the date of entry of the Confirmation
Order on the docket maintained by the Clerk of the Bankruptcy Court with
respect to these Chapter 11 Cases.
1.28 "Confirmation Hearing" means the hearing held by the Bankruptcy
Court pursuant to section 1128(a) of the Bankruptcy Code, to consider
confirmation of the Plan under section 1129 of the Bankruptcy Code, as such
hearing may be adjourned or continued from time to time.
1.29 "Confirmation Order" means the order of the Bankruptcy Court
confirming the Plan under section 1129 of the Bankruptcy Code.
1.30 "Credit Facilities" means, individually and collectively, the
Senior Credit Facility, the Working Capital Facility, and the Cablecom Credit
Facility.
1.31 "Creditor" means a creditor, within the meaning of section
101(10) of the Bankruptcy Code, of one or more of the Debtors.
1.32 "Creditors' Committee" means the official committee of unsecured
creditors appointed in the Chapter 11 Cases pursuant to section 1102(a) of the
Bankruptcy Code on June 21, 2002, as such committee may be reconstituted from
time to time.
1.33 "Cumulative Convertible Preferred Stock" means the shares of
cumulative convertible preferred stock, Series A, of NTL Inc. outstanding
immediately prior to the Petition Date.
1.34 "Cure" means the distribution of Cash, or such other property as
may be agreed upon by the parties or ordered by the Bankruptcy Court, with
respect to the assumption of an executory contract or unexpired lease under
section 365(b) of the Bankruptcy Code, in an amount equal to all unpaid
monetary obligations, without interest, or such other amount as may be agreed
upon by the parties, under such executory contract or unexpired lease, to the
extent such obligations are enforceable under the Bankruptcy Code and
applicable bankruptcy law.
1.35 "Debt Securit(ies)" means, individually and collectively, the
Senior Notes and Subordinated Notes.
1.36 "Debt Securities Claim" means a Securities Claim, if any,
arising from a Debt Security or a debt security of any affiliate of a Debtor.
1.37 "Debtor(s)" means, individually and collectively, NTL Inc., NTL
Delaware, NTL CC, Diamond Cable, and Diamond Holdings and, when the context so
requires, Cable Funding, including in their capacities as debtors-in-
possession under sections 1107 and 1108 of the Bankruptcy Code and, when
appropriate, as post-confirmation entities reorganized hereunder.
1.38 "Debtor Subsidiaries" means, collectively, NTL Delaware, NTL CC,
Cable Funding, Diamond Cable, and Diamond Holdings.
1.39 "Debtor Subsidiary Interests" means, collectively, the issued
and outstanding shares of common stock of the Debtor Subsidiaries as of the
Petition Date, all of which shares are directly or indirectly owned by NTL Inc.
1.40 "Delaware Cash Amount" means 79.1% of the Delaware/Inc. Cash
Amount.
1.41 "Delaware/Inc. Cash Amount" means the sum of (a) available cash
at NTL Inc. and NTL Delaware as of April 10, 2002, which is $279,533,000, plus
(b) the principal and accrued interest on the Delaware/NTL (UK) Group Note,
plus (c) the France Telecom Payment, plus (d) Excess Restructuring Expenses,
minus (e) the sum of (i) Euroco Cash, (ii) Aggregate Operating Expenses, (iii)
Aggregate Investments, and (iv) Delaware/Inc. Restructuring Expenses.
1.42 "Delaware/Inc. Restructuring Expenses" means an amount equal to
Restructuring Expenses minus NTL CC Restructuring Expenses.
1.43 "Delaware/NTL (UK) Group Note" means the (pound)90 million
aggregate principal amount 23% senior note due 2006, dated as of April 5,
2002, from NTL (UK) Group, Inc. to NTL Delaware, as may be amended and/or
restated and/or novated or assigned from time to time in accordance with the
DIP Facility.
1.44 "Diamond Administration Case(s)" means the administration(s) of
Diamond Cable and Diamond Holdings pursuant to the Diamond Administration
Orders.
1.45 "Diamond Administration Orders" means the administration orders
of the Courts of England and Wales under Part II of the Insolvency Act
relating to Diamond Cable and Diamond Holdings.
1.46 "Diamond Administrators" means, collectively, Nicholas Guy
Edwards and James Robert Drummond Smith of Deloitte & Touche.
1.47 "Diamond Cable" means Diamond Cable Communications Limited, a
company registered in England and Wales with company number 02965241.
1.48 "Diamond Cable Guaranty" means the guaranty by Diamond Cable of
the obligations of Diamond Holdings as issuer of the Diamond Holdings Notes.
1.49 "Diamond Cable Notes" means, collectively, the (a) 13 1/4%
Senior Discount Notes due 2004, issued by Diamond Cable under an indenture
dated September 28, 1994, as amended by a First Supplemental Indenture dated
May 31, 1996, (b) 11 3/4% Senior Discount Notes due 2005, issued by Diamond
Cable under an indenture dated December 15, 1995, and (c) 10 3/4% Senior
Discount Notes due 2007, issued by Diamond Cable under an indenture dated
February 27, 1997.
1.50 "Diamond Cable Notes Claim" means a Claim of a Diamond Cable
Notes Holder arising under or as a result of the Diamond Cable Notes;
provided, however, that the term "Diamond Cable Notes Claim" shall not include
any claim by or of New NTL, as the sole holder of the Diamond Cable Notes (or
any other rights and interests associated thereto that are delivered,
assigned, conveyed, or transferred to New NTL) pursuant to Article III.C.2
hereof, in respect of, or under, the Diamond Cable Notes from and after the
Effective Date.
1.51 "Diamond Cable Notes Holder" means a holder of Diamond Cable
Notes.
1.52 "Diamond Holdings" means Diamond Holdings Limited, a company
registered in England and Wales with company number 03483724.
1.53 "Diamond Holdings Notes" means, collectively, the (a) 10% Senior
Notes due 2008 issued by Diamond Holdings (and guaranteed by Diamond Cable)
under an indenture dated February 6, 1998 and (b) 91/8% Senior Notes due 2008
issued by Diamond Holdings (and guaranteed by Diamond Cable) under an
indenture dated February 6, 1998.
1.54 "Diamond Holdings Notes Claim" means a Claim of a Diamond
Holdings Notes Holder arising under or as a result of the Diamond Holdings
Notes.
1.55 "Diamond Holdings Notes Holder" means a holder of Diamond
Holdings Notes.
1.56 "DIP Facility" means the debtor-in-possession credit facility to
be provided to Cable Funding during the Chapter 11 Cases in the principal
amount of $630,000,000 pursuant to the DIP Facility Agreement.
1.57 "DIP Facility Agreement" means the Debtor-In-Possession Credit
And Guaranty Agreement, expected to be dated as of July 15, 2002, by and among
others, Cable Funding, as borrower, and the various lenders, including NTL
Delaware, signatory thereto.
1.58 "DIP Facility Claim" means a Claim arising under or as a result
of the DIP Facility.
1.59 "Disallowed Claim" or "Disallowed Interest" means any Claim
against or Interest in any Debtor which has been disallowed, in whole or in
part, by Final Order of the Bankruptcy Court, or which has been withdrawn, in
whole or in part, by the holder thereof.
1.60 "Disbursing Agent" means New NTL or any party designated by New
NTL, in its sole discretion, to serve as a disbursing agent under this Plan.
1.61 "Disclosure Statement" means the written disclosure statement
that relates to this Plan, as approved by the Bankruptcy Court as containing
adequate information pursuant to section 1125 of the Bankruptcy Code and Fed.
R. Bankr. P. 3017, as such disclosure statement may be amended, modified, or
supplemented from time to time.
1.62 "Disputed Claim" or "Disputed Interest" means any Claim against
or Interest in a Debtor, or any portion thereof, that is not an Allowed Claim
or Interest or a Disallowed Claim or Interest, as the case may be.
1.63 "Distribution Date" means the date, occurring on or as soon as
practicable after the Effective Date, on which the Disbursing Agent first
makes distributions to holders of Allowed Claims and Allowed Interests as
provided in Article VII of this Plan.
1.64 "Distribution Record Date" means the record date for purposes of
making distributions under this Plan on account of Allowed Claims and Allowed
Interests, which date shall be designated in an order of the Bankruptcy Court.
1.65 "Effective Date" means the date that is two Business Days after
the closing of the Offerings, or, if such date is not a Business Day, the next
succeeding Business Day, or such later date after such closing as is
determined by the Debtors so long as no stay of the Confirmation Order is in
effect on such date; provided, however, that if, on or prior to such date, all
conditions to the Effective Date set forth in Article X.B of this Plan have
not been satisfied or waived, then the Effective Date shall be the first
Business Day following the day on which all such conditions to the Effective
Date have been satisfied or waived, or such later date as the Debtors may
determine.
1.66 "Effectuating Transaction(s)" means, individually and
collectively, the transactions to be consummated on the Effective Date to
implement the provisions of Articles IV.C.1.a and IV.C.1.b of this Plan, as
described in Exhibit P annexed hereto.
1.67 "Employment Agreements" means the employment agreements to be
entered into between New NTL and Euroco and their respective key executives,
which agreements shall be in substantially the form of Exhibit M annexed
hereto.
1.68 "Equity Rights" means the rights to purchase shares of New NTL
Common Stock and Series A Warrants that will be offered pro rata to the
holders of Equity Rights Eligible Preferred Stock and Old Common Stock
pursuant to the Equity Rights Offering and which will be exercisable for the
20 Business Day period after the entry of the Confirmation Order, as such
period may be extended, and on an oversubscription basis.
1.69 "Equity Rights Eligible Preferred Stock" means, collectively,
the Old Senior Preferred Stock and Other Junior Preferred Stock.
1.70 "Equity Rights Offering" means the offer of Equity Rights to
holders of Equity Rights Eligible Preferred Stock and Old Common Stock as of
the Equity Rights Offering Record Date to acquire, as a detachable unit, New
NTL Common Stock and Series A Warrants.
1.71 "Equity Rights Offering Price" means the price per share of New
NTL Common Stock (accompanied by a Series A Warrant) purchased in the Equity
Rights Offering, which shall be equal to (a)(i) $10.5 billion minus (ii) New
NTL's pro forma debt as of the Effective Date, plus (iii) New NTL's pro forma
cash (with such pro forma amounts to be determined in accordance with New
NTL's most recent monthly financials available prior to the commencement of
the Equity Rights Offering), divided by (b) 200 million.
1.72 "Equity Rights Offering Procedures" means the Equity Rights
Offering Procedures annexed hereto as Exhibit F.
1.73 "Equity Rights Offering Record Date" means the date for
determination of holders of Equity Rights Eligible Preferred Stock and Old
Common Stock eligible to participate in the Equity Rights Offering, which date
shall be August 26, 2002, or such later date as shall be agreed upon by the
Debtors and the Creditors' Committee.
1.74 "Equity Securit(ies)" means, individually and collectively, the
Old Preferred Stock, Old Common Stock, Old Warrants, and Old Options.
1.75 "Equity Securities Claim" means a Securities Claim arising from
an Equity Security or an equity security of any affiliate of a Debtor.
1.76 "Estate(s)" means, individually and collectively, the estate(s)
of the Debtors in the Chapter 11 Cases, as created under section 541 of the
Bankruptcy Code.
1.77 "Euroco" means NTL Inc., on and after the Effective Date.
1.78 "Euroco Cash" means the sum of (i) $100 million, plus (ii) the
France Telecom Payment, minus (iii) the sum of (x) Aggregate Operating
Expenses, plus (y) Aggregate Investments.
1.79 "Euroco Chapter 11 Acquiring Person" means any holder of an
Allowed Claim or Interest or any Person or group of affiliated or associated
Persons to such holder who, with respect to any determination date, would
beneficially own 15% or more of the outstanding shares of Euroco Common Stock
on account of such Allowed Claim or Interest, assuming that the Plan is
consummated on such determination date.
1.80 "Euroco Common Stock" means the 60 million shares of common
stock of Euroco, par value $0.01 per share, authorized under Article
IV.C.2.b.i of this Plan and the Amended Certificate of Incorporation of NTL
Inc., including the associated Euroco Stockholder Rights, to be issued by
Euroco under this Plan as of the Effective Date.
1.81 "Euroco Grandfathered Distributee" means any Euroco Chapter 11
Acquiring Person who, as determined in the sole and absolute discretion of the
Debtors and the Creditors' Committee, (i) would hold, after giving effect to
the consummation of the Plan, its Euroco Common Stock for investment purposes
only, such that such Euroco Chapter 11 Acquiring Person would qualify to file
a Schedule 13-G pursuant to Section 13 of the Exchange Act, (ii) would not
directly or indirectly, through investments or otherwise, constitute a
competitor of any of the business lines of Euroco, (iii) would not own or
operate, in the United States or elsewhere, a business that operates or holds
a license to operate a cable television system or service, fixed-line
telephone or telecommunications system or service, or broadcasting
transmission system or service, and (iv) would not be a strategic investor in
Euroco.
1.82 "Euroco Management Incentive Options" means the options to be
issued by Euroco pursuant to the provisions of the Euroco Management Incentive
Plan.
1.83 "Euroco Management Incentive Plan" means the management
incentive plan pursuant to which the Euroco Management Incentive Options will
be issued, to be adopted by the compensation committee of the board of
directors of Euroco on or after the Effective Date.
1.84 "Euroco Preferred Stock" means the shares of preferred stock of
Euroco, par value $0.01 per share, authorized under Article IV.C.2.b.i of this
Plan and the Amended and Restated Certificate of Incorporation of NTL Inc.,
with a liquidation preference of $1,000 per share and an aggregate liquidation
preference equal to the sum of (a) $250 million, plus (b) the Aggregate
Investments, plus (c) the Euroco Cash, plus (d) accrued and unpaid dividends
on the Euroco Preferred Stock.
1.85 "Euroco Registration Rights Agreement" means the registration
rights agreement governing the registration of Euroco Common Stock and Euroco
Preferred Stock issued under this Plan, in substantially the form of Exhibit L
annexed hereto, by and among Euroco and certain holders from time to time of
Euroco Common Stock and Euroco Preferred Stock who are or may be deemed to be
"affiliates" or "underwriters" of Euroco for purposes of the Securities Act.
1.86 "Euroco Rights Agent" means Continental Stock Transfer & Trust
Company, in its capacity as rights agent under the Euroco Rights Agreement.
1.87 "Euroco Rights Agreement" means the stockholder rights
agreement, substantially in the form of Exhibit O annexed hereto, between
Euroco and Continental Stock Transfer & Trust Company, as Euroco Rights Agent.
1.88 "Euroco Stockholder Rights" means the stockholder rights to be
issued in accordance with the terms of the Euroco Rights Agreement.
1.89 "Euroco Stockholder Rights Preferred Stock" means Series A
Junior Participating Preferred Stock, par value $0.01 per share, of Euroco.
1.90 "Euroco Stockholder Rights Purchase Price" means the price per
one one-hundredth of a share of Euroco Stockholder Rights Preferred Stock that
will be determined prior to the Effective Date.
1.91 "Excess Restructuring Expenses" means an amount equal to the
Restructuring Expenses actually incurred and paid by NTL Inc. and NTL Delaware
prior to April 10, 2002.
1.92 "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statutes.
1.93 "Existing Securities" means, collectively, the Equity Securities
and the Debt Securities.
1.94 "Face Amount" means (a) when used in reference to a Disputed
Claim, the full stated amount claimed by the holder of such Claim in any proof
of Claim timely filed with the Bankruptcy Court, (b) when used in reference to
an unliquidated Claim, the amount of the Claim as estimated by the Bankruptcy
Court under section 502(c) of the Bankruptcy Code, and (c) when used in
reference to an Allowed Claim, the Allowed amount of such Claim.
1.95 "Final Order" means an order, ruling, or judgment of the
Bankruptcy Court or any other court of competent jurisdiction as to which the
time to appeal, petition for certiorari, or move for reargument or rehearing
has expired and as to which no appeal, petition for certiorari, or other
proceedings for reargument or rehearing shall then be pending, or as to which
any right to appeal, petition for certiorari, reargue, or rehear shall have
been waived in writing, in form and substance satisfactory to the Debtors or,
on and after the Effective Date, the Reorganized Debtors or, in the event that
an appeal, writ of certiorari, or reargument or rehearing thereof has been
sought, such order of the Bankruptcy Court of other court of competent
jurisdiction shall have been determined by the highest court to which such
order was appealed, or certiorari, reargument or rehearing shall have been
denied and the time to take any further appeal, petition for certiorari, or
move for reargument or rehearing shall have expired; provided, however, that
the possibility that a motion under Rule 59 or Rule 60 of the Federal Rules of
Civil Procedure, or any analogous Bankruptcy Rule or applicable state court
rules of civil procedure, may be filed with respect to such order shall not
cause such order not to be a Final Order.
1.96 "5% Cumulative Participating Convertible Preferred Stock" means,
collectively, the shares of 5% cumulative participating convertible preferred
stock, Series A (and dividend shares Series C through Series K), and 5%
cumulative participating convertible preferred stock, Series B (and dividend
shares Series B-1 through Series B-6), of NTL Inc. outstanding immediately
prior to the Petition Date.
1.97 "France Telecom" means, collectively, France Telecom, a societe
anonyme organized under the laws of France, and its indirect wholly-owned
subsidiary RAPP 26.
1.98 "France Telecom Payment" means the payment in cash, in the
amount of $25,000,000, to be made on the Effective Date by France Telecom for
the benefit of Euroco.
1.99 "General Unsecured Claim" means a prepetition unsecured Claim
that is not entitled to priority under section 507 of the Bankruptcy Code, but
excluding a Senior Notes Claim, Subordinated Notes Claim, Intercompany Claim,
or Securities Claim, and including, among others, all Claims of the Diamond
Holdings Notes Holders arising under or related to the Diamond Cable Guaranty.
1.100 "Impaired" means, when used with reference to a Claim or
Interest, a Claim or Interest that is impaired within the meaning of section
1124 of the Bankruptcy Code.
1.101 "Indenture(s)" means, individually and collectively, the
indentures pursuant to which the Senior Notes and Subordinated Notes were
issued, as such indentures are or have been amended or supplemented from time
to time in accordance with the terms thereof.
1.102 "Indenture Trustee(s)" means, individually and collectively,
the indenture trustees (or their respective successors) for the Senior Notes
and Subordinated Notes.
1.103 "Insolvency Act" means the Insolvency Act 1986 of the UK.
1.104 "Intercompany Claim" means, collectively, any Claim held by a
Debtor against another Debtor as of the Effective Date, including, without
limitation, (a) any account reflecting intercompany book entries by a Debtor
with respect to another Debtor, (b) any such Claim not reflected in such book
entries that is held by a Debtor against another Debtor, and (c) any
derivative Claim asserted by or on behalf of a Debtor against another Debtor;
provided, however, that the term Intercompany Claim shall not include (i) a
Claim of New NTL as the holder of the Diamond Cable Notes after the Effective
Date, (ii) a DIP Facility Claim, (iii) a Claim by or against Cable Funding,
(iv) a Claim arising under or related to the Delaware/NTL (UK) Group Note, or
(v) any Debt Securities.
1.105 "Interest" means the legal, equitable, contractual, and other
rights of any holder of Equity Securities of a Debtor represented by any
issued and outstanding shares of Old Common Stock, Old Preferred Stock, or
other instrument evidencing a current ownership interest in such Debtor,
whether or not transferable, and any option, warrant, or right, contractual or
otherwise, to purchase, sell, subscribe for, or otherwise acquire or receive
any such interest.
1.106 "J.P. Morgan Chase" means J.P. Morgan Chase Bank, a New York
domestic banking corporation, in its capacity as counterpart to the PTV Swap
Agreement.
1.107 "Junior Stakeholders" means, collectively, the holders of Old
Senior Preferred Stock Interests, Old Junior Preferred Stock Interests, and
Old Common Stock Interests.
1.108 "Lien" means a charge against or interest in property to secure
payment of a debt or performance of an obligation.
1.109 "Litigation Claims" means any Cause of Action that any Debtor
or Estate may hold against any Person, including, but not limited to, the
claims, rights of action, suits, and proceedings to be retained by the
Reorganized Debtors pursuant to Article IV.H of this Plan.
1.110 "Management Incentive Plans" means, collectively, the New NTL
Management Incentive Plan and the Euroco Management Incentive Plan.
1.111 "New NTL" means NTL CC, on and after the Effective Date.
1.112 "New NTL Chapter 11 Acquiring Person" means any holder of an
Allowed Claim or Interest or any Person or group of affiliated or associated
Persons to such holder who, with respect to any determination date, would
beneficially own 15% or more of the outstanding shares of New NTL Common Stock
on account of such Allowed Claim or Interest, assuming that the Plan is
consummated on such determination date.
1.113 "New NTL Common Stock" means the 600 million shares of common
stock of New NTL, par value $0.01 per share, authorized under IV.C.2.a.i of
this Plan and the Amended and Restated Certificate of Incorporation of NTL CC,
including the associated New NTL Stockholder Rights, to be issued by New NTL
under this Plan as of the Effective Date.
1.114 "New NTL Exit Facility" means that certain credit facility to
be provided to New NTL and/or Cable Funding on the Effective Date.
1.115 "New NTL Exit Facility Agreement" means an agreement to provide
the New NTL Exit Facility.
1.116 "New NTL Grandfathered Distributee" means any New NTL Chapter
11 Acquiring Person who, as determined in the sole and absolute discretion of
the Debtors and the Creditors' Committee, (i) would hold, after giving effect
to the consummation of the Plan, its New NTL Common Stock for investment
purposes only, such that such New NTL Chapter 11 Acquiring Person would
qualify to file a Schedule 13-G pursuant to Section 13 of the Exchange Act,
(ii) would not directly or indirectly, through investments or otherwise,
constitute a competitor of any of the business lines of New NTL, (iii) would
not own or operate, in the United States or elsewhere, a business that
operates or holds a license to operate a cable television system or service,
fixed-line telephone or telecommunications system or service, or broadcasting
transmission system or service, and (iv) would not be a strategic investor in
New NTL.
1.117 "New NTL Lenders" means those entities identified as "Lenders"
with respect to the New NTL Exit Facility in the New NTL Exit Facility
Agreement, and their respective successors and assigns.
1.118 "New NTL Management Incentive Options" means the options to
purchase up to 10% of the issued and outstanding New NTL Common Stock, to be
issued by New NTL pursuant to the provisions of the New NTL Management
Incentive Plan.
1.119 "New NTL Management Incentive Plan" means the management
incentive plan pursuant to which the New NTL Management Incentive Options will
be issued, to be adopted by the compensation committee of the board of
directors of New NTL on or after the Effective Date.
1.120 "New NTL Registration Rights Agreement" means the registration
rights agreement governing the registration of New NTL Common Stock in
substantially the form of Exhibit K annexed hereto, by and among New NTL and
certain holders from time to time of New NTL Common Stock and Series A
Warrants who are or may be deemed to be "affiliates" or "underwriters" of New
NTL for purposes of the Securities Act.
1.121 "New NTL Rights Agent" means Continental Stock Transfer & Trust
Company, in its capacity as rights agent under the New NTL Rights Agreement.
1.122 "New NTL Rights Agreement" means the stockholder rights
agreement, substantially in the form of Exhibit N annexed hereto, between New
NTL and Continental Stock Transfer & Trust Company, as Rights Agent.
1.123 "New NTL Stockholder Rights" means the stockholder rights to be
issued in accordance with the terms of the New NTL Rights Agreement.
1.124 "New NTL Stockholder Rights Preferred Stock" means Series A
Junior Participating Preferred Stock, par value $0.01 per share, of New NTL.
1.125 "New NTL Stockholder Rights Purchase Price" means the price per
one one-hundredth of a share of New NTL Stockholder Rights Preferred Stock
that will be determined prior to the Effective Date.
1.126 "New Options" means, collectively, the New NTL Management
Incentive Options and the Euroco Management Incentive Options.
1.127 "New Securities" means, collectively, the New NTL Common Stock,
Euroco Common Stock, Euroco Preferred Stock, Series A Warrants, New Options,
and, as the context requires, Rights.
1.128 "Non-Debtor Subsidiar(ies)" means, individually and
collectively, the direct and indirect subsidiaries of NTL Inc. listed on
Exhibit C hereto that are not Debtor Subsidiaries.
1.129 "Noos" means Suez Lyonnaise Telecom, a societe anonyme
organized under the laws of France.
1.130 "Noos Interest" means NTL Inc.'s entire interest in the
ordinary registered shares of Noos owned by NTL Inc., as pledged pursuant to
Annex 1 of the Share Account Pledge Agreement and as subject to the Noos
Shareholder Agreement.
1.131 "Noos Junior Preferred Stock" means, collectively, the 6.5%
Fixed Coupon Redeemable Preferred Stock and the Variable Coupon Redeemable
Preferred Stock.
1.132 "Noos Junior Preferred Stock Interest" means an Interest of a
holder of Noos Junior Preferred Stock arising under or as a result of Noos
Junior Preferred Stock.
1.133 "Noos Note" means the debt obligation of Noos contained in
Sections 2.2.2(a) and (b) of the 1G Sale Agreement, by and among Noos, Nogenta
Holding BV, NTL Delaware, and NTL Inc.
1.134 "Noos Shareholders Agreement" means the Shareholders'
Agreement, dated April 10, 2001, by and among Suez SA, NTL Inc., MSDW Capital
Partners IV, LLC and Noos, as amended on October 26, 2001, November 23, 2001,
and May 14, 2002, and as may be further amended and/or restated from time to
time.
1.135 "Noteholder" means a holder of Debt Securities.
1.136 "Noteholder Election Option" means the option offered to the
NTL CC Subordinated Notes Holders, the NTL Delaware Subordinated Notes Holders
(other than France Telecom), and the NTL Inc. Subordinated Notes Holders
(other than France Telecom) as of the Noteholder Election Option Record Date,
to purchase (a) shares of New NTL Common Stock and (b) shares of New NTL
Common Stock (each accompanied by a Series A Warrant) that were not subscribed
for in the Equity Rights Offering.
1.137 "Noteholder Election Option Procedures" means the Noteholder
Election Option Procedures annexed hereto as Exhibit G.
1.138 "Noteholder Election Option Price" means the price per share of
New NTL Common Stock purchased in the Noteholder Election Option, which shall
be equal to (a)(i) $10.5 billion, minus (ii) New NTL's pro forma debt as of
the Effective Date as set forth in the Confirmation Order, plus (iii) New
NTL's pro forma cash (with such pro forma amounts to be determined in
accordance with New NTL's most recent monthly financials available prior to
the commencement of the Noteholder Election Option), divided by (b) 200 million.
1.139 "Noteholder Election Option Record Date" means the date for
determination of holders of NTL CC Convertible Senior Notes, NTL CC
Subordinated Notes, NTL Delaware Subordinated Notes (other than France
Telecom), and NTL Inc. Subordinated Notes (other than France Telecom) eligible
to participate in the Noteholder Election Option, which date shall be August
26, 2002, or such later date as shall be agreed upon by the Debtors and the
Creditors' Committee.
1.140 "Noteholders' Steering Committee" means the steering committee
of the unofficial committee of holders of notes which are obligations of NTL
Inc., NTL Delaware, NTL CC, Diamond Cable, Diamond Holdings, and Triangle.
1.141 "NTL Cash Amount" means 20.9% of the Delaware/Inc. Cash Amount.
1.142 "NTL CC" means NTL Communications Corp., a Delaware corporation.
1.143 "NTL CC Convertible Senior Notes" means the 6 3/4% Convertible
Senior Notes due 2008, issued by NTL CC (and a subordinated co-obligation of
NTL Inc.) under an indenture dated May 15, 2001.
1.144 "NTL CC Convertible Senior Notes Claim" means a Claim of an NTL
CC Convertible Senior Notes Holder arising under or as a result of the NTL CC
Convertible Senior Notes.
1.145 "NTL CC Convertible Senior Notes Holder" means a holder of NTL
CC Convertible Senior Notes.
1.146 "NTL CC Guaranty" means the guaranty by NTL CC of the
obligations of NTL Communications Limited as borrower under the Working
Capital Facility.
1.147 "NTL CC Restructuring Expenses" means an allocable portion of
the Restructuring Expenses, equal to the amount that the estimated value of
the aggregate recovery of Classes 6, 7, and 8 bears to the estimated value of
the aggregate recovery of Classes 6, 7, 8, 9, and 10.
1.148 "NTL CC Senior Notes" means, collectively, the (a) 12 3/4%
Senior Deferred Coupon Notes due 2005, issued by NTL CC under an indenture
dated April 20, 1995, as amended by a First Supplemental Indenture dated as of
January 22, 1996, and a Second Supplemental Indenture dated as of October 14,
1998, (b) 11 1/2% Senior Deferred Coupon Notes due 2006, issued by NTL CC
under an indenture dated January 30, 1996, as amended by a First Supplemental
Indenture dated October 14, 1998, (c) 10% Senior Notes due 2007, issued by NTL
CC under an indenture dated February 12, 1997, as amended by a First
Supplemental Indenture dated October 14, 1998, (d) 9 3/4% Senior Deferred
Coupon Notes due 2008, issued by NTL CC under an indenture dated March 13,
1998, (e) 10 3/4% Senior Deferred Coupon Notes due 2008, issued by NTL CC
under an indenture dated March 13, 1998, (f) 9 1/2% Senior Notes due 2008,
issued by NTL CC under an indenture dated March 13, 1998, (g) 11 1/2% Senior
Notes due 2008, issued by NTL CC under an indenture dated November 2, 1998,
(h) 123/8% Senior Deferred Coupon Notes due 2008, issued by NTL CC under an
indenture dated November 6, 1998, (i) 9 3/4% Senior Deferred Coupon Notes due
2009, issued by NTL CC under an indenture dated April 14, 1999, (j) 9 1/4%
Senior Notes due 2006, issued by NTL CC under an indenture dated November 24,
1999, (k) 97/8% Senior Notes due 2009, issued by NTL CC under an indenture
dated November 24, 1999, (l) 11 1/2% Senior Deferred Coupon Notes due 2009,
issued by NTL CC under an indenture dated November 24, 1999, (m) 117/8% Senior
Notes due 2010, issued by NTL CC under an indenture dated October 2, 2000, (n)
123/8% Senior Notes due 2008, issued by NTL CC under an indenture dated
January 24, 2001, and (o) 6 3/4% Convertible Senior Notes due 2008, issued by
NTL CC (and a subordinated co-obligation of NTL Inc.) under an indenture dated
May 15, 2001.
1.149 "NTL CC Senior Notes Claim" means a Claim of an NTL CC Senior
Notes Holder arising under or as a result of the NTL CC Senior Notes.
1.150 "NTL CC Senior Notes Holder" means a holder of NTL CC Senior
Notes.
1.151 "NTL CC Subordinated Notes" means 7% Convertible Subordinated
Notes due 2008, issued by NTL CC (and a subordinated co-obligation of NTL
Delaware and NTL Inc.) under an indenture dated December 16, 1998, as amended
by a First Supplemental Indenture dated March 31, 1999, a Second Supplemental
Indenture dated March 16, 2000, and a Third Supplemental Indenture dated May
17, 2000.
1.152 "NTL CC Subordinated Notes Claim" means a Claim of an NTL CC
Subordinated Notes Holder arising under or as a result of the NTL CC
Subordinated Notes.
1.153 "NTL CC Subordinated Notes Holder" means a holder of NTL CC
Subordinated Notes.
1.154 "NTL Delaware" means NTL (Delaware), Inc., a Delaware
corporation.
1.155 "NTL Delaware Subordinated Notes" means, collectively, the (a)
5 3/4% Convertible Subordinated Notes due 2009, issued by NTL Delaware (and a
subordinated co-obligation of NTL Inc.) under an indenture dated December 22,
1999, as amended by a First Supplemental Indenture dated May 17, 2000, (b) 5
3/4% Convertible Subordinated Notes due 2011, co-issued on a subordinated
basis by NTL Delaware and NTL Inc. under an indenture dated June 22, 2001, as
amended by a First Supplemental Indenture dated July 27, 2001, and (c) 7%
Convertible Subordinated Notes due 2008, issued by NTL CC (and a subordinated
co-obligation of NTL Delaware and NTL Inc.) under an indenture dated December
16, 1998, as amended by a First Supplemental Indenture dated March 31, 1999, a
Second Supplemental Indenture dated March 16, 2000, and a Third Supplemental
Indenture dated May 17, 2000.
1.156 "NTL Delaware Subordinated Notes Claim" means a Claim of an NTL
Delaware Subordinated Notes Holder arising under or as a result of the NTL
Delaware Subordinated Notes.
1.157 "NTL Delaware Subordinated Notes Holder" means a holder of NTL
Delaware Subordinated Notes.
1.158 "NTL Inc." means NTL Incorporated, a Delaware corporation.
1.159 "NTL Inc. Subordinated Notes" means, collectively, the (a) 5
3/4% Convertible Subordinated Notes due 2009, issued by NTL Delaware (and a
subordinated co-obligation of NTL Inc.) under an indenture dated December 22,
1999, as amended by a First Supplemental Indenture dated May 17, 2000, (b) 5
3/4% Convertible Subordinated Notes due 2011, co-issued on a subordinated
basis by NTL Delaware and NTL Inc. under an indenture dated June 22, 2001, as
amended by a First Supplemental Indenture dated July 27, 2001, (c) 7%
Convertible Subordinated Notes due 2008, issued by NTL CC (and a subordinated
co-obligation of NTL Delaware and NTL Inc.) under an indenture dated December
16, 1998, as amended by a First Supplemental Indenture dated March 31, 1999, a
Second Supplemental Indenture dated March 16, 2000, and a Third Supplemental
Indenture dated May 17, 2000, and (d) 6 3/4% Convertible Senior Notes due
2008, issued by NTL CC (and a subordinated co-obligation of NTL Inc.) under an
indenture dated May 15, 2001.
1.160 "NTL Inc. Subordinated Notes Claim" means a Claim of an NTL
Inc. Subordinated Notes Holder arising under or as a result of the NTL Inc.
Subordinated Notes.
1.161 "NTL Inc. Subordinated Notes Holder" means a holder of NTL Inc.
Subordinated Notes.
1.162 "NYSE" means the New York Stock Exchange, Inc.
1.163 "Offerings" means, collectively, the Equity Rights Offering and
the Noteholder Election Option.
1.164 "Old Common Stock" means NTL Inc.'s common stock, par value
$0.01 per share, issued and outstanding immediately before the Petition Date,
or at any time prior to the Effective Date, including the associated rights
under NTL Inc.'s shareholder rights plan extant on the Petition Date, quoted
on the Over The Counter Bulletin Board system under the symbol "NTLD."
1.165 "Old Common Stock Interest" means an Interest of a holder of
Old Common Stock evidenced by Old Common Stock arising under or as a result of
the Old Common Stock.
1.166 "Old Junior Preferred Stock" means, collectively, the Noos
Junior Preferred Stock and Other Junior Preferred Stock.
1.167 "Old Junior Preferred Stock Interest" means an Interest of a
holder of Old Junior Preferred Stock evidenced by Old Junior Preferred Stock
arising under or as a result of the Old Junior Preferred Stock.
1.168 "Old Options" means, collectively, all issued, outstanding, and
unexpired options to purchase (i) Old Common Stock outstanding as of the
Petition Date, and any and all "puts" or similar rights or claims relating in
any manner to such options, including, but not limited to, the options issued
to Bruno Claude pursuant to section 3(c) of his employment agreement, made as
of October 16, 2000 or (ii) common stock of NTL CC or NTL Delaware.
1.169 "Old Preferred Stock" means, collectively, the Old Senior
Preferred Stock and Old Junior Preferred Stock.
1.170 "Old Senior Preferred Stock" means, collectively, the 13%
Senior Redeemable Exchangeable Preferred Stock and 13% Series B Senior
Redeemable Exchangeable Preferred Stock.
1.171 "Old Senior Preferred Stock Interest" means an Interest of a
holder of Old Senior Preferred Stock evidenced by Old Senior Preferred Stock
arising under or as a result of the Old Senior Preferred Stock.
1.172 "Old Warrants" means all issued, outstanding, and unexpired
warrants to purchase Old Common Stock outstanding as of the Petition Date.
1.173 "1G Franchises" means the five CATV franchises sold by France
Telecom to NTL Inc. pursuant to the 1G Protocol and Convention Agreement,
dated May 6, 1999.
1.174 "Other Junior Preferred Stock" means, collectively, the (a) 5%
Cumulative Participating Convertible Preferred Stock, Series A (and dividend
shares Series C through Series K), (b) 5% Cumulative Participating Convertible
Preferred Stock, Series B (and dividend shares Series B-1 through Series B-6),
and (c) Cumulative Convertible Preferred Stock.
1.175 "Other Junior Preferred Stock Interest" means an Interest of a
holder of Other Junior Preferred Stock evidenced by Other Junior Preferred
Stock arising under or as a result of the Other Junior Preferred Stock.
1.176 "Other Old Equity Interests And Claims" means all Interests and
any and all rights and Claims, including, but not limited to, Claims of the
type described in, and subject to subordination under, section 510(b) of the
Bankruptcy Code, of a holder of Old Warrants or Old Options, arising under, as
a result of, or relating to the Old Warrants or Old Options, as the case may
be, and any other Interest or Claim relating to Old Common Stock, including,
without limitation, conversion rights, principal or other legal or contractual
rights to acquire Old Common Stock.
1.177 "Other Priority Claim" means a Claim entitled to priority under
section 507(a) of the Bankruptcy Code other than a Priority Tax Claim or an
Administrative Claim.
1.178 "Other Secured Claims" means, collectively, all Secured Claims
against the Debtors, or any of them, other than the Secured Claims included in
Classes 2.01 and 2.02 of this Plan.
1.179 "Person" means an individual, corporation, partnership, joint
venture, association, joint stock company, limited liability company, limited
liability partnership, trust, trustee, United States Trustee, estate,
unincorporated organization, government, governmental unit (as defined in the
Bankruptcy Code), agency, or political subdivision thereof, or other entity.
1.180 "Petition Date" means May 8, 2002, the date on which the
Debtors filed their petitions for reorganization relief commencing the Chapter
11 Cases.
1.181 "Plan" means this second amended joint plan of reorganization,
together with all exhibits hereto, as it may be further amended, modified, or
supplemented from time to time in accordance with section 1127 of the
Bankruptcy Code, including any Plan Supplements.
1.182 "Plan Supplement" means the compilation of documents or forms
of documents specified in this Plan (approved in all respects by the
Creditors' Committee,) including any Exhibits to this Plan not included
herewith, that the Debtors will file with the Bankruptcy Court on or before
the date that is fourteen days prior to the Confirmation Hearing.
1.183 "Priority Tax Claim" means a Claim that is entitled to priority
under section 507(a)(8) of the Bankruptcy Code.
1.184 "Pro Rata" means, at any time, the proportion that the Face
Amount of an Allowed Claim or Allowed Interest in a particular Class bears to
the aggregate Face Amount of all Claims or Interests (including Disputed
Claims or Disputed Interests, but excluding Disallowed Claims or Disallowed
Interests) in that Class, unless this Plan provides otherwise.
1.185 "Professional" means any professional, other than a
professional employed or retained by the Noteholders' Steering Committee
solely in such capacity prior to being employed by the Creditors' Committee
nunc pro tunc to June 24, 2002, (a) employed in the Chapter 11 Cases under
sections 327, 328, 329, or 1103 of the Bankruptcy Code or (b) seeking
compensation or reimbursement of expenses in connection with the Chapter 11
Cases under section 503(b)(4) or 1129(a)(4) of the Bankruptcy Code.
1.186 "Professional Fee Claim" means a Claim of a Professional, other
than a professional employed or retained by the Noteholders' Steering
Committee solely in such capacity prior to being employed by the Creditors'
Committee nunc pro tunc to June 24, 2002, for compensation for services
rendered, and/or reimbursement of costs and expenses incurred, after the
Petition Date and prior to and including the Confirmation Date.
1.187 "PTV Swap Agreement" means the ISDA Master Agreement, dated as
of March 26, 2001, by and between J.P. Morgan Chase and NTL Inc., as amended,
modified, or supplemented.
1.188 "PTV Swap Agreement Collateral" means the (pound)23,000,000
pledged by NTL Inc. to J.P. Morgan Chase pursuant to the Credit Support Annex
to the PTV Swap Agreement, dated as of January 30, 2002, to secure NTL Inc.'s
obligations under the PTV Swap Agreement.
1.189 "Registration Rights Agreement(s)" means, individually and
collectively, the New NTL Registration Rights Agreement and the Euroco
Registration Rights Agreement.
1.190 "Reinstated" or "Reinstatement" means (i) leaving unaltered the
legal, equitable, and contractual rights to which a Claim entitles the holder
of such Claim so as to leave such Claim unimpaired in accordance with section
1124 of the Bankruptcy Code or (ii) notwithstanding any contractual provision
or applicable law that entitles the holder of such Claim to demand or receive
accelerated payment of such Claim after the occurrence of a default, (a)
curing any such default that occurred before, on, or after the Petition Date,
other than a default of a kind specified in section 365(b)(2) of the
Bankruptcy Code, (b) reinstating the maturity of such Claim as such maturity
existed before such default, (c) compensating the holder of such Claim for any
damages incurred as a result of any reasonable reliance by such holder on such
contractual provision or such applicable law, and (d) not otherwise altering
the legal, equitable, or contractual rights to which such Claim entitles the
holder of such Claim.
1.191 "Reorganized Debtor(s)" means, collectively, the Debtors on and
after the Effective Date.
1.192 "Reorganized . . ." means the identified entity on and after
the Effective Date.
1.193 "Restructuring Expenses" means the aggregate expenses incurred
by NTL and its subsidiaries in connection with the Restructuring, as more
fully described in the Disclosure Statement.
1.194 "Rights" means, collectively, the Equity Rights and the
Noteholder Election Option.
1.195 "SEC" means the United States Securities and Exchange Commission.
1.196 "Secured Claim" means a Claim, other than a Setoff Claim, that
is secured by a Lien that is valid, perfected, and enforceable, and not
avoidable, on property in which a Debtor has an interest, or the proceeds of
the sale of such property, to the extent of the value, as of the Effective
Date, of such interest or Lien as determined by a Final Order of the
Bankruptcy Court under section 506 of the Bankruptcy Code or as otherwise
agreed upon in writing by a Debtor or Reorganized Debtor and the holder of
such Claim.
1.197 "Securities Act" means the Securities Act of 1933, as amended
from time to time and any successor statutes.
1.198 "Securities Actions" means, collectively, the actions captioned
(a) James Haber v. NTL Inc., et al., Civil Action No. 02-CV-3013, (b) Mike
Atassi v. NTL Inc., et al., Civil Action No. 02-CV-3297, (c) Harry Pariser v.
NTL Inc., et al., Civil Action No. 02-CV-3415, (d) Addy Krebs v. NTL Inc., et
al., Civil Action No. 02-CV-3485, (e) Progressive Casualty Insurance v. NTL,
Inc., et al. Civil Action No. 02-CV-3993, (f) Randall Scott v. NTL, Inc., et
al. Civil Action No. 02-CV-3955, (g) Arthur J. Niebauer, et al. v. NTL, Inc.,
et al. Civil Action No. 02-CV-4234, and (h) In re NTL, Inc. Securities
Litigation Civil Action No. 02-CV-3013 (LAK), each pending in the United
States District Court for the Southern District of New York.
1.199 "Securities Claim" means a Claim of the type described in, and
subject to subordination under, section 510(b) of the Bankruptcy Code,
including any Claim arising from the rescission of a purchase or sale of an
Existing Security of a Debtor, for damages arising from the purchase or sale
of such an Existing Security, or for reimbursement, contribution or
indemnification allowed under section 502 of the Bankruptcy Code on account of
such Claim, including, but not limited to, a Claim with respect to any action
pending against any Debtor and/or its current or former officers and directors
in which Securities Claims are asserted, including the Securities Actions.
1.200 "Securities Claim Bar Date" means July 24, 2002, the date that
was designated by the Bankruptcy Court as the last date for filing proofs of
Securities Claims against the Debtors.
1.201 "Senior Credit Facility" means the credit agreement, dated May
30, 2000, by and among NTL Communica tions Limited, as parent, NTL Investment
Holdings Limited, as post-novation borrower, the guarantors named therein, NTL
CC, J.P. Morgan plc (formerly known as Chase Manhattan plc) and Morgan Stanley
Dean Witter Bank Limited, as arrangers, J.P. Morgan Europe Limited (formerly
known as Chase Manhattan International Limited), as agent and security
trustee, and the other parties thereto, as may be further amended and/or
restated from time to time.
1.202 "Senior Notes" means, collectively, Diamond Holdings Notes,
Diamond Cable Notes, NTL CC Convertible Senior Notes, and NTL CC Senior Notes.
1.203 "Senior Notes Claim" means a Claim of a Senior Notes Holder
arising under or as a result of the Senior Notes.
1.204 "Senior Notes Holder" means a holder of Senior Notes.
1.205 "Series A Warrant Agent" means Continental Stock Transfer &
Trust Company, in its capacity as warrant agent under the Series A Warrant
Agreement.
1.206 "Series A Warrant Agreement" means the warrant agreement,
substantially in the form of Exhibit E annexed hereto, between New NTL and
Continental Stock Transfer & Trust Company, as Series A Warrant Agent.
1.207 "Series A Warrants" means the warrants to purchase shares of
New NTL Common Stock authorized under Article IV.C.2.a.i of this Plan and the
Amended Certificate of Incorporation of NTL CC and described in the term sheet
annexed hereto as Exhibit J, to be issued by New NTL under this Plan as of the
Effective Date in accordance with the Series A Warrant Agreement.
1.208 "Setoff Claim" means a Claim of a holder that has a valid right
of setoff with respect to such Claim, which right is enforceable under section
553 of the Bankruptcy Code as determined by a Final Order or as otherwise
agreed in writing by any Debtor, to the extent of the amount subject to such
right of setoff.
1.209 "Share Account Pledge Agreement" means the Share Account Pledge
Agreement, dated May 18, 2001, by and between NTL Inc. and France Telecom,
pursuant to which NTL Inc. pledged the Noos Interest to France Telecom.
1.210 "6.5% Fixed Coupon Redeemable Preferred Stock" means the shares
of 6.5% Fixed Coupon Redeemable Preferred Stock, Series A, of NTL Inc.
outstanding immediately prior to the Petition Date.
1.211 "6.5% Fixed Coupon Redeemable Preferred Stock Interest" means
an Interest of a holder of 6.5% Fixed Coupon Redeemable Preferred Stock
arising under or as a result of the 6.5% Fixed Coupon Redeemable Preferred
Stock.
1.212 "Solicitation Agent" means Innisfree M&A Incorporated, in its
capacity as information, balloting, and noticing agent for the Debtors.
1.213 "Solicitation Procedures Order" means the order of the
Bankruptcy Court or other court of competent jurisdiction approving theDebtors'
proposed procedures to govern their solicitation of votes on this Plan.
1.214 "Stockholders" means, collectively, the holders of Old Common
Stock, Other Junior Preferred Stock, and Old Senior Preferred Stock.
1.215 "Subordinated Notes" means, collectively, the NTL CC
Subordinated Notes, NTL Delaware Subordinated Notes, and NTL Inc. Subordinated
Notes.
1.216 "Subordinated Notes Claim" means a Claim of a Subordinated Note
Holder arising under or as a result of the Subordinated Notes.
1.217 "Subordinated Notes Holder" means a holder of Subordinated Notes.
1.218 "Subsidiary Common Stock Interests" means, collectively, the
issued and outstanding common stock of each of the Debtor Subsidiaries.
1.219 "13% Senior Redeemable Exchangeable Preferred Stock" means the
shares of 13% senior redeemable exchangeable preferred stock of NTL Inc.
outstanding as of the Petition Date.
1.220 "13% Series B Senior Redeemable Exchangeable Preferred Stock"
means the shares of 13% senior redeemable exchangeable preferred stock,
Series B, of NTL Inc. outstanding as of the Petition Date.
1.221 "Triangle" means NTL (Triangle) LLC, a Delaware limited
liability company.
1.222 "UBS Warburg" means UBS Warburg LLC.
1.223 "Unimpaired Claim" means a Claim that is not Impaired under
this Plan.
1.224 "Unsecured Claim" means a Claim against any Debtor, other than
an Administrative Claim or a Secured Claim.
1.225 "Variable Coupon Redeemable Preferred Stock" means the shares
of variable coupon redeemable preferred stock, Series A, of NTL Inc.
outstanding immediately prior to the Petition Date.
1.226 "Variable Coupon Redeemable Preferred Stock Interest" means an
Interest of a holder of Variable Coupon Redeemable Preferred Stock arising
under or as a result of the Variable Coupon Redeemable Preferred Stock.
1.227 "Voting Deadline" means the date and time, as fixed by an order
of the Bankruptcy Court and set forth in the Disclosure Statement, by which
all Ballots to accept or reject this Plan must be received by the Solicitation
Agent.
1.228 "Voting Record Date" means the record date for voting to accept
or reject this Plan, as fixed by an order of the Bankruptcy Court, which date
shall be one (1) Business Day after the Petition Date.
1.229 "Working Capital Facility" means the credit agreement, dated
May 30, 2000, by and among NTL CC, as parent, NTL (UK) Group, Inc., as
intermediate parent, NTL Communications Limited, as borrower, and J.P. Morgan
plc (formerly known as Chase Manhattan plc) and Morgan Stanley Dean Witter
Bank Limited, as arrangers and joint book managers, J.P. Morgan Europe Limited
(formerly known as Chase Manhattan International Limited), as agent and
security trustee, and the other parties thereto, as may be further amended
and/or restated from time to time.
1.230 "Working Capital Facility Guaranty" means the guaranty by NTL
CC of the obligations of NTL Communications Limited as borrower under the
Working Capital Facility.
1.231 "Working Capital Facility Guaranty Collateral" means the
collateral securing the Working Capital Facility Guaranty.
1.232 "Working Capital Facility Lenders" means the lenders under the
Working Capital Facility.
C. Rules Of Interpretation
1. General
In this Plan (a) any reference to a contract, instrument, release,
indenture, or other agreement or document as being in a particular form or on
particular terms and conditions means the agreement or document substantially
in that form or on those terms and conditions, (b) any reference to an
existing document or exhibit means that document or exhibit as it may have
been or may be amended, modified, or supplemented, (c) unless otherwise
specified, all references to Sections, Articles, Schedules, and Exhibits are
references to Sections, Articles, Schedules, and Exhibits of or to this Plan,
(d) the words "herein" and "hereto" refer to this Plan in its entirety rather
than to a particular portion of this Plan, (e) captions and headings to
Articles and Sections are for convenience of reference only and are not
intended to be a part of or to affect the interpretation of this Plan, and (f)
the rules of construction in section 102 of the Bankruptcy Code and in the
Bankruptcy Rules shall apply.
2. "Including"
As used in this Plan, "including" means "including without limitation."
3. "On"
With reference to any distribution under this Plan, "on" a date means
on or as soon as reasonably practicable after that date.
4. "Contra Proferentum" Rule Not Applicable
This Plan is the product of extensive discussions and negotiations
between and among, inter alia, the Debtors, the Noteholders' Steering
Committee, France Telecom, and certain other holders of Existing Securities.
Each of the foregoing was represented by counsel who either participated in
the formulation and documentation of, or was afforded the opportunity to
review and provide comments on, this Plan, the Disclosure Statement, and the
documents ancillary thereto. Accordingly, the general rule of contract
construction known as "contra proferentum" shall not apply to the
interpretation of any provision of this Plan, the Disclosure Statement, or any
agreement or document generated in connection herewith.
D. Computation Of Time
In computing any period of time prescribed or allowed by this Plan,
the provisions of Fed. R. Bankr. P. 9006(a) shall apply.
ARTICLE II.
CLASSIFICATION OF CLAIMS AND INTERESTS
A. Introduction
All Claims and Interests, except Administrative Claims and Priority
Tax Claims, are placed in the Classes set forth below. In accordance with
section 1123(a)(1) of the Bankruptcy Code, Administrative Claims and Priority
Tax Claims, as described below, have not been classified and are not entitled
to vote on this Plan.
A Claim or Interest is placed in a particular Class only to the
extent that the Claim or Interest falls within the description of that Class,
and is classified in other Classes to the extent that any portion of the Claim
or Interest falls within the description of such other Classes. A Claim is
also placed in a particular Class for the purpose of receiving distributions
pursuant to this Plan only to the extent that such Claim is an Allowed Claim
in that Class and such Claim has not been paid, released, or otherwise settled
prior to the Effective Date.
B. Unclassified Claims (not entitled to vote on the Plan)
1. Administrative Claims
2. Priority Tax Claims
C. Unimpaired Classes Of Claims (deemed to have accepted the Plan and,
therefore, not entitled to vote)
1. Class 1: Other Priority Claims (All Debtors)
Class 1 consists of all Other Priority Claims against all Debtors.
2. Class 2: Secured Claims (All Debtors)
Class 2 consists of separate subclasses for each Secured Claim
secured by a security interest in or lien on property in which a Debtor's
Estate has an interest and, in the aggregate, all Secured Claims against all
Debtors. Each subclass is deemed to be a separate Class for all purposes under
the Bankruptcy Code and this Plan, including for purposes of voting to accept
or reject this Plan.
a. Class 2.01: Working Capital Facility Guaranty Secured Claims
Class 2.01 consists of all Claims against NTL CC, secured by and to
the extent of the value (as of the Petition Date), of the Working Capital
Facility Guaranty Collateral, directly or indirectly arising from or under, or
relating in any way to, the Working Capital Facility Guaranty.
b. Class 2.02: PTV Swap Secured Claims
Class 2.02 consists of all Claims against NTL Inc., secured by and to
the extent of the value (as of the Petition Date), if any, of the PTV Swap
Agreement Collateral, directly or indirectly arising from or under, or
relating in any way to, the PTV Swap Agreement.
c. Class 2.03: Other Secured Claims
Class 2.03 consists of all Other Secured Claims against all Debtors.
3. Class 3: General Unsecured Claims (All Debtors)
Class 3 consists of all General Unsecured Claims against all Debtors.
4. Class 4: Diamond Holdings Notes Claims
Class 4 consists of all Diamond Holdings Notes Claims against Diamond
Holdings.
D. Impaired Classes Of Claims And Interests (entitled to vote on the Plan)
1. Class 5: Subsidiary Common Stock Interests
Class 5 consists of all Subsidiary Common Stock Interests.
2. Class 6: Diamond Cable Notes Claims
Class 6 consists of all Diamond Cable Notes Claims against Diamond
Cable. Notwithstanding any provision to the contrary contained in this Plan,
the Diamond Cable Notes Claims shall be deemed Allowed Class 6 Claims for all
purposes under this Plan or the Confirmation Order, without the need to file
proofs of Claim, in the aggregate amount of $1,275,793,104, as follows: (a)
Claims with respect to the 13 1/4% Senior Discount Notes due 2004 shall be
deemed Allowed Class 6 Claims in the amount of $289,087,440, (b) Claims with
respect to the 11 3/4% Senior Discount Notes due 2005 shall be deemed Allowed
Class 6 Claims in the amount of $555,783,688, and (c) Claims with respect to
the 10 3/4% Senior Discount Notes due 2007 shall be deemed Allowed Class 6
Claims in the amount of $430,921,976.
3. Class 7: NTL CC Senior Notes Claims
Class 7 consists of all NTL CC Senior Notes Claims. Notwithstanding
any provision to the contrary contained in this Plan, the NTL CC Senior Notes
Claims shall be deemed Allowed Class 7 Claims for all purposes under this Plan
or the Confirmation Order, without the need to file proofs of Claim, in the
aggregate amount of $7,755,752,661 as follows: (a) Claims with respect to the
12 3/4% Senior Deferred Coupon Notes due 2005 shall be deemed Allowed Class 7
Claims in the amount of $297,772,663, (b) Claims with respect to the 11 1/2
Senior Deferred Coupon Notes due 2006 shall be deemed Allowed Class 7 Claims
in the amount of $1,082,535,417, (c) Claims with respect to the 10% Senior
Notes due 2007 shall be deemed Allowed Class 7 Claims in the amount of
$409,222,222, (d) Claims with respect to the 9 3/4% Senior Deferred Coupon
Notes due 2008 shall be deemed Allowed Class 7 Claims in the amount of
$1,193,794,948, (e) Claims with respect to the 10 3/4% Senior Deferred Coupon
Notes due 2008 shall be deemed Allowed Class 7 Claims in the amount of
$400,863,234, (f) Claims with respect to the 9 1/2% Senior Notes due 2008
shall be deemed Allowed Class 7 Claims in the amount of $193,941,845, (g)
Claims with respect to the 11 1/2% Senior Notes due 2008 shall be deemed
Allowed Class 7 Claims in the amount of $668,324,653, (h) Claims with respect
to the 123/8% Senior Deferred Coupon Notes due 2008 shall be deemed Allowed
Class 7 Claims in the amount of $380,610,860, (i) Claims with respect to the 9
3/4% Senior Deferred Coupon Notes due 2009 shall be deemed Allowed Class 7
Claims in the amount of $402,810,754, (j) Claims with respect to the 9 1/4%
Senior Notes due 2006 shall be deemed Allowed Class 7 Claims in the amount of
$238,866,033, (k) Claims with respect to the 97/8% Senior Notes due 2009 shall
be deemed Allowed Class 7 Claims in the amount of $335,374,097, (l) Claims
with respect to the 11 1/2% Senior Deferred Coupon Notes due 2009 shall be
deemed Allowed Class 7 Claims in the amount of $144,952,020, (m) Claims with
respect to the 117/8% Senior Notes due 2010 shall be deemed Allowed Class 7
Claims in the amount of $535,789,931, (n) Claims with respect to the 123/8%
Senior Notes due 2008 shall be deemed Allowed Class 7 Claims in the amount of
$283,590,859, and (o) Claims with respect to the 6 3/4% Convertible Senior
Notes due 2008 shall be deemed Allowed Class 7 Claims in the amount of
$1,187,303,125.
4. Class 8: NTL CC Subordinated Notes Claims
Class 8 consists of all NTL CC Subordinated Notes Claims.
Notwithstanding any provision to the contrary contained in this Plan, the NTL
CC Subordinated Notes Claims shall be deemed Allowed Class 8 Claims for all
purposes under this Plan or the Confirmation Order, without the need to file
proofs of Claim, in the aggregate amount of $503,399,633.
5. Class 9: NTL Delaware Subordinated Notes Claims
Class 9 consists of all NTL Delaware Subordinated Notes Claims;
provided, however, that as of the Effective Date, France Telecom shall be
deemed to have waived its NTL Delaware Subordinated Notes Claims in the
aggregate amount of $232,000,000 plus accrued interest through the Petition
Date, and shall not be entitled to, and shall not, receive or retain any
property or interest in property on account of such NTL Delaware Subordinated
Notes Claims. Notwithstanding any provision to the contrary contained in this
Plan, the NTL Delaware Subordinated Notes Claims shall be deemed Allowed Class
9 Claims for all purposes under this Plan or the Confirmation Order, without
the need to file proofs of Claim, in the aggregate amount of $1,833,955,494,
as follows: (a) Claims with respect to the 5 3/4% Convertible Subordinated
Notes due 2009 shall be deemed Allowed Class 9 Claims in the amount of
$1,227,408,333, (b) Claims with respect to the 5 3/4% Convertible Subordinated
Notes due 2011 shall be deemed Allowed Class 9 Claims in the amount of
$103,147,528, and (c) Claims with respect to the 7% Convertible Subordinated
Notes due 2008 shall be deemed Allowed Class 9 Claims in the amount of
$503,399,633.
6. Class 10: NTL Inc. Subordinated Notes Claims
Class 10 consists of all NTL Inc. Subordinated Notes Claims;
provided, however, that as of the Effective Date, France Telecom shall be
deemed to have waived its NTL Inc. Subordinated Notes Claims in the aggregate
amount of $232,000,000 plus accrued interest through the Petition Date, and
shall not be entitled to, and shall not, receive or retain any property or
interest in property on account of such NTL Inc. Subordinated Notes Claims.
Notwithstanding any provision to the contrary contained in this Plan, the NTL
Inc. Subordinated Notes Claims shall be deemed Allowed Class 10 Claims for all
purposes under this Plan or the Confirmation Order, without the need to file
proofs of Claim, in the aggregate amount of $3,021,258,619, as follows: (a)
Claims with respect to the 5 3/4% Convertible Subordinated Notes due 2009
shall be deemed Allowed Class 10 Claims in the amount of $1,227,408,333, (b)
Claims with respect to the 5 3/4% Convertible Subordinated Notes due 2011
shall be deemed Allowed Class 10 Claims in the amount of $103,147,528, (c)
Claims with respect to the 7% Convertible Subordinated Notes due 2008 shall be
deemed Allowed Class 10 Claims in the amount of $503,399,633, and (d) Claims
with respect to the 6 3/4% Convertible Senior Notes due 2008 shall be deemed
Allowed Class 10 Claims in the amount of $1,187,303,125.
7. Class 11: Intercompany Claims
Class 11 consists of all Intercompany Claims.
E. Impaired Classes Of Interests (Classes 12, 13, and 14 are entitled to
vote on the Plan)
1. Class 12: Old Senior Preferred Stock Interests
Class 12 consists of all Old Senior Preferred Stock Interests in NTL
Inc. Notwithstanding any provision to the contrary contained in this Plan, the
Old Senior Preferred Stock Interests shall be deemed Allowed Class 12
Interests for all purposes under this Plan or the Confirmation Order.
2. Class 13: Old Junior Preferred Stock Interests
Class 13 consists of all Old Junior Preferred Stock Interests in NTL
Inc. Notwithstanding any provision to the contrary contained in this Plan, the
Old Junior Preferred Stock Interests shall be deemed Allowed Class 13
Interests for all purposes under this Plan or the Confirmation Order.
a. Group 13-A: Noos Junior Preferred Stock Interests
Group 13-A consists of all Noos Junior Preferred Stock Interests.
b. Group 13-B: Other Junior Preferred Stock Interests
Group 13-B consists of all Other Junior Preferred Stock Interests.
3. Class 14: Old Common Stock Interests
Class 14 consists of all Old Common Stock Interests in NTL Inc.
Notwithstanding any provision contained in this Plan to the contrary, the Old
Common Stock Interests shall be deemed Allowed Class 14 Interests for all
purposes under this Plan.
F. Additional Impaired Classes (Classes 15 and 16 are deemed to have
rejected the Plan and, therefore, are not entitled to vote)
1. Class 15: Securities Claims
a. Class 15.01: Debt Securities Claims
Class 15.01 consists of all Debt Securities Claims against a Debtor.
b. Class 15.02: Equity Securities Claims
Class 15.02 consists of all Equity Securities Claims against NTL Inc.
2. Class 16: Other Old Equity Interests And Claims
Class 16 consists of all Other Old Equity Interests And Claims in
and/or against the Debtors.
ARTICLE III.
TREATMENT OF CLAIMS AND INTERESTS
A. Unclassified Claims
1. Administrative Claims
Except as otherwise provided for herein, and subject to the
requirements of Article XV.A.2 hereof, on, or as soon as reasonably
practicable after the latest of (a) the Effective Date, (b) the date that is
five (5) Business Days after the date such Administrative Claim becomes an
Allowed Administrative Claim, or (c) the date that is five (5) Business Days
after the date such Administrative Claim becomes payable pursuant to any
agreement between a Debtor and the holder of such Administrative Claim, each
holder of an Allowed Administrative Claim shall, receive in full satisfaction,
settlement, release, and discharge of and in exchange for such Allowed
Administrative Claim, Cash equal to the unpaid portion of such Allowed
Administrative Claim; provided, however, that (i) DIP Facility Claims against
any Debtor shall be paid in full in Cash on the Effective Date and (ii)
obligations incurred in the ordinary course of business, consistent with past
practice, or assumed by the Debtors shall be paid in full or performed by the
Debtors or Reorganized Debtors in the ordinary course of business, consistent
with past practice; provided further, however, that Allowed Administrative
Claims incurred by the Debtors or Reorganized Debtors after the Confirmation
Date, including, without limitation, Professional Fee Claims, shall not be
subject to application and may be paid by the Debtors or Reorganized Debtors,
as the case may be, in the ordinary course of business and without further
Bankruptcy Court approval.
2. Priority Tax Claims
Each holder of an Allowed Priority Tax Claim shall receive, at the
sole discretion of the Debtors, and in full satisfaction, settlement, release,
and discharge of and in exchange for such Allowed Priority Tax Claim, (a) Cash
equal to the unpaid portion of such Allowed Priority Tax Claim, (b) Cash
payments made in equal annual installments beginning on or before the first
anniversary following the Effective Date, with the final installment payable
not later than the sixth (6th) anniversary of the date of the assessment of
such Allowed Priority Tax Claim, together with interest on the unpaid portion
thereof at the Case Interest Rate from the Effective Date through the date of
payment thereof, or (c) such other treatment as to which the applicable Debtor
and such holder shall have agreed on in writing; provided, however, that the
Debtors reserve the right to pay any Allowed Priority Tax Claim, or any
remaining balance of any Allowed Priority Tax Claim, in full at any time on or
after the Distribution Date without premium or penalty; and provided further,
that no holder of an Allowed Priority Tax Claim shall be entitled to any
payments on account of any pre-Effective Date interest accrued on or penalty
arising after the Petition Date with respect to or in connection with such
Allowed Priority Tax Claim.
B. Unimpaired Classes Of Claims
1. Class 1: Other Priority Claims (All Debtors)
On, or as soon as reasonably practicable after, the later of (i) the
Distribution Date or (ii) the date such Other Priority Claim becomes an
Allowed Other Priority Claim, each holder of an Allowed Other Priority Claim
shall receive, in full satisfaction, settlement, release, and discharge of and
in exchange for such Allowed Class 1 Other Priority Claim, (a) Cash in an
amount equal to the unpaid portion of such Allowed Other Priority Claim or (b)
such other treatment as to the applicable Debtor and such holder shall have
agreed upon in writing; provided, however, that Allowed Other Priority Claims
with respect to liabilities incurred by a Debtor in the ordinary course of
business during the Chapter 11 Cases shall be paid in the ordinary course of
business in accordance with the terms and conditions of any agreements
relating thereto.
2. Class 2: Secured Claims
Each holder of a Class 2 Secured Claim shall be treated as a separate
class for all purposes under this Plan, and each holder of an Allowed Class 2
Secured Claim shall receive the treatment set forth below. To the extent, if
any, that the value of the collateral securing a Class 2 Secured Claim is less
than the total amount of such Claim, the difference shall be treated as a
Class 3 General Unsecured Claim. The Debtors specifically reserve all rights
to challenge the validity, nature, and perfection of, and to avoid pursuant to
the provisions of the Bankruptcy Code and other applicable law, any purported
liens and security interests.
a. Class 2.01: Working Capital Facility Guaranty Secured Claims
The legal, equitable, and contractual rights to which each Allowed
Class 2.01 Working Capital Facility Guaranty Secured Claims entitles its
holders are unaltered by this Plan and all such Allowed Class 2.01 Working
Capital Facility Guaranty Secured Claims shall be Reinstated on the Effective
Date.
b. Class 2.02: PTV Swap Secured Claims
The legal, equitable, and contractual rights to which each Allowed
Class 2.02 PTV Swap Secured Claim entitles its holders are unaltered by this
Plan and all such Allowed Class 2.02 PTV Swap Secured Claims shall be
Reinstated on the Effective Date.
c. Class 2.03: Other Secured Claims
The legal, equitable, and contractual rights to which each Allowed
Class 2.03 Other Secured Claim entitles its holders are unaltered by this Plan
and all such Allowed Class 2.03 Other Secured Claims shall be Reinstated on
the Effective Date.
3. Class 3: General Unsecured Claims
The legal, equitable, and contractual rights to which each Allowed
Class 3 General Unsecured Claim entitles its holders are unaltered by this
Plan and all such Allowed Class 3 General Unsecured Claims shall be Reinstated
on the Effective Date. Allowed Class 3 General Unsecured Claims incurred in
the ordinary course of business shall be paid in full or performed by the
Debtors or the Reorganized Debtors in the ordinary course of business,
consistent with past practice.
4. Class 4: Diamond Holdings Notes Claims
The legal, equitable, and contractual rights to which each Allowed
Class 4 Diamond Holdings Notes Claim entitles its holders are unaltered by
this Plan and all such Allowed Class 4 Diamond Holdings Notes Claims shall be
Reinstated on the Effective Date.
C. Impaired Classes Of Claims And Interests
This Plan is predicated on, among other things, agreement to the
terms of the Debtors' restructuring between and among the Senior Notes Holders
(Classes 6 and 7) and the Subordinated Notes Holders (Classes 8, 9, and 10).
The Senior Notes Holders, along with the Secured Lenders who will remain
unimpaired under the Plan, are entitled under the Bankruptcy Code to a
distribution of 100% of the Debtors' and Reorganized Debtors' enterprise
value, other than the Delaware/Inc. Cash Amount and certain assets owned by
NTL Inc. and NTL Delaware, respectively, which, subject to the discussion
herein and in Article III.D below, shall be distributed in part to the
Subordinated Notes Holders under the Plan. Absent the willingness of the
Senior Notes Holders in Classes 6 and 7 to provide the additional value
described below to the Subordinated Notes Holders in Classes 8, 9, and 10, the
Subordinated Notes Holders would not be entitled to, and would not, receive
any distribution from the Debtors under the Plan on account of their Claims
against the Debtors other than the cash and assets described above.
Nevertheless, to facilitate and avoid delay in consummation of the Plan and
the Debtors' restructuring, among other things, the Senior Notes Holders have
agreed to provide to the Subordinated Notes Holders, in exchange for their
acceptance of the Plan and assent to the transactions contemplated thereby, a
portion of the Debtors' and Reorganized Debtors' enterprise value that the
Senior Notes Holders otherwise would be entitled to receive. Accordingly, if
and to the extent that a Class of Subordinated Notes Holders entitled to vote
on this Plan fails to accept the Plan, then no member of such rejecting Class
of Subordinated Notes Holders shall be entitled to, or shall receive, the
additional value being provided by the Senior Notes Holders, which additional
value shall be retained by the Senior Notes Holders or treated as otherwise
set forth in the Confirmation Order.
1. Class 5: Subsidiary Common Stock Interests
NTL Delaware (which shall be deemed to have accepted this Plan), the
holder of 100% of the shares of capital stock of NTL CC, has agreed that its
Subsidiary Common Stock Interests in NTL CC shall be exchanged with New NTL on
the Effective Date for those portions of the NTL Delaware Subordinated Notes,
NTL Inc. Subordinated Notes, Old Common Stock, Old Senior Preferred Stock, and
Other Junior Preferred Stock, and the respective Claims or Interests
associated therewith contributed to New NTL by the holders of such notes and
stock pursuant to the Plan, and NTL Delaware shall not be entitled to, and
shall not, receive or retain any other property or interest in property on
account of such Interests; provided, however, that such exchange shall not
occur until after the issuance by New NTL and Euroco of all of the New
Securities. All other Allowed Class 5 Subsidiary Common Stock Interests shall,
at the discretion of NTL Inc., (a) receive treatment that leaves unaltered the
legal, equitable, and contractual rights to which such Interest entitles the
holder thereof, (b) be Reinstated, or (c) receive such other treatment as NTL
Inc. and such holder have agreed upon in writing.
2. Class 6: Diamond Cable Notes Claims
On, or as soon as reasonably practicable after, the Distribution
Date, each holder of an Allowed Class 6 Diamond Cable Notes Claim shall
receive, in full satisfaction, settlement, release, and discharge of and in
exchange for such Allowed Class 6 Diamond Cable Notes Claim, its Pro Rata
share of 27,271,736 shares of New NTL Common Stock. Notwithstanding anything
to the contrary contained in this Plan, (a) on the Effective Date the Diamond
Cable Notes, all rights and interests related to or arising from any and all
Class 6 Diamond Cable Notes Claims and all rights and interests of the
relevant Indenture Trustees relating to the Diamond Cable Notes Indentures
shall be delivered, assigned, conveyed, and transferred by such Persons to New
NTL, which shall be the holder of the Diamond Cable Notes and all such rights
and interests from and after the Effective Date, (b) on the Effective Date and
without prejudice to the generality of clause (a) above, each holder of a
Class 6 Diamond Cable Notes Claim that holds any definitive registered
security or securities in respect of its Diamond Cable Notes shall transfer
such security or securities to New NTL, and (c) in each case, if Class 6 votes
as a Class to accept the Plan, then on and after the Effective Date, each
Person who was a holder of a Class 6 Diamond Cable Notes Claim immediately
prior to the transfers described in clauses (a) and (b) above and, whether or
not such Person has (i) voted on the Plan or (ii) voted to reject the Plan,
shall, insofar as it relates to such holder, (x) do all such acts and things,
and execute such documents as may be reasonably necessary or desirable to
effect and complete such transfers and (y) be deemed to have appointed New NTL
as its agent to undertake such additional actions as may be necessary to
effectuate such transfers; provided, however, that notwithstanding the
foregoing clauses (a) through (c), the right to receive the distributions
contemplated by this Article shall not be transferred to New NTL and shall
remain the property of the holders of Class 6 Diamond Cable Notes Claims
immediately prior to such transfers.
A vote to accept this Plan by a holder of an Allowed Class 6 Diamond
Cable Notes Claims shall constitute an irrevocable direction by such holder to
the relevant Person, Indenture Trustee, securities intermediary, or Nominee
through, or in relation to which, the holder holds its Class 6 Diamond Cable
Notes Claim, to direct its relevant Indenture Trustee, securities
intermediary, or Nominee, or other trustee for the global bearer notes
evidencing the Diamond Cable Notes, to deliver, transfer, convey, and assign
the global bearer notes evidencing the Diamond Cable Notes to New NTL. In the
event that Class 6 votes to accept the Plan, then upon entry of the
Confirmation Order, all holders of Allowed Class 6 Diamond Cable Notes Claims
who did not vote on the Plan or who voted to reject the Plan shall be deemed
to have made such an irrevocable direction.
In consideration of the foregoing, on the Effective Date or, if later
and unless waived by New NTL, immediately following completion of the
transfers described in clauses (a) and (b) above and the delivery, transfer,
conveyance, and assignment of the global bearer notes evidencing the Diamond
Cable Notes to New NTL, to the fullest extent permitted by law, all holders of
Class 6 Diamond Cable Notes Claims shall be deemed to release, and shall be
permanently enjoined from bringing any action against, the Debtors, New NTL,
Euroco, the Indenture Trustees, and their respective members, officers,
directors, agents, financial advisors, attorneys, employees, equity holders,
partners, affiliates, and representatives and their respective property, on
account of any claims, obligations, rights, causes of action, or liabilities
related to or arising from any and all Class 6 Diamond Cable Notes Claims.
3. Class 7: NTL CC Senior Notes Claims
On, or as soon as reasonably practicable after, the Distribution
Date, each holder of an Allowed Class 7 NTL CC Senior Notes Claim shall
receive, in full satisfaction, settlement, release, and discharge of and in
exchange for such Allowed Class 7 NTL CC Senior Notes Claim, its Pro Rata
share of (i) 165,504,192 shares of New NTL Common Stock, (ii) 3,790 shares of
Euroco Preferred Stock, (iii) 0.725% of the Delaware Cash Amount, (iv) 5.012%
of the NTL Cash Amount, and (v) the Class 7 Euroco Value.
In consideration of the foregoing, on the Effective Date, but
effective as of the Confirmation Date, to the fullest extent permitted by law,
all holders of Class 7 NTL CC Senior Notes Claims shall be deemed to release,
and shall be permanently enjoined from bringing any action against, the
Debtors, New NTL, Euroco, and their respective members, officers, directors,
agents, financial advisors, attorneys, employees, equity holders, partners,
affiliates, and representatives and their respective property, on account of
any claims, obligations, rights, causes of action, or liabilities related to
or arising from any and all Class 7 NTL CC Senior Notes Claims.
4. Class 8: NTL CC Subordinated Notes Claims
On, or as soon as reasonably practicable after, the Distribution
Date, each holder of an Allowed Class 8 NTL CC Subordinated Notes Claim shall
receive, in full satisfaction, settlement, release, and discharge of and in
exchange for such Allowed Class 8 NTL CC Subordinated Notes Claim, its Pro
Rata share of (i) 3,292,516 shares of New NTL Common Stock, (ii) 6,615 shares
of Euroco Common Stock, (iii) 76 shares of Euroco Preferred Stock, (iv) 0.014%
of the Delaware Cash Amount, (v) 0.100% of the NTL Cash Amount, and (vi) the
Class 8 Noteholder Election Option; provided, however, that in the event that
the holders of Class 8 NTL CC Subordinated Notes Claims vote as a class to
reject this Plan, then the holders of Class 8 NTL CC Subordinated Notes Claims
shall not be entitled to, and shall not, receive the shares of New NTL Common
Stock and Class 8 Noteholder Election Option described above.
In consideration of the foregoing, on the Effective Date, but
effective as of the Confirmation Date, to the fullest extent permitted by law,
all holders of Class 8 NTL CC Subordinated Notes Claims shall be deemed to
release, and shall be permanently enjoined from bringing any action against,
the Debtors, New NTL, Euroco, and their respective members, officers,
directors, agents, financial advisors, attorneys, employees, equity holders,
partners, affiliates, and representatives and their respective property, on
account of any claims, obligations, rights, causes of action, or liabilities
related to or arising from any and all Class 8 NTL CC Subordinated Notes Claims.
5. Class 9: NTL Delaware Subordinated Notes Claims
On, or as soon as reasonably practicable after, the Distribution
Date, each holder of an Allowed Class 9 NTL Delaware Subordinated Notes Claim,
other than France Telecom, shall receive, in full satisfaction, settlement,
release, and discharge of and in exchange for such Allowed Class 9 NTL
Delaware Subordinated Notes Claim, its Pro Rata share of (i) 2,661,253 shares
of New NTL Common Stock, (ii) 10,692,532 shares of Euroco Common Stock, (iii)
299,391 shares of Euroco Preferred Stock, (iv) 85.540% of the Delaware Cash
Amount, and (v) the Class 9 Noteholder Election Option; provided, however,
that in the event that the holders of Class 9 NTL Delaware Subordinated Notes
Claims vote as a class to reject this Plan, then the holders of Class 9 NTL
Delaware Subordinated Notes Claims shall not be entitled to, and shall not,
receive the shares of New NTL Common Stock and Class 9 Noteholder Election
Option described above.
In consideration of the foregoing, on the Effective Date, but
effective as of the Confirmation Date, to the fullest extent permitted by law,
all holders of Class 9 NTL Delaware Subordinated Notes Claims shall be deemed
to release, and shall be permanently enjoined from bringing any action
against, the Debtors, New NTL, Euroco, and their respective members, officers,
directors, agents, financial advisors, attorneys, employees, equity holders,
partners, affiliates, and representatives and their respective property, on
account of any claims, obligations, rights, causes of action, or liabilities
related to or arising from any and all Class 9 NTL Delaware Subordinated Notes
Claims.
6. Class 10: NTL Inc. Subordinated Notes Claim
On, or as soon as reasonably practicable after, the Distribution
Date, each holder of an Allowed Class 10 NTL Inc. Subordinated Notes Claim,
other than France Telecom, shall receive, in full satisfaction, settlement,
release, and discharge of and in exchange for such Allowed Class 10 NTL Inc.
Subordinated Notes Claim, its Pro Rata share of (i) 1,270,303 shares of New
NTL Common Stock, (ii) 6,270,159 shares of Euroco Common Stock, (iii) 71,744
shares of Euroco Preferred Stock, (iv) 13.720% of the Delaware Cash Amount,
(v) 94.887% of the NTL Cash Amount, and (vi) the Class 10 Noteholder Election
Option; provided, however, that in the event that the holders of Class 10 NTL
Inc. Subordinated Notes Claims vote as a class to reject this Plan, then the
holders of Class 10 NTL Inc. Subordinated Notes Claims shall not be entitled
to, and shall not, receive the shares of New NTL Common Stock and Class 10
Noteholder Election Option described above.
In consideration of the foregoing, on the Effective Date, but
effective as of the Confirmation Date, to the fullest extent permitted by law,
all holders of Class 10 NTL Inc. Subordinated Notes Claims shall be deemed to
release, and shall be permanently enjoined from bringing any action against,
the Debtors, New NTL, Euroco, and their respective members, officers,
directors, agents, financial advisors, attorneys, employees, equity holders,
partners, affiliates, and representatives and their respective property, on
account of any claims, obligations, rights, causes of action, or liabilities
related to or arising from any and all Class 10 NTL Inc. Subordinated Notes
Claims.
7. Class 11: Intercompany Claims
On the Effective Date, all Class 11 Intercompany Claims owed by a
Debtor, directly or indirectly, to any of its Debtor Subsidiaries shall be
distributed by such Debtor Subsidiary up to its corporate parent in exchange
for one share of such Debtor Subsidiary's common stock and in extinguishment
of such Claim. On the Effective Date, all Class 11 Intercompany Claims owed,
directly or indirectly, by any Debtor Subsidiary to any parent Debtor, shall
be contributed by the parent Debtor down to such Debtor Subsidiary in exchange
for one additional share of common stock from such Debtor Subsidiary and in
extinguishment of such Claim.
D. Impaired Classes Of Interests
This Plan is predicated on, among other things, agreement to the
terms of the Debtors' restructuring between and among the Junior Stakeholders
(Classes 12, 13, and 14), on the one hand, and the holders of Debt Securities
(Classes 6, 7, 8, 9, and 10), on the other. The Debt Securities holders, along
with the Secured Lenders who will remain unimpaired under the Plan, are
entitled under the Bankruptcy Code to a distribution of 100% of the Debtors'
and Reorganized Debtors' enterprise value. Absent the willingness of the Debt
Securities holders in Classes 6, 7, 8, 9, and 10 to provide value, in the form
of the distributions described below, to the Junior Stakeholders in Classes
12, 13, and 14, the Junior Stakeholders would not be entitled to, and would
not, receive any distribution from the Debtors under the Plan on account of
their Interests in the Debtors. Nevertheless, to facilitate and avoid delay in
consummation of the Plan and the Debtors' restructuring, among other things,
holders of more than 50% of the aggregate principal amount at maturity of the
Debt Securities have agreed to provide to the Junior Stakeholders, in exchange
for their acceptance of this Plan and assent to the transactions contemplated
hereby, a portion of the Debtors' and Reorganized Debtors' enterprise value
that such Debt Securities holders otherwise are entitled to receive.
Accordingly, if and to the extent that a Class of Junior Stakeholders entitled
to vote on this Plan fails to accept the Plan, then no member of such
rejecting Class of Junior Stakeholders shall be entitled to, or shall receive,
any distribution under the Plan on account of its Interests in the Debtors and
the consideration otherwise available to the members of such rejecting Class
shall be retained by the Debt Securities holders or treated as otherwise set
forth in the Confirmation Order.
1. Class 12: Old Senior Preferred Stock Interests
On, or as soon as reasonably practicable after, the Distribution
Date, each holder of an Allowed Class 12 Old Senior Preferred Stock Interest
shall receive, in full satisfaction, settlement, release, and discharge of and
in exchange for such Allowed Class 12 Old Senior Preferred Stock Interest, its
Pro Rata share of (i) 2,996,475 Series A Warrants, (ii) 1,284,205 Equity
Rights, and (iii) 642,102 shares of Euroco Common Stock; provided, however,
that in the event that the holders of Class 12 Old Senior Preferred Stock
Interests vote as a class to reject this Plan, then such holders of Class 12
Old Senior Preferred Stock Interests shall not be entitled to, and shall not,
receive or retain any property or interest in property on account of such
Class 12 Old Senior Preferred Stock Interests.
In consideration of the foregoing, on the Effective Date, but
effective as of the Confirmation Date, to the fullest extent permitted by law,
all holders of Class 12 Old Senior Preferred Stock Interests shall be deemed
to release, and shall be permanently enjoined from bringing any action
against, the Debtors, New NTL, Euroco, and their respective members, officers,
directors, agents, financial advisors, attorneys, employees, equity holders,
partners, affiliates, and representatives and their respective property, on
account of any claims, obligations, rights, causes of action, or liabilities
related to or arising from any and all Class 12 Old Senior Preferred Stock
Interests.
2. Class 13: Old Junior Preferred Stock Interests
a. Group 13-A: Noos Junior Preferred Stock Interests
i. 6.5% Fixed Coupon Redeemable Preferred Stock Interests
On, or as soon as reasonably practicable after, the Distribution
Date, the holder of the Allowed 6.5%Fixed Coupon Redeemable Preferred Stock
Interests in Group 13-A shall receive, in full satisfaction, settlement,
release, and discharge of and in exchange for such Allowed 6.5% Fixed Coupon
Redeemable Preferred Stock Interests, 20.553% of the Noos Interest; provided,
however, that in the event that the holders of Class 13 Old Junior Preferred
Stock Interests vote as a class to reject this Plan, then the holder of the
Allowed 6.5% Fixed Coupon Redeemable Preferred Stock Interests in Group 13-A
shall not be entitled to, and shall not, receive or retain any property or
interest in property on account of such Interests.
ii. Variable Coupon Redeemable Preferred Stock Interests
On, or as soon as reasonably practicable after, the Distribution
Date, the holder of the Allowed Variable Coupon Redeemable Preferred Stock
Interests in Group 13-A shall receive, in full satisfaction, settlement,
release, and discharge of and in exchange for such Allowed Variable Coupon
Redeemable Preferred Stock Interests, 79.447% of the Noos Interest; provided,
however, that in the event that the holders of Class 13 Old Junior Preferred
Stock Interests vote as a class to reject this Plan, then the holder of the
Allowed Variable Coupon Redeemable Preferred Stock Interests in Group 13-A
shall not be entitled to, and shall not, receive or retain any property or
interest in property on account of such Interests.
b. Group 13-B: Other Junior Preferred Stock Interests
On, or as soon as reasonably practicable after, the Distribution
Date, each holder of an Allowed Other Junior Preferred Stock Interest in Group
13-B shall receive, in full satisfaction, settlement, release, and discharge
of and in exchange for such Allowed Other Junior Preferred Stock Interest, its
Pro Rata share of (i) 22,402,468 Series A Warrants and (ii) 9,601,058 Equity
Rights; provided, however, that in the event that the holders of Class 13 Old
Junior Preferred Stock Interests vote as a class to reject this Plan, then the
holder of the Allowed Other Junior Preferred Stock Interests in Group 13-B
shall not be entitled to, and shall not, receive or retain any property or
interest in property on account of such Interests.
In consideration of the foregoing, on the Effective Date, but
effective as of the Confirmation Date, to the fullest extent permitted by law,
all holders of Class 13 Old Junior Preferred Stock Interests shall be deemed
to release, and shall be permanently enjoined from bringing any action
against, the Debtors, New NTL, Euroco, and their respective members, officers,
directors, agents, financial advisors, attorneys, employees, equity holders,
partners, affiliates, and representatives and their respective property, on
account of any claims, obligations, rights, causes of action, or liabilities
related to or arising from any and all Class 13 Old Junior Preferred Stock
Interests.
3. Class 14: Old Common Stock Interests
On, or as soon as reasonably practicable after, the Distribution
Date, each holder of an Allowed Class 14 Old Common Stock Interest shall
receive in full satisfaction, settlement, release, and discharge of and in
exchange for such Allowed Class 14 Old Common Stock Interest, its Pro Rata
share of (i) 9,601,058 Series A Warrants, (ii) 4,114,739 Equity Rights, and
(iii) 2,057,369 shares of Euroco Common Stock; provided, however, that in the
event that the holders of Class 14 Old Common Stock Interests vote as a class
to reject this Plan, then the holders of Allowed Class 14 Old Common Stock
Interests shall not be entitled to, and shall not, receive or retain any
property or interest in property on account of such Interests or Claims.
Except as provided in Article XIII.E.5 of this Plan, in consideration
of the foregoing, on the Effective Date, but effective as of the Confirmation
Date, to the fullest extent permitted by law, all holders of Class 14 Old
Common Stock Interests shall be deemed to release, and shall be permanently
enjoined from bringing any action against, the Debtors, New NTL, Euroco, and
their respective members, officers, directors, agents, financial advisors,
attorneys, employees, equity holders, partners, affiliates, and
representatives and their respective property, on account of any claims,
obligations, rights, causes of action, or liabilities relating to or arising
from any and all Class 14 Old Common Stock Interests.
E. Additional Impaired Classes
1. Class 15: Securities Claims
a. Class 15.01: Debt Securities Claims
The Class 15.01 Debt Securities Claims shall be extinguished and the
holders thereof shall not be entitled to, and shall not, receive or retain any
property or interest in property on account of such Debt Securities Claims.
b. Class 15.02: Equity Securities Claims
The Class 15.02 Equity Securities Claims shall be extinguished and
the holders thereof shall not be entitled to, and shall not, receive or retain
any property or interest in property on account of such Equity Securities
Claims.
Notwithstanding the foregoing, and except as provided in Article
XIII.E.5 of this Plan, on the Effective Date, but effective as of the
Confirmation Date, all holders of Class 15 Securities Claims shall be deemed
to be bound by the provisions of Article XIII of the Plan.
2. Class 16: Other Old Equity Interests And Claims
The Class 16 Other Old Equity Interests And Claims shall be
extinguished and the holders thereof shall not be entitled to, and shall not,
receive or retain any property or interest in property on account of such
Other Old Equity Interests And Claims.
Notwithstanding the foregoing, on the Effective Date, but effective
as of the Confirmation Date, all holders of Class 16 Other Old Equity
Interests And Claims shall be deemed to be bound by the provisions of Article
XIII of the Plan.
F. Additional Distributions With Respect To Allowed Claims In Classes 6, 7,
8, 9, And 10
With respect to the treatment of Allowed Claims in Classes 6, 7, 8,
9, and 10, in addition to the distributions described in Articles III.C.2
through III.C.6 above, the professionals of the Noteholders' Steering
Committee shall be paid their unpaid fees and expenses incurred in accordance
with their prepetition engagement arrangements. Thus, on the Effective Date,
the Reorganized Debtors shall pay, in Cash, the unpaid fees and expenses
incurred on and after the Petition Date through June 24, 2002 (solely in their
capacity as professionals of the Noteholders' Steering Committee) by Fried,
Frank, Harris, Shriver & Jacobson and Cadwalader, Wickersham & Taft, and UBS
Warburg shall be paid in full all of its unpaid fees and expenses owing and
due, as provided in its prepetition engagement letter. Such amounts shall be
deemed to be incremental distributions on behalf of Allowed Claims in Classes
6, 7, 8, 9, and 10.
G. Special Provision Regarding Unimpaired Claims
Except as otherwise provided in this Plan, the Confirmation Order,
any other order of the Bankruptcy Court, or any document or agreement entered
into and enforceable pursuant to the terms of this Plan, nothing shall affect
the Debtors' or Reorganized Debtors' rights and defenses, both legal and
equitable, with respect to any Unimpaired Claims, including, but not limited
to, all rights with respect to legal and equitable defenses to setoffs or
recoupments against Unimpaired Claims.
H. Allowed Claims And Interests
Notwithstanding any provision herein to the contrary, the Disbursing
Agent shall make distributions only to holders of Allowed Claims and
Interests. No holder of a Disputed Claim or Interest shall receive any
distribution on account thereof until and to the extent that its Disputed
Claim or Interest becomes an Allowed Claim or Interest. The presence of a
Disputed Claim or Interest in any Class shall not be a cause to delay
distribution to Allowed Claims or Interests in that Class or in any junior
Classes. Any holder of a Disputed Claim or Interest that becomes an Allowed
Claim or Interest after the Distribution Date shall receive its distribution,
without postpetition interest (except as otherwise expressly provided in this
Plan), within ten (10) Business Days of the date that such Disputed Claim or
Interest becomes an Allowed Claim or Interest.
I. Accrual Of Postpetition Interest
In accordance with section 502(b)(2) of the Bankruptcy Code, the
amount of all Claims against all Debtors shall be calculated as of the
Petition Date. Except as otherwise provided elsewhere in this Plan or in an
order of the Bankruptcy Court, no holder of an Allowed Claim shall be entitled
to the accrual of postpetition interest or the payment by the Debtors or
Reorganized Debtors of postpetition interest on account of such Claim for any
purpose; provided, however, that holders of Unimpaired Claims shall be
entitled to postpetition interest to the extent required under any applicable
agreement or by applicable non-bankruptcy law.
J. Alternative Treatment
Notwithstanding any provision to the contrary contained in this Plan,
any holder of an Allowed Claim or Interest may receive, in lieu of the
distribution or treatment to which it is entitled under this Article III, any
other distribution or treatment to which it and the applicable Debtor (with
the prior consent of the Creditors' Committee) may agree in writing.
ARTICLE IV.
MEANS FOR IMPLEMENTATION OF THE PLAN
A. Continued Corporate Existence
Subject to the provisions of Article IV.C.1 of this Plan, each of the
Reorganized Debtors shall continue to exist after the Effective Date as a
separate corporate entity in accordance with the applicable law in the
applicable jurisdiction in which it is incorporated, under its respective
certificate of incorporation and by-laws or other organizational documents in
effect before the Effective Date, except as its certificate of incorporation
and by-laws or other organizational documents are amended by this Plan.
B. Corporate Action
1. Amended Certificates Of Incorporation And By-laws
The certificate of incorporation and by-laws of NTL Inc. and NTL CC
shall be amended as necessary to satisfy the provisions of this Plan and the
Bankruptcy Code and shall include, among other things, pursuant to section
1123(a)(6) of the Bankruptcy Code, (x) a provision prohibiting the issuance of
non-voting equity securities, and, if applicable, (y) a provision as to the
classes of securities issued pursuant to this Plan or thereafter possessing
voting power, for an appropriate distribution of such power among such
classes, including, in the case of any class of equity securities having a
preference over another class of equity securities with respect to dividends,
adequate provisions for the election of directors representing such preferred
class in the event of default in the payment of such dividends. The Amended
Certificate of Incorporation of NTL CC also shall include, among other things,
provisions authorizing (i) a change in the name of the corporation from "NTL
Communications Corp." to "NTL Incorporated" and (ii) 600 million shares of New
NTL Common Stock and 5 million shares of "blank check" preferred stock. The
Amended Certificate of Incorporation of NTL Inc. also shall include, among
other things, provisions authorizing (i) a change in the name of the
corporation from "NTL Incorporated" to "NTL Europe, Inc." and (ii) 60 million
shares of Euroco Common Stock and 1 million shares of "blank check" preferred
stock, including the shares of Euroco Preferred Stock.
2. Cancellation Of Existing Securities And Agreements
On the Effective Date, except as otherwise provided for herein, (i)
the Existing Securities and any other note, bond, Indenture, or other
instrument or document evidencing or creating any indebtedness or obligation
of a Debtor, except the Diamond Cable Notes or any other instrument or
document evidencing such indebtedness under the Diamond Cable Notes, and such
notes or other instruments evidencing indebtedness or obligations of a Debtor
as are Reinstated under this Plan, shall be canceled, and (ii) the obligations
of the Debtors under any agreements, Indentures, or certificates of
designations governing the Existing Securities and any other note, bond,
Indenture, or other instrument or document evidencing or creating any
indebtedness or obligation of a Debtor, except the Diamond Cable Notes or any
other instrument or document evidencing such indebtedness under the Diamond
Cable Notes, and such notes or other instruments evidencing indebtedness or
obligations of a Debtor that are Reinstated under this Plan, as the case may
be, shall be discharged; provided, however, that each Indenture or other
agreement that governs the rights of a holder of a Claim and that is
administered by an Indenture Trustee shall continue in effect for the purposes
of allowing the Indenture Trustee to make any distributions on account of such
Claims pursuant to this Plan and to perform any other necessary administrative
functions with respect thereto. Distributions on account of the Debt
Securities shall not be reduced by the amount of the reasonable fees and
documented out-of-pocket expenses incurred by the Indenture Trustees or any
undisputed claim for payment by the Indenture Trustees (which includes the
reasonable fees and documented out-of- pocket expenses of any professionals
retained by the Indenture Trustees). In addition, upon the occurrence of the
Effective Date, the asserted charging liens of the Indenture Trustees shall be
released and their sole claims shall be for their reasonable fees and
documented out-of-pocket expenses. On the Effective Date, in partial
consideration for the release by the Indenture Trustees of their liens on
distributions to the holders of Debt Securities, the reasonable fees and
documented out-of-pocket expenses incurred by the Indenture Trustees or any
other claim for payment by the Indenture Trustees (which includes the
reasonable fees and documented out-of-pocket expenses of any professionals
retained by the Indenture Trustees) through the Effective Date shall be paid
in full in Cash.
Any actions taken by an Indenture Trustee, an agent, or a servicer
that are not for the purposes authorized in this Article IV.B.2 shall not be
binding upon the Debtors or Reorganized Debtors. Notwithstanding the
foregoing, any Debtor may terminate any Indenture or other governing agreement
and the authority of any Indenture Trustee, agent, or servicer to act
thereunder at any time, with or without cause, by giving five (5) days'
written notice of termination to the Indenture Trustee, agent, or servicer. If
distributions under this Plan have not been completed at the time of
termination of the Indenture or other governing agreement, the applicable
Debtor shall designate a Disbursing Agent to act in place of the Indenture
Trustee, agent, or servicer, and the provisions of this Article IV.B.2 shall
be deemed to apply to the new Disbursing Agent.
C. Restructuring Transactions
1. Reorganization Into New NTL And Euroco
a. New NTL
On the Effective Date, NTL CC shall (i) amend and restate its
certificate of incorporation and by-laws to provide for, among other things, a
change in the name of the corporation from "NTL Communications Corp." to "NTL
Incorporated" and (ii) consummate the Effectuating Transactions. Upon, and as
a result of, consummation of the Effectuating Transactions, New NTL and its
subsidiaries shall be separated from Euroco and those of its subsidiaries that
are not also subsidiaries of New NTL.
b. Euroco
On the Effective Date, NTL Inc. shall (i) amend and restate its
certificate of incorporation and by-laws to provide for, among other things, a
change in the name of the corporation from "NTL Incorporated" to "NTL Europe,
Inc." and (ii) consummate the Effectuating Transactions. Upon consummation of
the Effectuating Transactions, New NTL and its subsidiaries shall be separated
from Euroco and those of its subsidiaries that are not also subsidiaries of
New NTL.
2. New Securities
a. New NTL
i. Authorization
As of the Effective Date, the authorization by New NTL of (a) 600
million shares of New NTL Common Stock, (b) 5 million shares of "blank check"
preferred stock, (c) 50 million Series A Warrants, (d) 15 million Equity
Rights, (e) the Noteholder Election Option in an amount equal to the quotient
obtained by dividing (1) the Delaware/Inc. Cash Amount by (2) the Noteholder
Election Option Price, and (f) the New NTL Management Incentive Options is
hereby authorized without further act or action under applicable law,
regulation, order, or rule.
ii. Issuance
The New Securities authorized pursuant to Article IV.C.2.a.i hereof
shall be issued by New NTL pursuant to this Plan without further act or action
under applicable law, regulation, order, or rule; provided, however, that
notwithstanding any provision to the contrary contained in this Plan, the New
NTL Common Stock shall be issued prior to the exchange of NTL Delaware's
Subsidiary Common Stock Interests in NTL CC. The New NTL Management Incentive
Options shall be issued by New NTL in accordance with the New NTL Management
Incentive Plan to be adopted by the compensation committee of the board of
directors of New NTL on or after the Effective Date.
iii.Reserve
New NTL shall reserve (a) 50 million shares of New NTL Common Stock
for issuance pursuant to the Series A Warrants, (b) 15 million shares of New
NTL Common Stock for issuance pursuant to the Equity Rights Offering, (c) the
number of shares of New NTL Common Stock required for issuance pursuant to the
Noteholder Election Option as determined in Article IV.C.2.a.i above, and (d)
up to 20 million shares of New NTL Common Stock for issuance pursuant to the
New NTL Management Incentive Plan without further act or action under
applicable law, regulation, order, or rule.
b. Euroco
i. Authorization
As of the Effective Date, the authorization by Euroco of (a) 60
million shares of Euroco Common Stock, (b) one million shares of Euroco
Preferred Stock, and (c) the Euroco Management Incentive Options is hereby
authorized without further act or action under applicable law, regulation,
order, or rule.
ii. Issuance
The New Securities authorized pursuant to Article IV.C.2.b.i hereof
shall be issued by Euroco pursuant to this Plan without further act or action
under applicable law, regulation, order, or rule; provided, however, that
notwithstanding any provision to the contrary contained in this Plan, the
Euroco Common Stock and Euroco Preferred Stock shall be issued prior to the
exchange of NTL Delaware's Subsidiary Common Stock Interests in NTL CC. The
Euroco Management Incentive Options shall be issued by Euroco in accordance
with the Euroco Management Incentive Plan to be adopted by the compensation
committee of the board of directors of Euroco on or after the Effective Date.
iii.Reserve
Euroco shall reserve up to two million shares of Euroco Common Stock
for issuance pursuant to the Euroco Management Incentive Plan without further
act or action under applicable law, regulation, order, or rule.
3. Listing and Registration Rights
On the Effective Date, New NTL shall (i) be a reporting company under
the Exchange Act, (ii) cause the shares of New NTL Common Stock to be listed
on the NYSE or such other securities exchange as agreed with the Creditors'
Committee, or, if New NTL is unable to have the New NTL Common Stock listed on
the NYSE or another securities exchange, quoted in the national market system
or small cap system of the National Association of Securities Dealers'
Automated Quotation System, (iii) in accordance with the New NTL Registration
Rights Agreement, file a shelf registration statement under the Securities Act
for resale of shares of New NTL Common Stock (the "New NTL Shelf Registration
Statement"), (iv) keep the New NTL Shelf Registration Statement effective for
a three-year period and (v) supplement or make amendments to the New NTL Shelf
Registration Statement, if required under the Securities Act or by the rules
and regulations promulgated thereunder, or in accordance with the terms of the
New NTL Registration Rights Agreement, and have such amendments declared
effective as soon as practicable after filing with the SEC. New NTL will enter
into the New NTL Registration Rights Agreement governing the registration of
shares of New NTL Common Stock in the form of Exhibit K to this Plan.
On the Effective Date, Euroco shall (i) be a reporting company under
the Exchange Act, (ii) cause the shares of Euroco Common Stock to be quoted in
the national market system or small cap system of the National Association of
Securities Dealers' Automated Quotation System or, if Euroco is unable to have
the Euroco Common Stock so quoted, listed or quoted on a securities exchange
or quotation system agreed between NTL Inc. and the Creditors' Committee or
any other arrangement agreed between NTL Inc. and the Creditors' Committee,
(iii) in accordance with the Euroco Registration Rights Agreement, file a
shelf registration statement under the Securities Act for resale of shares of
Euroco Common Stock and Euroco Preferred Stock (the "Euroco Shelf Registration
Statement"), (iv) keep the Euroco Shelf Registration Statement effective for a
three-year period, and (v) supplement or make amendments to the Euroco Shelf
Registration Statement, if required under the Securities Act or by the rules
and regulations promulgated thereunder, or in accordance with the terms of the
Euroco Registration Rights Agreement, and have such amendments declared
effective as soon as practicable after filing with the SEC. Euroco will enter
into the Euroco Registration Rights Agreement governing the registration of
shares of Euroco Common Stock and Euroco Preferred Stock in the form of
Exhibit L to this Plan.
4. Offerings
a. Equity Rights Offering
In accordance with the terms contained in the Equity Rights Offering
Procedures, the Equity Rights Offering shall permit the holders of Old Senior
Preferred Stock Interests, Other Junior Preferred Stock Interests, and Old
Common Stock Interests as of the Equity Rights Offering Record Date to receive
rights to subscribe to purchase 15,000,000 shares of New NTL Common Stock
exercisable on an oversubscription basis at the Equity Rights Offering Price.
Each share of New NTL Common Stock purchased in the Equity Rights Offering
shall be accompanied by a Series A Warrant (maximum issuance of warrants
representing 15,000,000 shares of New NTL Common Stock) with a strike price of
$77.47 (which assumes 162.5% recovery for the NTL CC Senior Notes, NTL CC
Subordinated Notes, and the Diamond Cable Notes). The Equity Rights, which
shall be exercisable for a period of 20 Business Days following the entry of
the Confirmation Order, as such period may be extended, shall be offered pro
rata, but shall be exercisable on an oversubscription basis, such that holders
of Equity Rights can subscribe for shares of New NTL Common Stock (each
accompanied by a Series A Warrant) underlying unexercised Equity Rights, if
any. Subject to any requirement of applicable securities laws, the Equity
Rights shall be transferable in accordance with the provisions set forth in
the Equity Rights Offering Procedures.
b. Noteholder Election
In accordance with the terms contained in the Noteholder Election
Option Procedures, the Noteholder Election Option shall permit the holders of
NTL CC Subordinated Notes, NTL Delaware Subordinated Notes (other than France
Telecom), and NTL Inc. Subordinated Notes (other than France Telecom) as of
the Noteholder Election Option Record Date to purchase (i) shares of New NTL
Common Stock using up to 100% of the Delaware/Inc. Cash Amount distributed to
holders of NTL CC Subordinated Notes, NTL Delaware Subordinated Notes (other
than France Telecom), and NTL Inc. Subordinated Notes (other than France
Telecom) pursuant to Article III.C of this Plan at the Noteholder Election
Option Price, plus (ii) any shares of New NTL Common Stock and Series A
Warrants not subscribed for in the Equity Rights Offering on an
oversubscription basis at the Noteholder Election Option Price. The Noteholder
Election Option, which shall be exercisable for a period of 20 Business Days
following the entry of the Confirmation Order, as such period may be extended,
shall be offered pro rata, but shall be exercisable on an oversubscription
basis. Subject to any requirement of applicable securities laws, the
Noteholder Election Option shall be transferable in accordance with the
provisions set forth in the Noteholder Election Option Procedures.
5. Exit Financing
The Debtors expect that Cable Funding and/or New NTL will enter into
an exit financing agreement, which may be the New NTL Exit Facility, to (a)
refinance amounts outstanding on the Effective Date under the DIP Facility,
(b) make other payments required to be made on the Effective Date or the
Distribution Date, and (c) provide additional borrowing capacity to New NTL
and its subsidiaries following the Effective Date. If such exit financing
agreement is to be the New NTL Exit Facility, then on the Effective Date, the
Reorganized Debtors shall be authorized to enter into, execute, and deliver
the New NTL Exit Facility (which shall be acceptable in all respects to the
Creditors' Committee).
6. Cancellation Of Certain Obligations
a. TWTV
On the Effective Date, if Cable Funding is the borrower under the New
NTL Exit Facility or any alternative exit financing obtained by the Debtors
(either, the "Exit Facility"), it shall pay to NTL CC the sum of
(pound)34,689,324 from the proceeds of the Exit Facility in consideration for
the reduction of the indebtedness owed by it to NTL CC by an equivalent
amount. NTL CC shall, in turn, or if it is a borrower under the Exit Facility,
lend to NTL Inc. such sum and NTL Inc., in turn, shall pay to NTL (CWC
Holdings), an indirect Non-Debtor Subsidiary of NTL CC, such sum in
satisfaction of a loan outstanding under a letter agreement dated May 30, 2000
between NTL (CWC Holdings) and Cable and Wireless plc, in accordance with, and
in full satisfaction of, NTL Inc.'s obligations under a Transaction Agreement
between and among NTL Inc., Cable and Wireless plc, and certain other parties
thereto, dated as of July 26, 1999, as amended and restated. On the Effective
Date, the resultant Intercompany Claim of NTL CC against NTL Inc. shall be
canceled pursuant to Article III.C.7 of this Plan.
b. CWC Separation Cost Loan
On the Effective Date, NTL CC shall lend to NTL Inc. the sum of
(pound)34,689,324 from the proceeds of the New NTL Exit Facility or any
alternative exit financing obtained by the Debtors. NTL Inc. shall, in turn,
pay to NTL (CWC Holdings), an indirect Non-Debtor Subsidiary of NTL CC, in
satisfaction of a loan outstanding under a letter agreement dated May 30, 2000
between NTL (CWC Holdings) and Cable and Wireless plc, in accordance with, and
in full satisfaction of, NTL Inc.'s obligations under a Transaction Agreement
between and among NTL Inc., Cable and Wireless plc, and certain other parties
thereto, dated as of July 26, 1999, as amended and restated. On the Effective
Date, the resultant Intercompany Claim of NTL CC against NTL Inc. shall be
canceled pursuant to Article III.C.7 of this Plan.
7. Restructuring Expense Adjustment
As of the Effective Date, if NTL Inc. and NTL Delaware have incurred
Restructuring Expenses in excess of the Delaware/Inc. Restructuring Expenses,
then New NTL shall transfer the amount of such excess to Euroco. If the
Delaware/Inc. Restructuring Expenses exceed the Restructuring Expenses
actually incurred by NTL Inc. and NTL Delaware, then Euroco shall transfer the
amount of such excess to New NTL.
D. New NTL Rights Agreement
Prior to the Effective Date, New NTL and Continental Stock Transfer
and Trust Company will enter into the New NTL Rights Agreement. In accordance
therewith, upon issuance on the Effective Date, each share of New NTL Common
Stock (whether originally issued or from New NTL's treasury) shall be
accompanied by a New NTL Stockholder Right entitling the registered holder to
purchase from New NTL one one-hundredth (1/100) of a share of New NTL
Stockholder Rights Preferred Stock at the New NTL Stockholder Rights Purchase
Price, subject to adjustment pursuant to the terms of the New NTL Rights
Agreement. Subject to certain exceptions specified in the New NTL Rights
Agreement, the New NTL Stockholder Rights will separate from the New NTL
Common Stock, be represented by separate certificates, and a New NTL
Stockholder Rights distribution date will occur upon the earlier of:
(a) 10 business days following a public announcement that a Person or
group of affiliated or associated Persons other than a New NTL
Grandfathered Distributee (a "New NTL Acquiring Person") has acquired
beneficial ownership of 15% or more of the outstanding shares of New NTL
Common Stock (or beneficial ownership of securities which, upon
confirmation of the Plan, will become shares of New NTL Common Stock)
(the "New NTL Stock Acquisition Date"), other than as a result of
repurchases of stock by New NTL or certain inadvertent actions by
institutional or certain other stockholders; or
(b) 10 business days (or such later date as the New NTL board of
directors shall determine prior to any Person becoming a New NTL
Acquiring Person) following the commencement of a tender offer or
exchange offer that would result in a Person or group becoming a New NTL
Acquiring Person.
The New NTL Stock Acquisition Date could occur as early as the
Effective Date. The earlier of the events described in clauses (a) and (b)
above to occur shall be the "New NTL Stockholder Rights Distribution Date." In
no event, however, shall the separation of the New NTL Stockholder Right from
the New NTL Common Stock occur prior to the Effective Date.
E. Euroco Rights Agreement
Prior to the Effective Date, Euroco and Continental Stock Transfer
and Trust Company will enter into the Euroco Rights Agreement. In accordance
therewith, upon issuance on the Effective Date, each share of Euroco Common
Stock (whether originally issued or from Euroco's treasury) shall be
accompanied by a Euroco Stockholder Right entitling the registered holder to
purchase from Euroco one one-hundredth (1/100) of a share of Euroco
Stockholder Rights Preferred Stock at the Euroco Stockholder Rights Purchase
Price, subject to adjustment pursuant to the terms of the Euroco Rights
Agreement. Subject to certain exceptions specified in the Euroco Rights
Agreement, the Euroco Stockholder Rights will separate from the Euroco Common
Stock, be represented by separate certificates, and a Euroco Stockholder
Rights distribution date will occur upon the earlier of:
(a) 10 business days following a public announcement that a Person or
group of affiliated or associated Persons other than a Euroco
Grandfathered Distributee (a "Euroco Acquiring Person") has acquired
beneficial ownership of 15% or more of the outstanding shares of Euroco
Common Stock (or beneficial ownership of securities which, upon
confirmation of the Plan, will become shares of Euroco Common Stock)
(the "Euroco Stock Acquisition Date"), other than as a result of
repurchases of stock by Euroco or certain inadvertent actions by
institutional or certain other stockholders; or
(b) 10 business days (or such later date as the Euroco board of
directors shall determine prior to any Person becoming a Euroco
Acquiring Person) following the commencement of a tender offer or
exchange offer that would result in a Person or group becoming a Euroco
Acquiring Person.
The Euroco Stock Acquisition Date could occur as early as the
Effective Date. The earlier of the events described in clauses (a) and (b)
above to occur shall be the "Euroco Stockholder Rights Distribution Date." In
no event, however, shall the separation of the Euroco Stockholder Right from
the Euroco Common Stock occur prior to the Effective Date.
F. Directors And Officers
1. Current Board Of Directors Of NTL Inc.
On the Effective Date, the term of the current board of directors of
NTL Inc. shall expire and the operations of New NTL shall become the general
responsibility of the board of directors of New NTL.
2. New NTL
The initial board of directors of New NTL after the Effective Date
shall be comprised of nine members selected by the Creditors' Committee, one
of whom shall be designated as Chairman and one of whom shall be designated as
Chief Executive Officer of New NTL. The Debtors will identify the individuals
proposed to serve as directors and senior management of New NTL in the Plan
Supplement. The board of directors of New NTL shall have the responsibility
for the management, control, and operation of New NTL on and after the
Effective Date. The existing officers and directors of the Debtor Subsidiaries
of NTL CC shall initially be permitted to serve in their respective capacities
as officers and directors of the Reorganized Debtor Subsidiaries of New NTL,
unless otherwise provided in the Plan Supplement.
3. Euroco
The initial board of directors of Euroco after the Effective Date
shall be comprised of three members selected by the Creditors' Committee, one
of whom shall be designated as Chairman and one of whom shall be designated as
Chief Executive Officer of Euroco. The Debtors shall identify the individuals
proposed to serve as directors and senior management of Euroco in the Plan
Supplement. The board of directors of Euroco shall have the responsibility for
the management, control, and operation of Euroco on and after the Effective
Date. The existing officers and directors of the Debtor Subsidiaries of NTL
Inc. (excluding NTL CC and its subsidiaries) shall initially be permitted to
serve in their respective capacities as officers and directors of the
Reorganized Debtor Subsidiaries of Euroco, unless otherwise provided in the
Plan Supplement.
G. Revesting Of Assets
Except as provided in Article III above, the property of each
Debtor's Estate, together with any property of each Debtor that is not
property of its Estate and that is not specifically disposed of pursuant to
this Plan, shall revest in the applicable Reorganized Debtor on the Effective
Date. Thereafter, the Reorganized Debtors may operate their businesses and may
use, acquire, and dispose of property free of any restrictions of the
Bankruptcy Code, the Bankruptcy Rules, and the Bankruptcy Court. As of the
Effective Date, all property of the Reorganized Debtors shall be free and
clear of all Claims, encumbrances, Interests, charges, and Liens except as
specifically provided in this Plan or Confirmation Order or as contemplated by
the New NTL Exit Facility. Without limiting the generality of the foregoing,
the Reorganized Debtors may, without application to or approval by the
Bankruptcy Court, pay Professional Fees and expenses incurred after the
Confirmation Date.
H. Preservation Of Rights Of Action; Settlement Of Causes Of Action
Except as otherwise provided in this Plan or the Confirmation Order,
or in any contract, instrument, release, indenture, or other agreement entered
into in connection with this Plan, in accordance with section 1123(b) of the
Bankruptcy Code, the Reorganized Debtors shall retain and have the exclusive
right, in their sole discretion, to enforce, sue on, settle, or compromise (or
decline to do any of the foregoing) all claims, rights, Causes of Action,
suits, and proceedings, whether in law or in equity, whether known or unknown,
that the Debtors or their Estates may hold against any Person or entity. The
Reorganized Debtors or their successor(s) may pursue such retained claims,
rights, Causes of Action, suits, or proceedings as appropriate, in accordance
with the best interests of the Reorganized Debtors or their successor(s) who
hold such rights.
I. Employment Agreements
On the Effective Date, New NTL and Euroco shall enter into employment
agreements with their respective key executives, substantially in the form of
the agreement annexed hereto as Exhibit M.
J. Management Incentive Plans
On or after the Effective Date, the compensation committees of the
boards of directors of New NTL and Euroco, respectively, are authorized to and
shall adopt the New NTL Management Incentive Plan and Euroco Management
Incentive Plan. Under the New NTL Management Incentive Plan, options to
purchase up to 10% of the issued and outstanding shares of New NTL Common
Stock as of the Effective Date may be granted from time to time to certain
employees of New NTL and, on the Effective Date, New NTL shall reserve up to
20 million shares of New NTL Common Stock for issuance under the New NTL
Management Incentive Plan. The form of the New NTL Management Incentive Plan
is annexed as Exhibit Q hereto. Under the Euroco Management Incentive Plan,
options to purchase up to 10% of the issued and outstanding shares of Euroco
Common Stock as of the Effective Date may be granted from time to time to
certain employees of Euroco and, on the Effective Date, Euroco shall reserve
up to 2 million shares of Euroco Common Stock for issuance under the Euroco
Management Incentive Plan. The form of Euroco Management Incentive Plan is
annexed as Exhibit R hereto.
K. Effectuating Documents; Further Transactions
The chairman of the board of directors, president, chief executive
officer, chief financial officer, or any other appropriate officer of each
Debtor, shall be authorized to execute, deliver, file, or record such
contracts, instruments, releases, indentures, and other agreements or
documents, and take such actions, as may be necessary or appropriate to
effectuate and further evidence the terms and conditions of this Plan. The
secretary or assistant secretary of the appropriate Debtor shall be authorized
to certify or attest to any of the foregoing actions.
L. Exemption From Certain Transfer Taxes
Pursuant to section 1146(c) of the Bankruptcy Code, the issuance,
transfer, or exchange of a security, or the making or delivery of an
instrument of transfer from a Debtor to a Reorganized Debtor or any other
Person or entity pursuant to this Plan, including, without limitation, the
granting or recording of any Lien or mortgage on any property under the New
NTL Exit Facility, shall not be subject to any document recording tax, stamp
tax, conveyance fee, intangibles or similar tax, mortgage tax, stamp act, real
estate transfer tax, mortgage recording tax, or other similar tax or
governmental assessment, and the Confirmation Order shall direct the
appropriate state or local governmental officials or agents to forego the
collection of any such tax or governmental assessment and to accept for filing
and recordation any of the foregoing instruments or other documents without
the payment of any such tax or governmental assessment.
M. Transactions On Business Days
If the date on which a transaction may occur under this Plan shall
occur on a day that is not a Business Day, then such transaction shall instead
occur on the next succeeding Business Day.
N. Implementation
Pursuant to the Confirmation Order and upon Confirmation of this
Plan, the Debtors and the Reorganized Debtors shall be authorized to take all
necessary steps, and perform all necessary acts, to consummate the terms and
conditions of this Plan. On or before the Effective Date, the Debtors may file
with the Bankruptcy Court such agreements and other documents as may be
necessary or appropriate to effectuate or further evidence the terms and
conditions of this Plan and the other agreements referred to herein. The
Debtors or the Reorganized Debtors, as the case may be, shall execute such
documents and take such other actions as necessary to effectuate the
transactions provided for in this Plan, including, without limitation, the New
NTL Exit Facility Agreement and the Employment Agreements without the need for
any additional approvals, authorizations, or consents.
ARTICLE V.
ACCEPTANCE OR REJECTION OF THE PLAN
A. Classes Entitled To Vote
Each Impaired Class of Claims or Interests that will (or may) receive
or retain property or any interest in property under this Plan is entitled to
vote to accept or reject this Plan. By operation of law, each unimpaired Class
of Claims or Interests is deemed to have accepted this Plan and, therefore, is
not entitled to vote. Because holders of Interests in Classes that are not
entitled to receive or retain any property under this Plan are presumed to
have rejected this Plan, they are not entitled to vote.
B. Acceptance By Impaired Classes
An Impaired Class of Claims shall have accepted this Plan if (i) the
holders of at least two-thirds in amount of the Allowed Claims actually voting
in the Class have voted to accept this Plan and (ii) the holders of more than
one-half in number of the Allowed Claims actually voting in the Class have
voted to accept this Plan, in each case not counting the vote of any holder
designated under section 1126(e) of the Bankruptcy Code. An Impaired Class of
Interests shall have accepted this Plan if the holders (other than any holder
designated under section 1126(e) of the Bankruptcy Code) of at least
two-thirds in amount of the Allowed Interests actually voting in such Class
have voted to accept this Plan.
C. Elimination Of Classes
Any Class that does not contain, as of the date of the commencement
of the Confirmation Hearing, any Allowed Claims or Interests or any Claims or
Interests temporarily allowed for voting purposes under Fed. R. Bankr. P. 3018
shall be deemed to have been deleted from this Plan for purposes of (i) voting
to accept or reject this Plan and (ii) determining whether it has accepted or
rejected this Plan under section 1129(a)(8) of the Bankruptcy Code.
D. Cramdown
As described in Article III.D above, the holders of the Debt
Securities have agreed to provide a portion of their distribution to the
Junior Stakeholders, subject to their acceptance of this Plan. The Debt
Securities holders have not, however, agreed to provide value to holders of
Claims and Interests in Classes 15 and 16; consequently, holders of Claims and
Interests in Classes 15 and 16 shall not receive or retain property under the
Plan on account of such Claims and Interests and, under section 1126(g) of the
Bankruptcy Code, are presumed to have rejected the Plan.
If, and to the extent, necessary to confirm the Plan notwithstanding
the deemed rejection of the Plan by Classes 15 and 16, the Debtors shall
request confirmation of the Plan, as it relates to Classes 15 and 16 and as it
may be modified from time to time, under section 1129(b) of the Bankruptcy
Code. The Debtors reserve the right to modify this Plan to the extent, if any,
that confirmation pursuant to section 1129(b) of the Bankruptcy Code requires
modification.
ARTICLE VI.
SECURITIES TO BE ISSUED
IN CONNECTION WITH THE PLAN
On the Effective Date, New NTL and Euroco shall issue for
distribution in accordance with the provisions of this Plan the New Securities
required for distribution pursuant to the provisions of Articles III and IV
hereof. All New Securities to be issued shall be issued on the Effective Date,
regardless of the date on which they are actually distributed. Descriptions of
the terms of each of the New Securities are included in Exhibits D, F, G, H,
I, and J, each of which is annexed to and incorporated herein by reference.
ARTICLE VII.
PROVISIONS GOVERNING DISTRIBUTIONS
A. Distributions For Claims And Interests Allowed As Of The Effective Date
Except as otherwise provided herein or as ordered by the Bankruptcy
Court, distributions to be made on account of Claims or Interests that are
Allowed Claims or Interests as of the Effective Date shall be made on the
Distribution Date, or as soon thereafter as reasonably practicable. Any Cash
distributions shall be made by the Disbursing Agent from available Cash of the
Reorganized Debtors. Any distribution under this Plan of property other than
Cash shall be made by the Disbursing Agent or the appropriate Indenture
Trustee, agent, or servicer, in accordance with the terms of this Plan.
B. Special Distribution Procedures For Certain Persons
1. New NTL Chapter 11 Acquiring Persons
If any holder of Allowed Claims or Interests entitled to receive a
distribution under the Plan becomes a New NTL Chapter 11 Acquiring Person
during the period from the first Business Day after the Petition Date through
the Effective Date, then (a) such holder shall only be entitled to receive
aggregate distributions on account of its Allowed Claims or Interests in an
amount not to exceed 15% of the outstanding shares of New NTL Common Stock
(including, without limitation, any shares of New NTL Common Stock purchased
or that may be acquired after giving effect to the Equity Rights Offering and
the Noteholder Election Option and assuming exercise of the Series A Warrants)
so that, as of the Effective Date, such holder would not be a New NTL
Acquiring Person under the New NTL Rights Agreement (without regard to whether
such Person is a Grandfathered Distributee); and (b) any shares of New NTL
Common Stock that such holder otherwise would have been entitled to receive
but for the provisions of this Article VII.B.1 shall be withheld and retained
by New NTL in accordance with the provisions of Paragraph 2 below, unless such
holder represents and warrants in writing to New NTL that, as of the Effective
Date, such holder either (i) has disposed of a sufficient amount of Allowed
Claims or Interests such that as of the Effective Date, such holder would not
be a New NTL Chapter 11 Acquiring Person, or (ii) is a New NTL Grandfathered
Distributee, and in either case, such holder shall be entitled to receive
those distributions to which it otherwise would have been entitled to receive
under this Plan had it not been for the provisions of this Article VII.B.1.
2. Distribution Procedures For Withheld Shares Of New NTL Common Stock
Distributions of New NTL Common Stock withheld pursuant to Article
VII.B.1 hereof shall be held in reserve by New NTL for the account of the
holder who otherwise would have been entitled, in the absence of the
limitations imposed by Article VII.B.1, to such distributions until such time
as New NTL is directed in writing by such holder to distribute the shares of
New NTL Common Stock, together with any Cash and non-Cash dividends earned
thereon, to another Person, such that after giving effect to the disposition
of New NTL Common Stock, such other Person would not be a New NTL Acquiring
Person under the New NTL Rights Agreement. As soon as practicable following
receipt of such direction, New NTL shall distribute the withheld shares of New
NTL Common Stock, together with any Cash and non-Cash dividends earned
thereon, to such Person as directed by such Person in writing.
3. Euroco Chapter 11 Acquiring Persons
If any holder of Allowed Claims or Interests entitled to receive a
distribution under the Plan becomes a Euroco Chapter 11 Acquiring Person
during the period from the first Business Day after the Petition Date through
the Effective Date, then (a) such holder shall be entitled only to receive
aggregate distributions on account of its Allowed Claims or Interests in an
amount not to exceed 15% of the outstanding shares of Euroco Common Stock so
that, as of the Effective Date, such holder would not be a Euroco Acquiring
Person under the Euroco Rights Agreement (without regard to whether such
Person is a Euroco Grandfathered Distributee), and (b) any shares of Euroco
Common Stock that such holder otherwise would have been entitled to receive
but for the provisions of this Article VII.B.3 shall be withheld and retained
by Euroco in accordance with the provisions of Paragraph 4 below, unless such
holder represents and warrants in writing to Euroco that, as of the Effective
Date, such holder either (i) has disposed of a sufficient amount of Allowed
Claims or Interests such that as of the Effective Date, such holder would not
be a Euroco Chapter 11 Acquiring Person, or (ii) is a Euroco Grandfathered
Distributee, and in either case, such holder shall be entitled to receive
those distributions to which it otherwise would have been entitled to receive
under this Plan had it not been for the provisions of this Article VII.B.3.
4. Distribution Procedures For Withheld Shares Of Euroco Common Stock
Distributions of Euroco Common Stock withheld pursuant to Article
VII.B.3 above shall be held in reserve by Euroco for the account of the holder
who otherwise would have been entitled, in the absence of the limitations
imposed by Article VII.B.3, to such distributions until such time as Euroco is
directed in writing by such holder to distribute the shares of Euroco Common
Stock, together with any Cash and non-Cash dividends earned thereon, to
another Person, such that after giving effect to the disposition of Euroco
Common Stock, such other Person would not be a Euroco Acquiring Person under
the Euroco Rights Agreement. As soon as practicable following receipt of such
direction, Euroco shall distribute the withheld shares of Euroco Common Stock,
together with any Cash and non-Cash dividends earned thereon, to such Person
as directed in writing.
C. Allocation Of Consideration
The aggregate consideration to be distributed to the holders of
Allowed Claims in each Class of Claims under this Plan shall be treated first,
as satisfying the stated principal amount of each holder's Allowed Claim and
second, to the extent of any remaining consideration, as satisfying accrued
but unpaid interest, if any.
D. Disbursing Agent
The Disbursing Agent shall make all distributions required under this
Plan (subject to the provisions of Articles III, VII, and IX hereof), as agent
for New NTL and Euroco, except with respect to a holder of a Claim or Interest
whose distribution is governed by an Indenture or other agreement and is
administered by an Indenture Trustee, agent, or servicer, which distributions
shall be deposited with the appropriate Indenture Trustee, agent, or servicer,
who shall deliver such distributions to the holders of Claims or Interests in
accordance with the provisions of this Plan and the terms of the relevant
Indenture or other governing agreement.
If the Disbursing Agent is an independent third party designated by
the Reorganized Debtors to serve in such capacity, or an Indenture Trustee,
agent, or servicer that administers an Indenture or other agreement that
governs distributions, such Disbursing Agent, Indenture Trustee, agent, or
servicer shall receive, without further Bankruptcy Court approval, reasonable
compensation for distribution services rendered pursuant to this Plan and
reimbursement of reasonable out-of-pocket expenses incurred in connection with
such services from the Reorganized Debtors on terms acceptable to the
Reorganized Debtors. No Disbursing Agent shall be required to give any bond or
surety or other security for the performance of its duties unless otherwise
ordered by the Bankruptcy Court. If otherwise so ordered, all costs and
expenses of procuring any such bond shall be paid by the Reorganized Debtors.
E. Distributions By Indenture Trustees
Any distributions on account of Allowed Claims arising under Debt
Securities or otherwise administered by an Indenture Trustee shall be made to
the appropriate Indenture Trustee, which, in each case, shall serve as the
Reorganized Debtors' designee for purposes of making distributions to holders
of such Allowed Claims under this Plan. The Reorganized Debtors shall be
responsible for payment to each Indenture Trustee of such Indenture Trustee's
reasonable fees and documented out-of-pocket expenses incurred in connection
with the making of distributions under this Plan to holders of Allowed Claims
governed by its Indenture.
F. Surrender Of Securities Or Instruments
As a condition to receiving any distribution under this Plan, on or
before the Distribution Date, or as soon as practicable thereafter, each
holder of an instrument (a "Certificate") evidencing a Claim or Interest on
account of Existing Securities that are not being Reinstated under this Plan
shall surrender such Certificate to the Disbursing Agent, as agent for New NTL
and Euroco, or, with respect to indebtedness that is governed by an Indenture
or other agreement, the respective Indenture Trustee, agent, or servicer, as
the case may be, and such Certificate shall be canceled; provided, however,
that in accordance with the provisions of Article III.C.2 hereof, all
Certificates evidencing Claims on account of Diamond Cable Notes shall be
assigned, conveyed, and transferred by the holder thereof to New NTL. No
distribution of property hereunder shall be made to or on behalf of any such
holder unless and until such Certificate is received by the Disbursing Agent,
the respective Indenture Trustee, agent, or servicer, or New NTL, as the case
may be, or the unavailability of such Certificate is reasonably established to
the satisfaction of the Disbursing Agent, the respective Indenture Trustee,
agent, or servicer, or New NTL, as the case may be. Any such holder who fails
to surrender or assign or cause to be surrendered or assigned such Certificate
or fails to execute and deliver an affidavit of loss and indemnity reasonably
satisfactory to the Disbursing Agent, the respective Indenture Trustee, agent,
or servicer, or New NTL, as the case may be, prior to the later of (i) the
second anniversary of the Effective Date or (ii) six (6) months after the date
such holder's Claim becomes an Allowed Claim, shall be deemed to have
forfeited all rights, Claims, and Interests in respect of such Certificate and
shall not participate in any distribution hereunder, and all property in
respect of such forfeited distribution, including interest accrued thereon,
shall revert to New NTL or Euroco, as the case may be, notwithstanding any
federal or state escheat laws to the contrary.
G. Instructions To Disbursing Agent
Prior to any distribution to a holder of a Claim or Interest on
account of Existing Securities that are not being Reinstated under this Plan,
the appropriate Indenture Trustee, agent, or servicer, as the case may be,
shall (i) inform the Disbursing Agent as to the amount of properly surrendered
Existing Securities as to which such party serves as Indenture Trustee, agent,
or servicer, and (ii) inform the Disbursing Agent in a properly completed
letter of transmittal accompanying properly remitted securities of the names
of the holders of Allowed Claims or Interests, and the number of (x) shares of
New NTL Common Stock, Euroco Preferred Stock, and/or Euroco Common Stock,
and/or (y) Series A Warrants and/or Rights, as the case may be, to be issued
and distributed to or on behalf of such holders of Allowed Claims or Interests
in exchange for properly surrendered Existing Securities.
H. Services Of Indenture Trustees, Agents, And Servicers
The services of Indenture Trustees, agents, and servicers under
Indentures and other agreements that govern the rights of holders of Claims
and Interests, with respect to consummation of this Plan, shall be as set
forth in Article IV.B.2 and elsewhere in this Plan.
I. Record Date For Distributions To Holders Of Existing Securities
The record date for distributions to holders of Allowed Claims or
Interests on account of Existing Securities that are not being Reinstated
under this Plan shall be the Distribution Record Date. At the close of
business on the Distribution Record Date, the transfer ledgers for such
securities shall be closed, and there shall be no further changes in the
record holders of such securities. The Reorganized Debtors and the Disbursing
Agent, if any, shall have no obligation to recognize any transfer of any such
securities occurring after the Distribution Record Date and shall be entitled
instead to recognize and deal for all purposes hereunder with only those
record holders listed on the transfer ledgers as of the close of business on
the Distribution Record Date.
J. Means Of Cash Payment
Cash payments under this Plan shall be in U.S. funds, and shall be
made, at the option, and in the sole discretion, of the Reorganized Debtors,
by (i) checks drawn on or (ii) wire transfers from a domestic bank selected by
the Reorganized Debtors. Cash payments to foreign creditors may be made, at
the option, and in the sole discretion, of the Reorganized Debtors, in such
funds and by such means as are necessary or customary in a particular foreign
jurisdiction. Cash payments made pursuant to this Plan in the form of checks
issued by the Reorganized Debtors shall be null and void if not cashed within
120 days of the date of the issuance thereof. Requests for reissuance of any
check shall be made directly to the Reorganized Debtors.
K. Fractional Dollars; De Minimis Distributions
Any other provision of this Plan notwithstanding, payments of
fractions of dollars shall not be made. Whenever any payment of a fraction of
a dollar under this Plan would otherwise be called for, the actual payment
made shall reflect a rounding of such fraction to the nearest whole dollar (up
or down), with half dollars being rounded down. The Disbursing Agent, or any
Indenture Trustee, agent, or servicer, as the case may be, shall not make any
payment of less than $25.00 with respect to any Claim unless a request
therefor is made in writing to such Disbursing Agent, Indenture Trustee,
agent, or servicer, as the case may be.
L. Calculation Of Distribution Amounts Of Certain New Securities
No fractional shares of New NTL Common Stock, Euroco Common Stock, or
Euroco Preferred Stock, and no fractional Series A Warrants or Rights
(collectively, the "Distributable Securities"), shall be issued or distributed
under this Plan or by New NTL, Euroco, or any Disbursing Agent, Indenture
Trustee, agent, or servicer. Each Person entitled to receive Distributable
Securities shall receive the total number of whole shares of stock, Series A
Warrants, or Rights, as the case may be, to which such Person is entitled.
Whenever any distribution to a particular Person would otherwise call for
distribution of a fraction of a share of stock, Series A Warrant, or Right, as
the case may be, the Disbursing Agent shall allocate separately one whole
share, warrant or right to such Person in order of the fractional portion of
their entitlements, starting with the largest such fractional portion, until
all remaining whole shares, warrants, or rights have been allocated. Upon the
allocation of a whole share, warrant, or right to a Person in respect of the
fractional portion of its entitlement, such fractional portion shall be
canceled. If two or more Persons are entitled to equal fractional entitlements
and the number of Persons so entitled exceeds the number of whole shares,
warrants, or rights that remain to be allocated, the Disbursing Agent shall
allocate the remaining whole shares, warrants, or rights to such holders by
random lot or such other impartial method as the Disbursing Agent deems fair.
Upon the allocation of all of the whole shares, warrants, and rights
authorized under this Plan, all remaining fractional portions of the
entitlements shall be canceled and shall be of no further force and effect.
M. Delivery Of Distributions; Undeliverable Or Unclaimed Distributions
Distributions to holders of Allowed Claims or Interests shall be made
by the Disbursing Agent or the Indenture Trustee, agent, or servicer, as the
case may be, (i) at the holder's last known address, (ii) at the address in
any written notice of address change delivered to the Disbursing Agent, (iii)
in the case of the holder of an Existing Security, at the address in the
appropriate Indenture Trustee's, agent's, or servicer's official records, or
(d) set forth in a properly completed letter of transmittal accompanying a
Certificate properly remitted in accordance with the terms hereof. If any
holder's distribution is returned as undeliverable, no further distributions
to such holder shall be made, unless and until the Disbursing Agent or
appropriate Indenture Trustee, agent, or servicer is notified of such holder's
then current address, at which time all missed distributions shall be made to
such holder without interest. Amounts in respect of undeliverable
distributions made through the Disbursing Agent or an Indenture Trustee,
agent, or servicer shall be returned to the appropriate Reorganized Debtor or
the Indenture Trustee, agent, or servicer, as the case may be, until such
distributions are claimed. All claims for undeliverable distributions must be
made on or before the later to occur of (i) the second anniversary of the
Effective Date or (ii) six (6) months after such holder's Claim becomes an
Allowed Claim, after which date all unclaimed property shall revert to the
appropriate Reorganized Debtor free of any restrictions thereon and the claim
of any holder or successor to such holder with respect to such property shall
be discharged and forever barred, notwithstanding any federal or state escheat
laws to the contrary. Any holder of an Allowed Claim who is entitled to
receive a Cash distribution under this Plan, but fails to cash a check within
120 days of its issuance, shall be entitled to receive a reissued check from
the Reorganized Debtors for the amount of the original check, without
interest, upon written request (prior to the second anniversary of the
Effective Date) to the Reorganized Debtors or their designee, which request
shall include such documentation as the Reorganized Debtors or their designee
request to verify, in their reasonable discretion, that such holder is
entitled to such check. If a holder fails to cash a check within 120 days of
its issuance and fails to request reissuance of such check prior to the later
to occur of (i) the second anniversary of the Effective Date and (ii) six (6)
months following the date such holder's Claim becomes an Allowed Claim, such
holder shall not be entitled to receive any distribution under this Plan.
N. Withholding And Reporting Requirements
In connection with this Plan and all distributions hereunder, the
Disbursing Agent shall, to the extent applicable, comply with all tax
withholding and reporting requirements imposed by any federal, state, local,
or foreign taxing authority, and all distributions hereunder shall be subject
to any such withholding and reporting requirements. The Disbursing Agent shall
be authorized to take all actions necessary or appropriate to comply with such
withholding and reporting requirements.
O. Setoffs
Except with respect to Causes of Action released pursuant to this
Plan or the Confirmation Order, a Reorganized Debtor may, but shall not be
required to, set off against any Claim (other than any Diamond Cable Notes
Claims, NTL CC Senior Notes Claims, NTL CC Subordinated Notes Claims, NTL
Delaware Subordinated Notes Claims, or NTL Inc. Subordinated Notes Claims) the
payments or other distributions to be made pursuant to this Plan in respect of
such Claim, claims or Causes of Action of any nature whatsoever that the
Debtor or Reorganized Debtor may have against the Claim's holder; provided,
however, that neither the failure to do so nor the allowance of any Claim
hereunder shall constitute a waiver or release by any Debtor or Reorganized
Debtor of a Cause of Action that such Debtor or Reorganized Debtor may have
against such holder. Nothing herein shall be deemed to expand rights to setoff
under applicable law.
ARTICLE VIII.
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
A. Assumed Contracts And Leases
Except as otherwise provided in this Plan, or in any contract,
instrument, release, indenture, or other agreement or document entered into in
connection with this Plan, as of the Effective Date each Debtor shall be
deemed to have assumed each executory contract and unexpired lease to which it
is a party, unless such contract or lease (i) was previously assumed or
rejected by the Debtors, (ii) previously expired or terminated pursuant to its
own terms, or (iii) is the subject of a motion to reject filed on or before
the Confirmation Date. The Confirmation Order shall constitute an order of the
Bankruptcy Court under section 365 of the Bankruptcy Code approving the
contract and lease assumptions described above, as of the Effective Date.
Each executory contract and unexpired lease that is assumed and
relates to the use, ability to acquire, or occupancy of real property shall
include (a) all modifications, amendments, supplements, restatements, or other
agreements made directly or indirectly by any agreement, instrument, or other
document that in any manner affect such executory contract or unexpired lease
and (b) all executory contracts or unexpired leases appurtenant to the
premises, including all easements, licenses, permits, rights, privileges,
immunities, options, rights of first refusal, powers, uses, usufructs,
reciprocal easement agreements, vaults, tunnel or bridge agreements or
franchises, and any other interests in real estate or rights in rem related to
such premises, unless any of the foregoing agreements has been rejected
pursuant to an order of the Bankruptcy Court.
B. Payments Related To Assumption Of Contracts And Leases
Any monetary amounts by which any executory contract and unexpired
lease to be assumed under this Plan is in default shall be satisfied, under
section 365(b)(1) of the Bankruptcy Code, at the option of the Debtor party to
the contract or lease or its assignee, by Cure. If there is a dispute
regarding (i) the nature or amount of any Cure, (ii) the ability of a
Reorganized Debtor or any assignee to provide "adequate assurance of future
performance" (within the meaning of section 365 of the Bankruptcy Code) under
the contract or lease to be assumed, or (iii) any other matter pertaining to
assumption, Cure shall occur following the entry of a Final Order of the
Bankruptcy Court resolving the dispute and approving the assumption or
assumption and assignment, as the case may be.
C. Rejected Contracts And Leases
Except as otherwise provided in this Plan or in any contract,
instrument, release, indenture, or other agreement or document entered into in
connection with this Plan, none of the executory contracts and unexpired
leases to which a Debtor is a party shall be rejected under this Plan;
provided, however, that the Debtors reserve the right, at any time prior to
the Confirmation Date, to seek to reject any executory contract or unexpired
lease to which any Debtor is a party.
D. Claims Based On Rejection Of Executory Contracts Or Unexpired Leases
If the rejection by a Debtor, pursuant to this Plan or otherwise, of
an executory contract or unexpired lease results in a Claim for damages, then
such Claim shall be forever barred and shall not be enforceable against any
Debtor or Reorganized Debtor, or the properties of any of them, unless a proof
of Claim is filed with the clerk of the Bankruptcy Court and served on counsel
for the Debtors within thirty (30) days after service of the earlier of (i)
notice of entry of the Confirmation Order or (ii) other notice that the
executory contract or unexpired lease has been rejected.
E. Compensation And Benefit Plans
1. Except and to the extent previously assumed by an order of the
Bankruptcy Court on or before the Confirmation Date, subject to the occurrence
of the Effective Date, all employee compensation and benefit plans of the
Debtors, including programs subject to sections 1114 and 1129(a)(13) of the
Bankruptcy Code, entered into before or after the Petition Date and not since
terminated, shall be deemed to be, and shall be treated as if they were,
executory contracts that are assumed under Article VIII.A hereof, and the
Debtors' obligations under such programs to Persons shall survive confirmation
of this Plan, except for (i) executory contracts or employee benefit plans
specifically rejected pursuant to this Plan (to the extent such rejection does
not violate sections 1114 and 1129(a)(13) of the Bankruptcy Code), (ii) all
employee equity or equity-based incentive plans, and (iii) such executory
contracts or employee benefit plans as have previously been rejected, are the
subject of a motion to reject as of the Confirmation Date, or have been
specifically waived by the beneficiaries of any employee benefit plan or
contract; provided, however, that the Debtors' obligations, if any, to pay all
"retiree benefits" as defined in section 1114(a) of the Bankruptcy Code shall
continue.
2. Notwithstanding the foregoing, the Employment Agreements to be
entered into with the Key Employees on the Effective Date shall amend and
supersede any other employment agreements and severance plans with or for the
benefit of the Key Employees, and, as amended, shall be assumed pursuant to
this Plan.
ARTICLE IX.
PROCEDURES FOR RESOLVING DISPUTED,
CONTINGENT, AND UNLIQUIDATED CLAIMS
A. Objections To Claims; Disputed Claims
Except as otherwise provided in this Plan, holders of Claims and
Interests shall not be required to, and no parties should, file proofs of
Claim or proofs of Interest with the Bankruptcy Court. If and to the extent
that proofs of Claim or proofs of Interest are filed, then as soon as
practicable, but in no event later than 120 days after the Effective Date
(unless extended by an order of the Bankruptcy Court), the Debtors or
Reorganized Debtors, as the case may be, shall file objections to such proofs
of Claim or proofs of Interest with the Bankruptcy Court and serve such
objections on the holders of each of the Claims or Interests to which
objections are made; provided, however, that the Debtors and Reorganized
Debtors shall not object to Claims or Interests that are Allowed Claims or
Interests pursuant to this Plan. Nothing contained herein, however, shall
limit the Debtors' or Reorganized Debtors' right to object to proofs of Claim
or Interest, if any, that are not Allowed under this Plan or that are filed or
amended more than 120 days after the Effective Date. The Debtors and
Reorganized Debtors shall be authorized to, and shall, resolve all Disputed
Claims or Interests by withdrawing or settling any objections thereto, or by
litigating to judgment in the Bankruptcy Court or such other court having
jurisdiction over the validity, nature, and/or amount thereof.
B. No Distribution Pending Allowance
Notwithstanding any other provision hereof, if any portion of a Claim
or Interest is a Disputed Claim or Interest, no payment or distribution
provided hereunder shall be made on account of such Claim or Interest unless
and until such Disputed Claim or Interest becomes Allowed.
C. Distributions After Allowance
To the extent that a Disputed Claim or Interest ultimately becomes an
Allowed Claim or Interest, a distribution shall be made to the holder of such
Allowed Claim or Interest in accordance with the provisions of this Plan. As
soon as reasonably practicable after the date that the order or judgment of
the Bankruptcy Court or other applicable court of competent jurisdiction
allowing any Disputed Claim or Interest becomes a Final Order, the Disbursing
Agent shall provide to the holder of such Claim or Interest the distribution
to which such holder is entitled under this Plan. After a Final Order has been
entered, or other final resolution has been reached, with respect to each
Disputed Claim and Interest (i) any New Securities held in the Distribution
Reserve shall be distributed Pro Rata to holders of Allowed Claims or
Interests entitled thereto under the terms of this Plan and (ii) any Cash or
other property remaining in the Distribution Reserve shall become property of
the Reorganized Debtors. All distributions made under this Article IX.C on
account of an Allowed Claim or Interest shall be made together with any
dividends, payments, or other distributions made on account of, as well as any
obligations arising from, the distributed property, as if such Allowed Claim
or Interest had been an Allowed Claim or Interest on the Distribution Date.
Notwithstanding the foregoing, the Disbursing Agent shall not be required to
make distributions under this Article IX.C more frequently than once every 90
days or to make any individual payments in an amount less than $25.00.
ARTICLE X.
CONDITIONS PRECEDENT TO CONFIRMATION AND
CONSUMMATION OF THE PLAN
A. Conditions To Confirmation
The following are conditions precedent to confirmation of this Plan
that must be (i) satisfied or (ii) waived in accordance with Article X.C
below:
1. The Bankruptcy Court shall have entered an order, in form and
substance reasonably acceptable to the Debtors and the Creditors' Committee,
approving the Disclosure Statement with respect to this Plan as containing
adequate information within the meaning of section 1125 of the Bankruptcy
Code.
2. The proposed Confirmation Order shall be in form and substance
reasonably acceptable to the Debtors and the Creditors' Committee.
B. Conditions To Effective Date
The following are conditions precedent to the occurrence of the
Effective Date that must be (i) satisfied or (ii) waived in accordance with
Article X.C below:
1. The Confirmation Date shall have occurred and the Confirmation
Order, in form and substance reasonably acceptable to the Debtors and the
Creditors' Committee, confirming the Plan, as the same may have been modified,
supplemented, or amended, shall have been entered by the Bankruptcy Court.
2. The Confirmation Order shall have become a Final Order.
3. No request for revocation of the Confirmation Order under section
1144 of the Bankruptcy Code shall have been made, or, if made, shall remain
pending.
4. All authorizations, consents, and regulatory approvals required,
if any, in connection with the consummation of this Plan shall have been
obtained and not revoked.
5. The following agreements, in form and on terms reasonably
satisfactory to the Debtors and the Creditors' Committee shall have been
executed and delivered, and all conditions precedent thereto shall have been
satisfied:
a. Amended And Restated Certificate Of Incorporation And By-laws Of
NTL Inc.;
b. Amended And Restated Certificate Of Incorporation And By-laws Of
NTL CC;
c. Registration Rights Agreements;
d. Series A Warrant Agreement;
e. Certificate of Designation for Euroco Preferred Stock (which shall
be included in the Amended and Restated Certificate of Incorporation
of NTL Inc.);
f. New NTL Management Incentive Plan;
g. Euroco Management Incentive Plan; and
h. New NTL Exit Facility or any alternative financing in a minimum
amount of $500 million.
6. The Debtors or Reorganized Debtors shall have executed and
delivered all documents necessary to effectuate the issuance of the New
Securities.
7. All other actions, documents, and agreements necessary to
implement this Plan shall have been effected or executed.
8. France Telecom shall have delivered a letter containing the
representations and warranties described in Article XIV.B above.
9. There must be no material debt of the Debtors other than Debt
Securities that are Reinstated under the Plan, guarantees under the Working
Capital Facility, the guarantee by Diamond Cable of the Diamond Holdings
Notes, and the New NTL Exit Facility.
10. The Senior Credit Facility and Working Capital Facility shall
have been amended and restated on terms acceptable to the Debtors and the
Creditors' Committee, and shall not have been terminated.
11. The Diamond Administration Orders shall have been discharged or
shall be discharged substantially contemporaneously with the Effective Date.
C. Waiver Of Conditions
Each of the conditions set forth in Article X.A and X.B above, other
than those set forth in Articles X.A.1 and X.B.1, may be waived in whole or in
part by the Debtors (with the prior consent of the Creditors' Committee),
without any notice to parties in interest or the Bankruptcy Court and without
a hearing. The failure to satisfy or waive any condition to the Effective Date
may be asserted by the Debtors regardless of the circumstances giving rise to
the failure of such condition to be satisfied (including any action or
inaction by the Debtors or any of them). The failure of the Debtors to
exercise any of the foregoing rights shall not be deemed a waiver of any other
rights, and each such right shall be deemed an ongoing right that may be
asserted at any time.
D. Effects Of Failure Of Conditions
If the conditions to occurrence of the Effective Date have not been
satisfied or waived in accordance with Articles X.B or X.C above on or before
the first Business Day that is more than 179 days after the Confirmation Date,
or by such later date as is approved by the Bankruptcy Court after notice and
a hearing, then on motion by the Debtors made prior to the time that all of
the conditions have been satisfied or waived, the Confirmation Order shall be
vacated by the Bankruptcy Court; provided, however, that notwithstanding the
filing of such a motion, the Confirmation Order shall not be vacated if all of
the conditions to the occurrence of the Effective Date set forth in Article
X.B above are either satisfied or waived prior to entry by the Bankruptcy
Court of an order granting the relief requested in such motion. If the
Confirmation Order is vacated pursuant to this Article X.D, this Plan shall be
null and void in all respects, and nothing contained in this Plan shall (a)
constitute a waiver or release of any Claims against or Interests in the
Debtors or (b) prejudice in any manner the rights of the holder of any Claim
against or Interest in the Debtors.
ARTICLE XI.
MODIFICATIONS AND AMENDMENTS
The Debtors may (with the prior consent of the Creditors' Committee)
alter, amend, or modify this Plan or any Exhibits thereto under section
1127(a) of the Bankruptcy Code at any time prior to the Confirmation Date and
may include any such amended Exhibits in the Plan or the Plan Supplement.
After the Confirmation Date and prior to substantial consummation of this
Plan, as defined in section 1101(2) of the Bankruptcy Code, the Debtors may,
under section 1127(b) of the Bankruptcy Code, institute proceedings in the
Bankruptcy Court to remedy any defect or omission or reconcile any
inconsistencies in this Plan, the Disclosure Statement, or the Confirmation
Order, and such matters as may be necessary to carry out the purposes and
effects of this Plan so long as such proceedings do not materially adversely
affect the treatment of holders of Claims or Interests under this Plan;
provided, however, that prior notice of such proceedings shall be served in
accordance with the Bankruptcy Rules or order of the Bankruptcy Court.
ARTICLE XII.
RETENTION OF JURISDICTION
Under sections 105(a) and 1142 of the Bankruptcy Code, and
notwithstanding entry of the Confirmation Order and occurrence of the
Effective Date, the Bankruptcy Court shall retain exclusive jurisdiction
(except with respect to the purposes described under clause A below, with
respect to which jurisdiction shall not be exclusive) over all matters arising
out of, and related to, the Chapter 11 Cases and this Plan to the fullest
extent permitted by law, including, among other things, jurisdiction to:
A. Allow, disallow, determine, liquidate, classify, estimate, or
establish the priority, nature, validity, or amount of any Claim or Interest,
including, but not limited to, the resolution of any request for payment of
any Administrative Claim, the resolution of any objections to the allowance or
priority of Claims or Interests, and the resolution of any adversary
proceeding or contested matter to subordinate any Claim or Interest under
section 510 of the Bankruptcy Code or otherwise;
B. Hear and determine all applications for compensation and
reimbursement of expenses of Professionals under this Plan or under sections
330, 331, 503(b), 1103, and 1129(a)(4) of the Bankruptcy Code; provided,
however, that from and after the Effective Date, the payment of the fees and
expenses of the retained professionals of the Reorganized Debtors shall be
made in the ordinary course of business and shall not be subject to the
approval of the Bankruptcy Court;
C. Hear and determine all matters with respect to the assumption or
rejection of any executory contract or unexpired lease to which a Debtor is a
party or with respect to which a Debtor may be liable, including, if
necessary, the nature or amount of any required Cure or the liquidation or
allowance of any Claims arising therefrom;
D. Effectuate performance of and payments under the provisions of
this Plan;
E. Hear and determine any and all adversary proceedings, motions,
applications, and contested or litigated matters arising out of, under, or
related to, the Chapter 11 Cases, including, but not limited to, any and all
motions for approval of asset sales by the Debtors filed by the Debtors on or
before the Effective Date;
F. Hear and determine any and all motions to subordinate Claims or
Interests at any time and on any basis permitted by applicable bankruptcy or
nonbankruptcy law;
G. Enter such orders as may be necessary or appropriate to execute,
implement, or consummate the provisions of this Plan and all contracts,
instruments, releases, and other agreements or documents created in connection
with this Plan, the Disclosure Statement, or the Confirmation Order;
H. Hear and determine disputes arising in connection with the
interpretation, implementation, consummation, or enforcement of this Plan,
including disputes arising under agreements, documents, or instruments
executed in connection with this Plan;
I. Consider any modifications of this Plan, cure any defect or
omission, or reconcile any inconsistency in any order of the Bankruptcy Court,
including, without limitation, the Confirmation Order;
J. Issue injunctions, enter and implement other orders, or take such
other actions as may be necessary or appropriate to restrain interference by
any entity with implementation, consummation, or enforcement of this Plan or
the Confirmation Order;
K. Enter and implement such orders as may be necessary or appropriate
if the Confirmation Order is for any reason reversed, stayed, revoked,
modified, or vacated;
L. Hear and determine any matters arising in connection with or
relating to this Plan, the Disclosure Statement, the Confirmation Order, or
any contract, instrument, release, or other agreement or document created in
connection with this Plan, the Disclosure Statement, or the Confirmation
Order;
M. Enforce all orders, judgments, injunctions, releases,
exculpations, indemnifications, and rulings entered in connection with the
Chapter 11 Cases;
N. Recover all assets of the Debtors and property of the Debtors'
Estates, wherever located;
O. Hear and determine matters concerning state, local, and federal
taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code;
P. Hear and determine all disputes involving the existence, nature,
or scope of the Debtors' discharge;
Q. Hear and determine such other matters as may be provided in the
Confirmation Order or as may be authorized under, or not inconsistent with,
provisions of the Bankruptcy Code;
R. Hear and determine all matters relating to the delivery and
transfer to New NTL of the Diamond Cable Notes pursuant to the provisions of
this Plan;
S. Hear and determine all disputes as to whether a Person is a New
NTL Grandfathered Distributee or a Euroco Grandfathered Distributee; and
T. Enter one or more final decree(s) closing the Chapter 11 Cases.
ARTICLE XIII.
EFFECTS OF CONFIRMATION
A. Binding Effect
This Plan shall be binding on and inure to the benefit of the
Debtors, all current and former holders of Claims against and Interests in the
Debtors and their respective successors and assigns, including, but not
limited to, the Reorganized Debtors, and all other parties-in-interest in the
Chapter 11 Cases.
B. Authorization Of Corporate Action
The entry of the Confirmation Order shall constitute a direction to
and authorization for the Debtors and the Reorganized Debtors to take or cause
to be taken any action necessary or appropriate to consummate the transactions
contemplated by this Plan and any related documents or agreements prior to and
through the Effective Date, and all such actions taken or caused to be taken
shall be deemed to have been authorized and approved by the Bankruptcy Code
without the need for any additional authorizations, approvals, or consents.
C. Discharge Of The Debtors
All consideration distributed under this Plan shall be in exchange
for, and in complete satisfaction, settlement, discharge, and release of, all
Claims against and Interests in the Debtors of any nature whatsoever, or
against any of the Debtors' assets or properties. Subject to the occurrence of
the Effective Date, except as otherwise expressly provided in this Plan or the
Confirmation Order (and regardless of whether or not the Existing Security
forming the basis of Claim is canceled on the Effective Date), entry of the
Confirmation Order shall act as a discharge under section 1141(d)(1)(A) of the
Bankruptcy Code from and of all Claims against, Liens on, and Interests in
each of the Debtors, their assets, and their properties, arising at any time
before the entry of the Confirmation Order, regardless of whether a proof of
Claim or proof of Interest therefor was filed, whether the Claim or Interest
is Allowed, or whether the holder thereof votes to accept this Plan or is
entitled to receive a distribution hereunder. Upon entry of the Confirmation
Order, and subject to the occurrence of the Effective Date, any holder of such
a discharged Claim or Interest shall be precluded from asserting against the
Debtors or any of their assets or properties any other or further Claim or
Interest based on any document, instrument, act, omission, transaction, or
other activity of any kind or nature that occurred before the date of entry of
the Confirmation Order. The Confirmation Order shall be a judicial
determination of discharge of all liabilities of the Debtors (except as
otherwise expressly provided in the Plan), subject to the occurrence of the
Effective Date. Notwithstanding the foregoing, or any provision to the
contrary contained in this Plan, the Class 6 Diamond Cable Notes Claims shall
not be, and shall not be deemed to be, discharged until after completion of
the delivery, transfer, conveyance, and assignment of the global bearer notes
evidencing the Diamond Cable Notes to New NTL.
D. Injunction
Pursuant to section 524 of the Bankruptcy Code, the discharge
provided by Article XIII.C and section 1141 of the Bankruptcy Code shall act
as an injunction against the commencement or continuation of any action,
employment of process, or act to collect, offset, or recover the Claims and
Interests discharged hereby. Except as otherwise expressly provided in this
Plan or the Confirmation Order, all entities who have held, hold, or may hold
Claims against or Interests in the Debtors will be permanently enjoined, on
and after the Confirmation Date, subject to the occurrence of the Effective
Date, from (i) commencing or continuing in any manner any action or other
proceeding of any kind with respect to any such Claim or Interest, (ii) the
enforcement, attachment, collection, or recovery by any manner or means of any
judgment, award, decree, or order against the Debtors on account of any such
Claim or Interest, (iii) creating, perfecting, or enforcing any encumbrance of
any kind against the Debtors or against the property or interests in property
of the Debtors on account of any such Claim or Interest, and (iv) asserting
any right of setoff, subrogation, or recoupment of any kind against any
obligation due from the Debtors or against the property or interests in
property of the Debtors on account of any such Claim or Interest. The
foregoing injunction will extend to successors of the Debtors (including, but
not limited to, the Reorganized Debtors) and their respective properties and
interests in property.
E. Releases
1. Effective as of the Confirmation Date, but subject to the
occurrence of the Effective Date, to the full extent permitted by applicable
law, the Debtors, the Reorganized Debtors, the Noteholders' Steering
Committee, the Diamond Administrators, Indenture Trustees, each holder of
Senior Notes (other than Diamond Holdings Notes), Subordinated Notes, or Old
Preferred Stock, and each of the foregoing's respective current or former
officers, directors, subsidiaries, affiliates, members, managers,
shareholders, partners, representatives, employees, attorneys, financial
advisors, and agents, or any of their respective successors and assigns, and
their respective property, shall be released from any and all claims,
obligations, rights, Causes of Action, demands, suits, proceedings and
liabilities which the Debtors, the Reorganized Debtors, or any holder of a
Claim against or Interest in the Debtors or Reorganized Debtors may be
entitled to assert, whether for tort, fraud, contract, violations of federal
or state securities laws, or otherwise, whether known or unknown, foreseen or
unforeseen, existing or hereafter arising, contingent or non-contingent, based
in whole or in part on any act or omission, transaction, state of facts,
circumstances or other occurrence taking place on or before the Confirmation
Date in any way relating to the Debtors, the Reorganized Debtors, the
issuance, purchase, or sale of the Senior Notes (other than Diamond Holdings
Notes), Subordinated Notes, or Preferred Stock, the Chapter 11 Cases, the
Diamond Administration Cases, or this Plan; provided, however, that nothing
herein shall release any Person from any claims, obligations, rights, Causes
of Action, demands, suits, proceedings, or liabilities based on any act or
omission arising out of such Person's fraud, breach of fiduciary duty,
malpractice, gross negligence or willful misconduct; provided further,
however, that the Debtors and Reorganized Debtors shall have the right to
pursue such rights of action, including the rights under section 502(d) of the
Bankruptcy Code, as a defensive measure, including for purposes of setoff
against distributions, if any, due to a holder of a Claim or Interest pursuant
to this Plan, and such rights shall be exercised exclusively by the
Reorganized Debtors; provided further, that with respect to the Diamond Cable
Notes, such release shall be subject to the transfer of the Diamond Cable
Notes to New NTL in accordance with Article III.C.2 of this Plan and shall not
include any claim by or of New NTL in respect of the Diamond Cable Notes.
2. Effective as of the Confirmation Date, but subject to the
occurrence of the Effective Date, to the fullest extent permitted by
applicable law, all holders of Senior Notes (other than Diamond Holdings
Notes), Subordinated Notes, Old Preferred Stock, and Old Common Stock shall be
deemed to release, and shall be permanently enjoined from bringing,
maintaining, facilitating, or assisting any action, demand, suit or proceeding
against the Debtors or Reorganized Debtors, and their respective current or
former officers, directors, subsidiaries, affiliates, members, managers,
shareholders, partners, representatives, employees, attorneys, financial
advisors, and agents, or any of their respective successors and assigns, and
their respective property, in respect of any claims, obligations, rights,
Causes of Action, demands, suits, proceedings, and liabilities related to, or
arising from, any and all claims or interests arising under, in connection
with, or related to the Senior Notes (other than Diamond Holdings Notes),
Subordinated Notes, Old Preferred Stock, Old Common Stock, or the issuance,
purchase, or sale thereof; provided further, that with respect to the Diamond
Cable Notes, such release shall be subject to the transfer of the Diamond
Cable Notes to New NTL in accordance with Article III.C.2 of this Plan and
shall not include any claim by or of New NTL in respect of the Diamond Cable
Notes.
3. Notwithstanding anything in this Plan to the contrary, no claims
by any Person with respect to any and all commercial and ordinary course of
business relationships shall be deemed to be modified or affected by any of
the release and/or exculpation provisions of this Plan.
4. Nothing in the Plan shall effect a release in favor of any
released party with respect to any claim by the United States government
and/or its agencies for any liability arising under the IRC, the environmental
laws or any criminal laws of the United States; nor shall anything in the Plan
enjoin the United States government from bringing any claim, suit, action or
other proceeding against any released party for any liability arising under
the IRC, the environmental laws or any criminal laws of the United States;
provided, however, that this paragraph shall in no way affect or limit the
discharge granted to the Debtors under Chapter 11 of the Bankruptcy Code.
5. Notwithstanding anything in the Plan or this Article XIII.E to the
contrary, nothing contained in the Plan shall, or shall be deemed to, release
any Person (other than the Debtors) from, or enjoin any Person from
prosecuting any action to impose, liability arising out of or relating to the
subject matter of any claims, state or federal, asserted, or which can be
asserted, in the Securities Actions.
6. Notwithstanding anything contained in the Plan or this Article
XIII.E or the Confirmation Order, none of (a) iesy Hessen GmbH ("Holdco II");
(b) iesy Finanz GmbH & Co. KG or its general partner (together, "Finanz"); (c)
iesy Hessen GmbH & Co. KG or its general partner (collectively, with Holdco II
and Finanz, "iesy"); (d) current, former or future holders of any of the
dollar or euro denominated 14.5% Senior Notes due 2010 ("Notes") issued by
Holdco II (together with iesy, the "Carved Out Parties") shall, or shall be
deemed to, release any Person other than a Debtor or Reorganized Debtor,
including, but not limited to, the Debtors' or Reorganized Debtors' respective
current or former officers, directors, non-debtor subsidiaries, non-debtor
affiliates members, managers, shareholders, partners, representatives,
employees, attorneys, financial advisors, and agents, or any of their
respective successors and assigns, and their respective property, from any and
all claims, obligations, rights, Causes of Action, demands, suits,
proceedings, and liabilities which any of the Carved Out Parties may have or
may discover in connection with or related to iesy or the Notes.
F. Insurance Proceeds
If, and to the extent that, the plaintiffs and putative class in the
Securities Actions possess any rights to the proceeds of NTL Inc.'s relevant
insurance coverage with respect to the claims asserted in the Securities
Actions, such rights shall not be affected by the discharge of the Debtors
under the Plan and any such claims may be pursued solely as against such
proceeds.
ARTICLE XIV.
COMPROMISES AND SETTLEMENTS
A. Generally
Pursuant to section 1123(b)(3) of the Bankruptcy Code and Fed. R.
Bankr. P. 9019(a), the Debtors may (with the prior consent of the Creditors'
Committee) compromise and settle various Claims against them and/or claims
they may have against other Persons. The Debtors expressly reserve the right
(with Bankruptcy Court approval, following appropriate notice and opportunity
for a hearing) to compromise and settle Claims against them and claims that
they may have against other Persons up to and including the Effective Date.
After the Effective Date, such right shall pass to the Reorganized Debtors
pursuant to Articles IV.E and IV.G hereof.
B. France Telecom Compromise And Settlement
Under the terms of the April 16, 2002 agreement-in-principle, the
Debtors, the Noteholders' Steering Committee, and France Telecom, reached a
full and complete compromise and settlement of a dispute regarding the
ramifications of NTL Inc. failing to redeem shares of Noos Junior Preferred
Stock and the rights and remedies of France Telecom under the Share Account
Pledge Agreement for a failure to redeem such shares. As part of this
compromise and settlement, (1) pursuant to the terms of the Plan and subject
to the occurrence of the Effective Date, the Noos Interest shall be released
to France Telecom pursuant to the Share Account Pledge Agreement in exchange
for (w) the Noos Junior Preferred Stock Interests, (x) the waiver by France
Telecom of its rights to any distribution on account of its Class 9 NTL
Delaware Subordinated Notes Claim and Class 10 NTL Inc. Subordinated Notes
Claim, (y) the release by France Telecom of any contingent payments due to
France Telecom in connection with the initial transfer of Noos franchises and
any other direct or indirect liability to France Telecom in connection with
the transfer of the 1G Franchises to Debtors or their subsidiaries and by
Debtors or their subsidiaries to Noos, and (z) the France Telecom Payment,
which shall be made on the Effective Date, and (2) France Telecom delivered a
ballot to NTL Inc. prior to the commencement of the Chapter 11 Cases and
agreed to support the restructuring of the Debtors in accordance with the
terms of this Plan and the transactions contemplated by this Plan, including,
but not limited to, any allocation of consideration or payments due in
connection therewith.
Following implementation of this compromise and settlement, neither
the Debtors (nor any of them) nor France Telecom shall have any further
liability to the other(s) with respect to Noos, including, but not limited to,
the Noos Junior Preferred Stock, the Share Account Pledge Agreement, France
Telecom's Allowed Class 9 NTL Delaware Subordinated Notes Claim and Allowed
Class 10 NTL Inc. Subordinated Notes Claim, the Noos Shareholders Agreement,
any contingent payments due to France Telecom in connection with the initial
transfer of Noos franchises and any other direct or indirect liability to
France Telecom in connection with the transfer of the 1G Franchises to Debtors
or their subsidiaries and by Debtors or their subsidiaries to Noos. The
implementation of this compromise and settlement shall not affect the terms
and conditions of, or the obligations of Noos pursuant to, the Noos Note,
which shall remain an asset of Euroco from and after the Effective Date.
In connection with this compromise and settlement, except as
previously disclosed to the Noteholders' Steering Committee, France Telecom
represented and warranted to the Debtors and the Noteholders' Steering
Committee that as of the Petition Date, it was neither marketing nor had
pending agreements, interest or letters of intent, nor had it engaged an
investment banker in connection with the direct or indirect transfer, sale, or
other disposition of its interest in Noos to a third party, nor was it
contemplating or was it aware of any other material transactions in respect of
Noos. Notwithstanding anything to the contrary contained herein, (i) the
Debtors and the Creditors' Committee shall not be entitled to modify or
otherwise change this Plan or the Disclosure Statement with respect to
distributions to be provided to France Telecom under this Plan without the
prior consent of France Telecom,(ii) the Confirmation Order shall contain
customary language with respect to the release of the Noos Interest, and (iii)
nothing in this Plan shall be construed to limit the rights of France Telecom
and its affiliates to receive distributions under this Plan, including the
right to subscribe for Equity Rights (including on an oversubscription basis),
other than in France Telecom's capacity as a holder of NTL Delaware
Subordinated Notes or NTL Inc. Subordinated Notes; provided, however, that
this right shall extend only to holdings of Existing Securities by France
Telecom and its affiliates as disclosed on its Schedule 13D on file with the
SEC as of the Petition Date. This right is personal to France Telecom and its
affiliates and is not assignable in whole or in part by France Telecom and its
affiliates.
ARTICLE XV.
MISCELLANEOUS PROVISIONS
A. Bar Dates For Certain Claims
1. Administrative Claims
The Confirmation Order shall establish a bar date (the
"Administrative Claims Bar Date") for filing Administrative Claims (other than
Professional Fee Claims and claims for reimbursement of the expenses of the
members of the Creditors' Committee), which date shall be 30 days after the
Confirmation Date. Holders of asserted Administrative Claims, except for
Professional Fee Claims, United States Trustee fees, or the expenses of the
members of the Creditors' Committee whose claims were not paid prior to the
Confirmation Date, shall submit requests for payment of administrative
expenses on or before such Administrative Claims Bar Date or forever be barred
from doing so. The notice of entry of the Confirmation Order to be delivered
pursuant to Fed. R. Bankr. P. 3020(c) and 2002(f) shall set forth such date
and constitute notice of the Administrative Claims Bar Date. The Debtors or
the Reorganized Debtors, as the case may be, shall have 30 days (or such
longer period as may be allowed by order of the Bankruptcy Court) following
the Administrative Claims Bar Date to review and object to such Administrative
Claims before a hearing for determination of allowance of such Administrative
Claims.
2. Professional Fee Claims; Substantial Contribution Claims
All final requests for compensation or reimbursement of Professional
Fees pursuant to sections 327, 328, 330, 331, 503(b), or 1103 of the
Bankruptcy Code for services rendered to the Debtors or any Committee (if
appointed) prior to the Confirmation Date (including requests under section
503(b)(4) of the Bankruptcy Code by any Professional or other entity for
making a substantial contribution in the Chapter 11 Cases) shall be filed and
served on the Reorganized Debtors and their counsel, as well as those parties
filing notices of appearance in these cases or otherwise requesting notice of
such application, no later than 30 days after the Effective Date, unless
otherwise ordered by the Bankruptcy Court. Objections to applications of such
Professionals or other entities for compensation or reimbursement of expenses
shall be filed and served on the Reorganized Debtors and their counsel and the
requesting Professional or other entity no later than 15 days (or such longer
period as may be allowed by order of the Bankruptcy Court) after the date on
which the applicable application for compensation or reimbursement was served.
B. Payment Of Statutory Fees
All fees payable under section 1930 of title 28 of the United States
Code, as determined by the Bankruptcy Court at the Confirmation Hearing, shall
be paid on or before the Effective Date. All such fees that arise after the
Effective Date but before the closing of the Chapter 11 Cases shall be paid by
the Reorganized Debtors.
C. Severability Of Plan Provisions
If, prior to entry of the Confirmation Order, any term or provision
of this Plan is held by the Bankruptcy Court to be invalid, void, or
unenforceable, the Bankruptcy Court, at the request of the Debtors, with the
approval of their respective boards of directors (having due regard for their
fiduciary duties, after consultation with counsel), and with the prior consent
of the Creditors' Committee, shall have the power to alter and interpret such
term or provision to make it valid or enforceable to the maximum extent
practicable, consistent with the original purpose of the term or provision
held to be invalid, void, or unenforceable, and such term or provision shall
then be applicable as so altered or interpreted. Notwithstanding any such
holding, alteration, or interpretation, the remainder of the terms and
provisions of this Plan shall remain in full force and effect and shall in no
way be affected, impaired, or invalidated by such holding, alteration, or
interpretation. The Confirmation Order shall constitute a judicial
determination and shall provide that each term and provision of this Plan, as
it may have been altered or interpreted in accordance with the foregoing, is
valid and enforceable pursuant to its terms.
D. Successors And Assigns
The rights, benefits, and obligations of any Person named or referred
to in this Plan shall be binding on, and shall inure to the benefit of, any
heir, executor, administrator, successor, or assign of that Person.
E. Exculpation And Limitation Of Liability
To the full extent permitted by applicable law, neither the Debtors,
the Reorganized Debtors, the Noteholders' Steering Committee, the Creditors'
Committee, the Diamond Administrators, Indenture Trustees, nor any holder of
Senior Notes, Subordinated Notes, or Old Preferred Stock, or any of their
respective current or former officers, directors, subsidiaries, affiliates,
members, managers, shareholders, partners, representatives, employees,
attorneys, financial advisors, or agents, or any of their respective
successors and assigns, and their respective property, shall have or incur any
liability to any holder of a Claim or an Interest, or any other party in
interest, or any of their respective officers, directors, subsidiaries,
affiliates, members, managers, shareholders, partners, representatives,
employees, attorneys, or agents, or any of their respective successors and
assigns, and their respective property, for any act or omission in connection
with, relating to, or arising out of, the Chapter 11 Cases, the solicitation
of acceptances of this Plan, the pursuit of confirmation of this Plan, the
consummation of this Plan, or the administration of this Plan or the property
to be distributed under this Plan, except for their gross negligence or
willful misconduct, and in all respects shall be entitled to reasonably rely
on the advice of counsel with respect to their duties and responsibilities
under this Plan.
Notwithstanding any other provision of this Plan, no holder of a
Claim or Interest, no other party in interest, none of their respective
current or former officers, directors, subsidiaries, affiliates, members,
managers, shareholders, partners, representatives, employees, attorneys, or
agents, or any of their respective successors and assigns, and their
respective property, shall have any right of action, demand, suit, or
proceeding against the Debtors, the Reorganized Debtors, the Noteholders'
Steering Committee, the Creditors' Committee, the Diamond Administrators,
Indenture Trustees, or any holder of Senior Notes, Subordinated Notes, or Old
Preferred Stock, or any or any of their respective current or former officers,
directors, subsidiaries, affiliates, members, managers, shareholders,
partners, representatives, employees, attorneys, financial advisors, or
agents, or any of their respective successors and assigns, and their
respective property, for any act or omission in connection with, relating to,
or arising out of, the Chapter 11 Cases, the solicitation of acceptances of
this Plan, the pursuit of confirmation of this Plan, the consummation of this
Plan, or the administration of this Plan or the property to be distributed
under this Plan, except for their gross negligence or willful misconduct.
The foregoing exculpation and limitation on liability shall not,
however, limit, abridge, or otherwise affect the rights, if any, of the
Reorganized Debtors to enforce, sue on, settle, or compromise the Causes of
Action retained pursuant to Article IV.H above.
F. Waiver Of Enforcement Of Subordination
All Claims against and Interests in the Debtors and all rights and
claims between or among holders of Claims and Interests relating in any manner
whatsoever to Claims against and Interests in the Debtors, based on any
claimed subordination rights (if any), shall be deemed satisfied by the
distributions under this Plan to holders of Claims and Interests having such
subordination rights, and such subordination rights shall be deemed waived,
released, discharged, and terminated as of the Effective Date, and all actions
related to the enforcement of such subordination rights shall be permanently
enjoined; provided, however, that the foregoing shall not apply to any
subordination provision for the benefit of the lenders under the Credit
Facilities. Distributions to the various Classes of Claims and Interests
hereunder shall not be subject to levy, garnishment, attachment, or like legal
process by any holder of a Claim by reason of any claimed subordination rights
or otherwise, so that each holder of a Claim or Interest shall have and
receive the benefit of the distributions in the manner set forth in this Plan;
provided, however, that the foregoing shall not apply to any subordination
provision for the benefit of the lenders under the Credit Facilities.
G. Term Of Injunctions Or Stays
Unless otherwise provided herein or in the Confirmation Order, all
injunctions or stays in effect in the Chapter 11 Cases under sections 105 or
362 of the Bankruptcy Code or any order of the Bankruptcy Court, and extant on
the Confirmation Date (excluding any injunctions or stays contained in this
Plan or the Confirmation Order), shall remain in full force and effect until
the Effective Date. All injunctions or stays contained in this Plan or the
Confirmation Order shall remain in full force and effect in accordance with
their terms.
H. Revocation, Withdrawal, Or Non-Consummation
The Debtors reserve the right (with the prior consent of the
Creditors' Committee) to revoke or withdraw this Plan at any time prior to the
Confirmation Date and to file other plans of reorganization. If the Debtors
revoke or withdraw this Plan, or if Confirmation or consummation of this Plan
does not occur, then (i) this Plan shall be null and void in all respects,
(ii) any settlement or compromise embodied in this Plan (including the fixing
or limiting to an amount any Claim or Interest or Class of Claims or
Interests), assumption or rejection of executory contracts or leases effected
by this Plan, and any document or agreement executed pursuant to this Plan
shall be deemed null and void, and (iii) nothing contained in this Plan, and
no acts taken in preparation for consummation of this Plan, shall (a)
constitute or be deemed to constitute a waiver or release of any Claims by or
against, or any Interests in, the Debtors or any other Person, (b) prejudice
in any manner the rights of the Debtors or any Person in any further
proceedings involving the Debtors, or (c) constitute an admission of any sort
by the Debtors or any other Person.
I. Committees
On the Effective Date, the duties of the Creditors' Committee shall
terminate, except with respect to any appeal of an order in the Chapter 11
Cases and applications for Professional Fees.
J. Plan Supplement
Any and all exhibits, lists, or schedules referred to herein but not
filed with this Plan shall be contained in the Plan Supplement and filed with
the Clerk of the Bankruptcy Court at least fourteen days prior to the date of
the commencement of the Confirmation Hearing. Thereafter, any Person may
examine the Plan Supplement in the office of the Clerk of the Bankruptcy Court
during normal court hours. Holders of Claims or Interests may obtain a copy of
the Plan Supplement on written request to the Debtors in accordance with
Article XV.K above.
K. Notices To Debtors
Any notice, request, or demand required or permitted to be made or
provided to or on a Debtor or a Reorganized Debtor under this Plan shall be
(i) in writing, (ii) served by (a) certified mail, return receipt requested,
(b) hand delivery, (c) overnight delivery service, (d) first class mail, or
(e) facsimile transmission, and (iii) deemed to have been duly given or made
when actually delivered or, in the case of notice by facsimile transmission,
when received and telephonically confirmed, addressed as follows:
NTL INCORPORATED
110 East 59th Street, 26th Floor
New York, New York 10022
Attention: Richard J. Lubasch, Esq.
Telephone: (212) 906-8440
Facsimile: (212) 752-1157
with a copy to the Debtors' counsel:
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Four Times Square
New York, New York 10036-6552
Attention: Thomas H. Kennedy, Esq.
Kayalyn A. Marafioti, Esq.
Telephone: (212) 735-3000
Facsimile: (212) 735-2000
and a copy to:
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
One New York Plaza
New York, New York 10004-1980
Attention: Brad Eric Scheler, Esq.
Lawrence A. First, Esq.
Telephone: (212) 859-8000
Facsimile: (212) 859-4000
L. Indemnification Obligations
Except as otherwise specifically limited in this Plan, any
obligations or rights of the Debtors or Reorganized Debtors to defend,
indemnify, reimburse, or limit the liability of the Debtors' current and
former directors, officers, or employees (the "Covered Persons") pursuant to
the Debtors' or Reorganized Debtors' certificates of incorporation, by-laws,
policy of providing employee indemnification, applicable state law, or
specific agreement in respect of any claims, demands, suits, causes of action,
or proceedings against such Covered Persons based on any act or omission
related to such Covered Persons' service with, for, or on behalf of the
Debtors prior to the Effective Date, shall survive Confirmation of this Plan
and remain unaffected thereby, and shall not be discharged, irrespective of
whether such defense, indemnification, reimbursement, or limitation of
liability is owed in connection with an occurrence before or after the
Petition Date.
M. Governing Law
Unless a rule of law or procedure is supplied by federal law
(including the Bankruptcy Code and Bankruptcy Rules), the laws of (i) the
State of New York shall govern the construction and implementation of this
Plan and any agreements, documents, and instruments executed in connection
with this Plan and (ii) the laws of the state of incorporation of each Debtor
shall govern corporate governance matters with respect to such Debtor, in
either case without giving effect to the principles of conflicts of law
thereof.
N. Prepayment
Except as otherwise provided in this Plan or the Confirmation Order,
the Debtors shall have the right to prepay, without penalty, all or any
portion of an Allowed Claim at any time; provided, however, that any such
prepayment shall not be violative of, or otherwise prejudice, the relative
priorities and parities among the Classes of Claims.
Dated: New York, New York
July 15, 2002
(As modified September 5, 2002)
NTL INCORPORATED
NTL (DELAWARE), INC.
NTL COMMUNICATIONS CORP.
COMMUNICATIONS CABLE FUNDING CORP.
Debtors and Debtors-in-Possession
By: /s/ Barclay Knapp
Barclay Knapp
President and Chief Executive Officer
DIAMOND CABLE COMMUNICATIONS LIMITED
DIAMOND HOLDINGS LIMITED
Debtors and Debtors-in-Possession
By: /s/ Barclay Knapp
Barclay Knapp
Director
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Attorneys for NTL Incorporated, et al.
Debtors and Debtors-in-Possession
By: /s/ Kayalyn A. Marafioti
Kayalyn A. Marafioti (KM 9362)
Jay M. Goffman (JG 6722)
Lawrence V. Gelber (LG 9384)
Four Times Square
New York, New York 10036-6522
(212) 735-3000