Exhibit 4.1
EXECUTION COPY
EQUITY REGISTRATION RIGHTS AGREEMENT
by and among
NTL INCORPORATED
(formerly NTL Communications Corp.)
and
THE STOCKHOLDERS LISTED ON THE SIGNATURE PAGES HERETO
dated as of
January 10, 2003
EQUITY REGISTRATION RIGHTS AGREEMENT, dated as of January 10,
2003, by and among NTL Incorporated (formerly NTL Communications Corp.), a
Delaware corporation (the "Company"), and the stockholders listed on the
signatures pages hereto.
WHEREAS, the Company proposes to issue and deliver shares of
Common Stock (as defined below) to certain entities pursuant to the Company's
Second Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy
Code (the "Plan"), confirmed by order of the United States Bankruptcy Court
for the Southern District of New York, entered on September 5, 2002; and
WHEREAS, the Company proposes to issue and deliver shares of
Common Stock (as defined below) to certain entities pursuant to the Note
Purchase Agreement (as defined below); and
WHEREAS, in connection with and pursuant to the Plan and the Note
Purchase Agreement the Company has agreed to grant the registration rights
described in this Agreement to certain holders of shares of Common Stock
issued pursuant to Article IV.C.2. of the Plan and the holders of shares of
Common Stock issued pursuant to the Note Purchase Agreement. All capitalized
terms used and not otherwise defined herein shall have the meanings assigned
them in the Plan.
Accordingly, the parties hereto agree as follows:
1. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Certificate of Incorporation" means the Certificate of
Incorporation of the Company, as it may be amended or restated hereafter from
time to time.
"Commission" means the Securities and Exchange Commission or any
other United States federal agency at the time administering the Securities
Act.
"Common Stock" means any shares of common stock, par value $0.01
per share, of the Company, now or hereafter authorized to be issued and any
and all securities of any kind whatsoever of the Company which may be
exchanged for or converted into Common Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar United States federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
at the time. Reference to a particular section of the Exchange Act shall
include a reference to the comparable section, if any, of any such similar
United States federal statute.
"Holder" means a registered holder of Registrable Securities.
"Majority Participating Holders" means Participating Holders
holding at least a majority of the Registrable Securities proposed to be
included in any offering of Registrable Securities by such Participating
Holders pursuant to Section 3.1 or Section 3.2 hereto.
"Note Purchase Agreement" means the Note Purchase Agreement, dated
as of January 9, 2003, by and among the Company, the purchasers listed on
Schedule A thereto and the guarantors listed on the signature pages thereto.
"Participating Holders" means any Holder participating in any
offering of Registrable Securities pursuant to Section 2, Section 3.1 or
Section 3.2 hereto.
"Person" means a corporation, an association, a partnership, an
organization, a business, a trust, an individual, or any other entity or
organization, including a government or political subdivision or an
instrumentality or agency thereof.
"Registrable Securities" means (i) any shares of Common Stock
issued pursuant to the Plan, (ii) any Warrant Shares, (iii) any shares of
Common Stock issued pursuant to the Note Purchase Agreement, (iv) any Common
Stock issued with respect to the Common Stock referred to in clauses (i), (ii)
or (iii) by way of a stock dividend, stock split or reverse stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or otherwise. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement or (ii) such
securities shall have been disposed of pursuant to Rule 144 or Rule 145 under
the Securities Act.
"Registration Expenses" means all expenses incident to the
registration and disposition of the Registrable Securities pursuant to Section
3 hereof, including, without limitation, all registration, filing and
applicable national securities exchange fees, all fees and expenses of
complying with state securities or blue sky laws (including reasonable fees
and disbursements of counsel to the underwriters and the Holders in connection
with "blue sky" qualification of the Registrable Securities and determination
of their eligibility for investment under the laws of the various
jurisdictions), all word processing, duplicating and printing expenses, all
messenger and delivery expenses, the fees and disbursements of counsel for the
Company and of its independent public accountants, including the expenses of
"cold comfort" letters or any special audits required by, or incident to, such
registration, all transfer taxes, and the reasonable fees and expenses of one
counsel to the Holders; provided, however, that Registration Expenses shall
exclude, and the Holders shall pay, underwriting discounts and commissions in
respect of the Registrable Securities being registered for such Person.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar United States federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
References to a particular section of the Securities Act shall include a
reference to the comparable section, if any, of any such similar United States
federal statute.
"Warrants" means any Series A Warrants to purchase shares of
Common Stock issued pursuant to the Plan and the Warrant Agreement, dated
January 10, 2003, as the same may be amended or modified from time to time, by
and between the Company and Continental Stock Transfer & Trust Company.
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"Warrant Shares" means any shares of Common Stock issued upon
exercise of one or more Warrants.
2. Shelf Registration.
(a) Within 45 days after the Effective Date, the Company shall
file with the Commission a registration statement (the "Shelf Registration
Statement") relating to the offer and sale of Registrable Securities by the
Holders to the public, from time to time, on a delayed or continuous basis
(but not involving any underwriting); provided, however, that the Shelf
Registration Statement shall only cover Registrable Securities (1) of Holders
who beneficially (within the meaning of Rule 13d-3 under the Exchange Act) own
10% or more of the Common Stock of the Company, (2) of Holders who provide to
the Company a written statement indicating that such Holder is deemed, or
might reasonably be considered to be, an "underwriter" under Section
1145(b)(1) of the Bankruptcy Code, or (3) issued pursuant to the Note Purchase
Agreement. The Company shall use its reasonable best efforts to cause the
Shelf Registration Statement to be declared effective by the Commission as
soon as practicable thereafter.
(b) The Company agrees to use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective and not to
suspend use of the prospectus included therein in order to permit the
prospectus included therein to be usable by the Holders until the earlier of:
(1) the date all Holders could sell shares free of any volume limitations
imposed by Rule 144 of the Securities Act; (2) the date all Holders have
disposed of all Registrable Securities; or (3) three years from the date on
which such Shelf Registration Statement was declared effective; provided, that
the Company shall be deemed not to have used its reasonable best efforts to
keep the Shelf Registration Statement effective during the requisite period if
it voluntarily takes any action that would result in Holders of the
Registrable Securities covered thereby not being able to offer and sell such
Registrable Securities during that period, unless such action is required by
applicable law, and provided, further, that the foregoing shall not apply to
actions if the Company determines, in its reasonable judgment, as authorized
by a resolution of its Board of Directors, that the filing of such Shelf
Registration Statement or the maintenance of effectiveness of such Shelf
Registration Statement or prospectus included therein would materially
interfere with any material financing, corporate reorganization or other
material transaction involving the Company or any subsidiary, or would require
premature disclosure thereof, and the Company promptly gives the Participating
Holders written notice of such determination, containing a general statement
of the reasons for such postponement or suspension and an approximation of the
anticipated delay; provided, however, that the failure to keep the Shelf
Registration Statement effective and usable for offers and sales of
Registrable Securities for such reasons shall last no longer than 120 days in
the aggregate in any 12-month period.
3. Registration Under Securities Act, etc.
3.1 Registration on Request.
(a) Request. At any time or from time to time, a Holder or
Holders holding Registrable Securities, shall have the right to require the
Company to effect the
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registration under the Securities Act of all or part of
their respective Registrable Securities, by delivering a written request (a
"Holder Request") therefor to the Company specifying the number of shares of
Registrable Securities and the intended method of distribution. The party or
parties delivering a Holder Request shall be referred to as the "Initiating
Holder." As promptly as practicable, but no later than ten days after receipt
of a Holder Request, the Company shall give written notice of the Holder
Request to all Holders (the "Demand Exercise Notice"). The Company shall as
expeditiously as possible (but in any event within 120 days of receipt of a
Holder Request) use its best efforts to effect the registration under the
Securities Act of the Registrable Securities which the Company has been so
requested to register by the Initiating Holder and any other Holders which
have made a written request to the Company for inclusion in such registration
(which request shall specify the maximum number of Registrable Securities
intended to be disposed of by such Holder) within 30 days after the receipt of
the Demand Exercise Notice (or, 15 days if, at the request of the Initiating
Holder participating in such registration, the Company states in such written
notice or gives telephonic notice to all Holders, with written confirmation to
follow promptly thereafter, that such registration will be on a Form S-3 under
the Securities Act). The Company shall (i) use its best efforts to effect the
registration of Registrable Securities for distribution in accordance with the
intended method of distribution set forth in a written request delivered by
the Majority Participating Holders, and (ii) if requested by the Majority
Participating Holders, obtain acceleration of the effective date of the
registration statement relating to such registration.
(b) Registration of Other Securities. Whenever the Company
shall effect a registration pursuant to this Section 3.1 in connection with an
underwritten offering by Holders, no securities other than Registrable
Securities shall be included among the securities covered by such registration
unless the Majority Participating Holders shall have consented in writing to
the inclusion therein of such other securities, which consent may be subject
to terms and conditions determined by the Majority Participating Holders in
their sole discretion.
(c) Registration Statement Form. Registrations under this
Section 3.1 shall be on the registration form of the Commission as shall be
selected by the Company which form shall be reasonably acceptable to the
Majority Participating Holders. The Company agrees to include in any such
registration statement all information which, in the reasonable opinion of
counsel to the Participating Holders and counsel to the Company, is necessary
or desirable to be included therein.
(d) Expenses. The Company shall pay, and shall be responsible
for, all Registration Expenses in connection with any registration requested
pursuant to this Section 3.1. Notwithstanding the foregoing, the provisions of
this Section 3.1(d) shall be deemed amended to the extent necessary to cause
these expense provisions to comply with "blue sky" laws of each state or the
securities laws of any other jurisdiction in the United States and its
territories in which the offering is made.
(e) Effective Registration Statement. A registration requested
pursuant to this Section 3.1 shall not be deemed to have been effected
(including for purposes of paragraph (h) of this Section 3.1) (i) unless a
registration statement with respect thereto has become effective and has been
kept continuously effective for a period of at least 120 days (or such shorter
period which shall terminate when all the Registrable Securities covered by
such
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registration statement have been sold pursuant thereto), (ii) if after it has
become effective, such registration is interfered with by any stop order,
injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable to the
Participating Holder and has not thereafter become effective, or (iii) if the
conditions to closing specified in the underwriting agreement, if any, entered
into in connection with such registration are not satisfied or waived.
(f) Selection of Underwriters. The underwriters of each
underwritten offering of the Registrable Securities so to be registered shall
be selected by the Majority Participating Holders and shall be reasonably
acceptable to the Company, taking into account any contractual obligations of
the Company with respect to the engagement of underwriters by the Company for
such transactions.
(g) Right to Withdraw. If the managing underwriter of any
underwritten offering shall advise the Participating Holders that the
Registrable Securities covered by the registration statement cannot be sold in
such offering within a price range acceptable to the Majority Participating
Holders, then the Majority Participating Holders shall have the right to
notify the Company in writing that it has determined that the registration
statement be abandoned or withdrawn, in which event the Company shall abandon
or withdraw such registration statement. In the event of such abandonment or
withdrawal at the request of the Majority Participating Holders, the
Initiating Holder's request for registration pursuant to this Section 3.1
shall not be counted for purposes of the requests for registration to which
the Holders are entitled pursuant to this Section 3.1.
(h) Limitations on Registration on Request. The Holders shall
be entitled to require the Company to effect, and the Company shall be
required to effect, four registrations in the aggregate pursuant to this
Section 3.1, provided, however, that (x) the aggregate offering value of the
Registrable Securities to be registered pursuant to any such registration
shall be at least $15,000,000 (based on the market price on the date the
demand is made) and (y) only one such demand registration shall be required to
become effective in any 180-day period.
(i) Priority in Registrations on Request. If any registration
pursuant to a Holder Request involves an underwritten offering and the
managing underwriter of such offering shall inform the Company in writing of
its belief that the number of Registrable Securities requested to be included
in such registration pursuant to this Section 3.1, when added to the number of
any other securities to be offered in such registration, would materially
adversely affect such offering, then the Participating Holders shall be
entitled to participate on a pro rata basis based on the number of shares of
Registrable Securities requested to be included in the offering by each such
Participating Holder. The Company and any other Company stockholders that have
not expressly been given pari passu or senior rights of participation in
accordance with Section 3.1(b) hereof shall have no right to participate in
this event, without the consent of the Majority Participating Holders.
(j) Postponement. The Company shall be entitled once in any
twelve-month period to postpone for a reasonable period of time (but not
exceeding 90 days) (the "Postponement Period") the filing of any registration
statement required to be prepared and filed
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by it pursuant to this Section 3.1 if the Company determines, in its
reasonable judgment, as authorized by a resolution of its Board of Directors,
that such registration and offering would materially interfere with any
material financing, corporate reorganization or other material transaction
involving the Company or any subsidiary, or would require premature disclosure
thereof, and promptly gives the Participating Holders written notice of such
determination, containing a general statement of the reasons for such
postponement and an approximation of the anticipated delay. If the Company
shall so postpone the filing of a registration statement, the Majority
Participating Holders shall have the right to withdraw the request for
registration by giving written notice to the Company at any time during such
Postponement Period and, in the event of such withdrawal, such request shall
not be counted for purposes of the requests for registration to which the
Holders are entitled pursuant to this Section 3.1.
3.2 Incidental Registration.
(a) Right to Include Registrable Securities. If the Company at
any time proposes to register any of its equity securities under the
Securities Act by registration on Form S-1, S-2 or S-3 or any successor or
similar form(s) (except registrations on any such Form or similar form(s)
solely for registration of securities in connection with an employee benefit
plan or dividend reinvestment plan or a merger or consolidation), whether or
not for sale for its own account, it will each such time give prompt written
notice to each of the Holders of its intention to do so and of the Holders'
rights under this Section 3.2. Upon the written request of any of the Holders
(which request shall specify the maximum number of Registrable Securities
intended to be disposed of by such Holder), made as promptly as practicable
and in any event within 30 days after the receipt of any such notice (15 days
if the Company states in such written notice or gives telephonic notice to
each Holder, with written confirmation to follow promptly thereafter, stating
that (i) such registration will be on Form S-3 under the Securities Act and
(ii) such shorter period of time is required because of a planned filing
date), the Company shall use its best efforts to effect the registration under
the Securities Act of all Registrable Securities which the Company has been so
requested to register by each Holder; provided, however, that if, at any time
after giving written notice of its intention to register any equity securities
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
not to register or to delay registration of such equity securities, the
Company shall give written notice of such determination and its reasons
therefor to the Holders and in the case of a determination not to register,
shall be relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from any obligation of the Company
to pay the Registration Expenses in connection therewith), without prejudice,
however, to the rights of the Holders to request that such registration be
effected as a registration under Section 3.1. No registration effected under
this Section 3.2 shall relieve the Company of its obligation to effect any
registration upon request under Section 3.1. The Company will pay all
Registration Expenses in connection with any registration of Registrable
Securities requested pursuant to this Section 3.2.
(b) Right to Withdraw. Any Holder shall have the right to
withdraw its request for inclusion of Registrable Securities in any
registration statement pursuant to this Section 3.2 at any time prior to the
execution of an underwriting agreement with respect thereto by giving written
notice to the Company of its request to withdraw.
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(c) Priority in Incidental Registrations. If any registration
pursuant to this Section 3.2 involves an underwritten offering and the
managing underwriter of such offering shall inform the Company in writing of
its belief that the number of Registrable Securities requested to be included
in such registration, when added to the number of other equity securities to
be offered in such registration, would materially adversely affect such
offering, then the Company shall include in such registration, to the extent
of the number and type which the Company is so advised can be sold in (or
during the time of) such offering without so materially adversely affecting
such offering (the "Section 3.2 Sale Amount"), (i) all of the equity
securities proposed by the Company to be sold for its own account; (ii)
thereafter, to the extent the Section 3.2 Sale Amount is not exceeded, the
Registrable Securities requested by the Participating Holders (provided that
if all of the Registrable Securities requested by the Participating Holders
may not be included, the Participating Holders shall be entitled to
participate on a pro rata basis based on the aggregate number of shares of
Registrable Securities requested by the Participating Holders to be
registered); and (iii) thereafter, to the extent the Section 3.2 Sale Amount
is not exceeded, any other equity securities of the Company requested to be
included by Company stockholders holding other such registration rights.
(d) Plan of Distribution. Any participation by Holders in a
registration by the Company shall be in accordance with the Company's plan of
distribution, provided that the Majority Participating Holders shall have the
right to select a co-managing underwriter, taking into account any contractual
obligations of the Company with respect to the engagement of underwriters by
the Company for such transactions.
3.3 Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 2, 3.1 and 3.2
hereof, the Company shall as expeditiously as possible:
(a) prepare and file with the Commission as soon as practicable
the requisite registration statement to effect such registration (and shall
include all financial statements required by the Commission to be filed
therewith) and thereafter use its best efforts to cause such registration
statement to become effective; provided, however, that before filing such
registration statement (including all exhibits) or any amendment or supplement
thereto or comparable statements under securities or blue sky laws of any
jurisdiction, the Company shall furnish such documents to each Participating
Holder and each underwriter, and counsel to the Participating Holders, which
documents will be subject to the review and comments of each Participating
Holder, each underwriter and their respective counsel; and provided, further,
however, that the Company may discontinue any registration of its securities
which are not Registrable Securities at any time prior to the effective date
of the registration statement relating thereto;
(b) notify the Participating Holders of the Commission's
requests for amending or supplementing the registration statement and the
prospectus, and prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities covered by such registration
statement for such period as shall be
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required for the disposition of all of such Registrable Securities in
accordance with the intended method of distribution thereof; provided, that
except with respect to any such registration statement filed pursuant to Rule
415 under the Securities Act, such period need not exceed 90 days;
(c) furnish, without charge, to each Participating Holder and
each underwriter such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus contained in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act, and
such other documents, as the Participating Holders and such underwriters may
reasonably request;
(d) use its best efforts (i) to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such securities or blue sky laws of such States of the United
States of America where an exemption is not available and as the Participating
Holders or any managing underwriter shall reasonably request, (ii) to keep
such registration or qualification in effect for so long as such registration
statement remains in effect, and (iii) to take any other action which may be
reasonably necessary or advisable to enable the Participating Holders to
consummate the disposition in such jurisdictions of the securities to be sold
by the Participating Holders, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the requirements
of this subsection (d), (i) be obligated to be so qualified or to consent to
general service of process in any such jurisdiction or (ii) be subject to
additional taxes (other than de minimus amounts);
(e) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by
such other federal or state governmental agencies or authorities as may be
necessary in the opinion of counsel to the Company and counsel to each of the
Participating Holders to consummate the disposition of such Registrable
Securities;
(f) if requested by the lead underwriter, furnish to each
Participating Holder and each underwriter, if any, participating in the
offering of the securities covered by such registration statement, a signed
counterpart of (i) an opinion of counsel for the Company, and (ii) a "comfort"
letter signed by the independent public accountants who have certified the
Company's financial statements included or incorporated by reference in such
registration statement, covering substantially the same matters with respect
to such registration statement (and the prospectus included therein) and, in
the case of the accountants' comfort letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' comfort letters delivered to
the underwriters in underwritten public offerings of securities (and dated the
dates such opinions and comfort letters are customarily dated) and, in the
case of the legal opinion, such other legal matters, and, in the case of the
accountants' comfort letter, such other financial matters as the underwriters
may reasonably request;
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(g) promptly notify each Participating Holder and each managing
underwriter, if any, participating in the offering of the securities covered
by such registration statement (i) when such registration statement, any
pre-effective amendment, the prospectus or any prospectus supplement related
thereto or post-effective amendment to such registration statement has been
filed, and, with respect to such registration statement or any post-effective
amendment, when the same has become effective; (ii) of any request by the
Commission for amendments or supplements to such registration statement or the
prospectus related thereto or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of
such registration statement or the initiation of any proceedings for that
purpose; (iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of any of the Registrable Securities
for sale under the securities or blue sky laws of any jurisdiction or the
initiation of any proceeding for such purpose; (v) at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, in the light of the circumstances under
which they were made, and in the case of this clause (v), at the request of a
Participating Holder promptly prepare and furnish to each Participating Holder
and each managing underwriter, if any, participating in the offering of the
Registrable Securities, a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made;
and (vi) at any time when the representations and warranties of the Company
contemplated by Section 3.4(a) or (b) hereof cease to be true and correct;
(h) otherwise comply with all applicable rules and regulations
of the Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least
twelve months beginning with the first full calendar month after the effective
date of such registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder, and promptly furnish to each Participating Holder a copy of any
amendment or supplement to such registration statement or prospectus;
(i) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all Registrable
Securities covered by such registration statement from and after a date not
later than the effective date of such registration statement;
(j) use its best efforts to cause all Registrable Securities
covered by such registration statement to be listed on the principal
securities exchange on which similar securities issued by the Company are then
listed (if any), if the listing of such Registrable Securities is then
permitted under the rules of such exchange;
(k) deliver promptly to counsel to the Participating Holders
and each underwriter, if any, participating in the offering of the Registrable
Securities, copies of all
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correspondence between the Commission and the Company with respect to such
registration statement;
(l) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Registrable Securities, no
later than the effective date of the registration statement; and
(n) make available its employees and personnel and otherwise
provide reasonable assistance to the underwriters (taking into account the
needs of the Company's business) in their marketing of Registrable Securities.
The Company may require the Participating Holders to furnish the
Company such information regarding such Participating Holders and the
distribution of the Registrable Securities as the Company may from time to
time reasonably request in writing and the Company shall not be obligated to
effect the registration of any Registrable Securities of a particular
Participating Holder unless such information regarding such Participating
Holder is provided to the Company.
Each Participating Holder agrees that upon receipt of any notice
from the Company of the happening of any event of the kind described in
paragraph (g)(iii) or (v) of this Section 3.3, each Participating Holder will,
to the extent appropriate, discontinue its disposition of Registrable
Securities pursuant to the registration statement relating to such Registrable
Securities until, in the case of paragraph (g)(v) of this Section 3.3, its
receipt of the copies of the supplemented or amended prospectus contemplated
by paragraph (g)(v) of this Section 3.3 and, if so directed by the Company,
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in its possession, of the prospectus relating to
such Registrable Securities current at the time of receipt of such notice. If
the disposition by a Participating Holder of its securities is discontinued
pursuant to the foregoing sentence, the Company shall extend the period of
effectiveness of the registration statement by the number of days during the
period from and including the date of the giving of notice to and including
the date when the Participating Holder shall have received copies of the
supplemented or amended prospectus contemplated by paragraph (g)(v) of this
Section 3.3; and, if the Company shall not so extend such period, the
Participating Holder's request pursuant to which such registration statement
was filed shall not be counted for purposes of the requests for registration
to which the Participating Holder is entitled pursuant to Section 3.1 hereof.
3.4 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by the Participating Holders
pursuant to a registration requested under Section 3.1, the Company shall
enter into a customary underwriting agreement with a managing underwriter or
underwriters selected by the Majority Participating Holders (in accordance
with Section 3.1(f) hereto). Such underwriting agreement shall be satisfactory
in form and substance to the Majority Participating Holders and shall contain
such representations and warranties by, and such other agreements on the part
of, the Company and such other terms
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as are generally prevailing in agreements of that type, including, without
limitation, customary provisions relating to indemnification and contribution.
Each Participating Holder shall be a party to such underwriting agreement and
may, at their option, require that any or all of the conditions precedent to
the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of each Participating Holder. No
Participating Holder shall be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Participating Holder,
its ownership of and title to the Registrable Securities, and its intended
method of distribution; and any liability of any Participating Holder to any
underwriter or other person under such underwriting agreement shall be limited
to liability arising from breach of its representations and warranties and
shall be limited to an amount equal to the proceeds (net of expenses and
underwriting discounts and commissions) that it derives from such
registration.
(b) Incidental Underwritten Offerings. In the case of a
registration pursuant to Section 3.2 hereof, if the Company shall have
determined to enter into any underwriting agreements in connection therewith,
all of the Registrable Securities to be included in such registration shall be
subject to such underwriting agreements. The Participating Holders may, at
their option, require that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of the Participating Holders. None of
the Participating Holders shall be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Participating Holder,
its ownership of and title to the Registrable Securities, and its intended
method of distribution; and any liability of any Participating Holder to any
underwriter or other Person under such underwriting agreement shall be limited
to liability arising from breach of its representations and warranties and
shall be limited to an amount equal to the proceeds (net of expenses and
underwriting discounts and commissions) that it derives from such
registration.
3.5 Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company will give the Participating
Holders, their underwriters, if any, and their respective counsel, accountants
and other representatives and agents the opportunity to participate in the
preparation of such registration statement, each prospectus included therein
or filed with the Commission, and each amendment thereof or supplement
thereto, and give each of them such access to its books and records and such
opportunities to discuss the business of the Company with its officers and
employees and the independent public accountants who have certified its
financial statements, and supply all other information reasonably requested by
each of them, as shall be necessary or appropriate, in the opinion of the
Participating Holders and such underwriters' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act provided
that the foregoing investigation shall be coordinated by one counsel to the
Participating Holders.
3.6 Indemnification.
(a) Indemnification by the Company. The Company agrees that in
the event of any registration of any securities of the Company under the
Securities Act, the Company shall, and hereby does, indemnify and hold
harmless each of the Participating Holders, and their
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respective directors, officers, partners, agents and affiliates and each other
Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls such Participating
Holder or any such underwriter within the meaning of the Securities Act
(collectively, the "Indemnitees"), against any losses, claims, damages, costs
and reasonable expenses (including, without limitation, reasonable attorney's
fees) or liabilities, joint or several (or actions or proceedings, whether
commenced or threatened, in respect thereof) ("Losses"), to which such
Indemnitee may become subject under the Securities Act or otherwise, insofar
as such Losses arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities
Act, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto or (ii) any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Company shall
reimburse such Indemnitee for any reasonable legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such Loss; provided that the Company shall not be liable in any such case to
an Indemnitee to the extent that any such Loss arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by or on behalf of such Indemnitee; and provided,
further, that the Company shall not be liable to any Person who participates
as an underwriter in the offering or sale of Registrable Securities or any
other Person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such Loss (i) arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by or on behalf
of such Person or (ii) arises out of such Person's failure to send or give a
copy of the final prospectus, as the same may be then supplemented or amended,
to the Person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the
sale of Registrable Securities to such Person if such statement or omission
was corrected in such final prospectus. Such indemnity shall remain in full
force regardless of any investigation made by or on behalf of any Indemnitee
and shall survive the transfer of such securities by such seller.
(b) Indemnification by Participating Holders. As a condition to
including any Registrable Securities in any registration statement, the
Company shall have received an undertaking reasonably satisfactory to it from
each Participating Holder so including any Registrable Securities to,
severally and not jointly, indemnify and hold harmless (in the same manner and
to the same extent as set forth in paragraph (a) of this Section 3.6) the
Company, and each director of the Company, each officer of the Company and
each other Person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, but only to the extent such statement or
alleged statement or omission or alleged omission was made in reliance upon
and in conformity with written
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information furnished to the Company through an instrument duly executed by
such Participating Holder specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; provided, however,
that the liability of such indemnifying party under this Section 3.6(b) shall
be limited to the amount of proceeds (net of expenses and underwriting
discounts and commissions) received by such indemnifying party in the offering
giving rise to such liability. Such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of the Company or
any such director, officer or controlling Person and shall survive the
transfer of such securities by such Participating Holder.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subsections of this Section
3.6, such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action or proceeding; provided, however, that the failure
of any indemnified party to give notice as provided herein shall not relieve
the indemnifying party of its obligations under the preceding subsections of
this Section 3.6, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice, and shall not relieve the
indemnifying party from any liability which it may have to the indemnified
party otherwise than under this Section 3.6. In case any such action or
proceeding is brought against an indemnified party, the indemnifying party
shall be entitled to participate therein and, unless in the opinion of outside
counsel to the indemnified party a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, to
assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action or proceeding include both the indemnified party
and the indemnifying party and if in the opinion of outside counsel to the
indemnified party there may be legal defenses available to such indemnified
party and/or other indemnified parties which are different from or in addition
to those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to defend such action or
proceeding on behalf of such indemnified party or parties, provided, however,
that the indemnifying party shall be obligated to pay for only one counsel for
all indemnified parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and
approval by the indemnified party of such counsel, the indemnifying party
shall not be liable to such indemnified party for any legal expenses
subsequently incurred by the latter in connection with the defense thereof
other than reasonable costs of investigation (unless the first proviso in the
preceding sentence shall be applicable). No indemnifying party shall be liable
for any settlement of any action or proceeding effected without its written
consent. No indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in
respect to such claim or litigation.
(d) Contribution. If the indemnification provided for in this
Section 3.6 shall for any reason be held by a court to be unavailable to an
indemnified party under subsection (a) or (b) hereof in respect of any Loss,
then, in lieu of the amount paid or payable under subsection (a) or (b)
hereof, the indemnified party and the indemnifying party under
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subsection (a) or (b) hereof shall contribute to the aggregate Losses (i) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand, and the indemnified party on the other,
which resulted in such Loss, with respect to the statements or omissions which
resulted in such Loss, as well as any other relevant equitable considerations,
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law or if the allocation provided in this clause (ii) provides a
greater amount to the indemnified party than clause (i) above, in such
proportion as shall be appropriate to reflect not only the relative fault but
also the relative benefits received by the indemnifying party and the
indemnified party from the offering of the securities covered by such
registration statement as well as any other relevant equitable considerations.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 3.6(d) were to be determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the preceding sentence of
this Section 3.6(d). No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Participating Holders' obligations to contribute as
provided in this subsection (d) are several and not joint and shall be in
proportion to the relative value of their respective Registrable Securities
covered by such registration statement. In addition, no Person shall be
obligated to contribute hereunder any amounts in payment for any settlement of
any action or claim effected without such Person's consent, which consent
shall not be unreasonably withheld. Notwithstanding anything in this
subsection (d) to the contrary, no indemnifying party (other than the Company)
shall be required to contribute any amount in excess of the proceeds (net of
expenses and underwriting discounts and commissions) received by such party
from the sale of the Registrable Securities in the offering to which the
Losses of the indemnified parties relate.
(e) Other Indemnification. Indemnification and contribution
similar to that specified in the preceding subsections of this Section 3.6
(with appropriate modifications) shall be given by the Company and the
Participating Holders with respect to any required registration or other
qualification of securities under any federal, state or blue sky law or
regulation of any governmental authority other than the Securities Act. The
indemnification agreements contained in this Section 3.6 shall be in addition
to any other rights to indemnification or contribution which any indemnified
party may have pursuant to law or contract and shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any indemnified party and shall survive the transfer of any of the Registrable
Securities by any such party.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 3.6 shall be made by periodic payments
of the amount thereof during the course of the investigation or defense, as
and when bills with reasonably sufficient detail thereof are received or a
Loss is incurred.
3.7 Unlegended Certificates. In connection with the offering of
any Registrable Securities registered pursuant to this Section 3, the Company
shall (i) facilitate the timely preparation and delivery to the Participating
Holders and the underwriters, if any, participating in such offering, of
unlegended certificates representing ownership of such Registrable Securities
being sold in such denominations and registered in such names as requested by
the Participating Holders or such underwriters and (ii) instruct any transfer
agent
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and registrar of such Registrable Securities to release any stop transfer
orders with respect to any such Registrable Securities.
3.8 Limitation on Sale of Securities. The Company hereby agrees
that if it shall previously have received a request for registration pursuant
to Sections 3.1 or 3.2 hereof, and if such previous registration shall not
have been withdrawn or abandoned, the Company shall not effect any public or
private offer, sale or distribution of its equity securities or effect any
registration of any of its equity securities under the Securities Act (other
than a registration on Form S-8 or any successor or similar form which is then
in effect), whether or not for sale for its own account, until a period of 180
days (or such shorter period as the Holders shall be advised by their managing
underwriter) shall have elapsed from the effective date of such previous
registration, and the Company shall so provide in any registration rights
agreements hereafter entered into with respect to any of its equity
securities.
3.9 No Required Sale. Nothing in this Agreement shall be deemed
to create an independent obligation on the part of any of the Holders to sell
any Registrable Securities pursuant to any effective registration statement.
4. Rule 144. The Company shall take all actions reasonably
necessary to enable holders of Registrable Securities to sell such securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, or (b) any
similar rule or regulation hereafter adopted by the Commission including,
without limiting the generality of the foregoing, filing on a timely basis all
reports required to be filed by the Exchange Act. Upon the request of a
Holder, the Company will promptly deliver to such holder a written statement
as to whether it has complied with such requirements.
5. Amendments and Waivers. This Agreement may be amended, waived,
modified or supplemented only by written agreement of the Company and the
holders of a majority of the Registrable Securities (assuming for such
purposes that all Warrants have been exercised in full) then outstanding;
provided, however, that any amendment, waiver, modification or supplement of
Section 3.6 hereto shall require the written agreement of the Company and all
Holders.
6. Limitations on Subsequent Registration Rights. From and after
the date hereof until the Holders shall no longer hold any Registrable
Securities, the Company shall not, without the prior written consent of the
holders of a majority of the Registrable Securities (assuming for such
purposes that all Warrants have been exercised in full), enter into any
agreement with any holder or prospective holder of any equity securities of
the Company giving such holder or prospective holder demand or incidental
registration rights containing cut-back provisions that are by their terms not
subordinate to the registration rights granted in this Agreement.
7. Notice. All notices and other communications hereunder shall be
in writing or via facsimile and, unless otherwise provided herein, shall be
deemed to have been given when received by the party to whom such notice is to
be given at its address set forth below, or such other address for the party
as shall be specified by notice given pursuant hereto:
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(a) If to any of the Holders, at its last address as it appears
upon the Company's registry books.
(b) If to the Company:
NTL Incorporated
110 East 59th Street, 26th Floor
New York, New York 10022
Attention: General Counsel
Facsimile: 212-906-8497
8. Assignment; Third Party Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns. This Agreement
may not be assigned by the Company without the prior written consent of the
holders of a majority of the Registrable Securities (assuming for such
purposes that all Warrants have been exercised in full). Any Holder may, at
its election, at any time or from time to time, assign its rights under this
Agreement, in whole or in part, to any purchaser of shares of Registrable
Securities held by it.
9. Remedies. The parties hereto agree that money damages or other
remedy at law would not be sufficient or adequate remedy for any breach or
violation of, or a default under, this Agreement by them and that, in addition
to all other remedies available to them, each of them shall be entitled to an
injunction restraining such breach, violation or default or threatened breach,
violation or default and to any other equitable relief, including without
limitation specific performance, without bond or other security being
required. In any action or proceeding brought to enforce any provision of this
Agreement (including the indemnification provisions thereof), the successful
party shall be entitled to recover reasonable attorneys' fees in addition to
its costs and expenses and any other available remedy.
10. No Inconsistent Agreements. The Company will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof, other than
any customary lock-up agreement with the underwriters in connection with any
offering effected hereunder, pursuant to which the Company shall agree not to
register for sale, and the Company shall agree not to sell or otherwise
dispose of, Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, for a specified period (not to exceed 180 days)
following such offering. The Company represents and warrants that the rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with any other agreements to which the Company is a party or by
which it is bound after the effective date of the Plan.
11. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not control or otherwise affect the meaning hereof.
12. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights and obligations of the parties hereto shall
be governed by, the
-16-
laws of the State of New York, without giving effect to
the conflicts of law principles thereof. Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the State of New York and the United States of
America located in the State of New York for any action or proceeding arising
out of or relating to this Agreement and the transactions contemplated hereby
(and agrees not to commence any action or proceeding relating thereto except
in such courts), and further agrees that service of any process, summons,
notice or document by U.S. registered mail to its respective address set forth
in Section 7 hereof shall be effective service of process for any action or
proceeding brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action or proceeding arising out of this Agreement or the
transactions contemplated hereby in the courts of the State of New York or the
United States of America located in the State of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
14. Invalidity of Provision. The invalidity or unenforceability of
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction. If any restriction or provision of
this Agreement is held unreasonable, unlawful or unenforceable in any respect,
such restriction or provision shall be interpreted, revised or applied in a
manner that renders it lawful and enforceable to the fullest extent possible
under law.
15. Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all further acts and things and shall execute
and deliver all other agreements, certificates, instruments, and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
16. Entire Agreement; Effectiveness. This Agreement constitutes
the entire agreement, and supersedes all prior agreements and understandings,
oral and written, between the parties hereto with respect to the subject
matter hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized.
NTL INCORPORATED
By: /s/ Richard J. Lubasch
-----------------------------------
Name: Richard J. Lubasch
Title: Executive Vice President,
General Counsel and Secretary
SILVER OAK CAPITAL, LLC
Solely for and on behalf of the entities
set forth in Schedule X, as Agent
By: /s/ Jeffrey H. Aronson
---------------------------------
Name: Jeffrey H. Aronson
Title: Authorized Signatory
AG CAPITAL FUNDING PARTNERS, L.P.,
By: Angelo, Gordon & Co., L.P., as Investment
Advisor
By: /s/ Jeffrey H. Aronson
-------------------------------------
Name: Jeffrey H. Aronson
Title: Authorized Signatory
APPALOOSA MANAGEMENT, L.P.,
On behalf of certain funds for which it
acts as investment adviser, as a Purchaser
By: Appaloosa Partners Inc., its general
partner
By: /s/ K. Maiman
--------------------------------------
Name: K. Maiman
Title: Principal
CAPITAL RESEARCH & MANAGEMENT CO.,
Solely on behalf of certain fiduciary
accounts, as Purchaser
By: /s/ Michael J. Downer
------------------------------------
Name: Michael J. Downer
Title: Vice President
FIDELITY SUMMER STREET TRUST: FIDELTIY CAPITAL
& INCOME FUND,
as a Purchaser
By: /s/ Frank Knox
-------------------------------------
Name: Frank Knox
Title: Assistant Treasurer
FRANKLIN MUTUAL ADVISERS, LLC,
On behalf of certain funds for which it
acts as investment adviser, as a Purchaser
By: /s/ Bradley Takahasi
------------------------------------
Name: Bradley Takahasi
Title: Vice President
OAKTREE CAPITAL MANAGEMENT,
Solely as general partner and/or
investment manager of certain funds and
accounts it manages, as a Purchaser
By: /s/ Brett Wyard
-------------------------------------
Name: Brett Wyard
Title: Managing Director
By: /s/ Ken Liang
-------------------------------------
Name: Ken Liang
Title: Managing Director
SALOMON BROTHERS ASSET MANAGEMENT,
Solely on behalf of certain fiduciary
accounts, as a Purchaser
By: /s/ Maureen O'Callaghan
--------------------------------------
Name: Maureen O'Callaghan
Title: Managing Director
THE HUFF ALTERNATIVE FUND, L.P.
By: WRH Partners II, L.L.C., general partner
By: /s/ Joseph R. Thornton
--------------------------------------
Name: Joseph R. Thornton
Title: Authorized Officer
THE HUFF ALTERNATIVE PARALLEL FUND, L.P.
By: WRH Partners II, L.L.C., general partner
By: /s/ Joseph R. Thornton
---------------------------------------
Name: Joseph R. Thornton
Title: Authorized Officer
W.R. HUFF ASSET MANAGEMENT CO., L.L.C.,
Solely as investment manager on behalf of
one of its separately managed accounts
By: /s/ Joseph R. Thornton
-------------------------------------
Name: Joseph R. Thornton
Title: Authorized Officer
FRANCE TELECOM
By: /s/ Eric Bouvier
-------------------------------------
Name: Eric Bouvier
Title: Head of Mergers & Acquisitions
Department
SCHEDULE X
Silver Oak Capital, LLC Entities
% of AG % of the Note
AG ARB PARTNERS, L.P. 2,500,000 3.06% 0.50%
AG CAPITAL RECOVERY PARTNERS II, L.P. 10,512,000 12.87% 2.10%
AG CAPITAL RECOVERY PARTNERS III, L.P. 9,684,000 11.85% 1.94%
AG CAPITAL RECOVERY PARTNERS, L.P. 10,080,000 12.34% 2.02%
AG CNG FUND, L.P. 400,000 0.49% 0.08%
AG DOMESTIC CONVERTIBLES, L.P. 6,000,000 7.34% 1.20%
AG ELEVEN PARTNERS, L.P. 2,412,000 2.95% 0.48%
AG MM, L.P. 300,000 0.37% 0.06%
AG OFFSHORE CONVERTIBLES, L.P. 19,000,000 23.26% 3.80%
AG PRINCESS, L.P. 300,000 0.37% 0.06%
AG SUPER ADVANTAGE, L.P. 600,000 0.73% 0.12%
AG SUPER FUND INTERNATIONAL PARTNERS, L.P. 3,500,000 4.28% 0.70%
AG SUPER FUND, L.P. 5,700,000 6.98% 1.14%
COMMON FUND-EVENT DRIVEN COMPANY 800,000 0.98% 0.16%
GAM ARBITRAGE INVESTMENTS, INC. 7,000,000 8.57% 1.40%
NUTMEG PARTNERS, L.P. 2,300,000 2.82% 0.46%
PHS BAY COLONY FUND, L.P. 300,000 0.37% 0.06%
PHS PATRIOT FUND, L.P. 300,000 0.37% 0.06%
81,688,000 100.00% 16.34%