AMENDMENT NO. 2 TO THE RIGHTS AGREEMENT
AMENDMENT NO. 2 TO THE RIGHTS AGREEMENT (this "Amend ment"), dated as of
October 23, 1999, by and between NTL INCORPORATED, a Delaware corporation (the
"Company"), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Rights Agent (the
"Rights Agent"). This Amendment amends the Rights Agreement, as amended (the
"Rights Agreement"), dated October 13, 1993, by and between the Company and the
Rights Agent. Capitalized terms used in this Amendment without definition shall
have the meanings given to them in the Rights Agreement.
Whereas, in accordance with Section 27 of the Rights Agreement, an officer
of the Company has delivered to the Rights Agent an officer's certificate as to
the compliance of this Amendment with Section 27 of the Rights Agreement;
Whereas, the Company has been made aware of discussions between France
Telecom, S.A. ("France Telecom") on the one hand and European Cable Capital
Partners, L.P.; Bridge Street Fund 1996, L.P.; GS Capital Partners L.P. and
Stone Street Fund 1996, L.P. (collectively, the "Partnerships"), which hold
shares of Company Common Stock acquired earlier this year (collectively, the
"Partnership Shares"), on the other, concerning the sale by the Partnerships of
3,300,000 shares of the Partnership Shares (the "Partnership Sale Shares") to
France Telecom and pursuant to the provisions of Section 2.7 of the registration
rights agreement, dated March 8, 1999, by and between the Company and, among
other parties, the Partnerships (the "Partnerships Registration Rights
Agreement"), France Telecom has agreed to purchase up to an additional
approximately 1,400,000 shares of Common Stock from shareholders with
"tag-along" (collectively, the "Tag Along Shares" and together with the
Partnership Sale Shares, collectively, the "Sale Shares");
Whereas, France Telecom's wholly owned subsidiary, Compagnie Generale des
Communications (Cogecom) S.A. ("COGECOM") holds 3,378,379 shares of Common Stock
and 750,000 shares of 5% Cumulative Participating Convertible Preferred Stock,
Series A (the "Series A Preferred Stock"), of the Company, which is convertible
into an aggregate of 7,500,000 shares of Common Stock; and
Whereas, the Board of Directors of the Company has determined that it is in
the best interests of the Company and its stockholders, to amend, to the extent
necessary, the Rights Agreement to exempt the purchase of the Sale Shares by
France Telecom from the application of the Rights Agreement.
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In consideration of the premises and the mutual agreements set forth herein
and in the Rights Agreement, the parties hereto, intending to be legally bound
hereby, agree as follows:
Section 1. INCORPORATION OF "COGECOM," "FRANCE TELECOM," "PARTNERSHIP SALE
SHARES," "PARTNERSHIP SHARES," "PARTNERSHIPS," "PARTNERSHIPS REGISTRATION RIGHTS
AGREEMENT," "SALE SHARES," "SERIES A PREFERRED STOCK" AND "TAG ALONG SHARES" AS
DEFINED TERMS OF RIGHTS AGREEMENT. The terms "COGECOM," "France Telecom,"
"Partnership Sale Shares," "Partnership Shares," "Partnerships," "Partnerships
Registration Rights Agreement," "Sale Shares," "Series A Preferred Stock" and
"Tag Along Shares" and the respective definitions of such terms as set forth in
the preamble of this Amendment are hereby incorporated in the Rights Agreement
under the heading "Certain Definitions" in Section 1 thereof.
Section 2. AMENDMENT TO DEFINITION OF "ACQUIRING PERSON." Section 1(a) of
the Rights Agreement is hereby amended to add the following sentence after the
last sentence thereof, which sentence was added pursuant to Amendment No. 1 to
the Rights Agreement, dated as of March 31, 1999:
"Notwithstanding anything in this Agreement to the contrary, France
Telecom and/or any of France Telecom's Affiliates or Associates shall not
be considered an Acquiring Person as a result of having become the
Beneficial Owner of (i) the Common Stock issued and sold pursuant to the
Purchase Agreement, (ii) the Common Stock issued upon conversion or
redemption of, or as a dividend with respect to, the Series A Preferred
Stock and any subsequent series of preferred stock of the Company resulting
from the issuance of the Series A Preferred Stock or (iii) the Sale Shares.
Notwithstanding the foregoing, in the event France Telecom and/or any of
France Telecom's Affiliates or Associates shall acquire any Common Stock or
securities convertible, exercisable, exchangeable or redeemable into Common
Stock or be issued Common Stock upon the conversion, exercise, exchange or
redemption of, or as a dividend with respect to securities of the Company
after the date hereof and other than as described in the immediately
preceding sentence, then (i) France Telecom and/or any of France Telecom's
Affiliates or Associates shall be deemed to beneficially own all such
securities as well as any securities previously or thereafter acquired and
then owned by France Telecom and/or any of France Telecom's Affiliates or
Associates and (ii) all securities deemed to be beneficially owned by
France Telecom and/or any of France Telecom's Affiliates or Associates
shall be counted in determining when such Person is an "Acquiring Person."
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Section 3. RIGHTS AGREEMENT AS AMENDED. The term "Agreement" as used in the
Rights Agreement shall be deemed to refer to the Rights Agreement as amended
hereby. The foregoing amendments shall be effective as of the date hereof, and,
except as set forth herein, the Rights Agreement shall remain in full force and
effect and shall be otherwise unaffected hereby.
Section 4. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and each of such counterparts shall for all purposes be deemed an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 5. GOVERNING LAW. This Amendment shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and to be performed entirely within such State.
Section 6. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
Attest: NTL INCORPORATED
By: /s/ Richard J. Lubasch By: /s/ George S. Blumenthal
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Name: Richard J. Lubasch Name: George S. Blumenthal
Title: Executive Vice President- Title: Chairman and Treasurer
General Counsel and
Secretary
Attest: CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By: /s/ William F. Seegraber By: /s/ Michael J. Nelson
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Name: William F. Seegraber Name: Michael J. Nelson
Title: Vice President Title: President
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