AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 7, 1999
REGISTRATION NO. 333-
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NTL INCORPORATED
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-4051921
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
110 EAST 59TH STREET, NEW YORK, NEW YORK 10022
(Address of Principal Executive Offices; Zip Code)
THE DIAMOND CABLE SENIOR MANAGEMENT OPTION SCHEME
AND
THE NTL EXCHANGE PLAN
(Full Title of the Plan)
RICHARD J. LUBASCH, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
NTL INCORPORATED
110 EAST 59TH STREET
NEW YORK, NEW YORK 10022
(212) 906-8440
(Name, Address and Telephone Number, Including Area Code, of Agent For
Service)
Copies to:
THOMAS H. KENNEDY, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 735-3000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================
Proposed Maximum Proposed Maximum Amount Of
Title Of Securities Amount To Be Offering Price Aggregate Offering Registration
To Be Registered Registered Per Share(1)(2) Price(2) Fee(3)
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 167,205 $81.75 $13,669,009 $3,800
value $0.01 per
share (including
Series A Junior
Participating
Preferred Stock
Purchase Rights)(4)
===========================================================================================
</TABLE>
(1) Estimated pursuant to paragraphs (c) and (h) of Rule 457 under
the Securities Act of 1933, as amended (the "Securities Act"), on the basis
of the average of the high and low sale prices for a share of common stock,
par value $0.01 per share (the "Common Stock"), of NTL on the Nasdaq Stock
Market's National Market on March 31, 1999.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The registration fee has been calculated pursuant to Section 6(b)
of the Securities Act.
(4) Prior to the occurrence of certain events, the Series A Junior
Participating Preferred Stock Purchase Rights (the "Rights") will not be
evidenced separately from the Common Stock. The value attributable to the
Rights, if any, is reflected in the value of the Common Stock.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by the registrant,
NTL Incorporated, a Delaware corporation (the "Company"), with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this Registration Statement as of their
respective dates:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, dated March 31, 1999;
(2) The Company's Current Reports on Form 8-K, dated January 25,
1999, March 8, 1999, March 18, 1999 and April 1, 1999; and
(3) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-B filed with
the Commission on June 21, 1991 (File No. 0-19362),
including any amendment or report filed for the purpose of
updating such information.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities
registered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock to be issued in
connection with this Registration Statement will be passed upon by Richard
J. Lubasch, Esq., Senior Vice President, General Counsel and Secretary of
the Company. Mr. Lubasch owns 23,279 shares of Common Stock and has
482,463 options to acquire shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The indemnification of officers and directors of the Company is
governed by Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") and the Restated Certificate of Incorporation and
Restated By-laws of the Company. Among other things, the DGCL permits
indemnification of a director, officer, employee or agent in civil,
criminal, administrative or investigative actions, suits or proceedings
(other than an action by or in the right of the corporation) to which such
person is a party or is threatened to be made a party by reason of the fact
of such relationship with the corporation or the fact that such person is
or was serving at its request in such capacity at another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding if such person acted in good faith and
in a manner such person reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe that such person's
conduct was unlawful. The DGCL also allows a corporation to indemnify its
officers and directors in an action or suit by or in the right of the
corporation under the same conditions, except that no indemnification is
permitted if the officer or director is adjudged to be liable to the
corporation unless and only to the extent that a court determines
otherwise. To the extent that an officer or director of the corporation is
successful on the merits or otherwise in the defense of any action, suit or
proceeding referred to above, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection therewith.
In accordance with Section 145 of the DGCL, the Company's By-laws
provide that the Company shall indemnify its officers and directors to the
full extent permitted by applicable law, including the advancement of
expenses to such officers and directors.
As permitted by Section 102 of the DGCL, the Company's Restated
Certificate of Incorporation eliminates the personal liability of a
director to the Company or its stockholders for monetary damages arising
from a breach or alleged breach of fiduciary duty as a director, provided
that such provision shall not eliminate or limit the liability of a
director: (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL (Liability of Directors for
Unlawful Payment of Dividend or Unlawful Stock Purchase or Redemption) or
(iv) for any transaction from which the director derived an improper
personal benefit.
In addition, Section 145 of the DGCL empowers the Company to
purchase and maintain insurance on behalf of a director or officer of the
corporation against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not
the corporation would have the power to indemnify him against such
liabilities under Section 145.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
3.1 Company's Restated Certificate of Incorporation
(incorporated by reference to the Company's 1998 Form 10-K).
3.2 Company's Restated By-laws (incorporated by reference from
the Company's Registration Statement on Form S-1, File No.
33-63570).
4.1 Company's Restated Certificate of Incorporation (included
in Exhibit 3.1).
4.2 Company's Restated By-laws (included in Exhibit 3.2).
4.3 Rights Agreement, dated as of October 13, 1993, between the
Company and Continental Stock Transfer & Trust Company, as
Rights Agent (incorporated by reference from the Company's
Registration Statement on Form S-1, File No. 33-63570).
4.4 The Diamond Cable Senior Management Option Scheme.
4.5 The NTL Exchange Plan.
5.1 Opinion of Richard J. Lubasch, Esq., Senior Vice President,
General Counsel and Secretary of the Company, regarding the
legality of the Common Stock covered by this Registration
Statement.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Richard J. Lubasch, Esq. (contained in the
opinion filed as Exhibit 5.1 hereto).
24 Powers of Attorney (included on the signature page of this
Registration Statement).
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed
by the Company with the Commission pursuant to Rule 424(b) under
the Securities Act if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in this Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those subparagraphs is contained in periodic reports
filed with or furnished to the Commission by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act, (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of New York, State of New York, on
this 7th day of April, 1999.
NTL INCORPORATED
By: /s/ Richard J. Lubasch
------------------------------------------
Richard J. Lubasch
Senior Vice President, General Counsel and
Secretary
KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Richard J. Lubasch as his
true and lawful attorney-in-fact, with full power of substitution and
resubstitution for him and on his behalf, and in his name, place and stead,
in any and all capacities, to sign any amendments to this Registration
Statement (including any post-effective amendments), and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all
that each of said attorney-in-fact, or his substitute or substitutes, may
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
Name Title Date
---- ----- ----
/s/ J. Barclay Knapp President, Chief Executive Officer April 5, 1999
------------------------ and Chief Financial Officer
J. Barclay Knapp (Principal Executive and Principal
Financial Officer)
/s/ George S. Blumenthal Chairman of the Board and Treasurer April 5, 1999
------------------------
George S. Blumenthal
/s/ Gregg Gorelick Vice President-Controller April 5, 1999
----------------------- (Principal Accounting Officer)
Gregg Gorelick
/s/ Sidney R. Knafel Director April 5, 1999
-----------------------
Sidney R. Knafel
/s/ Ted H. McCourtney Director April 5, 1999
-----------------------
Ted H. McCourtney
/s/ Del Mintz Director April 5, 1999
-----------------------
Del Mintz
/s/ Alan J. Patricof Director April 5, 1999
-----------------------
Alan J. Patricof
/s/ Warren Potash Director April 5, 1999
-----------------------
Warren Potash
/s/ Michael S. Willner Director April 5, 1999
-----------------------
Michael S. Willner
/s/ Robert T. Goad Director April 5, 1999
-----------------------
Robert T. Goad
EXHIBIT INDEX
Exhibit No. Description of Exhibit
3.1 Company's Restated Certificate of
Incorporation (incorporated by reference
to the Company's 1998 Form 10-K).
3.2 Company's Restated By-laws (incorporated
by reference from the Company's
Registration Statement on Form S-1, File
No. 33-63570).
4.1 Company's Restated Certificate of
Incorporation (included in Exhibit 3.1).
4.2 Company's Restated By-laws (included in
Exhibit 3.2).
4.3 Rights Agreement, dated as of October 13, 1993,
between the Company and Continental Stock
Transfer & Trust Company, as Rights Agent
(incorporated by reference from the
Company's Registration Statement on Form
S-1, File No. 33-63570).
4.4 The Diamond Cable Senior Management Option Scheme.
4.5 The NTL Exchange Plan.
5.1 Opinion of Richard J. Lubasch, Esq.,
Senior Vice President, General Counsel and
Secretary of the Company, regarding the
legality of the Common Stock being
registered.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Richard J. Lubasch, Esq.
(contained in the opinion filed as Exhibit
5.1 hereto).
24 Powers of Attorney (included on the signature
page of this Registration Statement).
EXHIBIT 4.4
Adopted on 27 October 1994 and
amended by a resolution of the Board
of Directors passed on 23 February 1995
The Diamond Cable
Senior Management Option Scheme
FRESHFIELDS
Diamond Cable Communications Plc
Rules of
The Diamond Cable Senior Management Option Scheme
DEFINITIONS
1.1 In this Scheme, unless the context otherwise requires, the
following words and expressions shall have the following meanings, namely:
Adoption Date means the date of the adoption of the Scheme by the board of
directors of the Company;
Board means the board of directors of the Company or where appropriate a
duly authorized committee thereof;
Company means Diamond Cable Communications PLC;
Control has the meaning given to that word by section 840 of the Income and
Corporation Taxes Act 1988;
Date of Grant means the date on which an Option is granted;
Executive has the meaning in Rule 2.1;
Exercise Price means the price per Share payable on the exercise of an
Option as determined by the Board (subject to adjustment under Rule 9) but
which shall not be less than the nominal value of a Share, and unless
otherwise determined by the Board shall be pound sterling3.44;
Group means the Company and each subsidiary of the Company (within the
meaning of section 736 of the Companies Act 1985) over which the Company
has Control
Option means a right granted under the Scheme to subscribe for or purchase
Shares;
Option Holder means any individual who holds a subsisting Option
(including, where the context permits, the legal personal representatives
of a deceased Option Holder);
Option Period in relation to an Option, means the period commencing on such
date as may be determined in accordance with Rule 4.2 and expiring on the
seventh anniversary of the Date of Grant of the Option;
Scheme means this Scheme as amended from time to time; and
Shares means fully paid and irredeemable ordinary shares of 2.5p each in
the capital of the Company.
1.2 Where the context permits the singular shall include the plural and
vice versa and the masculine shall include the feminine.
1.3 References to any Act shall include any statutory modification,
amendment or reenactment thereof.
GRANT OF OPTIONS
2.
2.1 The Board may grant Options at the Exercise Price to:
(a) any director of any member of the Group;
(b) any employee of any member of the Group;
(c) any other person whom the Board in its absolute discretion
determines by resolution has a sufficient connection with the
Group;
each such person being an Executive. Any references in these Rules to a
person "ceasing to be an Executive" and cognate expressions shall be
construed as his ceasing to be either a director or employee of any member
of the Group or the Board in its absolute discretion determining by
resolution that he no longer has sufficient connection with the Group.
2.2 As soon as practicable after the Date of Grant the Board shall
procure the issue of an Option certificate to each Option Holder under the
seal of the Company or otherwise to take effect as a deed.
2.3 Any Executive to whom an Option is granted may, by notice in
writing to the Company given within 30 days after the Date of Grant,
renounce in whole or in part his rights under the Option. In such a case,
the Option shall, to the extent renounced, be treated as never having been
granted and (if already issued) the Option certificate shall be returned to
the Company for cancellation or (in the case of renunciation in part) for
amendment. No consideration shall be payable by the Company for any such
renunciation.
2.4 No Option shall be granted under the Scheme more than ten years
after the Adoption Date.
2.5 Every Option granted hereunder shall be personal to the Option
Holder and, except to the extent necessary to enable a personal
representative to exercise the Option following the death of an Option
Holder, neither the Option nor the benefit thereof may be transferred,
assigned, charged or otherwise alienated in any manner whatsoever.
2.6 All Shares allotted or transferred upon the exercise of an Option
shall be subject to the articles of association of the Company from time to
time in force and shall rank pari passu in all respects with the Shares in
issue at the date of exercise save as regards any rights attaching to such
Shares by reference to a record date prior to the date of exercise, except
that they shall be subject to the provisions of the Schedule to these
Rules, and any Option Holder who exercises this Option shall be deemed to
have entered into an agreement with the Company undertaking for itself and
on behalf of European Cable Capital Partners, L.P. to be bound by those
provisions.
Scheme Limits
3. The aggregate number of shares which have been or may be issued or
transferred pursuant to Options granted under this Scheme and options
granted under any other option scheme of the Company at any time shall not
exceed 10% of the Company's then current issued share capital, but there
shall be no other limit on the value of the options which may be granted to
any individual Executive.
Normal Exercise of Options
4.
4.1 Save as otherwise permitted in these Rules, an Option may only be
exercised during the relevant Option Period.
4.2 The Option Period shall commence:
(a) in relation to any option granted on or before 30 April 1995, as to
50% of the Shares the subject of that Option on 30 June 1998 and as
to the other 50% of the Shares the subject of the Option on 30 June
1999; and
(b) in relation to any Option granted after 30 April 1995, as to 50% of
the shares the subject of the Option on the fourth anniversary of
the Date of Grant and as to the remaining 50% of the Shares the
subject of the Option on the fifth anniversary of the Date of
Grant.
Continuation of Options after Termination of Employment
5.1 Where an Option Holder ceases to be an Executive by reason of:
(a) injury, disability or ill-health (as determined by the Board);
(b) retirement at or after the date on which he is bound to retire
under his contract of employment; or
(c) any other reason if the Board so decides in its absolute discretion
his Options shall continue in force and not automatically lapse in
accordance with Rule 8.
5.2 If an Option Holder dies at a time when he continues to have
Options which are in force, his Options shall continue in force and not
automatically lapse in accordance with Rule 8. his legal personal
representatives may exercise his Options within 12 months of the later of
the date on which death occurred and the date on which the relevant Option
becomes exercisable, failing which exercise the Option shall lapse
automatically.
5.3 For the purposes of Rule 5.1, a female Option Holder shall not be
treated as ceasing to be an Executive if absent from work wholly or partly
because of pregnancy until she ceases to be entitled to exercise a right to
return to work.
Early Exercise on Change of Control of the Company
6.
TAKEOVER
6.1 If any person (either alone or together with any person acting in
concert with him):
(a) obtains Control of the Company as the result of making a general
offer to acquire all the Shares (other than those which are already
owned by him and/or any person acting in concert with him); or
(b) having such Control, makes a general offer to acquire all the
Shares (other than those which are already owned by him and/or any
person acting in concert with him); or
(c) obtains Control as a result of the transfer by one or more
Shareholders of the entire beneficial ownership of any issued
Ordinary Shares to the third party in a single bona fide, arm's
length transaction,
each Option Holder may, subject to Rule 7, exercise his Options (whether or
not the Option Period has commenced) within the period of 6 months
following the change of Control or, as the case may be, the making of the
offer. Provided that, if an event as described in Rule 6.2 occurs during
the 6-month period, the period during which the Option may be exercised
shall be the shorter of the periods specified under this Rule 6.1 and Rule
6.2.
Compulsory Acquisition
6.2 If any person becomes bound or entitled to acquire Shares under
sections 428 to 430F of the Companies Act 1985, each Option Holder may,
subject to Rule 7, exercise his Options (whether or not the Option Period
has commenced) at any time during the period of 30 days from the date on
which such person becomes so bound or entitled.
OPTION ROLLOVER
7.1 If, on or before 30 June 1999 any company being a company with
equity share capital (as defined in section 744 of the Companies Act 1985)
quoted on a Recognized Investment Exchange (as defined in the Schedule)
(the acquiring company) obtains Control of the Company in the circumstances
referred to in Rule 6.1(a) or (c) or becomes bound or entitled as mentioned
in Rule 6.2, each Option Holder shall, if and at such time as the Company
and the acquiring company so require, release any Option or part thereof
which has not been exercised (the old option) in consideration of the grant
to him of an option (the new option) which is equivalent to the old option
but relates to shares in the acquiring company which are quoted on a
Recognized Investment Exchange (as defined in the Schedule) and are equity
share capital and in such event the Option Holder shall have no right of
exercise under Rule 6.1 or Rule 6.2 in respect of the Option, or such part
thereof, as is required by this Rule 7.1 to be released.
7.2 The new option shall be regarded for the purposes of Rule 7.1 as
equivalent to the old option if the conditions set out below are satisfied:
(a) the new option is exercisable in the same manner as the old option
and subject to the terms of the Scheme as construed in accordance
with Rule 7.3;
(b) the total value at the time of the release of the Shares the
subject of the old option is equivalent to the total value at that
time of the shares the subject of the new option and the
determination of the respective values shall be a joint
determination by the boards of the directors of the Company and the
acquiring company or, where appropriate, duly authorized committees
thereof;
(c) the aggregate exercise price payable on exercise of the new option
is not so far as practicable, greater than the aggregate Exercise
Price of the Shares in respect of which the old option is released.
7.3 Subject to Rule 7.2(b) and (c), the provisions of the Scheme shall
apply to the new option and shall be construed as if:
(a) the new option was an option granted under the Scheme at the same
time as the old option;
(b) save in Rule 3, references to the Company were references to the
acquiring company;
(c) references to the Board were references on the board of directors
of the acquiring company;
(d) save for the purposes of Rule 3, references to Shares were
references to the relevant shares in the acquiring company;
Provided if the Company and the acquiring company so determine, the
provisions contained in the Schedule to these Rules and the provision in
Rule 2.6 that deems an Option Holder who exercises an Option to have
entered into an agreement with Diamond Cable Communications PLC for itself
and on behalf of European Cable Capital Partners, L.P. shall be amended to
apply to the new option on the basis that such Option Holder is also deemed
to have entered into such agreement with Diamond Cable Communications PLC
for itself and on behalf of the acquiring company and such shareholders of
the acquiring company as the Board shall determine. In addition, the
references to European Capital Cable Partners, L.P. in paragraph 9 of the
Schedule and paragraph 4 of the Appendix shall be replaced by references to
such shareholder(s) in the acquiring company as the Company and the
acquiring company determine.
LAPSE OF OPTIONS
8. Notwithstanding any other provision in these Rules, an Option shall
lapse automatically on the earliest of:
(a) the expiry of the Option Period;
(b) the Option Holder being declared bankrupt or entering into any
general composition with or for the benefit of his creditors
including a voluntary arrangement under the Insolvency Act 1986;
and
(c) subject to Rule 5, which overrides this Rule 8(c), the Option
Holder ceasing to be an Executive;
(d) the expiry of any period during which exercise is permitted under
Rule 5; and
(e) the expiry of any period during which exercise is permitted under
Rule 6 save where an Option or part thereof is released in
consideration of the grant of a new option over shares in an
acquiring company during such period pursuant to Rule 7.1.
BOARD DISCRETION
9.
9.1 The decision of the Board shall be final and binding in all matter
relating to the Scheme and it may at any time discontinue the grant of
further Options or amend any of the provisions of the Scheme in any way it
thinks fit, either generally or in relation to any particular Option or
Options. In particular, but without limitation, such discretion may be
exercised in the event of any variation in the share capital of the Company
(including, without limitation, by way of capitalization or rights issue or
any consolidation, sub-division or reduction) or if the Board becomes aware
that the Company is or is expected to be affected by any demerger, dividend
in specie, super dividend or other transaction which in the opinion of the
Board would have a significant adverse effect on the value of Options.
9.2 The Board shall not make any amendment under Rule 9.1 that would
materially prejudice the interests of existing Option Holders except with
the prior consent or sanction of Option Holders who, if they exercised
their Options in full, would thereby become entitled to not less than
three-quarters of all the Shares which would fail to be allotted or
transferred upon exercise of all outstanding Options.
METHOD OF EXERCISE
10. An Option Holder may exercise his Option in whole or in part by
giving notice in writing to the Company in the form prescribed by the Board
specifying the number of Shares in respect of which the Option is being
exercised and enclosing payment in full of the aggregate Exercise Price of
those Shares. If the Option is exercised in respect of some only of the
Shares comprised in the Option, the Company shall procure the issue of an
Option certificate to the Option Holder in respect of the balance or call
in the original Option certificate for endorsement.
ALLOTMENT OR TRANSFER OF SHARES ON EXERCISE OF OPTIONS
11. Subject to any necessary consents, and to payment being made for
the Shares not later than 30 days after receipt of any notice of exercise
in accordance with Rule 10, the Company shall either allot and issue or
procure the transfer of Shares to the Option Holder (or to his nominee).
The Company shall as soon as practicable deliver to the Option Holder (or
his nominee) a definitive share certificate or other evidence of title.
AVAILABILITY OF SHARES
12. The Company shall at all times:
(a) keep available for issue sufficient authorized but unissued Shares
to permit the exercise of all unexercised Options under which
Shares may be allotted; or
(b) procure that sufficient shares are kept available to satisfy
options under which shares may be transferred on exercise.
GENERAL
13.
13.1 Any member of the Group may provide money to the trustees of any
trust or any other person to enable them or him to acquire Shares to be
held for the purposes of the Scheme, or enter into any guarantee or
indemnity for those purposes, to the extent lawful.
13.2 The rights and obligations of an Option Holder under the terms and
conditions of his office or employment shall not be affected by his
participation in the Scheme or any right he may have to participate in the
Scheme. An individual who participates in the Scheme waives all and any
rights to compensation or damages in consequence of the termination of his
office or employment with any company for any reason whatsoever insofar as
those rights arise, or may arise, from his ceasing to have rights under or
be entitled to exercise any Option under the Scheme as a result of such
termination or from the loss or diminution in value of such rights or
entitlements. If necessary, the Option Holder's terms of employment shall
be varied accordingly.
13.3 The existence of the Option shall not affect in any way the right
or power of the Company, or its shareholders to make or authorize any or
all adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure, or any merger or consolidation of the Company,
or any issue of bonds, debentures, preferred or prior preference stocks
ahead of or convertible into, or otherwise affecting the Shares or the
rights thereof, or the dissolution or liquidation of the Company or any
sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.
13.4 Any notice or other document required to be given under or in
connection with the Scheme may be delivered to an Option Holder or sent by
post to him at his home address according to the records of his employing
company or such other address as may appear to the Company to be
appropriate. Notices sent by post shall be deemed to have been given on
the day following the date of posting. Any notice or other document
required to be given to the Company under or in connection with the Scheme
may be delivered or sent by post to it at its registered office (or such
other place or places as the Board may from time to time determine and
notify to Option Holders).
13.5 These Rules shall be governed by, and construed in accordance with,
the laws of England.
SCHEDULE
RESTRICTIONS ON SHARES ACQUIRED UNDER OPTIONS
DEFINITIONS
1. In this Schedule the following additional terms shall (unless the
context requires otherwise) have the following respective meanings:
IPO means the admission of Shares to listing, or the giving effect to
trading arrangements in relating to Shares, on any Recognized Investment
Exchange whether or not including a sale of issued Shares or the
subscription for new Shares in the Company;
Option Shares means Shares issued pursuant to the Options granted under the
Scheme;
Option Shareholder means holders of Option Shares;
Recognized Investment Exchange means the International Stock Exchange of
the United Kingdom and Republic of Ireland Limited, the New York Stock
Exchange, the American Stock Exchange and NASDAQ and any other investment
exchange granted recognition under the Financial Services Act 1986;
Security Interest includes any mortgage, charge, pledge, lien (other than a
lien arising by operation of law), right of set-off, hypothecation,
encumbrance or any security interest whatsoever, howsoever created or
arising, including any analogous security interest, under any local law;
Shareholders means holders of Ordinary Shares;
LIMITATION ON DISPOSALS
2.1 No Option Shareholder shall sell, transfer, grant, declare, create
or dispose of any right or interest, including any Security Interest, in
any Option Shares except in accordance with this schedule.
2.2 An Option Shareholder shall be entitled to sell, transfer, grant,
declare, create or dispose of any right or interest, including any Security
Interest, in any Option Shares to his spouse, children or any member of his
immediate family, subject only to the provisions of paragraph 7 of this
Schedule.
TRANSFER NOTICE
3. If any Option Shareholder wishes to sell any of his Option Shares,
whether before or after an IPO, that Option Shareholder shall give to the
Company notice in writing (a Transfer Notice) of such desire together with
details of the proposed purchaser thereof (the Purchaser), the purchase
price and any other material terms of the proposed transfer. A Transfer
Notice shall constitute an offer to sell the entire legal and beneficial
interest in the Option Shares to which it relates, free from all security
interests, option, equities, claims or other third party rights (including
rights of pre-emption) of any nature whatsoever, and together with all
rights then or thereafter attaching to them, and shall be irrevocable
except with the Company's agreement.
RIGHT OF COMPANY TO PURCHASE OR PROCURE PURCHASE
4. On receipt of a Transfer Notice, the Company shall have the right
to purchase or to nominate one or more other persons to purchase all (but
not some only) of the Option Shares to which the Transfer Notice relates at
the purchase price specified in the Transfer Notice by giving written
notice to that effect to the Option Shareholder within sixty (60) days of
receipt of the Transfer Notice (the Acceptance Period).
OBLIGATION TO COMPLETE
5. The Company shall be bound to purchase or procure the purchase of
those Option Shares which it notifies the Option Shareholder pursuant to
paragraph 4 of this Schedule that it wishes to purchase or for which it
has found purchasers. Completion of any such sale and purchase of the
Option Shares shall take place within thirty (30) days after the giving of
such notice.
SELLER'S RIGHT TO SELL TO PURCHASER
6. In the event of the Company not notifying the Option Shareholder
pursuant to paragraph 4 of this Schedule, the Option Shareholder shall
(subject to paragraph 7 of this Schedule) be entitled to transfer the
Option Shares on a bona fide arm's length sale to the Purchaser at a price
not less than the purchase price specified in the Transfer Notice and
otherwise on no less favorable terms than those specified in the Transfer
Notice PROVIDED THAT such transfer shall have been completed within a
period of ninety (90) days after the date of the Transfer Notice.
CONDITIONS APPLICABLE TO PURCHASER
7. Completion of any transfer of Option Shares to a Purchaser prior to
an IPO shall be subject to the condition that the Purchaser first enters
into a deed of adherence in the form set out in the appendix to this
schedule and delivers such deed of adherence to the Company upon the sale
taking effect.
BRING-ALONG AND TAG-ALONG
8. If one or more Shareholders (the Selling Shareholders) wish to
transfer the entire beneficial ownership of any issued Ordinary Shares to a
third party in a single bona fide, arm's length transaction prior to an IPO
and as a result of this that third party will obtain Control of the
Company:
(a) those Selling Shareholders may by notice require the Option
Shareholders to sell and the Option Shareholders shall then sell,
on the same or no less favorable terms as the Selling Shareholders
may agree with the third party and at such time as the Selling
Shareholders may specify, the same proportion of the Option Shares
as the proportion which the number of Ordinary Shares which the
Selling Shareholders sell bears to the total number of Ordinary
Shares held by the Selling Shareholders (provided that any such
notice may be withdrawn at any time and shall in any event lapse if
the proposed sale does not complete. Any such withdrawal or lapse
shall not prevent a further notice being issued in connection with
a further proposed sale to the same or any other purchaser); and
(b) the Selling Shareholders may only transfer the entire beneficial
ownership of those Ordinary Shares if the purchaser also makes an
offer to purchase from the Option Shareholders the entire
beneficial ownership of the same proportion of the Option Shares as
the proportion which the number of Ordinary Shares which the
Selling Shareholders are selling bears to the total number of
Ordinary Shares held by the Selling Shareholders. The offer shall
remain capable of acceptance for a period of fourteen days from the
date on which the offer is made and shall be subject to the same
terms and conditions as the purchase from the Selling Shareholders.
(For the avoidance of doubt, references to Option Shares in the preceding
clauses (a) and (b) shall include Option Shares issued both before and
after a change in Control as contemplated by Clause 6.1 of the Scheme
Rules).
VOTING
9. The Option Shareholder will enter into a deed in favor of European
Cable Capital Partners L.P. in such form as European Cable Capital Partners
L.P. may require, undertaking to exercise any voting rights attaching to
the Option Shares at and in accordance with the direction of European Cable
Capital Partners L.P.
RIGHT OF COMPANY TO PURCHASE OPTION SHARES OF PERSONS WHO IS NOT EXECUTIVE
10.1 The Company may at any time before an IPO, give notice to any
Option Shareholder who is not an Executive (the Obliged Seller) requiring
him to sell all his Option Shares to the Company or such other person as
the Company may direct, unless an event described in Rule 6 (Early exercise
on change of control of the Company) has occurred. Option Shares held by
the Obliged Seller and sold pursuant to this paragraph shall be sold free
from Security Interests and together with the benefit of all rights
attaching to those Options Shares. The purchase price shall be the fair
value of the Option Shares held by the Obliged Seller.
10.2 The fair value of the Ordinary Shares held by the Obliged Seller
shall be such value as the Board shall reasonably determine having regard
to any relevant valuation which has been carried out within the previous
twelve (12) months by a single independent internationally recognized
accounting firm appointed by the Company. The Option Shares held by the
Obliged Seller shall be valued taking into account the fully diluted Share
capital and all such other factors as are considered appropriate.
10.3 The Company shall be bound to purchase or procure the purchase of
those Option Shares which it notifies the Obliged Seller pursuant to
paragraph 10.1 of this Schedule that it wishes to purchase or for which it
has found purchasers. Completion of any such sale and purchase of the
Option Shares shall take place within thirty (30) days after the giving of
such notice.
APPENDIX
DEED OF ADHERENCE
A Deed of Adherence made on [date] by [purchaser] (the Purchaser) pursuant
to the provisions of the Diamond Cable Senior Management Option Scheme (the
Scheme).
Whereas
The Purchaser wishes to purchase the entire legal and beneficial interest
in Ordinary Shares registered in the name of (the Sale Shares) and it
is a condition of such sale that the Purchaser shall first enter into this
deed.
It is Agreed as follows:
1. Terms and expressions used in this Deed shall have the same meaning
as that ascribed to them in the schedule to the Scheme, save as expressly
provided.
2. The Purchaser represents and warrants that it is a [specify entity]
duly established and validly existing under the laws of [specify
jurisdiction].
3. The Purchaser undertakes to observe and be bound in respect of the
Sale Shares by all of the provisions of the schedule to the Scheme as if it
were an Option Shareholder. The Purchaser undertakes to do all such things
as may be necessary or desirable for the purposes of giving effect to the
provisions of the schedule to the Scheme in relation to the Sale Shares.
4. The Purchaser undertakes to exercise any voting rights attaching to
the Sale Shares at and in accordance with the direction of European Cable
Capital Partners L.P.
Either:
SIGNED and DELIVERED by )
__________________ )
as a Deed in the presence of: )
Witness Name:
Address:
Occupation:
Or:
EXECUTED by )
and DELIVERED )
as a DEED under the hands of: )
Director:
Secretary:
EXHIBIT 4.5
THE NTL EXCHANGE PLAN
1. Purpose.
This NTL Exchange Plan (the "Plan") is intended to permit the
Corporation to fulfill its obligations to certain holders (the "Holders")
of outstanding share options or other rights to purchase or receive
ordinary shares (the "Ordinary Shares") of Diamond Cable Communications PLC
("Stock Options"), a wholly owned subsidiary of the Corporation
("Diamond"), granted under Diamond's Senior Management Option Scheme, dated
October 29, 1994 (the "Scheme"), as amended, as set forth in the Share
Exchange Agreement, dated as of June 16, 1998, as amended (the "Share
Exchange Agreement"), among the Corporation and the shareholders of
Diamond. Pursuant to the Plan, each such Holder, in accordance with such
Holder's election, shall receive the number of shares of common stock, par
value $.01 per share, of the Corporation (the "Common Stock") (rounded down
to the nearest whole number) as is equal to 0.85 shares of Common Stock for
each four Ordinary Shares subject to the Stock Option less that number of
shares of Common Stock (rounded to the nearest whole number) as is equal in
value to (i) the aggregate exercise price for the Ordinary Shares subject
to the Stock Option divided by (ii) $76.1922.
2. Definitions.
As used in the Plan, the following words and phrases shall have
the following meanings:
(a) "Circulars" shall mean the information circulars, dated
February 26, 1999 and March 9, 1999, distributed by the
Corporation to all Holders under the Scheme, which set out such
Holders' rights under the Scheme and alternatives offered to them
in connection with the consummation of the Share Exchange.
(b) "NTL Cancellation Offer" shall mean the surrender of
Stock Options, in whole or in part, in consideration of the issue
of Common Stock on the following terms: for every four Ordinary
Shares, a Holder shall receive 0.85 shares of Common Stock less
that number of shares of Common Stock (rounded to the nearest
whole number) which results from dividing the aggregate exercise
price of the Ordinary Shares under the Stock Option by $76.1922.
(c) "Share Exchange" shall mean the exchange of 0.85 shares
of Common Stock for each four issued and outstanding Ordinary
Shares and for each deferred share in Diamond pursuant to the
Share Exchange Agreement.
3. Eligibility.
Common Stock may be issued by the Corporation pursuant to the
Plan to Holders who have duly elected the NTL Cancellation Offer in
accordance with the terms of the Share Exchange Agreement and the
Circulars.
4. Common Stock.
The shares of Common Stock issuable under the Plan shall be
registered on a registration statement on Form S-8 in accordance with the
Share Exchange Agreement.
5. Term of the Plan.
Common Stock shall be issued pursuant to the Plan on March 31,
1999 and on any date thereafter as is necessary to issue Common Stock to
all Holders who have duly elected the NTL Cancellation Offer in connection
with the Share Exchange.
6. Effect of Headings.
The section headings contained herein are for convenience only
and shall not affect the construction hereof.
7. Governing Law.
The Plan shall be governed by the laws of the State of Delaware.
8. Effective Date of the Plan.
The effective date of the Plan is the date the Plan is adopted by
the Board of Directors of the Corporation.
1
EXHIBIT 5.1
NTL INCORPORATED
110 EAST 59TH STREET
NEW YORK, NEW YORK 10022
April 7, 1999
Securities and Exchange Commission
450 Fifth Avenue, N.W.
Washington, D.C. 20549
Re: NTL Incorporated's Registration Statement on Form S-8
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Secretary of NTL
Incorporated, a Delaware corporation (the "Company"), and am familiar with
the proceedings taken by the Company in connection with (a) the
Registration Statement on Form S-8 (the "Registration Statement") which the
Company is filing to register 167,205 shares of its common stock, par value
$.01 per share (the "Common Stock"), under the Securities Act of 1933, as
amended (the "Securities Act"), issuable under The Diamond Cable Senior
Management Option Scheme (the "Scheme") and The NTL Exchange Plan (the
"Plan") to certain employees of Diamond Cable Communications Plc
("Diamond") who have been granted options pursuant to the Scheme, which
options have been converted into (i) options to purchase Common Stock or
(b) shares of Common Stock in connection with a share exchange between the
Company and the shareholders of Diamond, the terms and conditions of which
are governed by the Share Exchange Agreement, dated as of June 16, 1998, as
amended (the "Share Exchange Agreement"), among the Company and such
shareholders of Diamond, and (b) the Stockholder Rights Agreement, dated as
of October 13, 1993, between the Company and Continental Stock Transfer &
Trust Company, as Rights Agent (the "Rights Agreement"), which provides for
one right (each, a "Right") to purchase shares of the Company's Series A
Junior Participating Preferred Stock to be attached to and issued with each
share of Common Stock.
This opinion is delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K promulgated under the Securities Act.
As General Counsel of the Company, I have general supervision
over the Company's legal affairs. In such capacity, I have examined and am
familiar with originals or copies of (i) the Restated Certificate of
Incorporation and By-laws of the Company, as currently in effect, (ii)
resolutions of the Board of Directors of the Company relating to the Share
Exchange and the Registration Statement, (iii) the Registration Statement
to be filed with the Securities and Exchange Commission (the "Commission")
on the date hereof, (iv) the Share Exchange Agreement, (v) the Rights
Agreement, (vi) the Scheme and the Plan, and (vii) such other documents as
I have deemed necessary or appropriate as a basis for the opinions set
forth below.
In my examination, I have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted as certified, conformed or photostatic
copies and the authenticity of the originals of such latter documents. In
examining documents executed or to be executed by parties other than the
Company, I have assumed that such parties had the power, corporate or
other, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or other,
and execution and delivery by such parties of such documents and the
validity and binding effect thereof on such parties. As to any facts
material to the opinions expressed herein which I did not independently
establish or verify, I have relied upon certificates, statements or
representations of officers and other representatives of the Company,
public officials and others.
I am admitted to the Bar of the State of New York, and I do not
express any opinion as to the laws of any jurisdiction other than the
General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, I am of the opinion
that:
1. The shares of Common Stock, when issued under the
circumstances contemplated by the Registration Statement, will be validly
issued, fully paid and nonassessable.
2. The Rights, when issued in accordance with the Rights
Agreement, will be validly issued.
I hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving such
consent, I do not thereby admit that I am in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules or
regulations of the Commission thereunder.
Very truly yours,
/s/ Richard J. Lubasch
--------------------------------------
Richard J. Lubasch
Senior Vice President, General Counsel
and Secretary
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference of our report dated
March 26, 1999, with respect to the consolidated financial statements and
schedule of NTL Incorporated included in its Annual Report (Form 10-K) for
the year ended December 31, 1998, filed with the Securities and Exchange
Commission in the Registration Statement (Form S-8) of NTL Incorporated for
the registration of 167,205 shares of its common stock.
New York, New York
April 5, 1999
