<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 1, 2000
REGISTRATION NOS. 333-36434 AND 333-36434-01
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------------
NTL (DELAWARE), INC.
NTL INCORPORATED
(EXACT NAME OF EACH OF THE REGISTRANTS AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 4899 13-4051921
DELAWARE 4899 13-4105887
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
110 EAST 59TH STREET
NEW YORK, NEW YORK 10022
(212) 906-8440
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF EACH REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
<TABLE>
<CAPTION>
COPIES TO:
<S> <C> <C>
RICHARD J. LUBASCH, ESQ. THOMAS H. KENNEDY, ESQ. ADRIAN J. S. DEITZ, ESQ.
EXECUTIVE VICE PRESIDENT, SKADDEN, ARPS, SLATE, SKADDEN, ARPS, SLATE,
GENERAL COUNSEL AND SECRETARY MEAGHER & FLOM LLP MEAGHER & FLOM LLP
NTL (DELAWARE), INC. FOUR TIMES SQUARE ONE CANADA SQUARE
NTL INCORPORATED NEW YORK, NEW YORK 10036 CANARY WHARF
110 EAST 59TH STREET (212) 735-3000 LONDON E14 5DS
NEW YORK, NEW YORK 10022 ENGLAND +44 20 7519 7000
(212) 906-8440
</TABLE>
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
-------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At such
time or times on and after which the Registration Statement becomes effective as
the Selling Stockholders may determine.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
---------------
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [ ]
---------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
-------------------------
THE REGISTRANT AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemization of all expenses (subject to future
contingencies) incurred or expected to be incurred by NTL (Delaware), Inc. in
connection with the offering.
<TABLE>
<S> <C>
SEC registration fee........................................ $316,800.00
Legal fees and expenses..................................... 100,000
Accounting fees and expenses................................ 60,000
Printing and engraving fees................................. 85,000
Miscellaneous expenses...................................... 8,200
-----------
Total.................................................... $ 570,000
===========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 102 of the Delaware General Corporation Law (the
"DGCL"), the Registrants' certificates of incorporation eliminate a director's
personal liability for monetary damages to the Registrants and their
stockholders arising from a breach or alleged breach of a director's fiduciary
duty except for liability under Section 174 of the DGCL or liability for a
breach of the director's duty of loyalty to the Registrants or their
stockholders, for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law or for any transaction in
which the director derived an improper personal benefit. The effect of these
provisions in the certificates of incorporation is to eliminate the rights of
the Registrants and their stockholders (through stockholders, derivative suits
on behalf of the Registrants) to recover monetary damages against a director for
breach of fiduciary duty as a director (including breaches resulting from
negligent or grossly negligent behavior) except in the situations described
above.
The Registrants' By-laws provide that directors and officers of the
Registrants shall be indemnified against liabilities arising from their service
as directors and officers to the full extent permitted by law. Section 145 of
the DGCL empowers a corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the corporation
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorney's fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably
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<PAGE> 3
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 his conduct was unlawful.
Section 145 also empowers a corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the fight of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorney's fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted under similar standards, except
that no indemnification may be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the corporation
unless, and only to the extent that, the Court of Chancery or the court in which
such action was brought shall determine that despite the adjudication of
liability such person is fairly and reasonably entitled to indemnify for such
expenses which the court shall deem proper.
Section 145 further provides that to the extent that a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to above or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation is empowered 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.
The Registrants have entered into director and officer indemnity agreements
("Indemnity Agreements") with each officer and director of the Registrants (an
"Indemnitee"). Under the bylaws and these Indemnity Agreements, the Registrants
must indemnify an Indemnitee to the fullest extent permitted by the DGCL for
losses and expenses incurred in connection with actions in which the indemnitee
is involved by reason of having been a director or officer of the Registrants.
The Registrants are also obligated to advance expenses an indemnitee may incur
in connection with such actions before any resolution of the action.
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<PAGE> 4
ITEM 16. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
2.1 Agreement and Plan of Merger, dated as of February 9, 2000,
by and among NTL Incorporated, NTL (Delaware), Inc. and
Holdings Merger Sub Inc.*
4.1 Indenture, dated as of December 22, 1999, by and between NTL
(Delaware), Inc. and The Chase Manhattan Bank, as trustee,
with respect to the Convertible Notes(1)
4.2 First Supplemental Indenture, dated as of May 17, 2000, by
and among NTL Incorporated, NTL (Delaware), Inc. and The
Chase Manhattan Bank, as trustee.*
4.3 Registration Rights Agreement dated as of December 22, 1999,
with respect to the Convertible Notes(1)
4.4 Form of Convertible Notes (included in Exhibit 4.3)*
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to
the legality of the Convertible Notes and Common Stock being
registered hereby**
12.1 Computation of Ratio of Earnings to Fixed Charges and
Combined Fixed Charges and Preferred Stock Dividends*
23.1 Consent of Ernst & Young, LLP*
23.2 Consent of Arthur Andersen*
23.3 Consent of PricewaterhouseCoopers AG*
23.4 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1)**
24.1 Powers of Attorney*
25.1 Form T-1 Statement of Eligibility of Trustee with respect to
Indenture*
</TABLE>
---------------
* Previously filed.
** Filed herewith.
(1) Incorporated by reference from the Company's Annual Report on Form 10-K for
the year ended December 31, 1999.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrants' annual reports pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act) that is incorporated by reference in the
Registration Statement, as amended, 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.
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<PAGE> 5
(b) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrants pursuant to the foregoing provisions, or otherwise, the
Registrants have 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
Registrants of expenses incurred or paid by a director, officer or
controlling person of the Registrants 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
Registrants will, unless in the opinion of their 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.
(c) The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the Registrants pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed
to be part of this Registration Statement as of the time it was
declared effective.
(2) For purposes of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus
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.
(D) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) to reflect in the prospectus any facts or events arising after
the effective date of the 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 the Registration Statement;
(c) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement provided, however, that paragraphs
(D)(1)(a) and (D)(1)(b) do not apply if the information required
to be included in a post-effective
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<PAGE> 6
amendment by those paragraphs is contained in a periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the 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.
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<PAGE> 7
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 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 the 1st day of August,
2000.
NTL (Delaware), Inc.
By: /s/ Richard J. Lubasch
------------------------------------
Richard J. Lubasch
Executive Vice President --
General Counsel and Secretary
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<PAGE> 8
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman of the Board, Treasurer and August 1, 2000
------------------------------------- Director
George S. Blumenthal
* President, Chief Executive Officer August 1, 2000
------------------------------------- and Director
J. Barclay Knapp
* Senior Vice President, Chief August 1, 2000
------------------------------------- Financial Officer
John F. Gregg
* Vice President -- Controller August 1, 2000
-------------------------------------
Gregg N. Gorelick
Director
-------------------------------------
Michael J. Bertinetto
* Director August 1, 2000
-------------------------------------
Robert T. Goad
Director
-------------------------------------
Bernard Izerable
* Director August 1, 2000
-------------------------------------
Sidney R. Knafel
* Director August 1, 2000
-------------------------------------
Ted H. McCourtney
* Director August 1, 2000
-------------------------------------
Del Mintz
* Director August 1, 2000
-------------------------------------
Alan J. Patricof
* Director August 1, 2000
-------------------------------------
Warren Potash
Director
-------------------------------------
Jean-Louis Vinciguerra
* Director August 1, 2000
-------------------------------------
Michael S. Willner
Director
-------------------------------------
Graham Wallace
</TABLE>
* Richard J. Lubasch, by signing his name hereto, does hereby execute this
Amendment No. 2 to the Registration Statement on behalf of the officers and
directors of the registrant indicated above by asterisks, pursuant to powers of
attorney duly executed by the officers and directors and filed as exhibits to
the Registration Statement.
By: /s/ Richard J. Lubasch
------------------------------------
Richard J. Lubasch
Attorney-in-fact
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<PAGE> 9
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 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 the 1st day of August,
2000.
NTL Incorporated
By: /s/ Richard J. Lubasch
------------------------------------
Richard J. Lubasch
Executive Vice President --
General Counsel and Secretary
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<PAGE> 10
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman of the Board, Treasurer and August 1, 2000
------------------------------------- Director
George S. Blumenthal
* President, Chief Executive Officer August 1, 2000
------------------------------------- and Director
J. Barclay Knapp
* Senior Vice President, Chief August 1, 2000
------------------------------------- Financial Officer
John F. Gregg
* Vice President -- Controller August 1, 2000
-------------------------------------
Gregg N. Gorelick
Director
-------------------------------------
Michael J. Bertinetto
* Director August 1, 2000
-------------------------------------
Robert T. Goad
Director
-------------------------------------
Bernard Izerable
* Director August 1, 2000
-------------------------------------
Sidney R. Knafel
* Director August 1, 2000
-------------------------------------
Ted H. McCourtney
* Director August 1, 2000
-------------------------------------
Del Mintz
* Director August 1, 2000
-------------------------------------
Alan J. Patricof
* Director August 1, 2000
-------------------------------------
Warren Potash
Director
-------------------------------------
Jean-Louis Vinciguerra
* Director August 1, 2000
-------------------------------------
Michael S. Willner
Director
-------------------------------------
Graham Wallace
</TABLE>
* Richard J. Lubasch, by signing his name hereto, does hereby execute this
Amendment No. 2 to the Registration Statement on behalf of the officers and
directors of the registrant indicated above by asterisks, pursuant to powers of
attorney duly executed by the officers and directors and filed as exhibits to
the Registration Statement.
By: /s/ Richard J. Lubasch
----------------------------------
Richard J. Lubasch
Attorney-in-fact
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<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
2.1 Agreement and Plan of Merger, dated as of February 9, 2000,
by and among NTL Incorporated, NTL (Delaware), Inc. and
Holdings Merger Sub Inc.*
4.1 Indenture, dated as of December 22, 1999, by and between NTL
(Delaware), Inc. and The Chase Manhattan Bank, as trustee,
with respect to the Convertible Notes(1)
4.2 First Supplemental Indenture, dated as of May 17, 2000, by
and among NTL Incorporated, NTL (Delaware), Inc. and The
Chase Manhattan Bank, as trustee.*
4.3 Registration Rights Agreement dated as of December 22, 1999,
with respect to the Convertible Notes(1)
4.4 Form of Convertible Notes (included in Exhibit 4.3)*
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to
the legality of the convertible notes and common stock being
registered hereby**
10.1 Compensation Plan Agreements, as amended and restated
effective June 3, 1997(1)
12.1 Computation of Ratio of Earnings to Fixed Charges and
Combined Fixed Charges and Preferred Stock Dividends*
23.1 Consent of Ernst & Young, LLP*
23.2 Consent of Arthur Andersen*
23.3 Consent of PricewaterhouseCoopers*
23.4 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1)**
24.1 Powers of Attorney*
25.1 Form T-1 Statement of Eligibility of Trustee with respect to
Indenture*
</TABLE>
---------------
* Previously filed.
** Filed herewith.
(1) Incorporated by reference from the Company's Annual Report on Form 10-K
for the year ended December 31, 1999.
