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AGREEMENT AND PLAN OF MERGER
by and among
NTL INCORPORATED
(a Delaware corporation)
and
NTL HOLDINGS INCORPORATED
(a Delaware corporation)
and
HOLDINGS MERGER SUB INC.
(a Delaware corporation)
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Dated as of February 9, 2000
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of February 9, 2000
(the "Agreement"), by and among NTL INCORPORATED, a Delaware corporation ("NTL"
or, with regard to the period upon and after the Effective Time (as hereinafter
defined), the "Surviving Corporation"), NTL Holdings Incorporated, a Delaware
corporation ("Holdco"), which is a direct wholly-owned subsidiary of NTL, and
Holdings Merger Sub Inc., a Delaware corporation ("Holdco Sub"), which is a
direct wholly-owned subsidiary of Holdco and an indirect wholly-owned subsidiary
of NTL (NTL and Holdco Sub, collectively, the "Constituent Corporations" and
each, a "Constituent Corporation").
W I T N E S S E T H:
WHEREAS, NTL is a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "DGCL") and is authorized
to issue a total of 410,000,000 shares, consisting of: (i) 400,000,000 shares
(or, in the event the NTL stockholders approve an increase in the number of
authorized shares of NTL Common Stock at the upcoming special meeting of
stockholders (the "Share Increase"), 800,000,000 shares) of common stock, par
value $.01 per share ("NTL Common Stock"); (ii) 10,000,000 shares of preferred
stock, par value $.01 per share ("NTL Preferred Stock"), of which (A) 250,000
shares have been designated 13% Senior Redeemable Exchangeable Preferred Stock,
par value $.01 per share ("NTL 13% Series A Preferred Stock"), (B) 250,000
shares have been designated 13% Series B Senior Redeemable Exchangeable
Preferred Stock, par value $.01 per share ("NTL 13% Series B Preferred Stock"),
(C) 125,280 shares have been designated 9.90% Non-voting Mandatorily Redeemable
Preferred Stock, Series A, par value $.01 per share ("NTL 9.90% Series A
Preferred Stock"), (D) 52,217 shares have been designated 9.90% Non-voting
Mandatorily Redeemable Preferred Stock, Series B, par value $.01 per share ("NTL
9.90% Series B Preferred Stock"), (E) 500,000 shares have been designated 5-1/4%
Convertible Preferred Stock, Series A, par value $.01 per share ("NTL 5-1/4%
Series A Preferred Stock"), (F) 4,447.92 shares have been designated 5-1/4%
Convertible Preferred Stock, Series B, par value $.01 per share ("NTL 5-1/4%
Series B Preferred Stock"), (G) 6,620.88 shares have been designated 5-1/4%
Convertible Preferred Stock, Series C, par value $.01 per share ("NTL 5-1/4%
Series C Preferred Stock"), (H) 6,707.78 shares have been designated 5-1/4%
Convertible Preferred Stock, Series D, par value $.01 per share ("NTL 5-1/4%
Series D Preferred Stock"), (I) 6,795.82 shares have been designated 5-1/4%
Convertible Preferred Stock, Series E, par value $.01 per share ("NTL 5-1/4%
Series E Preferred Stock"), (J) 750,000
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shares have been designated 5% Cumulative Participating Convertible Preferred
Stock, Series A, par value $.01 per share ("NTL 5% Series A Preferred Stock"),
(K) 5,000 shares have been designated 5% Cumulative Participating Convertible
Preferred Stock, Series C, par value $.01 per share ("NTL 5% Series C Preferred
Stock"), (L) 9,437.5 shares have been designated 5% Cumulative Participating
Convertible Preferred Stock, Series D, par value $.01 per share ("NTL 5% Series
D Preferred Stock"), and (M) 1,000,000 shares have been designated Series A
Junior Participating Preferred Stock, par value $.01 per share ("NTL Junior
Participating Preferred Stock") (all classes of preferred stock, collectively,
"NTL Preferred Stock"). As of the close of business on January 31, 2000, as
adjusted for the 5-for-4 stock split by way of a stock dividend paid on February
3, 2000, there were (i) 133,199,042 shares of NTL Common Stock issued and
outstanding, each including an associated right to purchase NTL Junior
Participating Preferred Stock, (the "Outstanding NTL Common Shares"); (ii) (A)
6.8818 shares of NTL 13% Series A Preferred Stock issued and outstanding (the
"Outstanding NTL 13% Series A Preferred Shares"), (B) 142,308.635 shares of NTL
13% Series B Preferred Stock issued and outstanding (the "Outstanding NTL 13%
Series B Preferred Shares"), (C) 52,217 shares of NTL 9.90% Series B Preferred
Stock issued and outstanding (the "Outstanding NTL 9.90% Series B Preferred
Shares"), (D) no shares of NTL 9.90% Series A Preferred Stock issued and
outstanding, (E) 500,000 shares of NTL 5-1/4% Series A Preferred Stock issued
and outstanding (the "Outstanding NTL 5-1/4% Series A Preferred Shares"), (F)
4,447.92 shares of NTL 5-1/4% Series B Preferred Stock issued and outstanding
(the "Outstanding 5-1/4% Series B Preferred Shares"), (G) 6,620.88 shares of NTL
5-1/4% Series C Preferred Stock issued and outstanding (the "Outstanding NTL
5-1/4% Series C Preferred Shares"), (H) 6,707.78 shares of NTL 5-1/4% Series D
Preferred Stock issued and outstanding (the "Outstanding NTL 5-1/4% Series D
Preferred Shares"), (I) 6,795.82 shares of NTL 5-1/4% Series E Preferred Stock
issued and outstanding (the "Outstanding NTL 5-1/4% Series E Preferred
Shares" and, together with the Outstanding NTL 5-1/4% Series A Preferred Shares,
the Outstanding NTL 5-1/4% Series B Preferred Shares, the Outstanding NTL 5-1/4%
Series C Preferred Shares and the Outstanding NTL 5-1/4% Series D Preferred
Shares, the "Outstanding NTL 5-1/4% Preferred Shares"), (J) 750,000 shares of
NTL 5% Series A Cumulative Participating Preferred Stock issued and outstanding
(the "Outstanding NTL 5% Series A Preferred Shares"), (K) 5,000 shares of NTL 5%
Series C Preferred Stock issued and outstanding (the "Outstanding NTL 5% Series
C Preferred Shares"), (L) 9,437.5 shares of NTL 5% Series D Preferred Stock
issued and outstanding (the "Outstanding NTL 5% Series D Preferred Shares" and,
together with the Outstanding NTL 5% Series A Preferred Shares and the
Outstanding NTL 5% Series C Preferred Shares, the "Outstanding NTL 5% Preferred
Shares"), and (M) no shares of NTL Junior Participating Preferred Stock issued
and outstanding; (iii)
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28,452,055 shares of NTL Common Stock reserved for issuance upon exercise of
stock options of NTL outstanding pursuant to employee stock option and similar
plans; (iv) 18,340,094 shares of NTL Common Stock reserved for issuance upon the
conversion of NTL Preferred Stock; (v) 11,092,213 shares of NTL Common Stock
reserved for issuance upon conversion of the NTL 5-3/4% Convertible Notes (as
hereinafter defined) outstanding (vi) 4,395,966 shares of NTL Common Stock
reserved for issuance upon the exercise of the NTL Communications Warrants (as
hereinafter defined) outstanding; and (vii) 15,288,266 shares of NTL Common
Stock reserved for issuance upon conversion of the NTL Communications 7%
Convertible Notes (as hereinafter defined) outstanding;
WHEREAS, Holdco Sub is a corporation organized and existing
under the DGCL and is authorized to issue a total of 100 shares, in a single
class of common stock, $.01 par value per share ("Holdco Sub Common Stock"), of
which, as of the date hereof, 100 shares are issued and outstanding (the
"Outstanding Holdco Sub Common Shares");
WHEREAS, as of the date hereof, Holdco holds of record all of
the Outstanding Holdco Sub Common Shares and no shares of Holdco Sub Common
Stock are issued but not outstanding;
WHEREAS, Holdco is a corporation organized and existing under
the DGCL and is authorized to issue a total of 100 shares of common stock, par
value $.01 per share ("Holdco Common Stock"), and prior to the Effective Time
will be authorized to issue a total of 410,000,000 shares (or, in the event the
NTL stockholders approve the Share Increase, 810,000,000 shares), consisting of:
(i) 400,000,000 shares (or, in the event the NTL Stockholders approve the Share
Increase, 800,000,000 shares) of Holdco Common Stock; (ii) 10,000,000 shares of
preferred stock, par value $.01 per share ("Holdco Preferred Stock"), of which
(A) 6.8818 shares will constitute, prior to the Effective Time, a series of
Holdco Preferred Stock identical to NTL 13% Series A Preferred Stock, having the
designation "13% Senior Redeemable Exchangeable Preferred Stock" ("Holdco 13%
Series A Preferred Stock"), (B) 142,308.635 shares will constitute, prior to the
Effective Time, a series of Holdco Preferred Stock identical to NTL 13% Series B
Preferred Stock, having the designation "13% Series B Senior Redeemable
Exchangeable Preferred Stock" ("Holdco 13% Series B Preferred Stock"), (C) no
shares will constitute, prior to the Effective Time, a series of Holdco
Preferred Stock identical to NTL 9.90% Series A Preferred Stock, having the
designation "9.90% Non-Voting Mandatorily Redeemable Preferred Stock, Series A"
("Holdco 9.90% Series A Preferred Stock"), (D) 52,217
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shares will constitute, prior to the Effective Time, a series of Holdco
Preferred Stock identical to NTL 9.90% Series B Preferred Stock, having the
designation "9.90% Non-voting Mandatorily Redeemable Preferred Stock, Series B"
("Holdco 9.90% Series B Preferred Stock"), (E) if the Outstanding NTL 5-1/4%
Preferred Shares shall not have been redeemed or converted into NTL Common Stock
prior to the Effective Time, 500,000 shares will constitute, prior to the
Effective Time, a series of Holdco Preferred Stock identical to NTL 5-1/4%
Series A Preferred Stock, having the designation "5-1/4% Convertible Preferred
Stock, Series A" ("Holdco 5-1/4% Series A Preferred Stock"), (F) if the
Outstanding NTL 5-1/4% Preferred Shares shall not have been redeemed or
converted into NTL Common Stock prior to the Effective Time, 4,447.92 shares
will constitute, prior to the Effective Time, a series of Holdco Preferred Stock
identical to NTL 5-1/4% Series B Preferred Stock, having the designation "5-1/4%
Convertible Preferred Stock, Series B" ("Holdco 5-1/4% Series B Preferred
Stock"), (G) if the Outstanding NTL 5-1/4% Preferred Shares shall not have been
redeemed or converted into NTL Common Stock prior to the Effective Time,
6,620.88 shares will constitute, prior to the Effective Time, a series of Holdco
Preferred Stock identical to NTL 5-1/4% Series C Preferred Stock, having the
designation "5-1/4% Convertible Preferred Stock, Series C" ("Holdco 5-1/4%
Series C Preferred Stock"), (H) if the Outstanding NTL 5-1/4% Preferred Shares
shall not have been redeemed or converted into NTL Common Stock prior to the
Effective Time, 6,707.78 shares will constitute, prior to the Effective Time, a
series of Holdco Preferred Stock identical to NTL 5-1/4% Series D Preferred
Stock, having the designation "5-1/4% Convertible Preferred Stock, Series D"
("Holdco 5-1/4% Series D Preferred Stock"), (I) if the Outstanding NTL 5-1/4%
Preferred Shares shall not have been redeemed or converted into NTL Common Stock
prior to the Effective Time, 6,795.82 shares will constitute, prior to the
Effective Time, a series of Holdco Preferred Stock identical to NTL 5-1/4%
Series E Preferred Stock, having the designation "5-1/4% Convertible Preferred
Stock, Series E" ("Holdco 5-1/4% Series E Preferred Stock"), (J) 750,000 shares
will constitute prior to the Effective Time, a series of Holdco Preferred Stock
identical to NTL 5% Series A Preferred Stock, having the designation "5%
Cumulative Participating Convertible Preferred Stock, Series A ("Holdco 5%
Series A Preferred Stock"), (K) 5,000 shares will constitute prior to the
Effective Time, a series of Holdco Preferred Stock identical to NTL 5% Series C
Preferred Stock, having the designation "5% Cumulative Participating Convertible
Preferred Stock, Series C ("Holdco 5% Series C Preferred Stock"), (L) 9437.5
shares will constitute prior to the Effective Time, a series of Holdco Preferred
Stock identical to NTL 5% Series D Preferred Stock, having the designation "5%
Cumulative Participating Convertible Preferred Stock, Series D ("Holdco 5%
Series D Preferred Stock"), the and (M) 1,000,000 shares will constitute prior
to the Effective Time a
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series of Holdco Preferred Stock, identical to NTL Junior Participating
Preferred Stock, having the designation "Series A Junior Participating Preferred
Stock" ("Holdco Junior Participating Preferred Stock"). As of the date hereof,
there are 100 shares issued and outstanding of Holdco Common Stock (the
"Outstanding Holdco Common Shares");
WHEREAS, as of the date hereof, NTL holds of record all of the
Outstanding Holdco Common Shares and no shares of Holdco Common Stock are issued
but not outstanding;
WHEREAS, the respective Boards of Directors of NTL, Holdco Sub
and Holdco have determined that it is advisable and in the best interests of
each of NTL, Holdco Sub and Holdco and their respective stockholders that Holdco
Sub be merged with and into NTL, with NTL continuing as the Surviving
Corporation, in accordance with the terms and conditions of this Agreement (the
"Merger"), and accordingly the Boards of Directors of each of NTL, Holdco Sub
and Holdco have approved and authorized this Agreement and the transactions
contemplated hereby, including the Merger;
WHEREAS, it is contemplated that the Merger will be effected
in accordance with Section 251(g) of the DGCL, and that the Merger and the
exchange of shares of capital stock of NTL for shares of capital stock of Holdco
shall be a transaction described in Section 351(a) and/or Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and that no income or
gain will be recognized by NTL or Holdco or their respective stockholders as a
result of the Merger; and
NOW, THEREFORE, in consideration of the premises, the mutual
agreements, promises, covenants, representations, warranties, acknowledgments
and other terms, conditions, and provisions set forth herein, and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
THE MERGER
1. The Merger.
1.1 The Merger; Filing and Effective Time. Subject to and in
accordance with the terms and conditions of this Agreement and the DGCL, this
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Agreement and the certificates of the respective secretaries of NTL and Holdco
Sub attached hereto as Exhibits A and B, duly executed, shall be filed with the
Secretary of State of the State of Delaware (the "Delaware Secretary of State")
by the Surviving Corporation at or as soon as practicable after the Closing (as
defined below). The Merger shall become effective at the time when this
Agreement is so filed with the Delaware Secretary of State (the "Effective
Time").
1.2 Closing. Subject to and in accordance with the terms and
conditions of this Agreement, the closing of the Merger (the "Closing") shall
take place as soon as practicable after satisfaction of the latest to occur of
the conditions set forth in Article IV hereof (the "Closing Date"), at the
office of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York,
NY 10036-6522, unless another date or place is agreed to in writing by the
parties hereto.
1.3 Effects of the Merger. The Merger shall have the effects
set forth in Section 259 of the DGCL.
1.4 Certificate of Incorporation of the Surviving Corporation.
The Restated Certificate of Incorporation of NTL, as in effect immediately prior
to the Effective Time (the "NTL Charter"), shall be the certificate of
incorporation of the Surviving Corporation (the "Surviving Corporation
Charter"), except that the following amendments thereto are to be effected by
the Merger upon the Effective Time:
A. The Surviving Corporation Charter shall be amended by
deleting Article FIRST thereof in its entirety and inserting in lieu
thereof the following: "FIRST: The name of the Corporation is NTL
(Delaware), Inc. (hereinafter called, the "Corporation").";
B. The Surviving Corporation Charter shall be amended by
deleting Article FOURTH thereof in its entirety and inserting in lieu
thereof the following: "FOURTH: The total number of shares of stock
which the Corporation has authority to issue is 100 shares of Common
Stock, par value $0.01 per share (the "Common Stock")."; and
C. The Surviving Corporation Charter shall be amended by
adding and inserting, immediately following Article THIRTEENTH thereof,
a new Article FOURTEENTH thereof, to read in its entirety as follows:
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FOURTEENTH: Any act or transaction by or involving the
Corporation that requires for its adoption under the GCL or
this Restated Certificate of Incorporation the approval of
stockholders of the Corporation shall, pursuant to subsection
(g) of Section 251 of the GCL, require, in addition, the
approval of the stockholders of NTL Incorporated, a Delaware
corporation, or any successor thereto by merger, by the same
vote as if required by the GCL and/or this Restated
Certificate of Incorporation.
1.5 Bylaws of the Surviving Corporation. The Bylaws of NTL as
in effect immediately prior to the Effective Time (the "NTL Bylaws"), shall be
and continue in full force and effect as the bylaws of the Surviving Corporation
upon and after the Effective Time, unless and until duly amended, altered,
changed, repealed, and/or supplemented in accordance with the DGCL (which power
and right to amend, alter, change, repeal, and/or supplement, at any time and
from time to time after the Effective Time, are hereby expressly reserved).
1.6 Directors and Officers of the Surviving Corporation. A.
The respective members constituting the whole Board of Directors of NTL (the
"NTL Board") immediately prior to the Effective Time shall be and continue as
the respective members constituting the whole Board of Directors of the
Surviving Corporation upon and after the Effective Time, until such members'
respective successors are duly elected and qualified or until such members'
earlier death, resignation, disqualification or removal and unless and until the
number of members of such Board of Directors shall be duly increased or
decreased in accordance with the DGCL (which power and right to increase and
decrease, at any time and from time to time after the Effective Time, are hereby
expressly reserved).
B. Each person serving as an officer of NTL immediately prior to the
Effective Time shall be and continue as an officer of the Surviving Corporation,
holding the same office or offices, upon and after the Effective Time, until
such person's successor is chosen and qualified or until such person's earlier
death, resignation, disqualification, or removal (which power and right to
remove are hereby expressly reserved).
1.7 Further Assurances. At any time and from time to time upon
and after the Effective Time, as and when required or deemed desirable by the
Surviving Corporation or its successors or assigns, there shall be executed,
acknowledged, certified, sealed, delivered, filed, and/or recorded, in the name
and on behalf of
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any and each Constituent Corporation, such deeds, contracts, consents,
certificates, notices, and other documents and instruments, and there shall be
done or taken or caused to be done or taken, in the name and on behalf of any
and each Constituent Corporation, such further and other things and actions as
shall be appropriate, necessary, or convenient to acknowledge, vest, effect,
perfect, conform of record, or otherwise confirm the Surviving Corporation's (or
its successors' or assigns') right, title, and interest in kind to, and
possession of, all the property, interests, assets, rights, privileges,
immunities, powers, franchises, and authority of each Constituent Corporation
held immediately prior to the Effective Time, and otherwise to carry out and
effect the intent and purposes of this Agreement and the Merger. The officers
and directors of the Surviving Corporation (or its successors or assigns), and
each of them, upon and after the Effective Time, are and shall be fully
authorized, in the name and on behalf of each Constituent Corporation, to do and
take and cause to be done and taken any and all such things and actions, and to
execute, acknowledge, certify, seal, deliver, file, and/or record any and all
such deeds, contracts, consents, certificates, notices, and other documents and
instruments.
ARTICLE II
EFFECT OF THE MERGER ON THE
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2. Effect on Capital Stock. Upon and as of the Effective Time,
by virtue of the Merger and without any action on the part of the holders of the
respective shares:
2.1 Conversion of Holdco Sub Shares. Each Outstanding Holdco
Sub Common Share shall be converted into one validly issued, fully paid and
nonassessable share of common stock, par value $0.01 per share (the "Surviving
Corporation Common Stock"), of the Surviving Corporation, to be issued and
deemed to have been issued by the Surviving Corporation automatically and
immediately upon and as of the Effective Time; the capital of the Surviving
Corporation in respect of each share of Surviving Corporation Common Stock to be
an amount equal to the par value thereof as permitted under the DGCL and such
Outstanding Holdco Sub Common Shares shall be canceled and cease to exist.
2.2 Conversion of NTL Shares.
A. Each of the Outstanding NTL Common Shares shall be
converted into the right to receive one validly issued, fully paid and
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nonassessable share of Holdco Common Stock, including an associated
right to purchase Holdco Junior Participating Preferred Stock, which
right shall be governed by the Holdco Stockholder Rights Plan assumed
by Holdco pursuant to Section 3.9 hereof; and the Outstanding NTL
Common Shares shall be canceled and cease to exist.
B. Each of the Outstanding NTL 13% Series A Preferred
Shares shall be converted into the right to receive one validly issued,
fully paid and nonassessable share of Holdco 13% Series A Preferred
Stock (with rights to accrued, accumulated and unpaid dividends on each
Outstanding NTL 13% Series A Preferred Share (the "13% Series A
Accumulated Dividends") being preserved, unimpaired, unchanged, and
unaffected by such conversion in the Merger, such 13% Series A
Accumulated Dividends carrying over and pertaining to and being
accrued, accumulated, and unpaid dividends on each such share of Holdco
13% Series A Preferred Stock, and each such share of Holdco 13% Series
A Preferred Stock carrying and having such 13% Series A Accumulated
Dividends as accrued, accumulated, and unpaid dividends thereon,
notwithstanding that such dividends shall have accrued and accumulated
from a date prior to the issuance of such shares of Holdco 13% Series A
Preferred Stock) and such Outstanding NTL 13% Series A Preferred Shares
shall no longer be outstanding and automatically shall be canceled and
cease to exist.
C. Each of the Outstanding NTL 13% Series B Preferred
Shares shall be converted into the right to receive one validly issued,
fully paid and nonassessable share of Holdco 13% Series B Preferred
Stock (with rights to accrued, accumulated and unpaid dividends on each
Outstanding NTL 13% Series B Preferred Share (the "13% Series B
Accumulated Dividends") being preserved, unimpaired, unchanged, and
unaffected by such conversion in the Merger, such 13% Series B
Accumulated Dividends carrying over and pertaining to and being
accrued, accumulated, and unpaid dividends on each such share of Holdco
13% Series B Preferred Stock, and each such share of Holdco 13% Series
B Preferred Stock carrying and having such 13% Series B Accumulated
Dividends as accrued, accumulated, and unpaid dividends thereon,
notwithstanding that such dividends shall have accrued and accumulated
from a date prior to the issuance of such shares of Holdco 13% Series B
Preferred Stock) and such Outstanding NTL 13% Series B Preferred Shares
shall no longer be outstanding and automatically shall be canceled and
cease to exist.
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D. Each of the Outstanding NTL 9.90% Series B
Preferred Shares shall be converted into the right to receive one
validly issued, fully paid and nonassessable share of Holdco 9.90%
Series B Preferred Stock (with rights to accrued, accumulated and
unpaid dividends on each Outstanding NTL 9.90% Series B Preferred Share
(the "9.90% Series B Accumulated Dividends") being preserved,
unimpaired, unchanged, and unaffected by such conversion in the Merger,
such 9.90% Series B Accumulated Dividends carrying over and pertaining
to and being accrued, accumulated, and unpaid dividends on each such
share of Holdco 9.90% Series B Preferred Stock, and each such share of
Holdco 9.90% Series B Preferred Stock carrying and having such 9.90%
Series B Accumulated Dividends as accrued, accumulated, and unpaid
dividends thereon, notwithstanding that such dividends shall have
accrued and accumulated from a date prior to the issuance of such
shares of Holdco 9.90% Series B Preferred Stock) and such Outstanding
NTL 9.90% Series B Preferred Shares shall no longer be outstanding and
automatically shall be canceled and cease to exist.
E. Each of the Outstanding NTL 5-1/4% Preferred
Shares shall be converted into the right to receive one validly issued,
fully paid and nonassessable share of Holdco 5-1/4% Series A Preferred
Stock, Holdco 5-1/4% Series B Preferred Stock, Holdco 5-1/4% Series C
Preferred Stock, Holdco 5-1/4% Series D Preferred Stock and Holdco
5-1/4% Series E Preferred Stock, respectively (with rights to accrued,
accumulated and unpaid dividends on each Outstanding NTL 5-1/4%
Preferred Share (the "5-1/4% Accumulated Dividends") being preserved,
unimpaired, unchanged, and unaffected by such conversion in the Merger,
such 5-1/4% Accumulated Dividends carrying over and pertaining to and
being accrued, accumulated, and unpaid dividends on each such share of
Holdco 5-1/4% Series A Preferred Stock, Holdco 5-1/4% Series B
Preferred Stock, Holdco 5-1/4% Series C Preferred Stock, Holdco 5-1/4%
Series D Preferred Stock and Holdco 5-1/4% Series E Preferred Stock,
respectively, and each such share of Holdco 5-1/4% Series A Preferred
Stock, Holdco 5-1/4% Series B Preferred Stock, Holdco 5-1/4% Series C
Preferred Stock, Holdco 5-1/4% Series D Preferred Stock and Holdco
5-1/4% Series E Preferred Stock, as the case may be, carrying and
having such 5-1/4% Accumulated Dividends as accrued, accumulated, and
unpaid dividends thereon, notwithstanding that such dividends shall
have accrued and accumulated from a date prior to the issuance of such
shares of Holdco 5-1/4% Series A Preferred Stock, Holdco 5-1/4% Series
B Preferred Stock, Holdco 5-1/4% Series C Preferred Stock, Holdco
5-1/4% Series D Preferred Stock and Holdco 5-1/4% Series E Preferred
Stock) and such Out-
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standing NTL 5-1/4% Preferred Shares shall no longer be outstanding and
automatically shall be canceled and cease to exist.
F. Each of the Outstanding NTL 5% Preferred Shares,
shall be converted into the right to receive one validly issued, fully
paid and nonassessable share of Holdco 5% Series A Preferred Stock,
Holdco 5% Series C Preferred Stock, and Holdco 5% Series D Preferred
Stock, respectively (with rights to accrued, accumulated and unpaid
dividends on each Outstanding NTL 5% Preferred Share (the "5%
Accumulated Dividends") being preserved, unimpaired, unchanged, and
unaffected by such conversion in the Merger, such 5% Accumulated
Dividends carrying over and pertaining to and being accrued,
accumulated, and unpaid dividends on each such share of Holdco 5%
Series A Preferred Stock, Holdco 5% Series C Preferred Stock and Holdco
5% Series D Preferred Stock, respectively, and each such share of
Holdco 5% Series A Preferred Stock, Holdco 5% Series C Preferred Stock,
and Holdco 5% Series D Preferred Stock , as the case may be, carrying
and having such 5% Accumulated Dividends as accrued, accumulated, and
unpaid dividends thereon, notwithstanding that such dividends shall
have accrued and accumulated from a date prior to the issuance of such
shares of Holdco 5% Series A Preferred Stock, Holdco 5% Series C
Preferred Stock and Holdco 5% Series D Preferred Stock) and such
Outstanding NTL 5% Preferred Shares shall no longer be outstanding and
automatically shall be canceled and cease to exist.
2.3 Changes in Capital Structure. If, at any time after the
date hereof and prior to the Effective Time, NTL shall authorize, issue or
redeem capital securities (including, but not limited to, by the contemplated
conversion of the Outstanding NTL 5-1/4% Preferred Shares), this Agreement shall
be deemed amended to provide for such change and to provide for the issuance in
the Merger of Holdco securities having substantially identical terms to such
capital securities of NTL.
2.4 Notification of Transfer Agent. Prior to the Closing Date,
Holdco Sub and NTL shall notify their respective transfer agents of the
conversions of shares of NTL stock and of shares of Holdco Sub stock and the
cancellation of shares of NTL stock pursuant to Section 2.2 hereof.
2.5 Stock Certificates. Upon and as of the Effective Time, by
virtue of the Merger and without any action on the part of either of the
Constituent Corporations or Holdco, the holders of the respective shares, or any
other person:
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A. Holdco. The shares of Holdco Common Stock and the shares of
Holdco Preferred Stock into which the Outstanding NTL Common Shares,
the Outstanding NTL 13% Series A Preferred Shares, the Outstanding NTL
13% Series B Preferred Shares, the Outstanding NTL 9.90% Series B
Preferred Shares, the Outstanding NTL 5-1/4% Series A Preferred Shares,
the Outstanding 5-1/4% Series B Preferred Shares, the Outstanding NTL
5-1/4% Series C Preferred Shares, the Outstanding NTL 5-1/4% Series D
Preferred Shares, the Outstanding NTL 5-1/4% Series E Preferred Shares,
the Outstanding NTL 5% Series A Preferred Shares, the Outstanding NTL
5% Series C Preferred Shares, and the Outstanding NTL 5% Series D
Preferred Shares shall have been converted pursuant to Section 2.2
hereof shall be represented and evidenced by the same stock
certificates that previously represented and evidenced such Outstanding
NTL Common Shares, such Outstanding NTL 13% Series A Preferred Shares,
such Outstanding NTL 13% Series B Preferred Shares, such Outstanding
NTL 9.90% Series B Preferred Shares, such Outstanding NTL 5-1/4%
Preferred Shares, and such Outstanding NTL 5% Preferred Shares; and
B. NTL. Holdco, as the holder of the certificate (the "Holdco
Sub Common Stock Certificate") that immediately prior to the Effective
Time evidences the Outstanding Holdco Sub Common Shares may, at
Holdco's option, surrender the same to the Surviving Corporation for
cancellation, and Holdco shall be entitled to receive from the
Surviving Corporation in exchange therefor a certificate representing
and evidencing the shares of Surviving Corporation Common Stock into
which Holdco's Outstanding Holdco Sub Common Shares shall have been
converted; until surrendered, the Holdco Sub Common Stock Certificate
shall represent and evidence the shares of Surviving Corporation Common
Stock into which the Outstanding Holdco Sub Common Shares theretofore
represented and evidenced thereby shall have been converted pursuant to
Section 2.1 hereof.
ARTICLE III
ADDITIONAL AGREEMENTS
3.1 Directors and Officers of Holdco Upon the Effective Time.
A. Directors. As of the Effective Time: (i) the number of
members constituting the whole Board of Directors of Holdco (the "Holdco Board")
shall be equal to the number of members constituting the whole NTL Board
immediately
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prior to the Effective Time; and (ii) the Holdco Board shall consist of all the
persons serving as members of the NTL Board immediately prior to the Effective
Time.
B. Officers. As of the Effective Time, the officers of Holdco
shall be the persons serving as officers of NTL immediately prior to the
Effective Time.
3.2 Holdco Certificate of Incorporation. As of the Effective
Time, the certificate of incorporation of Holdco shall contain provisions
identical to the NTL Charter immediately prior to the Effective Time, which
provisions shall, among other things, reflect the change of Holdco's name to
"NTL Incorporated" (the "Holdco Charter").
3.3 Holdco Bylaws. As of the Effective Time, the bylaws of
Holdco shall contain provisions identical to the NTL Bylaws immediately prior to
the Effective Time (the "Holdco Bylaws"). To that end, prior to the Effective
Time, to the extent necessary to give effect to the intent of the preceding
sentence, Holdco shall take all requisite action to cause the Holdco Bylaws, as
the same theretofore may have been amended, altered, changed and/or
supplemented, to be duly amended and restated in accordance with the DGCL to
contain provisions identical to the NTL Bylaws immediately prior to the
Effective Time, and as so amended and restated such Holdco Bylaws shall be and
remain the Holdco Bylaws upon and after the Effective Time, unless and until
thereafter duly amended, altered, changed, repealed and/or supplemented in
accordance with the DGCL (which power and right to amend, alter, change, repeal,
and/or supplement, at any time and from time to time after the Effective Time,
are hereby expressly reserved).
3.4 No NTL Stockholder Meeting; Holdco Sub Stockholder Written
Consent. The parties understand and acknowledge that it is contemplated that the
Merger will be effected in accordance with Section 251(g) of the DGCL and that
no vote of NTL's stockholders adopting, approving or authorizing this Agreement
and the transactions contemplated hereby, including the Merger, will be required
under the DGCL. Holdco, in its capacity as the sole stockholder of Holdco Sub,
as promptly as practicable on or after the date hereof, shall execute and
deliver to Holdco Sub a written consent in lieu of a stockholder meeting
adopting, approving and authorizing this Agreement and the transactions
contemplated hereby, including the Merger, in accordance with Section 228 of the
DGCL.
3.5 Employee and Director NTL Stock Options. Upon and as of
the Effective Time, to the fullest extent permitted by applicable law, Holdco
shall assume
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all of NTL's obligations, and NTL shall have no further obligations, with
respect to any then-outstanding option (each, if any, an "NTL Option") to
acquire shares of NTL Common Stock issued under any employee or non-employee
director stock option plan, agreement or similar arrangement of NTL and the due
exercise of rights under any such NTL Option shall entitle the holder thereof to
acquire, upon the same terms and conditions that were applicable under the
corresponding NTL Option, a number of shares of Holdco Common Stock identical to
the class and number of shares of NTL Common Stock that were subject to such
corresponding NTL Option (a "Holdco Option"). NTL and Holdco agree to take all
corporate and other action as shall be necessary to effectuate the foregoing,
and NTL shall use its best efforts to obtain, if required, prior to the Closing
Date, such consent of each holder of an NTL Option as shall be necessary to
effectuate the foregoing. Holdco shall take all corporate and other action
necessary to reserve and make available for issuance upon the due exercise of
rights under the Holdco Options a sufficient number of shares of Holdco Common
Stock, and as soon as practicable following the Effective Time, shall provide to
the record holders of the Holdco Options appropriate notice of such holder's
rights thereunder.
3.6 NTL Communications Warrants. Upon and as of the Effective
Time and in connection with the Merger, Holdco shall assume the obligations of
NTL to issue securities deliverable upon the exercise of any then-outstanding
warrants to acquire shares of NTL Common Stock (each, an "NTL Communications
Warrant") that were issued by NTL Communications Corp. (known as NTL
Incorporated prior to the holding company merger effected on April 1, 1999)
pursuant to Warrant Agreements dated as of October 14, 1993, February 14, 1996,
October 14, 1998 and January 28, 1999, in each case as supplemented by a First
Supplemental Warrant Agreement, dated as of March 31, 1999, respectively, and
accordingly, the due exercise of rights under any such NTL Communications
Warrant shall entitle the holder thereof to acquire, upon the same terms and
conditions that were applicable under the corresponding NTL Communications
Warrant, a number of shares of Holdco Common Stock identical to the class and
number of shares of NTL Common Stock that were subject to such corresponding NTL
Communications Warrant. NTL and Holdco agree to take all corporate and other
action as shall be necessary to effectuate the foregoing, including the
execution of supplemental warrant agreements as required. Holdco shall take all
corporate and other action necessary to reserve and make available for issuance
upon the due exercise of rights under the NTL Communications Warrants a
sufficient number of shares of Holdco Common Stock, and as soon as practicable
following the Effective Time, shall provide to the record holders of the NTL
Communications Warrants appropriate notice of such holder's rights thereunder.
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3.7 NTL Convertible Notes and NTL Communications Convertible
Notes. Upon and as of the Effective Time and in connection with the Merger, (a)
Holdco shall assume the obligations of NTL with respect to the rights of holders
of any then-outstanding 7% Convertible Subordinated Notes due 2008 (each, if
any, an "NTL Communications 7% Convertible Note") to convert such NTL
Communications 7% Convertible Notes into NTL Common Stock under the terms of the
Indenture, dated December 16, 1998, between NTL Communications Corp. (known as
NTL Incorporated prior to the holding company merger effected on April 1, 1999)
and The Chase Manhattan Bank, as Trustee, as supplemented by the First
Supplemental Indenture, dated as of March 31, 1999 (the "7% Convertible Notes
Indenture"); (b) Holdco shall assume the obligations of NTL with respect to the
rights of holders of any then-outstanding 5-3/4% Convertible Subordinated Notes
due 2009 (each, if any, an "NTL 5-3/4% Convertible Note") to convert such NTL
5-3/4% Convertible Notes into NTL Common Stock under the terms of the Indenture,
dated as of December 22, 1999, between NTL and The Chase Manhattan Bank, as
Trustee (the "5-3/4% Convertible Notes Indenture") ; (c) the due exercise of the
conversion privileges of any holder under any such NTL Communications 7%
Convertible Note and NTL 5-3/4% Convertible Note shall entitle the holder
thereof to acquire, upon the same terms and conditions that were applicable
under the corresponding NTL Communications 7% Convertible Note and NTL 5-3/4%
Convertible Note, a number of shares of Holdco Common Stock identical to the
class and number of shares of NTL Common Stock that were subject to such
corresponding NTL Communications 7% Convertible Note or NTL 5-3/4% Convertible
Note, as the case may be; and, (d) Holdco shall assume joint and several
liability for, or shall guarantee, the obligations of NTL Communications Corp.
and NTL with respect to the NTL Communications 7% Convertible Notes (the "7%
Notes") as and to the extent necessary to satisfy, in the judgment of Holdco,
the requirements of Section 3(a)(9) of the Securities Act of 1933 with respect
to the conversion of the 7% Notes into Holdco Common Shares. NTL and Holdco
shall, and NTL shall cause NTL Communications Corp. to, take all corporate and
other action as shall be necessary to effectuate the foregoing, including
entering into supplemental indentures as required and delivering certain
officers' certificates as required under the Indentures. Holdco shall take all
corporate and other action necessary to reserve and make available for issuance
upon the due exercise of conversion rights under the NTL Communications 7%
Convertible Notes and the NTL 5-3/4% Convertible Notes a sufficient number of
shares of Holdco Common Stock, and as soon as practicable following the
Effective Time, shall provide to the record holders of the NTL Communications 7%
Convertible Notes and the NTL 5-3/4% Convertible Notes appropriate notice of
such holder's rights thereunder.
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3.8 Outstanding Holdco Common Shares. Upon and as of the
Effective Time, NTL shall surrender to Holdco the certificate representing the
Outstanding Holdco Common Shares, and the Outstanding Holdco Common Shares shall
be retired as permitted under the DGCL and resume the status of authorized and
unissued shares of Holdco Common Stock.
3.9 Holdco Stockholder Rights Plan. Upon and as of the
Effective Time, Holdco shall assume the rights and obligations of NTL under the
Rights Agreement, dated as of October 13, 1993, between NTL Communications Corp.
(known as NTL Incorporated prior to the holding company merger effected on April
1, 1999) and Continental Stock Transfer & Trust Company, as Rights Agent, as
amended by Amendment No.1 to the Rights Agreement, dated as of March 31, 1999
(the "Holdco Stockholder Rights Plan"), and as a result of the share-for-share
conversion of NTL Common Stock for Holdco Common Stock pursuant to the Merger,
each right to purchase NTL Junior Participating Preferred Stock will be
converted into an identical right to purchase Holdco Junior Participating
Preferred Stock.
3.10 Transaction Agreement. Upon and as of the Effective Time,
Holdco shall perform and discharge the obligations of NTL under the Transaction
Agreement, dated as of July 26, 1999, among NTL, Bell Atlantic Corporation,
Cable and Wireless plc and Cable & Wireless Communications plc (the "Transaction
Agreement"), as from the Effective Time so far as such obligations have not been
performed or discharged or have not arisen as at the Effective Time and from the
Effective Time to observe, perform, discharge and be bound by the terms of the
Transaction Agreement in all respects as if Holdco had originally been named in
the Transaction Agreement as a party to the same instead of NTL. Notwithstanding
anything herein to the contrary, the obligations of NTL pursuant to clauses
(2)(9) and (2)(10) of the Transaction Agreement shall continue in full force and
effect upon and as of the Effective Time.
3.11 Investment Agreement and Purchase Agreement. Upon and as
of the Effective Time, Holdco shall succeed to and assume all of NTL's
obligations under the Investment Agreement, dated as of July 26, 1999, between
NTL and France Telecom, S.A. (the "Investment Agreement") and the Purchase
Agreement, dated as of July 15, 1999, between NTL and France Telecom, S.A. (the
"Purchase Agreement"), and the obligation to deliver to France Telecom, S.A. the
shares of NTL Common Stock and NTL 5% Cumulative Participating Preferred Stock,
Series B under the Investment Agreement (the "Investment Agreement Securities")
shall become the obligation to deliver equivalent securities of Holdco. Pursuant
to the
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Merger, France Telecom, S.A. shall receive with respect to such securities of
Holdco rights in or with respect to Holdco identical to the rights that France
Telecom, S.A. would have otherwise had in or with respect to NTL, with respect
to the Investment Agreement Securities, the securities received by France
Telecom under the Purchase Agreement and other rights that France Telecom, S.A.
may have under the Investment Agreement, the Purchase Agreement or otherwise.
NTL shall, and shall cause Holdco to, execute and deliver to France Telecom,
S.A. such documents, instruments, agreements or certificates as may be necessary
to transfer the obligations of NTL under the Investment Agreement and under the
Purchase Agreement to Holdco.
3.12 Note Purchase Agreement.
At the Effective Time, Holdco's obligations under the
Guarantee, dated as of February 4, 2000, by Holdco in favor of the Purchasers
(as defined in that certain Note Purchase Agreement, dated as of February 4,
2000, among NTL Incorporated and the Purchasers named therein) shall become
effective.
3.13 Other Agreements. At the Effective Time, Holdco shall
assume any obligation of NTL to deliver or make available shares of NTL Common
Stock under any instrument, agreement or employee benefit plan not referred to
in this Section 3 to which NTL or any of its subsidiaries is a party. Any
reference to NTL Common Stock under any such instrument, agreement or employee
benefit plan shall be deemed to be a reference to Holdco Common Stock and one
share of Holdco Common Stock shall be issuable in lieu of each share of NTL
Common Stock required to be issued by any such instrument, agreement or employee
benefit plan, subject to subsequent adjustment as provided in any such
instrument, agreement or employee benefit plan.
3.14 Holdco as Successor Registrant to NTL. It is the intent
of the parties hereto that Holdco, as of the Effective Time, be deemed a
"successor issuer" for purposes of Rule 12g - 3(a) under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), so that Holdco Common Stock shall
be deemed registered under Section 12 of the Exchange Act.
3.15 Listing of Holdco Common Stock. The Holdco Common Stock
to be issued and initially reserved for issuance pursuant to the transactions
contemplated herein shall have been approved for quotation, upon official notice
of issuance, by The Nasdaq Stock Market, Inc. and The Easdaq Stock Market, Inc.
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3.16 Filings. At the Effective Time, the Surviving Corporation
shall cause a certified copy of this Agreement to be executed and filed with the
Delaware Secretary of State. At the Effective Time, to the extent necessary to
effectuate the amendments to the Surviving Corporation Charter and the Holdco
Charter contemplated by this Agreement, each of the Surviving Corporation and
Holdco shall cause to be filed with the Delaware Secretary of State such
certificates or documents required to give effect thereto.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligations of each party under this Agreement shall be
subject to the satisfaction at or prior to the Closing of the following
conditions:
A. Stockholder Approval. This Agreement shall have
been approved by the written consent of the holder of the Outstanding
Holdco Sub Shares.
B. Legal Action. No judgment, order, decree, statute,
law, ordinance, rule or regulation, entered, enacted, promulgated,
enforced or issued by any foreign, United States, state or local
governmental entity or municipality or subdivision thereof or court,
tribunal, commission, board, bureau, agency or legislative, executive,
governmental or regulatory authority or agency ( a "Governmental
Entity") of competent jurisdiction or other legal restraint or
prohibition shall be in effect preventing the consummation of the
Closing.
C. Statutes. No statute, rule or regulation shall
have been enacted by any Governmental Entity that would make the
consummation of the Merger illegal.
D. NTL Board Determination. The NTL Board shall not
have altered or rescinded its determination that the NTL stockholders
shall not recognize gain or loss for United States Federal income tax
purposes as a result of the transactions contemplated hereby and that
the Merger and the exchange of shares of capital stock of NTL for
shares of capital stock of Holdco shall be deemed a transaction
described in Section 351(a) and/or 368(a) of the Code.
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E. CWC Holdings Capital Reduction. The obligations of
NTL and Holdco Sub to effect the Merger shall be subject to the
effectiveness of the capital reduction in CWC Holdings in accordance
with the terms and conditions of the Transaction Agreement.
4.2 Conditions to the Obligations of NTL and Holdco Sub to
Effect the Merger. The obligations of NTL and Holdco Sub to effect the Merger
shall be subject to the satisfaction of the condition that immediately prior to
the Effective Time, Holdco shall have fully performed its obligations under
Article III hereof.
ARTICLE V
TERMINATION AND AMENDMENT
5.1 Amendment. At any time prior to the Effective Time, this
Agreement may be supplemented, amended or modified by the mutual consent of the
Boards of Directors of the parties hereto.
5.2 Termination. This Agreement may be terminated and the
Merger contemplated hereby abandoned at any time prior to the Effective Time by
action of either the NTL Board, the Holdco Board or the Board of Directors of
Holdco Sub, if such Board of Directors shall determined that for any reason the
completion of the transactions provided for herein would be inadvisable or not
in the best interest of such corporation and its stockholders. In the event of
such termination and abandonment, this Agreement shall become void and neither
NTL, Holdco, or Holdco Sub nor their respective stockholders, directors or
officers shall have any liability with respect to such termination and
abandonment.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Severability. If any term or other provision of this
Agreement is invalid, illegal, or incapable of being enforced by any rule of law
or public policy, all other terms, conditions, and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal, or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in
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an acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
6.2 Entire Agreement. This Agreement, including the Exhibits
attached hereto, constitutes the entire agreement among the parties regarding
the subject matter hereof, and supercedes all prior agreements and undertakings,
both written and oral, among the parties or of any of them regarding such
subject matter.
6.3 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware.
6.4 Headings. The headings set forth herein are for
convenience only and shall not be used in interpreting the text of the section
in which they appear.
6.5 Counterparts. This Agreement may be executed in one or
more counterparts which together shall constitute a single agreement.
6.6 Certificates of Secretaries. The certificates of the
respective secretaries of NTL and Holdco Sub to be attached hereto are hereby
incorporated by reference and shall be deemed on and part of this Agreement.
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IN WITNESS WHEREOF, NTL, Holdco and Holdco Sub, pursuant to
the approval and authority duly given by resolutions adopted by their respective
Boards of Directors, have caused this Agreement to be executed as of the date
first above written 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
NTL HOLDINGS INCORPORATED
By: /s/ Richard J. Lubasch
----------------------------------------
Name: Richard J. Lubasch
Title: Executive Vice President, General
Counsel and Secretary
NTL HOLDINGS MERGER SUB INC.
By: /s/ Richard J. Lubasch
----------------------------------------
Name: Richard J. Lubasch
Title: Executive Vice President, General
Counsel and Secretary
<PAGE> 23
Exhibit A
CERTIFICATE OF THE SECRETARY OF NTL INCORPORATED
The undersigned, Assistant Secretary of NTL Incorporated, a
corporation organized and existing under the laws of the State of Delaware (the
"Corporation"), hereby certifies that the Agreement and Plan of Merger (the
"Agreement") to which this Certificate is attached has been executed on behalf
of the Corporation by the Executive Vice President, General Counsel and
Secretary, on behalf of Holdings Merger Sub Inc., a Delaware corporation, by the
Executive Vice President, General Counsel and Secretary, and on behalf of NTL
Holdings Incorporated, a Delaware corporation, by the Executive Vice President,
General Counsel and Secretary. The Agreement has been adopted by the Board of
Directors of the Corporation pursuant to Section 251(g) of the Delaware General
Corporation Law and the conditions specified in the first sentence of such
subsection have been satisfied.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of this 9th day of February, 2000.
By: /s/ Sandra Barnet
------------------------------
Name: Sandra Barnet
Title: Assistant Secretary
<PAGE> 24
Exhibit B
CERTIFICATE OF THE SECRETARY OF HOLDINGS MERGER SUB INC.
The undersigned, Assistant Secretary of Holdings Merger Sub Inc., a Delaware
corporation (the "Corporation"), hereby certifies that the Agreement and Plan of
Merger (the "Agreement") to which this Certificate is attached has been executed
on behalf of the Corporation by the Executive Vice President, General Counsel
and Secretary, on behalf of NTL Incorporated, a Delaware corporation, by the
Executive Vice President, General Counsel and Secretary, and on behalf of NTL
Holdings Incorporated, a Delaware corporation, by the Executive Vice President,
General Counsel and Secretary. The Agreement was duly adopted by the Board of
Directors of the Corporation in accordance with Section 251 of the Delaware
General Corporation Law and by the written consent of the sole stockholder of
the Corporation in accordance with Section 228 of the Delaware General
Corporation Law.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of this 9th day of February, 2000.
By: /s/ Sandra Barnet
-----------------------------
Name: Sandra Barnet
Title: Assistant Secretary
