EXHIBIT 4.1 - AMENDMENT NO. 5 TO THE
RIGHTS AGREEMENT
AMENDMENT NO. 5 TO THE RIGHTS AGREEMENT
AMENDMENT NO. 5 TO THE RIGHTS AGREEMENT (this "Amendment"),
dated as of May 25, 2000, by and between NTL INCORPORATED, a Delaware
corporation (the "Company"), and CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, a New York banking corporation (the "Rights Agent") amends the
Rights Agreement (the "Rights Agreement"), dated October 13, 1993, as
amended pursuant to Amendment No. 1 to the Rights Agreement ("Amendment No.
1"), dated as of March 31, 1999, Amendment No. 2 to the Rights Agreement
("Amendment No. 2"), dated as of October 23, 1999, Amendment No. 3 to the
Rights Agreement ("Amendment No. 3"), dated as of March 28, 2000, and
Amendment No. 4 to the Rights Agreement ("Amendment No. 4"), dated as of
May 18, 2000, in each case, by and among the Company, the Rights Agent and
the other party signatory thereto, if any (collectively, the "Amended
Rights Agreement"). Capitalized terms used in this Amendment without
definition shall have the meanings given to them in the Amended Rights
Agreement.
WHEREAS, the Company and the Rights Agent entered into the
Rights Agreement specifying the terms of the Rights;
WHEREAS, the Distribution Date has not occurred, and that
accordingly, the Company and the Rights Agent hereby amend the Amended
Rights Agreement in accordance with Section 27 thereof;
WHEREAS, in accordance with Section 27 of the Amended Rights
Agreement, an authorized officer of the Company has delivered to the Rights
Agent an officer's certificate as to the compliance of this Amendment with
the terms and conditions contained in Section 27 of the Amended Rights
Agreement;
WHEREAS, the Company and France Telecom entered into an
Investment Agreement, dated July 26, 1999, as amended (the "Investment
Agreement") pursuant to which the Company agreed to issue and sell and
France Telecom agreed to purchase 27,027,027 shares of Common Stock and
2,000,000 shares of 5% Cumulative Participating Convertible Preferred
Stock, Series B, par value $0.01 per share, of the Company, having an
aggregate liquidation preference of $2,000,000,000 (two billion dollars)
(the "Series B Preferred Shares");
WHEREAS, in connection with a five-for-four stock split by
way of stock dividend of the Company, with a record date of October 4, 1999
and a payment date of October 7, 1999, and another five-for-four stock
split by way of stock dividend of the Company, with a record date of
January 31, 2000 and a payment date of February 3, 2000, the Company and
France Telecom executed amendments to the Investment Agreement, the effect
of which, among other things, is to change the number of shares of Common
Stock deliverable to France Telecom under the Investment Agreement to
42,229,730 shares of Common Stock (the "Investment Agreement Common
Shares");
WHEREAS, COGECOM currently holds (i) 8,451,023 shares of
Common Stock, (ii) (A) 750,000 shares of Series A Preferred Stock which are
initially convertible into an aggregate of 9,375,000 shares of Common
Stock, (B) 5,000 shares of 5% Cumulative Participating Convertible
Preferred Stock, Series C of the Company which are initially convertible
into an aggregate of 62,086 shares of Common Stock, (C) 9,437.50 shares of
5% Cumulative Participating Convertible Preferred Stock, Series D of the
Company which are initially convertible into an aggregate of 115,740 shares
of Common Stock and (D) 9,555.47 shares of 5% Cumulative Participating
Convertible Preferred Stock, Series E of the Company which are initially
convertible into an aggregate of 115,740 shares of Common Stock, (iii)
750,000 shares of 5% Preferred Stock and (iv) $232,000,000 of 5.75%
Convertible Subordinated Notes due 2009 of the Company which are initially
convertible into an aggregate of 2,144,494 shares of Common Stock;
WHEREAS, the Company and France Telecom have entered into an
Assignment Agreement pursuant to which France Telecom has assigned its
rights to purchase the Series B Preferred Shares and the Investment
Agreement Common Shares pursuant to the Investment Agreement to COGECOM,
subject to the terms and conditions of such assignment agreement;
WHEREAS, the Company entered into a Restated Transaction
Agreement, dated as of July 26, 1999 (the "Restated Transaction
Agreement"), by and among the Company, Cable and Wireless plc ("Cable and
Wireless"), Cable & Wireless Communications plc ("Cable & Wireless") and
Bell Atlantic Corporation pursuant to which the Company agreed to acquire
the residential cable assets of Cable & Wireless;
WHEREAS, pursuant to the results of the Mix and Match
Election effected pursuant to the Restated Transaction Agreement as partial
consideration of Cable and Wireless' ownership of Cable & Wireless ordinary
shares, Cable and Wireless and its Affiliate, C&W Cable Limited
(collectively, the "Cable and Wireless Parties") will receive from the
Company upon Completion (as such term is defined in the Restated
Transaction Agreement) approximately 44,362,613 shares of Common Stock (the
"Cable and Wireless Parties Common Shares"); and
WHEREAS, the Board of Directors of the Company has
determined that it is in the best interests of the Company and its
stockholders, to amend, to the extent necessary, the Amended Rights
Agreement to exempt the purchase of the Series B Preferred Shares and any
shares of Common Stock issued upon conversion or redemption of, or as a
dividend with respect to, the Series B Preferred Shares and any subsequent
series of convertible preferred stock of the Company resulting from the
issuance of the Series B Preferred Shares, the Investment Agreement Common
Shares and the Cable and Wireless Parties Common Shares, in each case, from
the application of the Amended Rights Agreement.
In consideration of the premises and the mutual agreements
set forth herein and in the Amended Rights Agreement and this Amendment,
the parties hereto intending to be legally bound hereby agree as follows:
Section 1. Incorporation of "Cable & Wireless", "Cable and
Wireless", "Cable and Wireless Parties", "Cable and Wireless Parties Common
Shares", "Investment Agreement", "Investment Agreement Common Shares" and
"Restated Transaction Agreement". The terms "Cable & Wireless", "Cable and
Wireless", "Cable and Wireless Parties", "Cable and Wireless Parties Common
Shares", "Investment Agreement", "Investment Agreement Common Shares" and
"Restated Transaction Agreement" and the respective definitions of such
terms as set forth in the Preamble of this Amendment are hereby
incorporated in the Amended Rights Agreement under the heading "Certain
Definitions" in Section 1 thereof.
Section 2. Amendment to Definition of "Acquiring Person".
Section 1(a) of the Amended Rights Agreement is hereby amended to add the
following sentence after the last sentence thereof, which sentence was
added pursuant to Amendment No. 4:
"Notwithstanding anything in this Agreement to the contrary,
(i) France Telecom and/or any of France Telecom's Affiliates and/or
Associates shall not be considered an Acquiring Person as a result of
having become the Beneficial Owner of (A) the Investment Agreement Common
Shares issued and sold pursuant to the Investment Agreement or (B) the
shares of Common Stock issued upon conversion or redemption of, or as a
dividend with respect to, the Series B Preferred Shares and any subsequent
series of convertible preferred stock of the Company resulting from the
issuance of the Series B Preferred Shares and (ii) the Cable and Wireless
Parties and/or any of the Cable and Wireless Parties' Affiliates and/or
Associates shall not be considered an Acquiring Person as a result of
having become the Beneficial Owner of Cable and Wireless Parties Common
Shares pursuant to the Restated Transaction Agreement. Notwithstanding the
foregoing, in the event France Telecom and/or any of France Telecom's
Affiliates and/or Associates or the Cable and Wireless Parties and/or any
of the Cable and Wireless Parties' Affiliates and/or Associates, as the
case may be, shall acquire any Common Stock or securities convertible,
exercisable, exchangeable or redeemable into Common Stock or be issued
Common Stock upon the conversion, exercise, exchange or redemption of, or
as a dividend with respect to securities of the Company after the date
hereof and other than as described in the immediately preceding sentence
and solely with respect to France Telecom and/or any of France Telecom's
Affiliates and/or Associates, Amendment No. 2 and Amendment No. 3, then (x)
France Telecom and/or any of France Telecom's Affiliates and/or Associates
or the Cable and Wireless Parties and/or any of the Cable and Wireless
Parties' Affiliates and/or Associates, as the case may be, shall be deemed
to beneficially own all such securities as well as any securities
previously or thereafter acquired and then owned by France Telecom and/or
any of France Telecom's Affiliates and/or Associates or the Cable and
Wireless Parties and/or any of the Cable and Wireless Parties' Affiliates
and/or Associates, as the case may be, and (y) all securities deemed to be
Beneficially Owned by France Telecom and/or any of France Telecom's
Affiliates and/or Associates or the Cable and Wireless Parties and/or any
of the Cable and Wireless Parties' Affiliates and/or Associates, as the
case may be, shall be counted in determining when such Person is an
"Acquiring Person".
Section 3. Amended Rights Agreement as Amended. The term
"Agreement" as used in the Amended Rights Agreement shall be deemed to
refer to the Amended Rights Agreement as amended hereby and as previously
amended by Amendment No. 1, Amendment No. 2, Amendment No. 3 and Amendment
No. 4. Each of the foregoing amendments shall be effective as of their
respective dates and, except as set forth herein, the Amended Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby. In the event of any conflict or inconsistency between
the provisions of this Amendment on the one hand and the Amended Rights
Agreement or Amendment No. 1, Amendment No. 2, Amendment No. 3 or Amendment
No. 4 on the other hand, with respect to the matters set forth herein or
contemplated hereby, the provisions of this Amendment shall govern such
conflict or inconsistency.
Section 4. Counterparts. This Amendment may be executed in
any number of counterparts, and each of such counterparts shall for all
purposes be deemed an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 5. Governing Law. This Amendment shall be deemed to
be a contract made under the laws of the State of Delaware and for all
purposes shall be governed by and construed in accordance with the laws of
such State applicable to contracts made and to be performed entirely within
such State.
Section 6. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their authorized representative as of the
date first above written.
Attest: NTL INCORPORATED
By: /s/ Lauren Hochman Blair By: /s/ Richard J. Lubasch
-------------------------------- ------------------------
Name: Lauren Hochman Blair Name: Richard J. Lubasch
Title: Assistant General Counsel Title: Executive Vice
President, General
Counsel and Secretary
Attest: CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By: /s/ Steven Nelson By: /s/ Michael J. Nelson
------------------------- -----------------------
Name: Steven Nelson Name: Michael J. Nelson
Title: Chairman Title: President
