Exhibit 4.12
AMENDMENT TO RIGHTS AGREEMENT
Amendment, dated as of September 26, 2003, between NTL Incorporated, a
Delaware corporation ("NTL" or the "Company"), and Continental Stock Transfer &
Trust Company, a New York corporation (the "Rights Agent").
W I T N E S S E T H :
WHEREAS, the Company and the Rights Agent entered into a Rights Agreement
dated as of January 10, 2003 (the "Rights Agreement");
WHEREAS, the Board of Directors of the Company has determined that it is
desirable and in the best interests of the Company and its stockholders to amend
the Rights Agreement as set forth herein; and
WHEREAS, on the date of this Amendment an appropriate officer of the
Company has delivered a certificate to the Rights Agent which states that this
Amendment is in compliance with the terms of Section 27 of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties hereby agree as follows:
1. Section 1 of the Rights Agreement is hereby amended by adding
the following definitions:
(xx) "Exempt Rights Offering Participant" means any Person who
acquires (A) shares of Common Stock in the Rights Offering who satisfies each of
the following conditions: (i) beneficially owned more than 7.5% of the shares
of Common Stock outstanding as of the close of business on the last trading day
prior to the date (the "Filing Date") that the Rights Offering Registration
Statement was initially filed with the Securities and Exchange Commission; (ii)
beneficially owned less than 15% of the shares of Common Stock outstanding at
any time after the Filing Date and prior to such Person first purchasing shares
of Common Stock in the Rights Offering; and (iii) as a result of its purchase or
purchases of shares of Common Stock in the Rights Offering (whether pursuant to
the basic subscription privilege or the over-subscription privilege) (as those
terms are defined in the Rights Offering Registration Statement), such Persons
became the beneficial owner of no more than the lesser of (a) a percentage of
the shares of Common Stock outstanding after completion of the Rights Offering
(taking into account any shares to be issued to the Rights Offering
Underwriters) that is 7.5% more than the percentage of that Person's beneficial
ownership of the shares of Common Stock outstanding as of the Filing Date or (b)
19.9% of the shares of Common Stock outstanding at such time of purchase (taking
into account any shares to be issued to the Rights Offering Underwriter) or (B)
Beneficial Ownership of more than 14.9% of the shares of Common Stock
outstanding as a result of issuance of shares of Common Stock to that Person by
the Company as a result of the Rights Offering but would not have Beneficially
Owned more than 14.9% of the shares of Common Stock outstanding had all shares
of Common Stock to be issued in the Rights Offering (including to the Rights
Offering Underwriter) been issued at that time.
(yy) "Rights Offering" means the transaction pursuant to which the
Company distributes to holders of its Common Stock of record on a date on or
around the date the Rights Offering Registration Statement is declared effective
by the Securities and Exchange Commission rights to purchase shares of Common
Stock on the terms described in the prospectus included in such Rights Offering
Registration Statement at the time such Registration Statement is declared
effective (taking into account any amendment or supplement thereto).
(zz) "Rights Offering Registration Statement" means a registration
statement on Form S-1 prepared in connection with the Rights Offering and filed
with the Securities and Exchange Commission, including all exhibits thereto.
(aaa) "Rights Offering Underwriters" shall mean the signatories,
other than the Company, to the Underwriting Agreement entered into in connection
with the Rights Offering.
2. Section 1(a)(x)(vii) of the Rights Agreement is hereby amended to
substitute the following in place of the existing Section 1(a)(x)(vii):
"any Person, who or which together with all Affiliates and Associates of
such Person becomes the Beneficial Owner of 15% or more of the then outstanding
shares of Common Stock as a result of the acquisition of shares of Common Stock
directly from the Company in a transaction approved by a majority of the
disinterested members of the Board of Directors of the Company, other than (x)
in a transaction contemplated by clause (iii) above or (y) the acquisition of
shares of Common Stock pursuant to the Rights Offering (provided that this
clause (y) shall not apply to any Exempt Rights Offering Participant or the
Rights Offering Underwriters)."
3. Section 1(b) of the Rights Agreement is hereby amended by adding
the following at the end of the sentence:
"provided that, for the avoidance of doubt, this clause (z) shall not apply
to an Exempt Rights Offering Participant or the Rights Offering Underwriter as a
result of its acquisition of shares of Common Stock pursuant to the Rights
Offering."
4. All references in the Rights Agreement (including the exhibits
thereto) are hereby amended to refer to the Rights Agreement as amended.
5. This Amendment shall not take effect until the Rights Offering
Registration Statement is filed with the Securities and Exchange Commission, and
in the event the Rights Offering Registration Statement is not filed by December
31, 2003, this Agreement shall be terminated without any action by the parties
and shall no longer have any effect.
6. This Agreement may be executed in counterparts each of which shall
be an original with the same effect as if the signatures hereto and thereto were
upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
NTL INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
