Virgin Entertainment Investment Holdings Ltd. Craigmuir Chambers Road Town Tortola British Virgin Islands Fax +1 284 494 2233 Copy: RBC Secretaries (CI) Limited La Motte Chambers La Motte Street St Helier JE1 1BJ Jersey Attention: Paul Fauvel Fax...
Exhibit
99.10
Execution
Version
10
September 2009
Virgin
Entertainment Investment Holdings Ltd.
Xxxxxxxxx
Xxxxxxxx
X.X. Xxx
00
Xxxx
Xxxx
Xxxxxxx
Xxxxxxx
Xxxxxx Xxxxxxx
Fax x0
000 000 0000
Copy:
RBC
Secretaries (CI) Limited
La Xxxxx
Xxxxxxxx
Xx Xxxxx
Xxxxxx
Xx
Xxxxxx
XX0
0XX
Jersey
Attention:
Xxxx Xxxxxx
Fax 00000
000 000
Credit
Suisse International
Xxx Xxxxx
Xxxxxx
Xxxxxx
X00
0XX
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(A)
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External
ID: 53838027
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Dear Sir
or Madam,
The
purpose of this letter agreement (this “Confirmation”) is to confirm
the terms and conditions of the Transaction entered into between us on the Trade
Date specified below (the “Transaction”). This Confirmation
constitutes a “Confirmation” as referred to in the Agreement specified
below.
In this
Confirmation, “CS” means
Credit Suisse International and “Counterparty” means Virgin
Entertainment Investment Holdings Ltd.
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1.
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The
definitions and provisions contained in the 2000 ISDA Definitions (the
“2000
Definitions”) and the 2002 ISDA Equity Derivatives Definitions (the
“2002 Definitions”
and, together with the 2000 Definitions, the “Definitions”), each as
published by the International Swaps and Derivatives Association, Inc.
(“ISDA”), are
incorporated into this Confirmation. In the event of any
inconsistency between the 2000 Definitions and the 2002 Definitions, the
2002 Definitions will govern. In the event of any inconsistency
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|
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between
the Definitions and this Confirmation, this Confirmation will govern. The
Transaction shall be deemed to be a Share Forward Transaction within the
meaning set forth in the 2002 Definitions.
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| This Confirmation supplements, forms part of, and is subject to, the ISDA 2002 Master Agreement dated as of 9 September, 2009, as amended and supplemented from time to time (the “Agreement”), between you and us. All provisions contained in the Agreement govern this Confirmation except as expressly modified below. | |
| If there exists any ISDA Master Agreement between CS and Counterparty or any confirmation or other agreement between CS and Counterparty pursuant to which an ISDA Master Agreement is deemed to exist between CS and Counterparty, then notwithstanding anything to the contrary in such ISDA Master Agreement, such confirmation or agreement or any other agreement to which CS and Counterparty are parties, this Transaction shall not be considered a Transaction under, or otherwise governed by, such existing or deemed ISDA Master Agreement. |
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2.
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The
terms of the particular Transaction to which this Confirmation relates are
as follows:
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General Terms:
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Trade
Date:
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9
September, 2009
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|
Seller:
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Counterparty
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|
Buyer:
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CS
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|
Shares:
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Common
stock of Virgin Media Inc. (the “Issuer”) (Exchange
Symbol: “VMED”).
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|
Number
of Shares:
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8,574,000
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|
Prepayment:
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Applicable
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|
Conditions
to CS’s Obligation
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|
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to
Pay Prepayment Amount:
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It
shall be a condition to CS’s obligation to pay any Prepayment Amount
hereunder on any Prepayment Date that Counterparty shall have performed
its obligations under paragraph 5, “Agreements to Deliver Documents,”
below and the Credit Support Deed.
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Counterparty
Option to
Receive
Prepayment
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|
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Amounts:
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Counterparty
may, from time to time, upon no less than five Scheduled Trading Days
prior written notice to CS, designate a Currency Business Day prior to the
first Averaging Date (each, a “Prepayment Date”) to
receive from CS an amount in immediately available funds equal to the
Prepayment Amount for such Prepayment Date.
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|
Prepayment
Amount:
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For
any Prepayment Date, the amount as indicated in the written notice
provided by Counterparty to CS in connection
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2
| with such Prepayment Date; provided that in no event shall an Prepayment Amount be (i) less than USD 1 million or (ii) greater than the Maximum Prepayment Amount. | |
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Maximum
Prepayment Amount:
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The
Present Value of the Forward Amount.
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Future
Value:
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The
future value of an amount on the Future Value Date calculated using an
interest rate determined by the Calculation Agent by reference to the
LIBOR/swap curve assuming (i) a tenor of the period of time from and
including such calculation date, as the case may be, to but excluding the
Future Value Date and (ii) a spread of zero basis
points.
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|
Present
Value:
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The
present value of an amount calculated using an interest rate determined by
the Calculation Agent by reference to the LIBOR/swap curve assuming (i) a
tenor of the period of time from but excluding such calculation date, as
the case may be, to and including the Future Value Date and (ii) a spread
of zero basis points.
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Initial
Forward Amount:
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USD
92,599,200
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|
Forward
Amount:
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At
any time, the Initial Forward Amount minus the Funded Amount at such
time.
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|
Funded
Amount:
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At
any time, the sum of all Forward Reduction Amounts for all Prepayment
Dates occurring at or prior to such time.
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Forward
Reduction Amount:
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For
any Prepayment Date, the Future Value of the Prepayment Amount for such
Prepayment Date.
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Future
Value Date:
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The
scheduled Settlement Date
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|
Variable
Obligation:
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Applicable
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Forward
Floor Price:
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USD
10.8
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Forward
Cap Price:
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USD
15.6
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Exchange:
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NASDAQ
Global Select Market
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|
Related
Exchange(s):
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NASDAQ
Global Select Market, Chicago Board Options Exchange, Philadelphia Stock
Exchange, American Stock Exchange, Pacific Stock Exchange, Boston Stock
Exchange and International Securities
Exchange
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3
| Valuation: | |
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Valuation
Date:
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9
September, 2010
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|
Market
Disruption Event:
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Section
6.3(a) of the 2002 Definitions is hereby amended by deleting the words
“during the one hour period that ends at the relevant Valuation Time” and
replacing them with “on the relevant date prior to the relevant Valuation
Time” in clause (ii) thereof.
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Relevant
Price:
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The
‘Volume Weighted Average Price’ per Share on each Averaging Date with
respect to the period from 9:30 a.m. to 4:00 p.m. (New York City time), as
determined by the Calculation Agent by reference to the Bloomberg Page
‘VMED US <Equity> AQR <Go>’ (or any successor thereto) on such
Averaging Date.
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Averaging
Dates:
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Each
of the 20 Scheduled Trading Days from and including the date falling 19
Scheduled Trading Days prior to the Valuation Date to and including the
Valuation Date.
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Averaging
Date Disruption:
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Modified
Postponement
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Settlement
Terms:
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Settlement
Method Election:
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Applicable
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Electing
Party:
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Counterparty
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Settlement
Method
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Election
Date:
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The
date that is 5 Scheduled Trading Days prior to the first Averaging
Date
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Default
Settlement Method:
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Cash
Settlement
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Settlement
Price:
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The
arithmetic mean of the Relevant Price on each Averaging
Date.
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Settlement
Currency:
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USD
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CS
Payment Upon Settlement
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On
the Settlement Date, CS shall pay Counterparty, in immediately available
funds, an amount equal to the Forward Amount, if any, as of the Future
Value Date.
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Dividends:
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Extraordinary
Dividend:
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Any
dividend or distribution on the Shares (other than any dividend or
distribution of the type described in Section 11.2(e)(i) or Section
11.2(e)(ii)(A) or (B) of the 2002 Definitions) the amount or value of
which differs in amount from the Ordinary Dividend Amount (by virtue of
being a
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4
| greater amount) for such dividend or distribution (and, therefore, the amount of any such Extraordinary Dividend being the difference in value between the Extraordinary Dividend and the related Ordinary Dividend Amount). On the ex-dividend date for any Extraordinary Dividend, Counterparty shall pay to CS an amount calculated by the Calculation Agent equal to the aggregate Extraordinary Dividend in respect of the number of Shares which CS is theoretically deemed to be short in respect of this Transaction as of the relevant ex-dividend date (such amount, the Delta Hedge Extraordinary Dividends). | |
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Ordinary
Dividend Amount:
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USD
0.04 per share for the first dividend or distribution on the Shares for
which the ex-dividend date falls within a regular quarterly dividend
period of the Issuer, and zero for any subsequent dividend or distribution
on the Shares for which the ex-dividend date falls within the same regular
quarterly dividend period of the Issuer.
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Excess
Dividend Amount:
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For
the avoidance of doubt, all references to the Excess Dividend Amount shall
be deleted from Section 8.4(b) and 9.2(a)(iii) of the 2002
Definitions.
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Share
Adjustments:
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Potential
Adjustment Events:
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If
an event occurs that constitutes both a Potential Adjustment Event under
Section 11.2(e)(ii)(C) of the 2002 Definitions and a Spin-off as described
below, it shall be treated hereunder as a Spin-off and not as a Potential
Adjustment Event.
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Method
of Adjustment:
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Calculation
Agent Adjustment, provided, however, that
in the case of an Extraordinary Dividend no adjustment will be made to
this Transaction to account for such Extraordinary
Dividend.
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Spin-off:
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A
distribution of New Shares (the “Spin-off Shares”) of a
subsidiary of the Issuer (the “Spin-off Issuer”) to
holders of the Shares (the “Original
Shares”). With respect to a Spin-off, “New Shares” shall have the
meaning provided in Section 12.1(i) of the 2002 Definitions except that
the phrase immediately preceding clause (i) thereof shall be replaced by
the following: “‘New Shares” means ordinary
or common shares of the Spin-off Issuer that are, or that as of the
ex-dividend date of such Spin-off are scheduled promptly to
be,”.
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Consequences
of Spin-offs:
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As
of the ex-dividend date of a Spin-off, (i) “Shares” shall mean the
Original Shares and the Spin-off Shares; (ii) the Transaction shall
continue but as a Share Basket Forward Transaction with a Number of
Baskets equal to the Number of
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5
| Shares prior to such Spin-off, and each Basket shall consist of one Original Share and a number of Spin-off Shares that a holder of one Original Share would have been entitled to receive in such Spin-off; and (iii) the Calculation Agent shall make such adjustments to the exercise, settlement, payment or any other terms of the Transaction as the Calculation Agent determines appropriate to account for the economic effect on the Transaction of such Spin-off (provided that no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares or to the Transaction), which may, but need not, be determined by reference to the adjustment(s) made in respect of such Spin-off by an options exchange to options on the Shares traded on such options exchange. As of the ex-dividend date of any subsequent Spin-off, the Calculation Agent shall make adjustments to the composition of the Basket and other terms of the Transaction in accordance with the immediately preceding sentence. | |
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Extraordinary
Events:
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New
Shares
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In
the definition of New Shares in Section 12.1(i) of the 2002 Definitions,
the text in clause (i) shall be deleted in its entirety and replaced with
“publicly quoted, traded or listed on any of the New York Stock Exchange,
the American Stock Exchange, the NASDAQ Global Select Market or the London
Stock Exchange (or their respective
successors).”
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Consequences
of Merger Events:
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Share-for-Share:
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Calculation
Agent Adjustment
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Share-for-Other:
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Cancellation
and Payment
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Share-for-Combined:
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Component
Adjustment
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Composition
of
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Combined
Consideration:
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Not
Applicable
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Tender
Offer:
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Applicable
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Consequences
of Tender Offers:
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Share-for-Share:
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Calculation
Agent Adjustment
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Share-for-Other:
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Calculation
Agent Adjustment
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Share-for-Combined:
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Calculation
Agent Adjustment
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6
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Nationalization,
Insolvency
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or
Delisting:
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Cancellation
and Payment. Notwithstanding Section 12.6(c)(ii) of the 2002
Definitions, Cancellation and Payment shall mean that the Transaction
shall be cancelled as of the Announcement Date, provided that Counterparty
may, by notice to CS on the first Business Day after the Announcement
Date, elect to deliver, in lieu of paying the Cancellation Amount, a
number of Shares equal to the Number of Shares on the second Business Day
after the Announcement Date.
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Additional
Disruption Events:
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Change
in Law:
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Applicable
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Failure
to Deliver:
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Applicable
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Insolvency
Filing:
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Applicable
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Hedging
Disruption:
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Not
Applicable
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Increased
Cost of Hedging:
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Not
Applicable
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Loss
of Stock Borrow:
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For
the period commencing on and including the Trade Date and ending on and
including the first date on which CS closes its open market borrow of a
number of Shares equal to the Number of Shares with Shares borrowed from
Counterparty, Applicable and thereafter, Not
Applicable.
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Maximum
Stock Loan Rate:
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0.4%
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Increased
Cost of Stock Borrow:
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Not
Applicable
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Hedging
Party:
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CS
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Determining
Party:
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CS
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Non-Reliance:
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Applicable
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Agreements
and Acknowledgments
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Regarding
Hedging Activities:
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Applicable
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Additional
Acknowledgments:
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Applicable
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Account
Details:
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Payments
to CS:
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To
be advised under separate cover prior to the Trade Date
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Payments
to Counterparty:
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To
be advised under separate cover prior to the Trade
Date
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7
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Delivery
of Shares to CS:
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To
be advised under separate cover prior to the Trade Date
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Office:
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CS
is acting through its London Office for the purposes of the Transaction;
neither party is a Multibranch Party.
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Calculation
Agent:
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CS.
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3.
Other Provisions:
Optional Early Termination by
Counterparty:
At any
time, Counterparty may terminate the Transaction in whole or in part upon twenty
(20) Exchange Business Days’ prior written notice to CS (the termination date
specified in such notice, the “Optional Termination Date”);
provided, that Counterparty is not on the date of such notice in possession of
any material non-public information relating to the Shares or the
Issuer. If Counterparty terminates the Transaction in part,
Counterparty shall specify in the notice of optional early termination, the
number of Shares with respect to which the Transaction is to be
terminated.
If
Counterparty notifies CS that it wishes to terminate the Transaction in whole or
in part, CS shall provide Counterparty with a price for such optional early
termination which shall be calculated by CS (acting in good faith and in a
commercially reasonable manner) as the amount equivalent to (a) the cost to CS
of unwinding the derivative embedded in the Transaction and (b) the cost to CS
of unwinding its Hedge Positions in the market or otherwise on or prior to the
Optional Termination Date (the “Optional Termination
Price”). If Counterparty accepts the Optional Termination
Price quoted by CS, the Transaction will terminate on the Optional Termination
Date and Counterparty shall make a cash payment to CS (or vice versa, as the case may
be) on the Optional Termination Date in an amount equal to the Optional
Termination Price..
If the
Transaction is terminated in part for any reason, the Number of Shares shall be
reduced by such number of Shares with respect to which such Transaction has been
terminated and the Calculation Agent shall reduce by corresponding amounts the
Maximum Prepayment Amount and other terms of the Transaction as appropriate to
reflect the effect of such partial termination.
Counterparty
may at any time assign, novate or otherwise transfer its rights and obligations
under the Agreement (in whole but not in part) (a "Transfer") to a third party
(the "Third Party")
subject to the following conditions:
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1.
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the
standard credit lines and policies of CS allow it to trade with the Third
Party; and
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2.
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the
Third Party or its Credit Support Provider enters into a Credit Support
Document in form and substances acceptable to CS and provides such other
evidence and opinions in support of that Credit Support Document and the
Transferred obligations as CS may reasonably
require.
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Counterparty
and CS agree to execute all relevant documentation to effect the
Transfer.
Additional Representations and
Warranties:
Counterparty
hereby represents and warrants to CS as of the date hereof that:
8
|
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1.
|
From
the three months prior to the date hereof, neither Counterparty nor any
person who would be considered to be the same “person” as Counterparty or
“acting in concert” with Counterparty (as such terms are used in clauses
(a)(2) and (e)(3)(vi) of Rule 144 under the Securities Act of 1933, as
amended (the “Securities
Act”)) has, without the written consent of CS, sold any Shares or
hedged (through swaps, options, short sales or otherwise) any long
position in the Shares. Counterparty does not know or have any
reason to believe that the Issuer has not complied with the reporting
requirements contained in Rule 144(c)(1) under the Securities
Act.
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2.
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Counterparty
is not on the date hereof, in possession of any material non-public
information regarding the Shares or the Issuer. None of the
transactions contemplated herein will violate any corporate policy of the
Issuer or other rules or regulations of the Issuer applicable to
Counterparty or its affiliates, including, but not limited to, the
Issuer’s window period policy.
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3.
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Counterparty
has filed, in the manner contemplated by Rule 144(h) under the Securities
Act, a notice on Form 144 relating to the Transaction contemplated hereby
in form and substance that CS has informed Counterparty is acceptable to
CS.
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4.
|
Counterparty
aquired the Posted Collateral in the form of Shares on 4 July,
2006. Counterparty agrees that Counterparty has not (i) created
or permitted to exist any lien, mortgage, interest, pledge, charge or
encumbrance of any kind (other than the security interest created by the
Credit Support Deed) (a “Lien”) or any Transfer
Restriction (other than the Existing Transfer Restrictions, as defined
below) upon or with respect to the Posted Collateral in the form of
Shares , (ii) sold or otherwise disposed of, or granted any
option with respect to, any of the Posted Collateral in the form of
Shares or (iii) entered into or consented to any agreement
(other than, in the case of clause (x), this Confirmation) (x) that
restricts in any manner the rights of any present or future owner of any
Posted Collateral in the form of Shares with respect thereto or
(y) pursuant to which any person other than Counterparty, CS and any
securities intermediary through whom any of the Posted Collateral in the
form of Shares is held (but in the case of any such securities
intermediary only in respect of Posted Collateral in the form of Shares
held through it) has or will have Control in respect of any Posted
Collateral in the form of Shares. “Control” means “control”
as defined in Section 8-106 and 9-106 of the Uniform Commercial Code as in
effect in the State of New York (“UCC”).
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|
“Transfer
Restriction” means, with respect to any item of Posted Collateral,
any condition to or restriction on the ability of the owner thereof to
sell, assign or otherwise transfer such item of Posted Collateral or
enforce the provisions thereof or of any document related thereto whether
set forth in such item of collateral itself or in any document related
thereto, including, without limitation, (i) any requirement that any sale,
assignment or other transfer or enforcement of such item of Posted
Collateral be consented to or approved by any Person, including, without
limitation, the issuer thereof or any other obligor thereon, (ii) any
limitations on the type or status, financial or otherwise, of any
purchaser, pledgee, assignee or transferee of such item of Posted
Collateral, (iii) any requirement of the delivery of any certificate,
consent, agreement, opinion of counsel, notice or any other document of
any Person to the issuer of, any other obligor on or any registrar or
transfer agent for, such item of Posted Collateral, prior to the sale,
pledge, assignment or other transfer or enforcement of such item of Posted
Collateral and (iv) any registration or qualification requirement or
prospectus delivery requirement for such item of Posted Collateral
pursuant to any federal, state or foreign securities law (including,
without limitation, any such requirement arising under Section 5 of the
Securities Act as a result of Counterparty being an “affiliate” of the
issuer of such security, as such term is defined in Rule 144 under the
Securities Act, or as a result of the
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9
|
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|
sale
of such security being subject to paragraph (c) of Rule 145 under the
Securities Act); provided that the required delivery of any
assignment, instruction or entitlement order from the seller,
Counterparty, assignor or transferor of such item of Posted Collateral,
together with any evidence of the corporate or other authority of such
Person, shall not constitute a “Transfer Restriction”.
“Existing
Transfer Restrictions” means Transfer Restrictions existing with
respect to any securities by virtue of the fact that (i) Counterparty is
an “affiliate”, within the meaning of Rule 144 under the Securities Act,
of the Issuer, (ii) the items of Posted Collateral in the form of Shares
were acquired by the Counterparty in a transaction within the meaning of
Rule 145 of the Securities Act and (iii) the items of Posted Collateral in
the form of Shares were formerly subject to lock-up provisions under an
Investment Agreement between, for the purposes of such provisions, the
Counterparty and the Issuer.
“Person”
means an individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
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5.
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Other
than financing statements or other similar or equivalent documents or
instruments with respect to the security interests in the Posted
Collateral, no financing statement, security agreement or similar or
equivalent document or instrument covering all or any part of the Posted
Collateral is on file or of record in any jurisdiction in which such
filing or recording would be effective to perfect a lien, security
interest or other encumbrance of any kind on any such Posted
Collateral.
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6.
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No
registration, recordation or filing with any governmental body, agency or
official is required or necessary for the validity or enforceability
hereof or for the perfection or enforcement of the security interests in
the Posted Collateral, other than the filing of financing statement in any
appropriate jurisdiction.
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7.
|
Counterparty
has not performed and will not perform any acts that might prevent CS from
enforcing any of the terms of the Agreement or the Credit Support Deed or
that might limit CS in any such
enforcement.
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|
8.
|
Each
of CS and Counterparty hereby represents and warrants to the other party
as of the date hereof that:
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|
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(a)
|
It
is an “accredited investor” (as defined in Regulation D under the
Securities Act) and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of
the Transaction, and it is able to bear the economic risk of the
Transaction.
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(b)
|
It
is entering into the Transaction for its own account and not with a view
to the distribution or resale of the Transaction or its rights thereunder
except pursuant to a registration statement declared effective under, or
an exemption from the registration requirements of, the Securities
Act.
|
Representations, Warranties and
Covenants of CS:
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|
1.
|
CS
represents to Counterparty that an affiliate of CS (the “CS Affiliate”) is
registered as a broker and a dealer with the Securities and Exchange
Commission and is a “market maker” or a “block positioner”, as such terms
are used in Rule 144 under the Securities Act, with respect to the
Shares.
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10
|
|
2.
|
CS
agrees that CS Affiliate shall, as promptly as practicable consistent with
market conditions, introduce into the public market a quantity of
securities of the same class as the Shares equal to the Number of Shares
minus the number
of securities of such class sold in connection with CS’s Initial Hedge
position.
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|
|
3.
|
CS
covenants with Counterparty that it will not knowingly (after informal
inquiry as to whether the proposed purchaser is affiliated with, or part
of a "group" with, any other proposed purchaser but without any obligation
to seek any formal confirmation or representation) sell shares of the
Issuer representing more than 1% of the outstanding common stock of the
Issuer to any person or "group" (as such term is used in Section 13-5d of
the U.S Securities Act of 1933);
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Covenants of
Counterparty:
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|
|
1.
|
Counterparty
agrees that each of Counterparty and its affiliates will comply with all
applicable disclosure or reporting requirements in respect of the
Transaction, including, without limitation, any requirement imposed by
Section 13 or Section 16 of the Securities and Exchange Act of 1934, as
amended, if any, and Counterparty will provide CS with a copy of any
report filed in respect of the Transaction promptly upon filing
thereof.
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2.
|
Counterparty
is aware of and agrees to be bound by the rules of the National
Association of Securities Dealers, Inc. (“NASD”) applicable to
option trading and is aware of and agrees not to violate, either alone or
in concert with others, the position or exercise limits established by the
NASD.
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3.
|
Counterparty
agrees that Counterparty shall not enter into or alter any hedging
transaction relating to the Shares corresponding to or offsetting the
Transaction. Counterparty also acknowledges and agrees that any
amendment, modification, waiver or termination of this Confirmation or the
Agreement must be effected in accordance with the requirements for the
amendment or termination of a “plan” as defined in Rule 10b5-1(c) under
the Exchange Act. Without limiting the generality of the
foregoing, any such amendment, modification, waiver or termination shall
be made in good faith and not as part of a plan or scheme to evade the
prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment,
modification, waiver or termination shall be made at any time at which
Counterparty or, if Counterparty is not an individual, any officer,
director, general partner, manager or similar person of Seller is aware or
any material non-public information regarding the
Issuer.
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Binding
Commitment:
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The
parties intend that this Confirmation constitutes a “Final Agreement” as
described in the letter dated December 14, 1999 submitted by Xxxxxx X. Xxxxxx
and Xxxx X. Xxxxxx to Xxxxxxx Xxxxxx of the staff of the Securities and Exchange
Commission (the “Staff”)
to which the Staff responded in an interpretative letter dated December 20,
1999.
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Securities
Contract:
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The
parties hereto acknowledge and agree that CS is a “stockbroker” within the
meaning of Section 101 (53A) of Title 11 of the United States Code (the “Bankruptcy Code”). The parties
hereto further recognize that the Transaction is a “securities contract”, as
such term is defined in Section 741(7) of the Bankruptcy Code, entitled to the
protection of, among other provisions, Sections 555 and 362(b)(6) of the
Bankruptcy Code, and that each payment or delivery of cash, Shares or other
property or assets hereunder is a “settlement payment” within the meaning of
Section 741(8) of the Bankruptcy Code.
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Assignment:
The
rights and duties hereunder and under the Agreement may not
be assigned or transferred by any party hereto without the prior written consent
of the other parties hereto, such consent not to be unreasonably withheld; provided that (i) CS may
assign or transfer in whole its rights or duties hereunder to any of its
Affiliates without the prior written consent of Counterparty, so long as (i) the
senior unsecured debt rating (“Credit Rating”) of such Affiliate (or any
guarantor of its obligations under the Agreement where such guarantee is for all
obligations under the Agreement) is equal to or greater than the Credit Rating
of Credit Suisse International, as specified by Standard & Poor’s and
Xxxxx’x, at the time of such assignment or transfer and (ii) such assignment or
transfer does not result in (a) any additional payment becoming due and payable
or accruing from the Counterparty under Section 2(d) of the Agreement; (b) the
inability of the Counterparty to deduct for corporation tax purposes any
payments/deliveries made to the assignee or any xxxx to market loss on the
Transaction; or (c) any deduction or withholding for or on account of any Tax in
respect of any payment by CS where such Tax is not an Indemnifiable
Tax.
Non-Confidentiality:
The
parties hereby agree that (i) effective from the date of commencement of
discussions concerning the Transaction, Counterparty and each of its employees,
representatives, or other agents may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the Transaction
and all materials of any kind, including opinions or other tax analyses,
provided by CS and its affiliates to Counterparty relating to such tax treatment
and tax structure (provided that the foregoing
does not constitute an authorization to disclose the identity of CS or its
affiliates, agents or advisers, or, except to the extent relating to such tax
structure or tax treatment, any specific pricing terms or commercial or
financial information) and (ii) CS does not assert any claim of proprietary
ownership in respect of any description contained herein or therein relating to
the use of any entities, plans or arrangements to give rise to a particular
United States federal income tax treatment for Counterparty.
Agreements to Deliver
Documents. For the purpose of Sections 4(a)(i) and (ii) of the
Agreement, each of CS and Counterparty agrees to deliver the following
documents, which shall be covered by the representation set forth in Section
3(d) of the Agreement.
(i) The
Issuer shall have executed and delivered to CS, upon execution of this
Confirmation, an Issuer Acknowledgment in the form attached as Annex A
hereto.
Credit Suisse
International is authorised and regulated by the Financial Services Authority
and has entered into this transaction as principal. The time at which
the above transaction was executed will be notified on request.
12
Please
confirm that the foregoing correctly sets forth the terms of our agreement by
signing and returning this Confirmation.
| Yours faithfully, | |
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CREDIT
SUISSE INTERNATIONAL
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By: |
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Name:
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Title:
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Confirmed
as of the date first written above:
VIRGIN
ENTERTAINMENT INVESTMENT HOLDINGS LIMITED
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Name:
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Title:
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13
Annex
A
[Virgin
Media Inc. Letterhead]
[l], 2009
Credit
Suisse International
Re:
Proposed Transaction by Virgin Entertainment Investment Holdings
Limited
Ladies
and Gentlemen:
[CS]
(“the Bank” or “you”) and Virgin Entertainment Investment Holdings Limited
(“XXXXX”) have advised us of your intention to enter into an equity derivative
hedging transaction (the “Transaction”) that may involve, among other things, a
transfer by XXXXX to you of ____________ shares of our Common Stock (the
“Transfer”) and pledge by XXXXX to you of ________ shares of our Common Stock
(the “Pledge”) to secure XXXXX’x obligations pursuant to the
Transaction.
We note
that XXXXX is entitled to enter into a disposal (including in a hedging
transaction) in respect of this number of shares of our Common Stock in
accordance with Section 3.1(g) of its Investment Agreement with us dated as of
April 3, 2006 (the “Investment Agreement”). We note, however, XXXXX’x
obligation to carry out the Transaction in accordance with, inter alia, Section
3.1(h) of the Investment Agreement. Additionally, the shares of our
Common Stock issued to XXXXX were issued in a transaction exempt from
registration under the Securities Act of 1933 in accordance with Section
3(a)(10) of the Act, and consequently cannot be transferred without registration
under the Act except pursuant to Rule 145(d) promulgated under the Act or
another applicable exemption from registration under the Act. You
should obtain your own advice in respect of subsequent transfers by you of
shares of our Common Stock acquired in the Transaction.
We agree
that, subject to applicable law (including but not limited to the U.S. federal
securities laws) and court orders: (i) if the equity derivative hedging
transaction is to be settled by way of transfer of shares, we shall cause the
transfer agent for the Common Stock promptly to register such transfer to you;
and (ii) if you foreclose on any shares of Common Stock pursuant to the Pledge,
we shall, subject to the satisfaction by you of all preconditions to such
transfer set forth in Section 8-401 of the Uniform Commercial Code of the State
of Delaware, cause the transfer agent for the Common Stock promptly to register
the transfer of the shares of Common Stock subject to such foreclosure from
XXXXX to you, or to the buyer in any foreclosure sale, as directed by
you.
| Sincerely, | ||||||
| Virgin Media Inc. | ||||||
| By: |
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Name:
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Title:
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14
