PURCHASE AGREEMENT, made as of the 1st day of November, 1999
BETWEEN AND AMONG
(1) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Kavner") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Glimcher"), each of
whom is a shareholder of NTL Incorporated (Kavner and Glimcher are
collectively referred to herein as the "Sellers");
(2) DCI Capital Partners, a California general partnership ("DCI"); and
(3) Compagnie Generale des Communications (COGECOM) S.A. ("Cogecom"), a
company registered in France and having its registered office at 6
Place d'Alleray, 75505 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇, and a wholly owned
subsidiary of France Telecom S.A. (the Sellers, DCI and Cogecom are
hereinafter referred to as the "Parties").
WHEREAS
In reply to a Private Sale Notice (as defined in Section 2.7 of
the registration rights agreement, dated March 8, 1999, by and among
the Company, DCI, and the other parties thereto (the "Registration
Rights Agreement")), dated October 23, 1999, the Sellers exercised
their right to sell to Cogecom an aggregate of 82,439 shares of common
stock, par value $0.01 per share (the "Additional Tag Along Shares") of
NTL Incorporated (the "Company"), a Delaware corporation having its
principal executive office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇;
WHEREAS
The Sellers desire to sell to Cogecom and Cogecom, subject to the terms
and conditions set out in this Agreement, desires to purchase from the
Sellers, the Additional Tag Along Shares, at a price per Additional Tag
Along Share as set forth below and otherwise on the terms set out in
this Agreement;
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. Purchase and Sale.
On and subject to the terms and conditions of this Agreement, the
Sellers hereby severally agree to sell to Cogecom that number of the
Additional Tag Along Shares listed opposite its name in Section 3
hereof, and Cogecom agrees to purchase all of such Additional Tag Along
Shares, at the purchase price set out below, free from any and all
pledges, liens, security interests or other encumbrances.
2. Settlement.
(A) November 2, 1999 at 5:00 p.m. (New York time) shall be the
settlement date for the sale of (i) 61,997 Additional Tag
Along Shares by Kavner and (ii) 4,943 Additional Tag Along
Shares by Glimcher (the "First Settlement Date").
(B) At the request of Kavner, the settlement for the sale of
15,499 Additional Tag Along Shares by Kavner shall be on the
first business day that a certificate evidencing such shares
is issued by the transfer agent of the Company (the "Second
Settlement Date").
(C) On each Settlement Date, the Sellers shall cause to be
delivered to Cogecom certificates representing the Additional
Tag Along Shares in the manner agreed by the Parties against
payment in full made in accordance with Section 3.
3. Purchase Price.
The purchase price per share to be paid by Cogecom for the Additional
Tag Along Shares shall be $68.50 per Additional Tag Along Share, to be
paid by wire transfer to accounts of the Sellers by Cogecom, as
follows:
Number
Seller Certificate No. Settlement Date of Shares Purchase Price
Kavner CT 2556 First Settlement Date 61,997 $4,246,794.50
▇▇▇▇▇▇ ▇▇ ▇▇▇▇* Second Settlement 15,499 $1,061,681.50
Date
Glimcher CT 3096 First Settlement Date 989 $67,746.50
Glimcher CT 2571 First Settlement Date 3,954 $270,849.00
======= =============
82,439 $5,647,071.50
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* Replacement certificate to be issued by transfer agent.
4. Representations, Warranties and Undertakings.
(A) Kavner hereby makes the representations, warranties and
undertakings set forth in Annex I hereto as of the date hereof
and as of the First Settlement Date and the Second Settlement
Date.
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(B) Glimcher hereby makes the representations, warranties and
undertakings set forth in Annex I hereto as of the date hereof
and as of the First Settlement Date.
(C) Cogecom makes to each of the Sellers the representations,
warranties and undertakings set forth in Annex II hereto as of
the date hereof and as of the First Settlement Date and the
Second Settlement Date.
(D) DCI makes to Cogecom the representations, warranties and
undertakings set forth in Annex III hereto as of the date
hereof and as of the First Settlement Date and the Second
Settlement Date.
(E) The Sellers, DCI and Cogecom shall each notify the others
forthwith if, on or prior to the First Settlement Date (and,
in the case of Kavner, Cogecom and DCI, the Second Settlement
Date), any of their respective representations, warranties,
undertakings or agreements set out in Annex I, Annex II or
Annex III hereto ceases to be true and accurate or becomes
misleading in any respect or that there has been any breach of
any of such representations, warranties, undertakings or
agreements.
5. Miscellaneous.
The Parties each undertake to execute all such documents and do all
such acts and things as the other may reasonably require in order to
give effect to the terms of this Agreement and to enable the sale and
purchase of the Additional Tag Along Shares to be carried out and given
full force and effect.
The representations, warranties, agreements and undertakings in this
Agreement shall continue in full force and effect despite any
completion of the purchase and sale of the Additional Tag Along Shares
under this Agreement.
The Sellers agree that, except as otherwise specifically contemplated
in this Agreement, no press release or similar public announcement or
communication will be made by them concerning the execution,
performance or terms of this Agreement unless specifically approved in
advance and in writing by Cogecom.
6. Expenses.
Each party to this Agreement shall pay all of its expenses in
connection with this Agreement and the transactions contemplated
hereby.
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7. Notices.
(A) Any notice to be given under this Agreement shall be in
writing and shall be delivered to or sent by facsimile
transmission, to the respective numbers set out in sub-clause
(B) below. Any such notice shall be deemed served on the
business day of actual receipt; where actual receipt occurs on
a day which is a Saturday, Sunday or bank holiday the
effective date of service shall be the first business day
following the date of actual receipt or, if earlier, the date
upon which receipt shall have been acknowledged.
(B) The respective addresses and facsimile numbers of the Parties
are as follows:
The Sellers: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Cogecom: ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Cedex 15
France
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇▇-▇▇▇▇
With a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telecopy No.: ▇-▇▇▇-▇▇▇-▇▇▇▇
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DCI: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: ▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
8. Entire Agreement.
This Agreement embodies the entire understanding of the Parties and
there are no other agreements or understandings, written or oral, in
effect between Parties relating to the subject matter hereof. This
Agreement may be amended or modified only by an instrument executed by
the Parties.
9. Successors and Assigns.
No Party hereto may assign this Agreement without the prior written
consent of the others provided that Cogecom may assign this Agreement
to any of its affiliates provided that it will remain responsible for
performance under this Agreement. Any impermissible attempted
assignment of this Agreement without such prior written consent shall
be void. This Agreement and the provisions thereof shall be binding
upon and inure to the benefit of the Parties and their permitted
successors and assigns.
10. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
11. Counterparts.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed as
of the day and year first before written.
COMPAGNIE GENERALE DES COMMUNICATIONS (COGECOM) S.A.
By:
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Name: Pierre Dauvillaire
Title: Chairman of the Board of Directors
By:
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Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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DCI CAPITAL PARTNERS
By:
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: General Partner
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ANNEX I
Sellers Several Representations, Warranties and Undertakings
Each of the Sellers severally hereby represents, warrants and undertakes to
COGECOM with respect to himself, that:
1. he has full power to enter into and perform this Agreement; all
necessary authorizations, approvals, consents and licenses to permit
him to enter into and perform this Agreement have been obtained and are
in full force and effect; the execution and delivery by such Seller of,
and the performance by such Seller of, this Agreement will not
contravene any provision of applicable law, any agreement or other
instrument binding upon such Seller or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over such
Seller or any of his assets, and no consent, approval, authorization or
order of, or qualification or filing with, any governmental body or
agency is required for the performance by such Seller of his
obligations under this Agreement, except such as have already been
obtained and are in full force and effect; and this Agreement has been
duly authorized, executed and delivered by such Seller and is a valid
and binding agreement of such Seller enforceable in accordance with its
terms;
2. such Seller has valid title free and clear of all security interests,
liens, encumbrances, equities or other claims to, and the legal right
and power to sell and transfer the Additional Tag Along Shares, and
transfer of such Additional Tag Along Shares to Cogecom will pass title
to such shares, free and clear of all security interests, liens,
encumbrances, equities or other claims; and
3. such Seller is, directly or indirectly, an investor in DCI and has
received distributions of the Additional Tag Along Shares from DCI in
the past as a result of a distribution, transfer and assignment in full
compliance with the requirements of (i) Section 10(j) of the
Registration Rights Agreement and (ii) applicable laws, governmental
orders, rules and regulations including, without limitation, the United
States Securities Act of 1933, as amended and the rules and regulations
thereunder (the "Securities Act") and, therefore, such Seller is a "Y
Holder" (as that term is defined in the Registration Rights Agreement).
ANNEX II
Cogecom Representations, Warranties, and Undertakings
Cogecom hereby represents, warrants and agrees for the benefit of the Sellers
that:
1. it has full corporate power, and all authorizations, approvals,
consents and licenses required by it, to permit it to enter into and
perform this Agreement have been obtained and are in full force and
effect; the execution and delivery by it of, and the performance by it
of, this Agreement will not contravene its constitutional documents,
any provision of applicable law any agreement or other instrument
binding upon it or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over it or any of its assets,
and no consent, approval, authorization or order of, or qualification
or filing with, any governmental body or agency is required for the
performance by it of its obligations under this Agreement, except such
as have already been obtained and are in full force and effect; and
this Agreement has been duly authorized, executed and delivered by it
and is a valid and binding agreement of it; the purchase of the
Additional Tag Along Shares by Cogecom will not require notification
under the U.S. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976;
2. the Additional Tag Along Shares have not been and, in connection with
the purchase of the Additional Tag Along Shares by Cogecom, will not be
registered under the Securities Act; as a result the Additional Tag
Along Shares will be "restricted securities" within the meaning of Rule
144 under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons
except in a transaction exempt from, or not subject to, the
registration requirements of the Securities Act;
3. it is an institutional "accredited investor" within the meaning of Rule
501(a)(1),(2),(3) or (7) under the Securities Act; as a purchaser in a
private placement of securities which have not been registered under
the Securities Act, it is purchasing Additional Tag Along Shares for
its own account without a view to any resale or distribution thereof;
it has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of its decision to
invest in the Additional Tag Along Shares, and it has the financial
ability to bear the economic risk of its investment in the Additional
Tag Along Shares; and it acknowledges that it has had access to such
information as it deems necessary and has made its own investigation to
the extent it deems necessary in connection with its decision to
purchase the Additional Tag Along Shares; and
4. it agrees that the certificates evidencing the Additional Tag Along
Shares currently bear a legend and certificates delivered to it will
continue to bear a legend evidencing the restrictions.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT,
COGECOM MAKES NO REPRESENTATIONS OR WARRANTIES, AND HEREBY DISCLAIMS ANY SUCH
REPRESENTATIONS OR WARRANTIES, WHETHER BY
IT OR ANY OF ITS OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, AGENTS OR
REPRESENTATIVES, WITH RESPECT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE COMPANY.
ANNEX III
DCI Representations, Warranties, and Undertakings
DCI hereby represents, warrants and undertakes to COGECOM that:
1. it has full corporate power, and all authorizations, approvals,
consents and licenses required by it, to permit it to enter into and
perform this Agreement have been obtained and are in full force and
effect; the execution and delivery by DCI of, and the performance by
DCI of, this Agreement will not contravene the constitutional documents
of DCI, any provision of applicable law any agreement or other
instrument binding upon DCI or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over DCI or any
of its assets, and no consent, approval, authorization or order of, or
qualification or filing with, any governmental body or agency is
required for the performance by DCI of its obligations under this
Agreement, except such as have already been obtained and are in full
force and effect; and this Agreement has been duly authorized, executed
and delivered by DCI and is a valid and binding agreement of DCI
enforceable in accordance with its terms;
2. DCI is a "Y Holder", as such term is defined in the Registration Rights
Agreement; and
3. DCI is a California general partnership and has distributed,
transferred and assigned the Additional Tag Along Shares to Glimcher
and Kavner; (i) such distribution, transfer and assignment was in full
compliance with the requirements of the Registration Rights Agreement
and all applicable laws, governmental orders, rules and regulations,
including, without limitation, the Securities Act and the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder, and (ii) in connection such distribution, DCI has properly
and validly assigned its rights under the Registration Rights Agreement
to Glimcher and Kavner, pursuant to Section 10(j) of the Registration
Rights Agreement.