Exhibit 1.2
November 3, 2003
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
On behalf of yourselves and as representatives of the several Underwriters who
are parties to the Underwriting Agreement dated September 26, 2003
Ladies and Gentlemen:
NTL Incorporated, a Delaware corporation (the "COMPANY"), has entered
into an Underwriting Agreement dated as of September 26, 2003 (the "UNDERWRITING
AGREEMENT") with Deutsche Bank Securities Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Banc of America
Securities LLC, Credit Suisse First Boston LLC and UBS Securities LLC, as
Underwriters. Capitalized terms used herein and not defined shall have the
meanings ascribed to them in the Underwriting Agreement.
WHEREAS, the parties hereto desire to amend the Underwriting Agreement
in order to (i) provide for an increase in the size of the Total Underwriter
Commitment, (ii) clarify and confirm certain pricing terms of the Rights
Offering contemplated under Schedule III of the Underwriting Agreement and (iii)
confirm the Underwriter Information in the Offer Prospectus set forth in Section
1(b) of the Underwriting Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. The Total Underwriter Commitment is $1,125,000,000. Schedule I
to the Underwriting Agreement is replaced with the amended Schedule I attached
hereto.
2. Section 2(d) of the Underwriting Agreement is amended to change
the word "13th" to "14th".
3. Section 3(d) of the Underwriting Agreement is deleted and
replaced with the following: "The Total Underwriter Commitment shall be
$1,125,000,000 and the Participating Purchasers' Commitment (as defined in
Section 7(a)(ix)) shall be no less than $305,000,000. The name of each
Underwriter, its Underwriter Commitment and the Total Underwriter Commitment
shall be set forth in the "Underwriting" section of the Offer Prospectus."
4. The Total Offering Size is $1,430,000,000. Schedule II to the
Underwriting Agreement is replaced with the amended Schedule II attached hereto.
The fees payable pursuant to Section 3(b) of the Underwriting Agreement shall be
payable on the Closing Date or, if no shares are allotted to the Underwriters,
then on the Determination Date or as soon as practicable thereafter, but not
later than two business days following the Determination Date.
5. The final two sentences of Section 3(e) of the Underwriting
Agreement are deleted. Schedule III to the Underwriting Agreement is replaced
with the amended Schedule III attached hereto.
6. The definition of Underwriter Information in Section 1(b) of the
Underwriting Agreement is amended by replacing references to the Initial
Prospectus to the following references to the Prospectus: the first, second,
third, fourth and seventh complete paragraphs on page 171 under the caption
"Underwriting."
7. Except as expressly modified herein, the Underwriting Agreement
remains in full force and effect.
8. The Lead Underwriters have received the letter agreements dated
October 31, 2003 from the Participating Purchasers relating to the Participating
Purchase Agreements. In accordance with Section 5(i) of the Underwriting
Agreement, the Lead Underwriters consent to the terms of these letters.
9. For the purposes of Section 8(a) of the Underwriting Agreement,
the Company hereby confirms in writing its request, for purposes of compliance
with state securities laws within the United States, that each of the Lead
Underwriters (a) agree to include disclosure in the Prospectus deeming offers
and sales of Company shares to be made by each of Deutsche Bank Securities Inc.,
▇▇▇▇▇▇▇, Sachs & Co. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. in any state in which
offers or sales of Company shares associated with the exercise of rights are
required to be made by a licensed broker or dealer and (b) agree to provide a
transmittal letter, from each of Deutsche Bank Securities Inc., ▇▇▇▇▇▇▇, Sachs &
Co. and ▇.▇. ▇▇▇▇▇▇ Securities Inc., to be distributed with the Prospectus in
any state in which offers or sales of Company shares or rights are required to
be made by a licensed broker or dealer.
10. This Amendment shall be governed by and construed in accordance
with the laws of the State of New York and 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, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
NTL Incorporated
By:
--------------------------------
Name:
Title:
Deutsche Bank Securities Inc.
By:
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Name:
Title:
By:
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Name:
Title:
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(▇▇▇▇▇▇▇, Sachs & Co.)
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By:
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Name:
Title:
3
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:
-----------------------------------------
Name:
Title:
Banc of America Securities LLC
By:
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Name:
Title:
Credit Suisse First Boston LLC
By:
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Name:
Title:
UBS Securities LLC
By:
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Name:
Title:
By:
-----------------------------------------
Name:
Title:
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SCHEDULE I
UNDERWRITER AMOUNT OF COMMITMENT
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Deutsche Bank Securities Inc.............................$ 300,000,000
▇▇▇▇▇▇▇, Sachs & Co......................................$ 300,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc...............................$ 300,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated .......................$ 90,000,000
Banc of America Securities LLC ..........................$ 45,000,000
Credit Suisse First Boston LLC ..........................$ 45,000,000
UBS Securities LLC ......................................$ 45,000,000
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TOTAL UNDERWRITER COMMITMENT $1,125,000,000
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SCHEDULE II - FEES
MANAGEMENT FEE:
The Company shall pay to the Underwriters an amount equal to 1.00% (the
"MANAGEMENT FEE") of the greater of (a) the aggregate size of the Rights
Offering as at the date of this Agreement and (b) the aggregate size of the
Rights Offering as at the Effective Date, (the "TOTAL OFFERING SIZE"); provided
that such Management Fee shall not exceed $10,500,000.
UNDERWRITING FEE:
The Company shall pay to the Underwriters an amount equal to a
percentage of the Total Underwriter Commitment as reflected in the Offer
Prospectus (the "UNDERWRITING FEE"). The relevant percentage shall be 3.0%.
DISCRETIONARY FEE:
An additional fee of 0.25% of the Total Offering Size may be paid to
the Underwriters at the sole discretion of the Company, such additional fee to
be determined at the first board meeting of the Company following the Closing
Date (the "DISCRETIONARY FEE").
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SCHEDULE III - PRICING TERMS
PURCHASE PRICE CALCULATION
The Purchase Price for the Shares will be determined in accordance with
the following:
P = R x (1-D) - (S x D) / SO
Where P = Purchase Price
R = Reference Price; which shall be determined by the Company and the Lead
Underwriters on the Pricing Date and shall be either (i) the volume weighted
average price for the Company's common stock (''VWAP'') for the three most
recent completed trading days (which may include the Pricing Date) prior to
determination of the Reference Price on the Pricing Date or (ii) the last bid
price on the Pricing Date.
D = Discount to TERP = 25% (the "DISCOUNT").
S = Size of the Rights Offering in total = $1,430,000,000.
SO = Shares of common stock of the Company
outstanding immediately prior to the calculation of the Purchase Price.
PRICE CEILING
Notwithstanding anything to the contrary in this Schedule III, the
Purchase Price per Share shall not exceed the greater of (i) $40.00 and (ii) the
amount calculated by applying a 30% discount to the TERP.
TERP shall be calculated as follows:
TERP = (SO x R) + (NS x P)
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SO + NS
Where SO = Shares of common stock of the Company
outstanding immediately prior to the
calculation of the Purchase Price.
R = Reference Price, calculated above.
NS = Total number of shares to be issued in the
Rights Offering.
P = Purchase Price.
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