Exhibit 4.1


 


AMENDMENT NO. 3 TO THE RIGHTS AGREEMENT


 


This Amendment No. 3, dated as of October 27, 2010 (this “Amendment”),
between Virgin Media Inc. (f/k/a Telewest Global, Inc.), a Delaware
corporation (the “Corporation”), and The Bank of New York Mellon (f/k/a
The Bank of New York), a New York State-chartered bank, as Rights Agent (the “Rights
Agent”) to the Rights Agreement, dated as of March 25, 2004, and as
amended by Amendment No. 1 dated as of October 2, 2005 and Amendment No. 2
dated as of March 3, 2006 (the “Rights Agreement”); all capitalized
terms not defined herein shall have the meanings ascribed to such terms in the
Rights Agreement.


 


WHEREAS, the Corporation has entered or will enter into one or more
derivative instruments (the “Capped Call Instruments”) to reduce the
potential dilutive effects of conversion of the Corporation’s 6.50% convertible
senior notes due 2016 issued under an indenture dated as of April 16,
2008, with one or more dealers (each a “Dealer” and, collectively, the “Dealers”,
which terms shall also refer to any transferee(s) from any Dealer of the
Capped Call Instruments), and it is anticipated that the Dealers will purchase
from time to time Common Shares of the Corporation, and enter into derivative
transactions that will have the same economic effect as ownership of Common
Shares of the Corporation, in order to hedge their economic exposure under the
Capped Call Instruments (as to any Dealer, any such shares or derivative
transactions, the “Hedging Shares”);


 


WHEREAS, the Board of Directors of the Corporation has determined that
it is advisable and in the best interests of the Corporation to amend the
Rights Agreement in connection with the Capped Call Instruments and the
transactions contemplated thereby to provide, inter alia,
that the Hedging Shares acquired by a Dealer will not be aggregated with any
other Common Shares of the Corporation beneficially owned by such Dealer for
purposes of determining beneficial ownership thresholds under the definition of
“Acquiring Person” thereunder;


 


WHEREAS, Section 27 of the Rights Agreement provides that, subject
to the provisions of Section 27(b) of the Rights Agreement, prior to
the Distribution Date, the Corporation may and the Rights Agent shall, if the
Corporation so directs, supplement or amend any provision of this Agreement
without the approval of any holders of certificates representing Common Shares;


 


WHEREAS, Section 27 of the Rights Agreement provides that the
Rights Agent shall execute this Amendment upon delivery of a certificate from
an appropriate officer of the Corporation which states that this Amendment is
in compliance with the terms of Section 27 of the Rights Agreement (the “Officer’s
Certificate”); and


 


WHEREAS, the Officer’s Certificate has been delivered to the Rights
Agent and, pursuant to Section 27, the Corporation has directed that the
Rights Agreement be amended as set forth in this Amendment.


 


NOW THEREFORE, in consideration of the foregoing premises and mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the


 

















 


receipt
and sufficiency of which is hereby acknowledged, the Corporation and the Rights
Agent hereby agree as follows:


 


Amendment
to Section 1(a). Section 1(a) of the Rights Agreement is
hereby amended and supplemented by adding the following text to the end
thereof:


 


“Notwithstanding anything in this Agreement to the contrary, if and for
so long as a Dealer is in compliance with the Continuing Dealer Covenants, the
Hedging Shares acquired by that Dealer shall not be aggregated with any other
Common Shares Beneficially Owned by that Dealer or its Affiliates (and the
Hedging Shares Beneficially Owned by any other Dealer that is in compliance
with the Continuing Dealer Covenants) for purposes of determining whether that
Dealer or any of its Affiliates has become or is deemed to be an Acquiring
Person. The foregoing sentence, as to any Dealer, shall only be effective so
long as that Dealer remains in compliance with the Continuing Dealer Covenants.
For purposes of this Section 1(a), (i) the term “Dealer” shall
refer to a counterparty of the Corporation under one or more derivative
instruments (the “Capped Call Instruments”) entered into to reduce the
potential dilutive effects of conversion of the Corporation’s 6.50% convertible
senior notes due 2016 issued under an indenture dated as of April 16,
2008, and shall also refer to any transferee(s) from any Dealer of the
Capped Call Instruments, (ii) the term “Hedging Shares” shall, as
to any Dealer, refer to Common Shares, and derivative transactions that will
have the same economic effect as ownership of Common Shares, purchased or
entered into in order to hedge that Dealer’s economic exposure under the Capped
Call Instruments, and (iii) the term “Continuing Dealer Covenants”
shall, as to any Dealer that has the benefit of this paragraph, refer to the
following representations and covenants deemed to be given by such Dealer to
the Corporation on a continuing basis: (A) such Dealer would not be an
Acquiring Person or an “interested stockholder” (as such term is defined in Section 203
of the Delaware General Corporation Law) without taking into account the
Hedging Shares Beneficially Owned by such Dealer and (B) such Dealer has
acquired and will acquire any Hedging Shares in connection with its hedging of
the Capped Call Instruments pursuant to hedging models generally applied by
such Dealer to transactions of the type of the Capped Call Instruments and has
not acquired and is not holding and will not acquire or hold such Hedging
Shares with the purpose nor with the effect of changing or influencing the
control of the Corporation or the management or policies of the Corporation,
nor in connection with or as a participant in any transaction having any such
purpose or effect, including any transaction that would require such Dealer to
file a Schedule 13D under the Securities Exchange Act of 1934, as amended, or
become subject to Rule 13d-3(b) thereunder, or that would involve any
proposal to acquire the Corporation or its assets or to change the Board of
Directors of the Corporation.”


 


In
addition, the defined terms “Capped Call Instruments”, “Continuing Dealer
Covenants”, “Dealer” and “Hedging Shares” and their respective corresponding
section references shall be added in the appropriate alphabetical position in
the table entitled “Defined Term Cross Reference Sheet”.


 


2

















 


Effective Date. This Amendment shall be deemed effective as
of the later of (i) the date first written above and (ii) the date on
which the Corporation first enters into a Capped Call Instrument, as if
executed on such date.


 


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 to be made and performed entirely within such State;
except that all provisions regarding the rights, duties, obligations and
immunities of the Rights Agent shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed entirely within such State.


 


Severability. If any term, provision, covenant or restriction of
this Amendment is held by a court of competent jurisdiction or other competent
authority to be invalid, illegal or incapable of being enforced, the remainder
of the terms, provisions, covenants and restrictions of this Amendment, and of
the Rights Agreement, shall remain in full force and effect and shall in no way
be affected, impaired or invalidated. Upon any such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify such provision so as to
effect the original intent of the parties as closely as possible and in an
acceptable manner with respect to such provision to the greatest extent
possible.


 


Notice. The Rights Agent and the Corporation hereby waive
any notice requirement with respect to each other under the Rights Agreement,
if any, pertaining to the matters covered by this Amendment.


 


No Other Effect. Except as expressly set forth herein, the
Rights Agreement shall not by implication or otherwise be supplemented or
amended by virtue of this Amendment, but shall remain in full force and effect,
as amended hereby.


 


Counterparts. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.


 


[signature page follows]


 


3

















 


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date and year first above written.


 


	
   

  	
  VIRGIN
  MEDIA INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Scott G. Dresser

  
	
   

  	
  Name:

  	
  Scott
  G. Dresser

  
	
   

  	
  Title:

  	
  Assistant
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK MELLON

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Kerri J. Shenkin

  
	
   

  	
  Name:

  	
  Kerri
  J. Shenkin

  
	
   

  	
  Title:

  	
  Associate