**Exhibit10.1**

 

**INVESTMENTAGREEMENT**

 

INVESTMENT AGREEMENT(this “Agreement”), dated as of April 3, 2006, between NTL Incorporated,a Delaware corporation formerly known as Telewest Global, Inc. (the “Company”),each of the parties from time to time specified on Exhibit A, including, forthe avoidance of doubt, each Permitted Transferee (each, a “Holder,” andcollectively, the “Holders”), and, for purposes of Article IV, ArticleVII, and Article VIII only, Sir Richard Branson (“Branson”), who shall bedeemed to be a Holder for purposes of those Articles.

 

WHEREAS, pursuant to atransaction with the Company (the “Transaction”), each Holder willreceive, among other consideration, the aggregate number of shares of commonstock, par value $.01 per share, of the Company (the “Common Stock”) set forthnext to a Holder’s name on Exhibit A;

 

WHEREAS, the parties havedetermined to enter into this Agreement to govern their relationshipssubsequent to the closing of the Transaction;

 

NOW, THEREFORE, inconsideration of the foregoing premises and of the covenants and agreements setforth herein, and intending to be legally bound hereby, the parties agree asfollows:

 

ARTICLE I

Definitions

 

The following terms havethe following respective meanings:

 

“Agreement” hasthe meaning set forth in the preamble.

 

“Affiliate” means,(i) with respect to any Person, any other Person directly or indirectlycontrolling or controlled by or under direct or indirect common control withsuch specified Person, and (ii) with respect to any individual, shall also meanthe spouse, child, grandchild or other relative of such individual or anyrelative of such spouse, or a trust established for the benefit of any of them.For purposes of this definition, “control” means the power to direct or causethe direction of the management and policies (including investment policies,such as the voting, acquisition or disposition of securities) of such Person,directly or indirectly, whether through the Beneficial Ownership of votingsecurities, by contract or otherwise.

 

“Associate” means,with respect to any Person: (A)(i) any corporation or organization of whichsuch Person is an officer or partner or is, directly or indirectly, thebeneficial owner of 10 percent or more of any class of equity securities, (ii)any trust or other estate in which such Person has a beneficial interest or asto which such Person serves as trustee or in a similar fiduciary capacity or,if the Person is a trust or estate, any beneficiary of the trust or estate, and(iii) any spouse, child, grandchild or other relative of such Person, or anyrelative of such spouse, or a trust established for the benefit of any of them;and (B) if any Person is an 

 

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“Associate” under (A)above and is an individual, “Associate” shall include any spouse, child,grandchild or other relative of that individual or his or her spouse, or atrust established for the benefit of any of them.

 

“Beneficially Own”has the meaning set forth in Section 2.3. “Beneficial Owner” means aperson who Beneficially Owns securities. “Beneficial Ownership” refersto a person’s status of being a Beneficial Owner of securities.

 

“Board of Directors”means the board of directors of the Company.

 

“Business CombinationTransaction” means a tender offer for Voting Securities of, merger orconsolidation with, or sale of any significant business of, the Company, or anysimilar transaction.

 

“Bylaws” means thebylaws of the Company, as amended and in effect on the date of this Agreement.

 

“Certificate ofIncorporation” means the Certificate of Incorporation of the Company, asamended and in effect on the date of this Agreement.

 

“Claims” has themeaning set forth in Section 5.9.

 

“Closing Date”means the closing date of the Transaction.

 

“Common Stock” hasthe meaning set forth in the second recital.

 

“Common StockEquivalents” means all options, warrants and other securities convertibleinto, or exchangeable or exercisable for (at any time or upon the occurrence ofany event or contingency and without regard to any vesting or other conditionsto which such securities may be subject) Common Stock.

 

“Company” has themeaning set forth in the preamble;

 

“Demand ExerciseNotice” has the meaning set forth in Section 5.1.

 

“Demand RegistrationRequests” has the meaning set forth in Section 5.1.

 

“Demand Registrations”has the meaning set forth in Section 5.1.

 

“Disposal” means(i) offer, sell, contract to sell, announce the intention to sell, pledge,grant any option to purchase, lend, make any short sale or otherwise transferor dispose of, directly or indirectly, any Common Stock or rights therein(including voting), other than in connection with a bona fide pledge to acommercial bank to secure borrowings in the ordinary course of the Holder’sbusiness whereby the Holder retains all voting rights prior to default or (ii)enter into any swap or other agreement that transfers, in whole or in part, anyof the incidents of Beneficial Ownership of Common Stock.

 

“Exchange Act”means the Securities Exchange Act of 1934, as amended.

 

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“Expenses” meansany and all fees and expenses incurred in connection with the Company’sperformance of or compliance with Article 6, including, without limitation: (i)SEC, stock exchange or NASD registration and filing fees and all listing feesand fees with respect to the inclusion of securities on any securities marketon which the Common Stock is listed or quoted, (ii) fees and expenses ofcompliance with state securities or “blue sky” laws and in connection with thepreparation of a “blue sky” survey, including without limitation, reasonablefees and expenses of blue sky counsel, (iii) printing and copying expenses,(iv) messenger and delivery expenses, (v) expenses incurred in connection withany road show, (vi) fees and disbursements of counsel for the Company, (vii)with respect to each registration, the fees and disbursements (which shall notexceed $25,000) of one counsel for the selling Holder(s) (selected by theMajority Participating Holders), (viii) fees and disbursements of allindependent public accountants (including the expenses of any audit and/or “coldcomfort” letter) and fees and expenses of other persons, including specialexperts, retained by the Company, (ix) fees and expenses payable to a QualifiedIndependent Underwriter (as such term is defined in Schedule E to the By-Lawsof the NASD) and (x) any other fees and disbursements of underwriters, if any,customarily paid by issuers of securities.

 

“Holder” has themeaning set forth in the preamble.

 

“Holder ControllingPersons” has the meaning set forth in the preamble.

 

“Information Request”has the meaning set forth in Section 8.4.

 

“Initial Holding”means 34,260,959 shares of Common Stock (as the same may be adjusted from timeto time as a result of any stock dividend, stock split, reverse stock split orother combination of shares or any reclassification, recapitalization, merger,consolidation or other reorganization).

 

“Initiating Holders”has the meaning set forth in Section 5.1.

 

“Licence AgreementSide Letter” means that letter agreement dated the date hereof betweenVirgin Enterprises Limited and the Company.

 

“Majority Holders”means Holders holding more than 50% of the Registrable Securities at any time.

 

“MajorityParticipating Holders” means Participating Holders holding more than 50% ofthe Registrable Securities proposed to be included in any offering ofRegistrable Securities by such Participating Holders pursuant to Article V.

 

“NASD” has themeaning set forth in Section 5.4.

 

“Participating Holders”has the meaning set forth in Section 5.1.

 

“Permitted Transferee”has the meaning set forth in Section 8.2.

 

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“Person” means anyindividual, corporation, limited liability company, limited or generalpartnership, joint venture, association, joint-stock company, trust,unincorporated organization or government or any agency or politicalsubdivisions thereof.

 

“Piggyback Rights”has the meaning set forth in Section 5.1.

 

“Piggyback Shares”has the meaning set forth in Section 5.3.

 

“Postponement Period”has the meaning set forth in Section 5.1.

 

“RegistrableSecurities” means any shares of Common Stock issued in the Transaction tothe Holders or acquired by any Holder in accordance with Section 4.1(a), or inexchange for or with respect to such Common Stock by way of stock dividend,stock split or combination of shares or in connection with a reclassification,recapitalization, merger, consolidation or other reorganization. As to anyparticular Registrable Securities, such securities shall cease to beRegistrable Securities when (A) a registration statement with respect to thesale of such securities shall have been declared effective under the SecuritiesAct and such securities shall have been disposed of in accordance with suchregistration statement, or (B) such securities shall be capable of being soldwithout restriction in accordance with Rule 144(k) under the Securities Act orshall have been sold pursuant to Rule 144 (or any successor provision).

 

“Related Person”means with respect to any Person, its Affiliates and Associates.

 

“SEC” means theSecurities and Exchange Commission.

 

“Section 5.3(a) SaleNumber” has the meaning set forth in Section 5.3.

 

“Securities Act”means the Securities Act of 1933, as amended.

 

“Shelf Registration”has the meaning set forth in Section 6.2.

 

“Shelf RegistrationStatement” has the meaning set forth in Section 6.2.

 

“Third Party”means any Person other the Holders and their respective Affiliates.

 

“Third Party Offer”means any bona fide offer to enter into a Business Combination Transaction byany Third Party.

 

“Transaction” hasthe meaning set forth in the first recital.

 

“Valid Business Reason”has the meaning set forth in Section 6.1.

 

“Virgin Mobile”means Virgin Mobile Holdings (UK) plc.

 

“Voting Securities”means securities of the Company, including the Common Stock, with the power tovote with respect to the elections of directors of the Company and all securitiesconvertible into or exchangeable for such securities.

 

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“2008 Annual MeetingDate” means the date in 2008 on which the Company’s regular annual meeting(including any adjournment thereof) takes place, provided that, should suchdate be later than June 30, 2008, references herein to the Annual Meeting Dateshall refer to June 30, 2008.

 

ARTICLE II

Representations

 

2.1           Representationsof the Company.

 

The Company represents toeach Holder as of the date hereof and as of the Closing Date that:

 

(i) the Company hasthe full legal right, power and authority to enter into and perform thisAgreement;

 

(ii) the executionand delivery of this Agreement by the Company has been duly authorized by theCompany;

 

(iii) this Agreementconstitutes the legal, valid and binding obligation of the Company, enforceableagainst the Company in accordance with its terms, provided that the enforcementof the rights and remedies created hereby may be limited by (a) bankruptcy,insolvency,  reorganization, moratoriumand other laws of general application affecting the rights and remedies ofcreditors and (b) general principles of equity (regardless of whether suchenforcement is considered in a proceeding in equity or at law); and (iv) thecompliance by the Company with all of the provisions of this Agreement and theconsummation of the transactions herein contemplated will not conflict with orresult in a breach or violation of any of the terms or provisions of, orconstitute a default under, (A) any indenture, mortgage, dead of trust, loanagreement or other agreement or instrument to which the Company or any of itssubsidiaries is a party or by which the Company or any of its subsidiaries isbound or to which any of the property or assets of the Company or any of itssubsidiaries is subject, (B) the Certificate of Incorporation or Bylaws or (C)any statute or any order, rule or regulation of any court or governmentalagency or body having jurisdiction over the Company or any of its Subsidiariesor any of their respective properties or assets; and no consent, approval,authorization, order, registration or qualification of or with any such courtor governmental agency or body is required for the consummation by the Companyof the transaction contemplated by this Agreement.

 

2.2.          Representations of the Holders.

 

Each Holderrepresents to the Company, severally and not jointly, as of the datehereof and as of the Closing Date that:

 

(a)           such Holder has the full legal right,power and authority, and, if such Holder is an individual, the legal capacity,to enter into and perform this Agreement;

 

(b)           the execution and delivery of this Agreement by suchHolder has been duly 

 

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authorized by suchHolder;

 

(c)           this Agreement constitutes the legal, valid andbinding obligation of such Holder enforceable against such Holder in accordancewith its terms, provided that the enforcement of the rights and remediescreated hereby may be limited by (a) bankruptcy, insolvency,  reorganization, moratorium and other laws ofgeneral application affecting the rights and remedies of creditors and (b)general principles of equity (regardless of whether such enforcement isconsidered in a proceeding in equity or at law);

 

(d)           suchHolder does not have any agreements, arrangements or understandings with anyperson or entity regarding any of the matters prohibited by Articles 3 and 4other than this Agreement, and compliance by such Holder with all of the provisionsof this Agreement and the consummation of the transactions herein contemplatedwill not conflict with or result in a breach or violation of any of the termsor provisions of, or constitute a default under, (A) any indenture, mortgage,dead of trust, loan agreement or other agreement or instrument to which suchHolder or any of its subsidiaries is a party or by which such Holder or any ofits subsidiaries is bound or to which any of the property or assets of suchHolder or any of its subsidiaries is subject, (B) if such Holder is an entity,its constituent documents or agreements or (C) any statute or any order, ruleor regulation of any court or governmental agency or body having jurisdictionover such Holder or any of its subsidiaries or any of their properties orassets; and no consent, approval, authorization, order, registration orqualification of or with any such court or governmental agency or body isrequired for the consummation by such Holder of the transaction contemplated bythis Agreement.;

 

(e)           aftergiving effect to the Transaction, such Holder will Beneficially Own (with “BeneficiallyOwn” having the meanings given to such term in Rule 13d-3 under, or Section16(b) of, the Exchange Act (as such rule and section are currently in effect)),as of the Closing Date, only those shares of Common Stock listed on Annex Iopposite such Holder’s name; and

 

(f)            neithersuch Holder nor any Affiliate or Associate of such Holder Beneficially Owns(nor does such Holder or any such Affiliate or Associate have any intention tobecome the Beneficial Owner of) any Common Stock or rights or interests inCommon Stock other than as set forth in clause (e) above or as may be acquiredafter the date hereof in accordance with Section 4.1 (a).

 

ARTICLE III

Lock-Up

 

3.1.          Lock-Up Provisions. Each Holderagrees, subject to sections 4.1 and 8.2, with respect to the Common Stockreceived pursuant to the Transaction (including for purposes of this Articleany securities received in exchange for or in respect of such Common Stock byway of stock dividend, stock split or combination of shares or in connectionwith a reclassification, recapitalization, merger, consolidation or otherreorganization):

 

(a)           from the Closing Date until the date that is threemonths after the Closing Date, 

 

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such Holder willnot make any Disposal;

 

(b)           from the date that is three months afterthe Closing Date until the day prior to the date that is six months after theClosing Date, such Holder will not make any Disposal, except for Disposals inthe aggregate that are equal to or less than 12.5% of the Initial Holding;

 

(c)           from the date that is six months afterthe Closing Date until the day prior to the date that is nine months after theClosing Date, such Holder will not make any Disposal, except for Disposals inthe aggregate (including cumulatively such Disposals as have been made undersubsection (b) above) that are equal to or less than 25% of the InitialHolding;

 

(d)           from the date that is nine months afterthe Closing Date until the day prior to the date that is twelve months afterthe Closing Date, such Holder will not make any Disposal, except for Disposalsin the aggregate (including cumulatively such Disposals as have been made undersubsections (b) and (c) above) that are equal to or less than 37.5% of theInitial Holding;

 

(e)           from the date that is twelve months afterthe Closing Date until the day prior to the date that is fifteen months afterthe Closing Date, such Holder will not make any Disposal, except for Disposalsin the aggregate (including cumulatively such Disposals as have been made undersubsections (b), (c) and (d) above) that are equal to or less than 50% of theInitial Holding;

 

(f)            from the date that is fifteen months afterthe Closing Date until the day prior to date that is eighteen months after theClosing Date, such Holder will not make any Disposal, except for Disposals inthe aggregate (including cumulatively such Disposals as have been made undersubsections (b), (c), (d) and (e) above) that are equal to or less than 75% ofthe Initial Holding;

 

(g)           fromthe date that is eighteen months after the Closing Date, such Holder may makeany Disposals provided that such sales must be either (i) made pursuant to Rule144 to the extent applicable, or (ii) pursuant to Article V hereof; and

 

(h)           tomake Disposals only in a manner consistent with the maintenance of an orderlymarket for the Common Stock and seeking to avoid any adverse effect on thetrading price of the Common Stock.

 

For the avoidanceof doubt, to the extent a hedging transaction is a Disposal, once the hedge isclosed out the Disposal will be treated as if it had never taken place forpurposes of the cumulative Disposals permitted under this Section 3.1

 

3.2           Termination.The provisions of Section 3.1 shall not apply in respect of Disposals made inany Business Combination Transaction approved by the Board of Directors.

 

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ARTICLE IV

Conduct

 

4.1.          Conductof Holders.  Until after the 2008Annual Meeting Date, each Holder will not, and will cause each of its RelatedPersons not to, either alone or as part of a “group” (as such term is used inSection 13d-5 (as such rule is currently in effect) of the Exchange Act), directlyor indirectly:

 

(a)           acquire or seek to acquire, by purchaseor otherwise, Beneficial Ownership of, (A) any Voting Securities,including, without limitation, any capital stock of the Company, or direct orindirect rights (including convertible securities) or options to acquire suchownership (collectively, “Securities”), other than Permitted Securities (asdefined below), if immediately after any such acquisition, the Holder andRelated Persons would Beneficially Own Voting Securities representing more than15% of the then outstanding Voting Securities, or direct or indirect rights oroptions to acquire such ownership. For purposes of this clause (a), “PermittedSecurities” shall mean (i) Securities received as a result of stockdividends, stock reclassifications or other distributions or offerings madeavailable by the Company on a pro rata basis to the holders of its Common Stockgenerally, and (ii) indirect investments in Securities by any Holder in theordinary course of business held in mutual funds or index funds in which theHolder and Related Persons own or would own in the aggregate less than 10% ofthe outstanding equity interest;

 

(b)           make any Disposal of Common Stock to anyperson or “group” (as used in this Section 4.1) that, at the time of suchDisposal or immediately following it, Beneficially Owns Voting Securities ofthe Company representing 1% or more of the outstanding Voting Securities of theCompany; provided, however, that this provision shall not prevent (i)regular-way trades on a recognized securities exchange where purchases areunsolicited and the identity of the purchaser is unknown or (ii) the Disposalof Common Stock to a global investment bank with annual total revenues inexcess of $10 billion (as measured for fiscal year 2005) for the purpose ofresale so long as such investment bank agrees: (x) that it will not knowingly(after informal inquiry as to whether the proposed purchaser is affiliatedwith, or part of a “group” with, any other proposed purchaser but without anyobligation to seek any formal confirmation or representation) sell sharesrepresenting more than 1% of the outstanding Common Stock to any person or “group”(as used in this Section 4.1); and (y) that, for so long as it and itsAffiliates Beneficially Own 3% or more of the outstanding Common Stock, it willvote the Common Stock so acquired in accordance with the requirements ofSection 4.2 hereof as if it were a Holder;

 

(c)           offer,seek or propose to enter into any Business Combination Transaction, or including,without limitation, acquisition (in whole or in part) of the business carriedon by Virgin Mobile or any successor to that business; provided,however, that if the Board of Directors of the Company determines to explore asale (in whole or in part) of the business carried on by Virgin Mobile, theHolder or any Related Person may participate in the sale process if: (i) theHolder and the Related Persons agree with the Company to comply with therestrictions generally applicable to participants and if the Board, in itsreasonable discretion, considers such 

 

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participation to beconsistent with its fiduciary duties, and (ii) the Business CombinationTransaction is limited to the business of Virgin Mobile or any successor tothat business;

 

(d)           make,or in any way participate, directly or indirectly, in any “solicitation” of “proxies”(as such terms are defined or used in Regulation 14A under the ExchangeAct), including involving the election of directors, or seek to advise orinfluence any person or entity with respect to the voting of, any securities ofthe Company or indebtedness of the Company; provided, however, that,subject to the restrictions set forth in Section 4.2, the Holder or any RelatedPerson may enter into an agreement or arrangement with respect to the voting ofits Voting Securities, but not otherwise engage in any of the activitiesrestricted by this subparagraph (d);

 

(e)           initiateor propose any stockholder proposals for submission to a vote of stockholders,whether by action at a stockholder meeting or by written consent, with respectto the Company, or, except as provided in the Licence Agreement Side Letter,propose any person for election to the Board of Directors, or propose the removalof any member of the Board of Directors;

 

(f)            discloseto any third party, or make any filing under the Exchange Act, including underSection 13(d) and Schedule 13D, disclosing any intention, plan orarrangement inconsistent with the foregoing;

 

(g)           publiclyoppose any duly authorized action or recommendation of the Board of Directors(including nominees to the Board of Directors), provided that thissubparagraph (g) shall not restrict the ability of the Holder or any RelatedPerson to vote Voting Securities owned by it as permitted under Section 4.2 andto make only those disclosures, if any, in respect of this voting required bythe Exchange Act;

 

(h)           enterinto any discussions or understandings with any third party with respect to anyof the foregoing;

 

(i)            advise,assist or encourage others with respect to any of the foregoing;

 

(j)            makeany public announcement with respect to any of the foregoing except as requiredby the Exchange Act, inrespect of actions permitted under this Article IV; or

 

(k)           requesta waiver of any of the provisions of this Article IV from the Board ofDirectors,

 

unless in each casespecifically authorized in writing in advance by the Company, which writtenauthorization shall be duly authorized by the Board of Directors (it beingagreed that each such Holder will not, and will cause its Related Persons notto, seek to have the Company or any of the Company’s officers, directors,representatives, trustees, employees, attorneys, advisors, agents, and RelatedPersons make any request for a waiver of any of the foregoing).

 

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For purposes of thisSection 4.1, references to the “Company” shall be construed to includesubsidiaries and other persons directly or indirectly controlled by theCompany.

 

4.2.          Voting. Until afterthe 2008 Annual Meeting Date, with respect to each matter submitted to thestockholders of the Company for a vote, whether at a meeting or pursuant to anyconsent of stockholders of the Company, where such matter relates to: (a) anyproposed amendment to the Articles or Bylaws of the Company, (b) any proposalthat relates to, or could facilitate, a change of control of the Company,including a Business Combination Transaction, as reasonably determined by theBoard of Directors, or (c) the election of Directors of the Company, eachHolder agrees to, and agrees to cause its Related Persons to vote (whether byproxy or otherwise) all Voting Securities Beneficially Owned by such Holder, atits option, either (i) pro rata in proportion to the votes cast by the otherstockholders or (ii) in support of actions recommended by the Board ofDirectors or, when there is no such recommendation, in opposition to any actionproposed by other stockholders or debtholders, as the case may be; provided,however, that nothing in this Article IV shall prohibit a Holder from(A) voting any Voting Securities against a Business Combination Transaction or(B) refusing to tender any Voting Securities in connection with a BusinessCombination Transaction. Each Holder agrees to be present in person or by proxyat all stockholder meetings of the Company so that its voting securities may becounted for the purpose of determining the presence of a quorum at suchmeetings.

 

ARTICLE V

RegistrationRights

 

5.1.          Demand Registrations.

 

(a) (i)       Subjectto Sections 5.1(b) and 5.2 below, at any time, the Holders shall have the rightat any time following the three month anniversary of the Closing Date and priorto January 1, 2011 to require the Company to file a registration statementunder the Securities Act covering an aggregate number of Registrable Securitiesof not less than 10% of the total position of Holders at closing (or, if less,all remaining securities so held) (as such number may be adjusted for any stockdividend, stock split or combination of shares or in connection with areclassification, recapitalization, merger, consolidation or otherreorganization), by delivering a written request therefor to the Companyspecifying the number of Registrable Securities to be included in suchregistration by such Holders and the intended method of distribution of suchRegistrable Securities. All such requests by any Holder pursuant to thisSection 5.1(a)(i) are referred to as “Demand Registration Requests,” andthe registrations so requested are referred to as “Demand Registrations”(with respect to any Demand Registration, the Holders making such demand forregistration being referred to as the “Initiating Holders”). As promptlyas practicable, but no later than five days after receipt of a DemandRegistration Request, the Company shall give written notice (the “DemandExercise Notice”) of such Demand Registration Request to all Holders ofrecord of Registrable Securities.

 

(ii)           TheCompany, subject to Sections 5.3 and 5.6, shall include in a Demand 

 

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Registration (x) theRegistrable Securities of the Initiating Holders and (y) the RegistrableSecurities of any other Holder of Registrable Securities which shall have madea written request to the Company for inclusion in such registration (togetherwith the Initiating Holders, the “Participating Holders”) (which requestshall specify the maximum number of Registrable Securities intended to bedisposed of by such Participating Holders) within 10 days after the receipt ofthe Demand Exercise Notice.

 

(iii)          The Company shall, as expeditiously aspossible but subject to Section 5.1(b), use its commercially reasonable effortsto (x) effect such registration under the Securities Act of the RegistrableSecurities which the Company has been so requested to register, fordistribution in accordance with such intended method of distribution and (y) ifrequested by the Majority Participating Holders, obtain acceleration of the effectivedate of the registration statement relating to such registration as promptly aspracticable following such request.

 

(b)           Notwithstandinganything to the contrary in Section 5.1(a), the Demand Registration rightsgranted in Section 5.1(a) to the Holders are subject to the followinglimitations: (i) the Company shall not be required to cause a registrationpursuant to Section 5.1(a)(i) to be declared effective within a period of 180days after the effective date of any other registration statement of theCompany filed pursuant to the Securities Act; (ii) if the Board of Directors,in its good faith judgment, determines that any registration of RegistrableSecurities should not be made or continued because it would materiallyinterfere with any material financing, acquisition, corporate reorganization ormerger or other material transaction or event involving the Company or any ofits subsidiaries (a “Valid Business Reason”), the Company may postponefiling a registration statement or withdraw a registration statement relatingto a Demand Registration Request until such Valid Business Reason no longerexists, but in no event for more than 120 days in the aggregate in anytwelve-month period (such period of postponement or withdrawal under thisclause (ii), the “Postponement Period”); and the Company shall givewritten notice of its determination to postpone or withdraw a registrationstatement and of the fact that the Valid Business Reason for such postponementor withdrawal no longer exists, in each case, promptly after the occurrencethereof; (iii) the Company shall not be obligated to effect more than threeDemand Registrations under Section 5.1(a) for all Holders and each DemandRegistration Request shall have been made prior to January 1, 2011; and (iv) theCompany shall not be required to effect a Demand Registration unless theRegistrable Securities to be included in such registration have an aggregateanticipated offering price of at least $125,000,000 (based on the then-currentmarket price of the Common Stock).

 

If the Companyshall give any notice of postponement or withdrawal of any registrationstatement pursuant to clause (ii) above, the Company shall not, during theperiod of postponement or withdrawal, register any equity security of theCompany, other than pursuant to a registration statement on Form S-4 or S-8 (oran equivalent registration form then in effect). Each Holder of RegistrableSecurities agrees that, upon receipt of any notice from the Company that theCompany has determined to withdraw any registration statement pursuant toclause (ii) above, such Holder will discontinue its disposition of RegistrableSecurities pursuant to such registration statement and, if so directed by theCompany, will deliver to the Company (at the Company’s expense) all copies,other than permanent file copies, then in such Holder’s 

 

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possession of theprospectus covering such Registrable Securities that was in effect at the timeof receipt of such notice. If the Company shall have withdrawn or prematurelyterminated a registration statement filed under Section 5.1(a)(i) pursuant toclause (ii) above or as a result of any stop order, injunction or other orderor requirement of the SEC or any other governmental agency or court for anyreason not attributable to the Participating Holders, the Company shall not beconsidered to have effected an effective registration for the purposes of thisAgreement until the Company shall have filed a new registration statementcovering the Registrable Securities covered by the withdrawn registrationstatement and such registration statement shall have been declared effective.If the Company shall give any notice of withdrawal or postponement of aregistration statement, the Company shall, at such time as the Valid BusinessReason that caused such withdrawal or postponement no longer exists (but in noevent later than 120 days after the date of the postponement or withdrawal),use its commercially reasonable best efforts to effect the registration underthe Securities Act of the Registrable Securities covered by the withdrawn orpostponed registration statement in accordance with this Section 5.1 (unlessthe Initiating Holders shall have withdrawn such request, in which case the Companyshall not be considered to have effected an effective registration for thepurposes of this Agreement).

 

(c)           Inthe event that a registration statement filed under Section 5.1(a)(i) isabandoned or withdrawn at the request of the Majority Participating Holders,the Initiating Holder’s request for registration pursuant to this Section 5.1shall be counted for purposes of the Demand Registration Requests to which theHolders are entitled pursuant to this Section 5.1.

 

(d)           TheCompany, subject to Sections 5.2 and 5.6, shall be entitled to include in anyregistration statement and offering made pursuant to Section 5.1(a)(i) anyshares of Common Stock that are entitled to be included in such registrationpursuant to the exercise of piggyback rights that are in existence on the dateof this Agreement or that predate, or are not inconsistent with the rightsgranted in, or otherwise in conflict with the terms of, this Agreement (“PiggybackRights”); provided, however, that such inclusion shall be permitted only tothe extent that it is pursuant to and subject to the terms of the underwritingagreement or arrangements, if any, entered into by the Participating Holders orin accordance with the Company’s contractual obligations under existingcontracts.

 

(e)           Inconnection with any Demand Registration, the Company shall have the right todesignate the lead managing underwriter in connection with such registrationand each other managing underwriter for such registration, provided that ineach case, each such underwriter is reasonably satisfactory to the MajorityParticipating Holders, and such underwriter shall agree with the Company not toknowingly sell securities in any underwritten offering that represent in excessof 1% of the then outstanding Common Stock to any person or “group” (as suchterm is used in Section 13d-5 of the Exchange Act, as currently in effect).

 

5.2.          Shelf Registration.

 

(a)           At its sole option, the Company may filewith the SEC a registration statement on Form S-3 (the “Shelf RegistrationStatement”) relating to the offer and sale of all Registrable Securitiesheld by the Holders to the public, from time to time, on a delayed orcontinuous basis 

 

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pursuant to Rule 415 (or any successor provision) ofthe Securities Act (the “Shelf Registration”). The Company will deliverwritten notice to each Holder of its intent to file the Shelf RegistrationStatement at least 20 days prior to the initial filing and will use itscommercially reasonable efforts to keep the Shelf Registration Statementcontinuously effective and not to suspend use of the prospectus includedtherein to be usable by the Holders until the earlier of (i) the date allshares requested to be included therein are no longer Registrable Securities or(ii) the date all Holders have disposed of all Registrable Securities includedtherein.

 

(b)           If the Board ofDirectors, in its good faith judgment, determines that the shelf registrationof Registrable Securities pursuant to the Shelf Registration Statement shouldnot be continued for any Valid Business Reason, the Company may suspend theShelf Registration Statement until such Valid Business Reason no longer exists,but in no event for more than 120 days in any twelve-month period and the Companyshall give written notice of its determination to suspend the ShelfRegistration Statement and of the fact that the Valid Business Reason for suchpostponement or withdrawal no longer exists, in each case, promptly after theoccurrence thereof. After the Valid Business Reason no longer exists andwithout any further request from any Holder, the Company shall as promptly asreasonably practicable prepare any required post-effective amendment orsupplement to the Shelf Registration Statement or the prospectus, or anydocument incorporated therein by reference, or file any other required documentso that, as thereafter delivered to purchasers of the Registrable Securitiesincluded therein, the prospectus will not include an untrue statement of amaterial fact or omit to state any material fact necessary to make thestatements therein, in the light of the circumstances under which they weremade, not misleading.

 

(c)           Any remaining Demand Registration rightsof the Holders pursuant to Section 5.1 shall be suspended while a ShelfRegistration Statement is either effective or suspended in accordance withSection 5.2(b) above.

 

5.3.          Allocation of Securities Includedin Registration Statement.

 

(a)           Ifany requested registration made pursuant to Section 5.1 involves anunderwritten offering and the lead managing underwriter of such offering, whoshall be selected by the Company in accordance with Section 5.1 (e) (the “Manager”),shall advise the Company that, in its view, the number of securities requestedto be included in such registration by the Holders of Registrable Securities orany other persons (including those shares of Common Stock requested by theCompany to be included in such registration) exceeds the largest number (the “Section5.3(a) Sale Number”) that can be sold in an orderly manner in such offeringwithin a price range acceptable to the Majority Participating Holders, theCompany shall use its commercially reasonable efforts to include in suchregistration:

 

(i)            first, all Registrable Securities requestedto be included in such registration by the holders thereof; provided, however,that, if the number of such Registrable Securities exceeds the Section 5.3(a)Sale Number, the number of such Registrable Securities (not to exceed theSection 5.3(a) Sale Number) to be included in such registration shall beallocated on a pro rata basis among all holders requesting that RegistrableSecurities be included in such registration, based 

 

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on the number of RegistrableSecurities then owned by each such holder requesting inclusion in relation tothe number of Registrable Securities owned by all holders requesting inclusion;and

 

(ii)           second, to the extent that the numberof securities to be included pursuant to clause (i) of this Section 5.3(a) isless than the Section 6.3(a) Sale Number, the remaining shares to be includedin such registration shall be allocated among all holders requesting thatsecurities be included in such registration pursuant to the exercise ofPiggyback Rights (“Piggyback Shares”), with such allocation amongholders requesting the registration of Piggyback Shares to be determinedpursuant to and in accordance with the registration rights agreements providingfor such Additional Piggyback Rights, up to the Section 6.3(a) Sale Number; and

 

(iii)          third, to the extent that the numberof securities to be included pursuant to clauses (i) and (ii) of this Section5.3(a) is less than the Section 5.3(a) Sale Number, any securities that theCompany proposes to register, up to the Section 5.3(a) Sale Number.

 

If, as a result of theproration provisions of this Section 5.3(a), any Holder shall not be entitledto include all Registrable Securities in a registration that such Holder hasrequested be included, such Holder may elect to withdraw its request to includeRegistrable Securities in such registration or may reduce the number requestedto be included; provided, however, that (x) such request must be made inwriting prior to the earlier of the execution of the underwriting agreement orthe execution of the custody agreement with respect to such registration and(y) such withdrawal shall be irrevocable and, after making such withdrawal,such Holder shall no longer have any right to include Registrable Securities inthe registration as to which such withdrawal was made.

 

5.4.          RegistrationProcedures. If and whenever the Company is required by the provisions ofthis Agreement to use its commercially reasonable efforts to effect or causethe registration of any Registrable Securities under the Securities Act asprovided in this Agreement, the Company shall, as expeditiously as possible:

 

(a)           prepareand file with the SEC a registration statement on an appropriate registrationform of the SEC for the disposition of such Registrable Securities inaccordance with the intended method of disposition of such RegistrableSecurities, which form shall be selected by the Company and shall comply as toform in all material respects with the requirements of the applicable form andinclude all financial statements required by the SEC to be filed therewith, andthe Company shall use its commercially reasonable efforts to cause suchregistration statement to become and remain effective (provided, however, thatbefore filing a registration statement or prospectus or any amendments orsupplements thereto, or comparable statements under securities or blue sky lawsof any jurisdiction, or any free writing prospectus related thereto, theCompany will furnish to one counsel for the Holders (selected by the MajorityParticipating Holders) and the lead managing underwriter, if any, copies of allsuch documents proposed to be filed (including all exhibits thereto), whichdocuments will be subject to the reasonable review and reasonable comment ofsuch counsel and the Company shall not file any registration statement oramendment thereto or any prospectus or supplement thereto to which the holdersof a majority of the Registrable Securities covered by such registrationstatement or 

 

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the underwriters, if any,shall reasonably object;

 

(b)           prepareand file with the SEC such amendments and supplements to such registrationstatement and the prospectus used in connection therewith as may be necessaryto keep such registration statement effective for such period as any seller ofRegistrable Securities pursuant to such registration statement shall request,provided that, in the case of a Demand Registration, the Company shall beobligated to keep such a registration statement effective only for 90 days oruntil all of the Registrable Securities registered on such registrationstatement have been disposed of (if earlier), and to comply with the provisionsof the Securities Act with respect to the sale or other disposition of allRegistrable Securities covered by such registration statement in accordancewith the intended methods of disposition by the seller or sellers thereof setforth in such registration statement;

 

(c)           furnish,without charge, to each seller of such Registrable Securities and eachunderwriter, if any, of the securities covered by such registration statementsuch number of copies (if any) of such registration statement, each amendmentand supplement thereto (in each case including all exhibits), and theprospectus included in such registration statement (including each preliminaryprospectus) in conformity with the requirements of the Securities Act, andother documents, as such seller and underwriter may reasonably request in orderto facilitate the public sale or other disposition of the RegistrableSecurities owned by such seller (the Company hereby consenting to the use inaccordance with all applicable law of each such registration statement (oramendment or post-effective amendment thereto) and each such prospectus (orpreliminary prospectus or supplement thereto) by each such seller ofRegistrable Securities and the underwriters, if any, in connection with theoffering and sale of the Registrable Securities covered by such registrationstatement or prospectus):

 

(d)           useits commercially reasonable efforts to register or qualify the RegistrableSecurities covered by such registration statement under such other securitiesor “blue sky” laws of such jurisdictions as any sellers of RegistrableSecurities or any managing underwriter, if any, shall reasonably request inwriting, and do any and all other acts and things which may be reasonablynecessary or advisable to enable such sellers or underwriter, if any, toconsummate the disposition of the Registrable Securities in such jurisdictions,except that in no event shall the Company be required to qualify to do businessas a foreign corporation in any jurisdiction where it would not, but for therequirements of this paragraph (c), be required to be so qualified, to subjectitself to taxation in any such jurisdiction or to consent to general service ofprocess in any such jurisdiction;

 

(e)           promptlynotify each Holder selling Registrable Securities covered by such registrationstatement and each managing underwriter, if any: (i) when the registrationstatement, any pre-effective amendment, the prospectus or any prospectussupplement related thereto, any post-effective amendment to the registrationstatement or any free writing prospectus has been filed and/or used and, withrespect to the registration statement or any post-effective amendment, when thesame has become effective; (ii) of any request by the SEC or state securitiesauthority for amendments or supplements to the registration statement or theprospectus related thereto or for additional information; (iii) of the issuanceby the SEC of any stop order suspending the 

 

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effectiveness of theregistration statement or the initiation of any proceedings for that purpose;(iv) of the receipt by the Company of any notification with respect to thesuspension of the qualification of any Registrable Securities for sale underthe securities or blue sky laws of any jurisdiction or the initiation of anyproceeding for such purpose; (v) of the existence of any fact of which theCompany becomes aware which results in the registration statement, theprospectus related thereto, any document incorporated therein by reference, anyfree writing prospectus or the information conveyed to any purchaser at thetime of sale to such purchaser containing an untrue statement of a materialfact or omitting to state a material fact required to be stated therein ornecessary to make any statement therein not misleading; and (vi) if at any timethe representations and warranties contemplated by any underwriting agreement,securities sale agreement, or other similar agreement, relating to the offeringshall cease to be true and correct in all material respects; and, if thenotification relates to an event described in clause (v), the Company shallpromptly prepare and furnish to each such seller and each underwriter, if any,a reasonable number of copies of a prospectus supplemented or amended so that,as thereafter delivered to the purchasers of such Registrable Securities, suchprospectus shall not include an untrue statement of a material fact or omit tostate a material fact required to be stated therein or necessary to make thestatements therein in the light of the circumstances under which they were madenot misleading;

 

(f)            (i)cause all such Registrable Securities covered by such registration statement tobe listed on the principal securities exchange on which similar securitiesissued by the Company are then listed (if any), if the listing of suchRegistrable Securities is then permitted under the rules of such exchange, or(ii) if no similar securities are then so listed, to either cause all suchRegistrable Securities to be listed on a national securities exchange or tosecure designation of all such Registrable Securities as a Nasdaq NationalMarket “national market system security” within the meaning of Rule 11Aa2-1 ofthe Exchange Act or, failing that, secure Nasdaq National Market authorizationfor such shares and, without limiting the generality of the foregoing, take allactions that may be required by the Company as the issuer of such RegistrableSecurities in order to facilitate the managing underwriter’s arranging for theregistration of at least two market makers as such with respect to such shareswith the National Association of Securities Dealers, Inc. (the “NASD”);

 

(g)           provideand cause to be maintained a transfer agent and registrar for all suchRegistrable Securities covered by such registration statement not later thanthe effective date of such registration statement;

 

(h)           enterinto such customary agreements (including, if applicable, an underwritingagreement) and take such other actions as the Majority Participating Holdersshall reasonably request in order to expedite or facilitate the disposition ofsuch Registrable Securities (it being understood that the Holders of theRegistrable Securities which are to be distributed by any underwriters shall beparties to any such underwriting agreement and may, at their option, requirethat the Company make to and for the benefit of such Holders therepresentations, warranties and covenants of the Company which are being madeto and for the benefit of such underwriters);

 

(i)            inthe case of any underwritten offering of Registrable Securities, use its 

 

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commercially reasonableefforts to obtain an opinion from the Company’s counsel and a “cold comfort”letter from the Company’s independent public accountants in customary form andcovering such matters as are customarily covered by such opinions and “coldcomfort” letters delivered to underwriters in underwritten public offerings,which opinion and letter shall be reasonably satisfactory to the underwriterand furnish to each Holder participating in the offering and to eachunderwriter a copy of such opinion and letter addressed to such Holder orunderwriter;

 

(j)            deliverpromptly to each Holder participating in the offering and each underwriter, ifany, copies of all correspondence between the SEC and the Company, its counselor auditors and all memoranda relating to discussions with the SEC or its staffwith respect to the registration statement, other than those portions of anysuch memoranda which contain information subject to attorney-client privilegewith respect to the Company, and, upon receipt of such confidentialityagreements as the Company may reasonably request, make reasonably available forinspection by any seller of such Registrable Securities covered by suchregistration statement, by any underwriter, if any, participating in anydisposition to be effected pursuant to such registration statement and by anyattorney, accountant or other agent retained by any such seller or any suchunderwriter, all pertinent financial and other records, pertinent corporatedocuments and properties of the Company, and cause all of the Company’sofficers, directors and employees to supply all information reasonablyrequested by any such seller, underwriter, attorney, accountant or agent inconnection with such registration statement;

 

(k)           useits commercially reasonable efforts to obtain the withdrawal of any ordersuspending the effectiveness of the registration statement;

 

(l)            providea CUSIP number for all Registrable Securities, not later than the effectivedate of the registration statement;

 

(m)          cooperatewith the sellers of Registrable Securities and the managing underwriter, ifany, to facilitate the timely preparation and delivery of certificates not bearingany restrictive legends representing the Registrable Securities to be sold andcause such Registrable Securities to be issued in such denominations andregistered in such names in accordance with the underwriting agreement prior toany sale of Registrable Securities to the underwriters or, if not anunderwritten offering, in accordance with the instructions of the sellers ofRegistrable Securities at least three business days prior to any sale ofRegistrable Securities and instruct any transfer agent and registrar ofRegistrable Securities to release any stop transfer orders in respect thereof;

 

(n)           takeall such other commercially reasonable actions as are necessary or advisable inorder to expedite or facilitate the disposition of such Registrable Securities;

 

(o)           takeall commercially reasonable action to ensure that any free writing prospectusutilized in connection with any registration covered by Section 5.1 complies inall material respects with the Securities Act, is filed in accordance with theSecurities Act to the extent required thereby, is retained in accordance withthe Securities Act to the extent required thereby and, when taken together withthe related prospectus, prospectus supplement and related 

 

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documents, will notcontain any untrue statement of a material fact or omit to state a materialfact necessary to make the statements therein, in light of the circumstancesunder which they were made, not misleading;

 

(p)           inconnection with any underwritten offering, if at any time the informationconveyed to a purchaser at the time of sale includes any untrue statement of amaterial fact or omits to state any material fact necessary in order to makethe statements therein, in light of the circumstances under which they weremade, not misleading, promptly file with the SEC such amendments or supplementsto such information as may be necessary so that the statements as so amended orsupplemented will not, in light of the circumstances, be misleading.

 

It is a conditionprecedent to the Company’s obligations under this Section 5.4 that each sellerof Registrable Securities as to which any registration is being effectedfurnish the Company such information in writing regarding such seller and thedistribution of such Registrable Securities as the Company may from time totime reasonably request.

 

Each seller ofRegistrable Securities agrees that upon receipt of any notice from the Companyof the happening of any event of the kind described in clause (v) of paragraph(e) of this Section 5.4, such seller will discontinue such seller’s dispositionof Registrable Securities pursuant to the registration statement covering suchRegistrable Securities until such seller’s receipt of the copies of the supplementedor amended prospectus contemplated by paragraph (e) of this Section 5.4 and, ifso directed by the Company, will deliver to the Company (at the Company’sexpense) all copies, other than permanent file copies, then in such seller’spossession of the prospectus covering such Registrable Securities that was ineffect at the time of receipt of such notice. In the event the Company shallgive any such notice, the applicable period mentioned in paragraph (b) of thisSection 5.4 shall be extended by the number of days during such period from andincluding the date of the giving of such notice to and including the date wheneach seller of any Registrable Securities covered by such registrationstatement shall have received the copies of the supplemented or amendedprospectus contemplated by paragraph (e) of this Section 5.4.

 

If any such registrationstatement or comparable statement under “blue sky” laws refers to any Holder byname or otherwise as the holder of any securities of the Company, then suchHolder shall have the right to require (i) the insertion therein of language,in form and substance reasonably satisfactory to such Holder and the Company,to the effect that the holding by such Holder of such securities is not to beconstrued as a recommendation by such Holder of the investment quality of theCompany’s securities covered thereby and that such holding does not imply thatsuch Holder will assist in meeting any future financial requirements of theCompany, or (ii) in the event that such reference to such Holder by name orotherwise is not in the judgment of the Company, as advised by counsel,required by the Securities Act or any similar federal statute or any state “bluesky” or securities law then in force, the deletion of the reference to such Holder.

 

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5.5           RegistrationExpenses.

 

(a)           Subjectto Section 5.1(c), the Company shall pay all Expenses with respect to anyDemand Registration whether or not it becomes effective or remains effectivefor the period contemplated by Section 5.4(b). The Company shall also pay allExpenses with respect to any shelf registration pursuant to Section 5.2.

 

(b)           Notwithstandingthe foregoing, (x) the provisions of this Section 5.5 shall be deemed amendedto the extent necessary to cause these expense provisions to comply with “bluesky” laws of each state in which the offering is made and (y) in connectionwith any registration hereunder, each Holder of Registrable Securities beingregistered shall pay all underwriting discounts and commissions and anytransfer taxes, if any, attributable to the sale of such RegistrableSecurities, pro rata with respect to payments of discounts and commissions inaccordance with the number of shares sold in the offering by such Holder, and(z) the Company shall, in the case of all registrations under this Article 5,be responsible for all its internal expenses (including, without limitation,all salaries and expenses of its officers and employees performing legal oraccounting duties).

 

5.6.          CertainLimitations on Registration Rights. In the case of any registration underSection 5.1 pursuant to an underwritten offering, all securities to be includedin such registration shall be subject to an underwriting agreement and noPerson may participate in such registration unless such Person agrees to sellsuch Person’s securities on the basis provided therein and, subject to Section5.1, completes and executes all reasonable questionnaires, and other documents(including custody agreements and powers of attorney) which must be executed inconnection therewith, and provides such other information to the Company or theunderwriter as may be necessary to register such Person’s securities.

 

5.7.          Limitationson Sale or Distribution of Other Securities.

 

(a)           Eachseller of Registrable Securities agrees that, to the extent requested inwriting by a managing underwriter, if any, of any registration effectedpursuant to Section 5.1, not to sell, transfer or otherwise dispose of,including any sale pursuant to Rule 144 under the Securities Act, any CommonStock, or any other equity security of the Company or any security convertibleinto or exchangeable or exercisable for any equity security of the Company(other than as part of such underwritten public offering) during the timeperiod reasonably requested by the managing underwriter, not to exceed 180days, and the Company hereby (i) also so agrees (except that the Company mayeffect any sale or distribution of any such securities pursuant to a registrationon Form S-4 or Form S-8, or any successor or similar form which is then ineffect or upon the conversion, exchange or exercise of any then outstandingCommon Stock Equivalent) and (ii) agrees to use its commercially reasonableefforts to cause each holder of any equity security or any security convertibleinto or exchangeable or exercisable for any equity security of the Companypurchased from the Company at any time other than in a public offering so toagree. Each seller of Registrable Securities also agrees that, to the extentrequested in writing by a managing underwriter of any underwritten public offeringeffected by the Company for its own account, it will not sell any Common Stock(other than as part of such underwritten public

 

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offering) during the timeperiod reasonably requested by the managing underwriter, which period shall notexceed 30 days.

 

(b)           TheCompany hereby agrees that, to the extent requested in writing by a managingunderwriter, if any, of any registration effected pursuant to Section 5.1, ifit shall previously have received a request for registration pursuant toSection 5.1, and if such previous registration shall not have been withdrawn orabandoned, the Company shall not sell, transfer, or otherwise dispose of, anyCommon Stock, or any other equity security of the Company or any securityconvertible into or exchangeable or exercisable for any equity security of theCompany (other than as part of such underwritten public offering, aregistration on Form S-4 or Form S-8 or any successor or similar form which isthen in effect or upon the conversion, exchange or exercise of any thenoutstanding Common Stock Equivalent), until a period of 90 days shall haveelapsed from the effective date of such previous registration.

 

5.8.          NoRequired Sale. Nothing in this Agreement shall be deemed to create anindependent obligation on the part of any Holder to sell any RegistrableSecurities pursuant to any effective registration statement.

 

5.9.          Indemnification.

 

(a)           Inthe event of any registration of any securities of the Company under theSecurities Act pursuant to this Article 5, the Company will, and hereby agreesto, indemnify and hold harmless, to the fullest extent permitted by law, each Holderof Registrable Securities, its directors, officers, fiduciaries, employees,stockholders, members or general and limited partners (and the directors,officers, employees and stockholders thereof), each other Person whoparticipates as an underwriter or a Qualified Independent Underwriter, if any,in the offering or sale of such securities, each officer, director, employee,stockholder, fiduciary, managing director, agent, affiliates, consultants,representatives, successors, assigns or partner of such underwriter orQualified Independent Underwriter, and each other Person, if any, who controlssuch Holder or any such underwriter within the meaning of the Securities Act,from and against any and all losses, claims, damages or liabilities, joint orseveral, actions or proceedings (whether commenced or threatened) and expenses(including reasonable fees of counsel and any amounts paid in any settlementeffected with the Company’s consent, which consent shall not be unreasonablywithheld or delayed) to which each such indemnified party may become subjectunder the Securities Act or otherwise in respect thereof (collectively, “Claims”),insofar as such Claims arise out of or are based upon (i) any untrue statementor alleged untrue statement of a material fact contained in any registrationstatement under which such securities were registered under the Securities Actor the omission or alleged omission to state therein a material fact requiredto be stated therein or necessary to make the statements therein notmisleading, (ii) any untrue statement or alleged untrue statement of a materialfact contained in any preliminary, final or summary prospectus or any amendmentor supplement thereto, together with the documents incorporated by referencetherein, or any free writing prospectus utilized in connection therewith, orthe omission or alleged omission to state therein a material fact required tobe stated therein or necessary in order to make the statements therein, in thelight of the circumstances under which they were made, not misleading, (iii)any untrue statement or alleged untrue statement of a 

 

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material fact in theinformation conveyed to any purchaser at the time of the sale to suchpurchaser, or the omission or alleged omission to state therein a material factrequired to be stated therein, or (iv) any violation by the Company of anyfederal, state or common law rule or regulation applicable to the Company andrelating to action required of or inaction by the Company in connection withany such registration, and the Company will reimburse any such indemnifiedparty for any legal or other expenses reasonably incurred by such indemnifiedparty in connection with investigating or defending any such Claim as suchexpenses are incurred; provided, however, that (notwithstanding Section 6.1hereof) the Company shall not be liable to any such indemnified party in anysuch case to the extent such Claim arises out of or is based upon any untruestatement or alleged untrue statement of a material fact or omission or allegedomission of a material fact made in such registration statement or amendmentthereof or supplement thereto or in any such prospectus or any preliminary,final or summary prospectus or free writing prospectus in reliance upon and inconformity with (i) written information furnished to the Company by or onbehalf of such indemnified party specifically for use therein and (ii)information relating to Virgin Mobile and its subsidiaries for the period priorto its acquisition by the Company. Such indemnity and reimbursement of expensesshall remain in full force and effect regardless of any investigation made byas on behalf of such indemnified party and shall survive the transfer of suchsecurities by such Holder.

 

(b)           EachHolder of Registrable Securities that are included in the securities as towhich any registration under Section 5.1 is being effected shall, severally andnot jointly, indemnify and hold harmless (in the same manner and to the same extentas set forth in paragraph (a) of this Section 5.9) to the extent permitted bylaw the Company, its officers and directors, each Person controlling theCompany within the meaning of the Securities Act and all other prospectivesellers and their respective directors, officers, fiduciaries, managingdirectors, employees, agents, affiliates, consultants, representatives,successors, assigns, general and limited partners, stockholders and respectivecontrolling Persons with respect to any untrue statement or alleged untruestatement of any material fact in, or omission or alleged omission of anymaterial fact from, such registration statement, any preliminary, final orsummary prospectus contained therein, or any amendment or supplement thereto,or any free writing prospectus utilized in connection therewith, if suchstatement or alleged statement or omission or alleged omission was made inreliance upon and in conformity with written information furnished to theCompany or its representatives by or on behalf of such Holder specifically foruse therein, and shall reimburse such indemnified party for any legal or otherexpenses reasonably incurred in connection with investigating or defending anysuch Claim as such expenses are incurred; provided, however, that the liabilityof any Holder pursuant to this subsection (b) shall not exceed the product of(i) the number of shares sold by such Holder in such registration and (ii) thepublic offering price of such shares as set forth in the applicable prospectus.Such indemnity and reimbursement of expenses shall remain in full force andeffect regardless of any investigation made by or on behalf of such indemnifiedparty and shall survive the transfer of such securities by such Holder.

 

(c)           Indemnificationsimilar to that specified in the preceding paragraphs (a) and (b) of thisSection 5.9 (with appropriate modifications) shall be given by the Company andeach seller of Registrable Securities with respect to any required registrationor other qualification of 

 

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securities under anystate securities and “blue sky” laws.

 

(d)           AnyPerson entitled to indemnification under this Agreement shall notify promptlythe indemnifying party in writing of the commencement of any action orproceeding with respect to which a claim for indemnification may be madepursuant to this Section 5.9, but the failure of any such Person to providesuch notice shall not relieve the indemnifying party of its obligations underthe preceding paragraphs of this Section 5.9, except to the extent theindemnifying party is materially prejudiced thereby and shall not relieve theindemnifying party from any liability which it may have to any such Personotherwise than under this Article 5. In case any action or proceeding isbrought against an indemnified party and it shall notify the indemnifying partyof the commencement thereof, the indemnifying party shall be entitled toparticipate therein and, unless in the reasonable opinion of outside counsel tothe indemnified party a conflict of interest between such indemnified andindemnifying parties may exist in respect of such claim, to assume the defensethereof jointly with any other indemnifying party similarly notified, to theextent that it chooses, with counsel reasonably satisfactory to suchindemnified party, and after notice from the indemnifying party to suchindemnified party that it so chooses, the indemnifying party shall not beliable to such indemnified party for any legal or other expenses subsequentlyincurred by such indemnified party in connection with the defense thereof otherthan reasonable costs of investigation; provided, however, that (i) if theindemnifying party fails to take reasonable steps necessary to defenddiligently the action or proceeding within 20 days after receiving notice fromsuch indemnified party; or (ii) if such indemnified party who is a defendant inany action or proceeding which is also brought against the indemnifying partyreasonably shall have concluded that there may be one or more legal defensesavailable to such indemnified party which are not available to the indemnifyingparty; or (iii) if representation of both parties by the same counsel isotherwise inappropriate under applicable standards of professional conduct,then, in any such case, the indemnified party shall have the right to assume orcontinue its own defense as set forth above (but with no more than one firm ofcounsel for all indemnified parties in each jurisdiction, except to the extentany indemnified party or parties reasonably shall have concluded that there maybe legal defenses available to such party or parties which are not available tothe other indemnified parties or to the extent representation of allindemnified parties by the same counsel is otherwise inappropriate underapplicable standards of professional conduct) and the indemnifying party shallbe liable for any expenses therefor. No indemnifying party shall, without thewritten consent of the indemnified party, which consent shall not beunreasonably withheld, effect the settlement or compromise of, or consent tothe entry of any judgment with respect to, any pending or threatened action orclaim in respect of which indemnification or contribution may be soughthereunder (whether or not the indemnified party is an actual or potential partyto such action or claim) unless such settlement, compromise or judgment (A)includes an unconditional release of the indemnified party from all liabilityarising out of such action or claim and (B) does not include a statement as toor an admission of fault, culpability or a failure to act, by or on behalf ofany indemnified party.

 

(e)           To theextent the foregoing indemnity is held by a court to be unavailable for reasonsof public policy in the United States to hold harmless an indemnified partyunder Sections 5.9(a), (b) or (c), then each indemnifying party shallcontribute to the amount paid or 

 

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payable by such indemnified party as a result of any Claim in suchproportion as is appropriate to reflect the relative fault of the indemnifyingparty, on the one hand, and the indemnified party, on the other hand, withrespect to such offering of securities. The relative fault shall be determinedby reference to, among other things, whether the untrue or alleged untruestatement of a material fact or the omission or alleged omission to state amaterial fact relates to information supplied by the indemnifying party or theindemnified party and the parties’ relative intent, knowledge, access toinformation and opportunity to correct or prevent such untrue statement oromission. If, however, the allocation provided in the second preceding sentenceis not permitted by applicable law, then each indemnifying party shallcontribute to the amount paid or payable by such indemnified party in suchproportion as is appropriate to reflect not only such relative faults but alsothe relative benefits of the indemnifying party and the indemnified party aswell as any other relevant equitable considerations. The parties hereto agreethat it would not be just and equitable if contributions pursuant to thisSection 5.9(e) were to be determined by pro rata allocation or by any othermethod of allocation which does not take account of the equitableconsiderations referred to in the preceding sentences of this Section 5.9(e).The amount paid or payable in respect of any Claim shall be deemed to includeany legal or other expenses reasonably incurred by such indemnified party in connectionwith investigating or defending any such Claim. No Person guilty of fraudulentmisrepresentation (within the meaning of section 11(f) of the Securities Act)shall be entitled to contribution from any Person who was not guilty of suchfraudulent misrepresentation. Each Holder’s obligation to contribute pursuantto this subsection (e) shall not exceed the product of (i) the number of sharessold by such Holder in such registration and (ii) the public offering price ofsuch shares as set forth in the applicable prospectus.

 

(f)            Theindemnity and contribution agreements contained herein shall be in addition toany other rights to indemnification or contribution which any indemnified partymay have pursuant to law or contract and shall remain operative and in fullforce and effect regardless of any investigation made or omitted by or onbehalf of any indemnified party and shall survive the transfer of theRegistrable Securities by any such party.

 

(g)           Theindemnification and contribution required by this Section 5.9 shall be made byperiodic payments of the amount thereof during the course of the investigationor defense, as and when bills are received or expense, loss, damage orliability is incurred.

 

5.10.        FreeWriting Prospectuses.

 

Each Holder representsand agrees that, unless it obtains the prior consent of the Company, it has notmade and will not make any offer relating to the Registrable Securities thatwould constitute a “free writing prospectus,” as defined in Rule 405 under theSecurities Act, required to be filed with the Commission.

 

5.11.        Terminationof Registration Rights.

 

The rights of any Holder under Article 5 of thisAgreement shall terminate (and such person shall cease to be a Holder for thepurposes of Article 5 of this Agreement) on the date that 

 

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such Holder (and personsincluded within such Holder pursuant to Rule 144(a)(2) under the SecuritiesAct) Beneficially Owns Registrable Securities that constitute less than 1% ofthe total number of outstanding shares of Common Stock; provided, thatno such termination shall affect any previously accrued rights under Article 5.

 

ARTICLE VI

UnderwrittenOfferings

 

6.1.          RequestedUnderwritten Offerings. If requested by the underwriters for anyunderwritten offering by the Holders pursuant to a registration requested underSection 6.1, the Company shall enter into a customary underwriting agreementwith the Participating Holders and the underwriters. Such underwritingagreement shall be satisfactory in form and substance to the MajorityParticipating Holders and the Company and shall contain such representationsand warranties by, and such other agreements on the part of, the Company andsuch other terms as are generally prevailing in agreements of that type,including, without limitation, indemnities and contribution agreements onsubstantially the same terms as those contained herein. Any Holderparticipating in the offering shall be a party to such underwriting agreementand may, at its option, require that any or all of the representations andwarranties by, and the other agreements on the part of, the Company to and forthe benefit of such underwriters shall also be made to and for the benefit ofsuch Holder and that any or all of the conditions precedent to the obligationsof such underwriters under such underwriting agreement be conditions precedentto the obligations of such Holder; provided, however, that the Company shallnot be required to make any representations or warranties with respect towritten information specifically provided in writing by a selling Holder forinclusion in the registration statement and shall not be required to indemnifyany Holder except on the basis provided in Section 5.9 hereof. No Holder shallbe required to make any representations or warranties to or agreements with theCompany or the underwriters other than representations, warranties oragreements regarding such Holder, its ownership of and title to the RegistrableSecurities, and its intended method of distribution; and any liability of suchHolder to any underwriter or other Person under such underwriting agreementshall be limited to liability arising from breach of its representations andwarranties and shall be limited to an amount equal to the proceeds (net ofexpenses and underwriting discounts and commissions) that it derives from suchregistration.

 

ARTICLE VII

General

 

7.1.          Rule144. The Company covenants that (i) so long as it remains subject to thereporting provisions of the Exchange Act, it will timely file the reportsrequired to be filed by it under the Securities Act or the Exchange Act(including, but not limited to, the reports under Sections 13 and 15(d) of theExchange Act referred to in subparagraph (c)(1) of Rule 144 under the SecuritiesAct), to the extent required from time to time to enable such Holder to sellRegistrable Securities without registration under the Securities Act within thelimitation of the exemptions provided by (A) Rule 144 under the Securities Act,as such Rule may be amended 

 

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from time to time, or (B)any similar rule or regulation hereafter adopted by the SEC.

 

7.2.          Nomineesfor Beneficial Owners. If Registrable Securities are held by a nominee forthe Beneficial Owner thereof, the Beneficial Owner thereof may, at its option,be treated as the Holder of such Registrable Securities for purposes of anyrequest or other action by any Holder or Holders of Registrable Securitiescontemplated by this Agreement (provided that the Company shall have receivedassurances reasonably satisfactory to it of such Beneficial Ownership).

 

7.3           NASDAQListing. The Company shall use its commercially reasonable efforts to causethe shares of Common Stock to be issued in the Transaction to be approved forquotation on the NASDAQ National Market, subject to official notice ofissuance, prior to the Closing Date.

 

ARTICLE VIII

Miscellaneous

 

8.1.          Effectiveness;Termination.

 

This Agreement shallbecome effective on the Closing Date and shall terminate on January 1, 2012,except for those provisions which by their terms terminate earlier; provided,that no such termination shall affect any previously accrued rights.

 

8.2.          Assignment;Joinder; Third Party Beneficiaries.

 

(a)           This Agreement shall be binding on andinure to the benefit of and be enforceable by the parties hereto and theirrespective successors and permitted assigns.

 

(b)           NotwithstandingArticle III or Section 4.1(b) of this Agreement, each Holder may make aDisposal of all or any portion of such Holder’s Common Stock to one or more ofits Affiliates (a “Permitted Transferee”), provided that if suchPermitted Transferee is not already a party to this Agreement it shall deliverto the Company on or before the date of such Disposal a duly executed JoinderAgreement in the Form attached as Exhibit B. Upon receipt of such duly executedJoinder Agreement, the Company shall update Exhibit A to this Agreement toinclude such Permitted Transferee, which will become a party to this Agreementand a Holder and have all rights and obligations as a Holder hereunder.

 

(d)           Bransonagrees that he shall be deemed a Holder for purposes of Article IV, Article VIIand Article VIII of this Agreement.

 

(e)           Exceptas expressly provided in this Section 8.2, a person who is not a party to thisAgreement (or a successor of a party to this agreement) shall not have anyrights hereunder.

 

8.3.          Feesand Expenses.  Each party hereto shall pay the fees and expensesof its investment banking advisors, attorneys, accountants and other advisors,if any, and all other 

 

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expenses incurred by suchparty incident to the negotiation, preparation, execution, delivery andperformance of this Agreement other than with respect to the expensescontemplated by Section 5.5.

 

8.4.          Confidentiality.

 

(a)           EachHolder agrees to treat information received from the Company pursuant to theCompany’s obligations under this Agreement as confidential; provided, howeverthat (a) such Holder shall not be restricted from making disclosure of suchinformation if and to the extent that such disclosure is required by law oradministrative regulation or by the regulation of any stock exchange, and (b)if such Holder is required by a court or administrative agency to disclose anyof such information with respect to this Agreement (an “Information Request”),such Holder shall promptly notify the Company of such requirement so that theCompany may at its own expense oppose such requirement or seek a protectiveorder and request confidential treatment of such information. It is agreedthat, if the party receiving the Information Request is nonetheless compelledto disclose the information, such party may disclose such portion of theinformation which is legally required without liability hereunder.

 

(b)           AHolder will not be required to treat information received from the Companypursuant to this Agreement as confidential under Section 8.4(a) above if suchinformation (i) was already available to, or in the possession of, such Holderprior to its disclosure by, or at the direction of, the Company pursuant tothis Agreement, (ii) is or becomes available in the public domain on or afterthe date of this Agreement (other than as a result of disclosure by suchHolder), or (iii) is acquired from a person who is not known by the Company tobe in breach of an obligation of confidentiality to the Company.

 

(c)           EachHolder further acknowledges that it is aware of its obligations pursuant to theU.S. securities laws not to trade on the basis of any material, non-publicinformation that it may receive from the Company pursuant to this Agreement.

 

(d)           EachHolder and its Related Persons will not issue any press release or make anypublic statement whatsoever concerning this Agreement and the matters addressedin Article IV hereof except as permitted under Section 4.1(j).

 

8.5.          Severability.  Ifany term, provision, covenant or restriction of this Agreement is held by acourt of competent jurisdiction to be invalid, void or unenforceable, theremainder of the terms, provisions, covenants and restrictions of thisAgreement shall remain in full force and effect.

 

8.6.          SpecificEnforcement; No Right to Terminate.

 

(a)           Theparties hereto acknowledge and agree that irreparable damage would occur in theevent that any provision of this Agreement were not performed in accordancewith its specific terms or were otherwise breached, and further acknowledge andagree that money damages are an inadequate remedy for the breach of thisAgreement because of the difficulty of ascertaining the amount of damage thatwould be suffered in the event of such breach. Each party accordingly 

 

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agrees that each of theother parties shall be entitled to obtain specific performance of any provisionof this Agreement and injunctive or other equitable relief to prevent or curebreaches of any provision of this Agreement, this being in addition to anyother remedy to which they may be entitled by law or equity. Each party furtheragrees that no bond shall be required as a condition to the granting of anysuch relief.

 

(b)           Theparties hereto further agree that they shall not be permitted or have the rightto terminate or suspend performance of any provision of this Agreement, itbeing agreed that all provisions of this Agreement shall continue and bespecifically enforceable in all events and under all circumstances regardlessof any events, occurrences, actions or omissions before or after the date ofthis Agreement. In furtherance of the foregoing, the parties hereto agree thatthey shall not be permitted to, and shall not, bring any claim seeking toterminate or suspend performance of any provision of this Agreement or seekingany determination that any provision of this Agreement (including, withoutlimitation, this Section 8.6) is invalid, inapplicable or unenforceable.

 

8.7.          Consentto Jurisdiction; Appointment of Agent for Service of Process.

 

(a)           ThisAgreement shall be construed and enforced in accordance with, and the rightsand obligations of the parties hereto shall be governed by, the laws of theState of Delaware, without giving effect to the conflicts of law principlesthereof.

 

(b)           Eachof the parties hereto hereby irrevocably and unconditionally consents to submitto the exclusive jurisdiction of the courts of the State of Delaware and theUnited States of America located in the County of New Castle for any action orproceeding arising out of or relating to this Agreement and the transactionscontemplated hereby (and agrees not to commence any action or proceedingrelating thereto except in such courts), and further agrees that service of anyprocess, summons, notice or document by U.S. registered mail to its respectiveaddress set forth in Section 8.9 shall be effective service of process forany action or proceeding brought against it in any such court. Each of theparties hereto hereby irrevocably and unconditionally waives any objection tothe laying of venue of any action or proceeding arising out of this Agreementor the transactions contemplated hereby in the courts of the State of Delawareor the United States of America located in the County of New Castle, and herebyfurther irrevocably and unconditionally waives and agrees not to plead or claimin any such court that any such action or proceeding brought in any such courthas been brought in an inconvenient forum.

 

(c)           Notlater than five days after the date hereof, each Holder shall provide notice tothe other parties of a person or entity reasonably satisfactory to the Companywho or which has been designated, appointed and empowered by such Holder as itsdesignee, appointee and agent to receive and accept for and on its behalf, andits properties, assets and revenues, service of any and all legal process,summons, notices and documents that may be served in any action, suit orproceeding brought against such Holder in any such United States federal orstate court with respect to its obligations, liabilities or any other matterarising out of or in connection with this Agreement and that may be made onsuch designee, appointee and agent in accordance with legal proceduresprescribed for such courts. Each Holder futher agrees that, if it fails to givesuch 

 

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notice timely, then unless and until such notice isprovided, service on Corporation Trust Company, with offices currently atCorporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 shallbe sufficient for all purposes hereunder. If for any reason such designee,appointee and agent hereunder shall thereafter cease to be available to act assuch, such Holder agrees to designate a new designee, appointee and agent inthe State of Delaware on the terms and for the purposes of this Section 8.7reasonably satisfactory to the Company. Each Holder further hereby irrevocablyconsents and agrees to the service of any and all legal process, summons,notices and documents in any such action, suit or proceeding against theCompany by serving a copy thereof upon the relevant agent for service ofprocess referred to in this Section 8.7 (whether or not the appointment of suchagent shall for any reason prove to be ineffective or such agent shall acceptor acknowledge such service). Each Holder agrees that the failure of any suchdesignee, appointee and agent to give any notice of such service to them shallnot impair or affect in any way the validity of such service or any judgmentrendered in any action or proceeding based thereon.

 

8.8.          EntireAgreement.  This Agreement contains the entire understanding ofthe parties hereto with respect to the matters covered hereby and thisAgreement may be amended only by an agreement in writing executed by theparties hereto or their respective successors or assigns.

 

8.9.          Notices.  Anynotice or other communication required or permitted to be given hereunder shallbe in writing and shall be effective (i) when personally delivered ordelivered by telex (with correct answer-back received) or telecopy on abusiness day during normal business hours with confirmation postmarked the sameday, at the address or number designated below or (ii) on the business dayfollowing the date of mailing by overnight courier, fully prepaid, addressed tosuch address, whichever shall first occur. The addresses for suchcommunications shall be:

 

If to the Company:

 

NTL Incorporated

909 Third Avenue, Suite2863

New York, New York 10022

Attention:  General Counsel

Facsimile: 212 752-1157

 

with copies (which shallnot constitute notice) to:

 

Fried, Frank, Harris,Shriver & Jacobson LLP

One New York Plaza

New York, New York  10004

Attn.:  Arthur Fleischer

Attn:  Robert Mollen

Facsimile:  (212) 859-4000

 

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and

 

NTL Incorporated

Bartley Wood BusinessPark

Bartley Way, Hook

Hampshire RG27 9UP

Attn. :  General Counsel

Facsimile:  (44) 1256 754 501

 

If to any Holder, theaddress specified next to such Holder’s name on Exhibit A hereto with a copy(which shall not constitute notice) to:

 

Herbert Smith LLP

Exchange House

Primrose Street

London EC2A 2HS

Attn. :  Gareth Roberts

Attn. :  Jim Wickenden

Facsimile:  (44) 20 7374 0888

 

Any party hereto may fromtime to time change its address for notices under this Section 8.9 bygiving at least 10 days notice of such changed address to the other partieshereto.

 

8.10.        Waivers.

 

(a)           ThisAgreement may be amended, waived, modified as supplemented only by writtenagreement of the Company and the Majority Holders.

 

(b)           Nowaiver by either party of any breach of any provision of this Agreement shallbe deemed to be a continuing waiver in the future thereof or a waiver of anyother provision hereof; nor shall any delay or omission of any party toexercise any right hereunder in any manner impair the exercise of any suchright accruing to it thereafter.

 

8.11.        Headings.  Theheadings herein are for convenience only, do not constitute a part of thisAgreement, and shall not be deemed to limit or affect any of the provisionshereof.

 

8.12.        Counterparts.  ThisAgreement may be executed in counterparts, each of which shall be deemed anoriginal and all of which, when taken together, shall constitute one and thesame instrument. This Agreement shall become effective when original counterpartsof this Agreement shall have been duly executed and delivered by all parties.

 

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IN WITNESS WHEREOF, theparties have executed this Agreement or have caused this Agreement to be dulyexecuted by their respective authorized officers as of the date first set forthabove.

 
|   | NTL Incorporated                 |                                       |
|--------|----------------------------------|--------------------------------------------|
|   |                             |                                       |
|   |                             |                                       |
|   | By:                              | /s/ Bryan H. Hall                          |   |
|   |                             | Name: Bryan H. Hall                        |   |
|   |                             | Title: Secretary                           |   |
|   |                             |                                       |   |
|   |                             |                                       |   |
|   | Virgin Entertainment  Investment |                                       |
|   |  Holdings Limited           |                                       |
|   |                             |                                       |
|   |                             |                                       |
|   | By:                              | /s/ Niall  MacGregor Ritchie               |   |
|   |                             | Name: Niall MacGregor  Ritchie             |   |
|   |                             | Title: Director                            |   |
|   |                             |                                       |   |
|   | By:                              | /s/  Paul Jauvel                           |   |
|   |                             | Name: Abacus  Secretaries (Jersey) Limited |   |
|   |                             | Title: Secretary                           |   |
|   |                             |                                       |
|   | Sir Richard Branson              |                                       |
|   |                             |                                       |
|   |                             |                                       |
|   |                             | /s/ Sir Richard Branson                    |   |
|   |                             | Sir Richard Branson                        |   |

 

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EXHIBIT A

 
| **Holder**                      | ** ** | **Holder’s  Initial Holding** | ** ** | **Address  for Notice Pursuant to  Section 8.9** | ** ** |
|---------------------------------|------------|------------------------------------|------------|--------------------------------------------------|------------|
| Virgin Entertainment Investment |       |                               |       |                                             |       |
| Holdings Limited                |       | 34,260,959                         |       | 120 Campden Hill Road                            |       |
|                            |       |                               |       | London W8 7AR                                    |       |
|                            |       |                               |       | Attention: General Counsel                       |       |
|                            |       |                               |       | Fax: +44 (0)20 7313 2085                         |       |

 

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EXHIBIT B

 

[Form of]

JOINDER AGREEMENT

 

The undersigned isexecuting and delivering this Joinder Agreement pursuant to the Investment Agreementdated April 3, 2006 (the “Investment Agreement”), among NTL Incorporated(the “Company”), the Holders named therein and, for certain purposes,Richard Branson.

 

By executing anddelivering this Joinder Agreement to the Company, the undersigned hereby agreesto become a party to, to have the benefits of, to be bound by, and to complywith the provisions of the Investment Agreement as a Holder in the same manneras if the undersigned were an original signatory to such agreement.

 

Notices pursuant to Section8.9 of the Investment Agreement may be given to the undersigned at the addressand facsimile number below, or otherwise as the undersigned may notify to theother Parties pursuant to Section 8.9.

 

This Agreement isgoverned by Delaware law. The parties agree that the court of the State ofDelaware and the United States of America located in the County of New Castle,is to have jurisdiction to settle any disputes which may arise out of, or inconnection with this Agreement and irrevocably submit to the jurisdiction ofthis court.

 

Accordingly, theundersigned has executed and delivered this Joinder Agreement as of the         day of                 ,200[  ].

 
|   | [SIGNATORY]                                                                                                                                                |
|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                       |
|   | By:                                                                                                                                                        |   |   |
|   | Name:                                                                                                                                                      |
|   | Title:                                                                                                                                                     |
|   |                                                                                                                                                       |
|   |                                                                                                                                                       |
|   | Address:                                                                                                                                                   |
|   |                                                                                                                                                       |   |
|   |                                                                                                                                                       |   |
|   |                                                                                                                                                       |   |
|   |                                                                                                                                                       |   |
|   | Attention:                                                                                                                                                 |
|   | Telephone: (   )            -           |
|   | Telecopy: (   )            -            |
|        |                                                                                                                                                            |  |  |  |

 

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