Exhibit
10.1


 


INVESTMENT
AGREEMENT


 


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, for
the avoidance of doubt, each Permitted Transferee (each, a “Holder,” and
collectively, the “Holders”), and, for purposes of Article IV, Article
VII, and Article VIII only, Sir Richard Branson (“Branson”), who shall be
deemed to be a Holder for purposes of those Articles.


 


WHEREAS, pursuant to a
transaction with the Company (the “Transaction”), each Holder will
receive, among other consideration, the aggregate number of shares of common
stock, par value $.01 per share, of the Company (the “Common Stock”) set forth
next to a Holder’s name on Exhibit A;


 


WHEREAS, the parties have
determined to enter into this Agreement to govern their relationships
subsequent to the closing of the Transaction;


 


NOW, THEREFORE, in
consideration of the foregoing premises and of the covenants and agreements set
forth herein, and intending to be legally bound hereby, the parties agree as
follows:


 


ARTICLE I


Definitions


 


The following terms have
the following respective meanings:


 


“Agreement” has
the meaning set forth in the preamble.


 


“Affiliate” means,
(i) with respect to any Person, any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person, and (ii) with respect to any individual, shall also mean
the spouse, child, grandchild or other relative of such individual or any
relative 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 cause
the 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 voting
securities, by contract or otherwise.


 


“Associate” means,
with respect to any Person: (A)(i) any corporation or organization of which
such Person is an officer or partner or is, directly or indirectly, the
beneficial 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 as
to 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 any
relative 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 a
trust established for the benefit of any of them.


 


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


 


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


 


“Business Combination
Transaction” means a tender offer for Voting Securities of, merger or
consolidation with, or sale of any significant business of, the Company, or any
similar transaction.


 


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


 


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


 


“Claims” has the
meaning set forth in Section 5.9.


 


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


 


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


 


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


 


“Company” has the
meaning set forth in the preamble;


 


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


 


“Demand Registration
Requests” 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 transfer
or dispose of, directly or indirectly, any Common Stock or rights therein
(including voting), other than in connection with a bona fide pledge to a
commercial bank to secure borrowings in the ordinary course of the Holder’s
business 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, any
of the incidents of Beneficial Ownership of Common Stock.


 


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


 


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“Expenses” means
any and all fees and expenses incurred in connection with the Company’s
performance of or compliance with Article 6, including, without limitation: (i)
SEC, stock exchange or NASD registration and filing fees and all listing fees
and fees with respect to the inclusion of securities on any securities market
on which the Common Stock is listed or quoted, (ii) fees and expenses of
compliance with state securities or “blue sky” laws and in connection with the
preparation of a “blue sky” survey, including without limitation, reasonable
fees and expenses of blue sky counsel, (iii) printing and copying expenses,
(iv) messenger and delivery expenses, (v) expenses incurred in connection with
any road show, (vi) fees and disbursements of counsel for the Company, (vii)
with respect to each registration, the fees and disbursements (which shall not
exceed $25,000) of one counsel for the selling Holder(s) (selected by the
Majority Participating Holders), (viii) fees and disbursements of all
independent public accountants (including the expenses of any audit and/or “cold
comfort” letter) and fees and expenses of other persons, including special
experts, retained by the Company, (ix) fees and expenses payable to a Qualified
Independent Underwriter (as such term is defined in Schedule E to the By-Laws
of the NASD) and (x) any other fees and disbursements of underwriters, if any,
customarily paid by issuers of securities.


 


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


 


“Holder Controlling
Persons” 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 time
to time as a result of any stock dividend, stock split, reverse stock split or
other combination of shares or any reclassification, recapitalization, merger,
consolidation or other reorganization).


 


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


 


“Licence Agreement
Side Letter” means that letter agreement dated the date hereof between
Virgin Enterprises Limited and the Company.


 


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


 


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


 


“NASD” has the
meaning 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 any
individual, corporation, limited liability company, limited or general
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivisions 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.


 


“Registrable
Securities” means any shares of Common Stock issued in the Transaction to
the Holders or acquired by any Holder in accordance with Section 4.1(a), or in
exchange 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 any
particular Registrable Securities, such securities shall cease to be
Registrable Securities when (A) a registration statement with respect to the
sale of such securities shall have been declared effective under the Securities
Act and such securities shall have been disposed of in accordance with such
registration statement, or (B) such securities shall be capable of being sold
without restriction in accordance with Rule 144(k) under the Securities Act or
shall 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 the
Securities and Exchange Commission.


 


“Section 5.3(a) Sale
Number” 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 Registration
Statement” 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 by
any Third Party.


 


“Transaction” has
the 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 to
vote with respect to the elections of directors of the Company and all securities
convertible into or exchangeable for such securities.


 


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


 


ARTICLE II


Representations


 


2.1           Representations
of the Company.


 


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


 


(i) the Company has
the full legal right, power and authority to enter into and perform this
Agreement;


 


(ii) the execution
and delivery of this Agreement by the Company has been duly authorized by the
Company;


 


(iii) this Agreement
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, provided that the enforcement
of the rights and remedies created hereby may be limited by (a) bankruptcy,
insolvency,  reorganization, moratorium
and other laws of general application affecting the rights and remedies of
creditors and (b) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law); and (iv) the
compliance by the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, (A) any indenture, mortgage, dead of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, (B) the Certificate of Incorporation or Bylaws or (C)
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its Subsidiaries
or any of their respective properties or assets; and no consent, approval,
authorization, order, registration or qualification of or with any such court
or governmental agency or body is required for the consummation by the Company
of the transaction contemplated by this Agreement.


 


2.2.          Representations of the Holders.


 


Each Holder
represents to the Company, severally and not jointly, as of the date
hereof 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 such
Holder has been duly 


 


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authorized by such
Holder;


 


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


 


(d)           such
Holder does not have any agreements, arrangements or understandings with any
person or entity regarding any of the matters prohibited by Articles 3 and 4
other than this Agreement, and compliance by such Holder with all of the provisions
of this Agreement and the consummation of the transactions herein contemplated
will not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, (A) any indenture, mortgage,
dead of trust, loan agreement or other agreement or instrument to which such
Holder or any of its subsidiaries is a party or by which such Holder or any of
its subsidiaries is bound or to which any of the property or assets of such
Holder 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, rule
or regulation of any court or governmental agency or body having jurisdiction
over such Holder or any of its subsidiaries or any of their properties or
assets; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by such Holder of the transaction contemplated by
this Agreement.;


 


(e)           after
giving effect to the Transaction, such Holder will Beneficially Own (with “Beneficially
Own” having the meanings given to such term in Rule 13d-3 under, or Section
16(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 I
opposite such Holder’s name; and


 


(f)            neither
such Holder nor any Affiliate or Associate of such Holder Beneficially Owns
(nor does such Holder or any such Affiliate or Associate have any intention to
become the Beneficial Owner of) any Common Stock or rights or interests in
Common Stock other than as set forth in clause (e) above or as may be acquired
after the date hereof in accordance with 

Section 4.1 (a).


 


ARTICLE III


Lock-Up


 


3.1.          Lock-Up Provisions. Each Holder
agrees, subject to sections 4.1 and 8.2, with respect to the Common Stock
received pursuant to the Transaction (including for purposes of this Article
any securities received in exchange for or in respect of 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):


 


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


 


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such Holder will
not make any Disposal;


 


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


 


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


 


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


 


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


 


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


 


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


 


(h)           to
make Disposals only in a manner consistent with the maintenance of an orderly
market for the Common Stock and seeking to avoid any adverse effect on the
trading price of the Common Stock.


 


For the avoidance
of doubt, to the extent a hedging transaction is a Disposal, once the hedge is
closed out the Disposal will be treated as if it had never taken place for
purposes 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 in
any Business Combination Transaction approved by the Board of Directors.


 


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ARTICLE IV


Conduct


 


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


 


(a)           acquire or seek to acquire, by purchase
or otherwise, Beneficial Ownership of, (A) any Voting Securities,
including, without limitation, any capital stock of the Company, or direct or
indirect rights (including convertible securities) or options to acquire such
ownership (collectively, “Securities”), other than Permitted Securities (as
defined below), if immediately after any such acquisition, the Holder and
Related Persons would Beneficially Own Voting Securities representing more than
15% of the then outstanding Voting Securities, or direct or indirect rights or
options to acquire such ownership. For purposes of this clause (a), “Permitted
Securities” shall mean (i) Securities received as a result of stock
dividends, stock reclassifications or other distributions or offerings made
available by the Company on a pro rata basis to the holders of its Common Stock
generally, and (ii) indirect investments in Securities by any Holder in the
ordinary course of business held in mutual funds or index funds in which the
Holder and Related Persons own or would own in the aggregate less than 10% of
the outstanding equity interest;


 


(b)           make any Disposal of Common Stock to any
person or “group” (as used in this Section 4.1) that, at the time of such
Disposal or immediately following it, Beneficially Owns Voting Securities of
the Company representing 1% or more of the outstanding Voting Securities of the
Company; provided, however, that this provision shall not prevent (i)
regular-way trades on a recognized securities exchange where purchases are
unsolicited and the identity of the purchaser is unknown or (ii) the Disposal
of Common Stock to a global investment bank with annual total revenues in
excess of $10 billion (as measured for fiscal year 2005) for the purpose of
resale so long as such investment bank agrees: (x) that it will not knowingly
(after informal inquiry as to whether the proposed purchaser is affiliated
with, or part of a “group” with, any other proposed purchaser but without any
obligation to seek any formal confirmation or representation) sell shares
representing 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 its
Affiliates Beneficially Own 3% or more of the outstanding Common Stock, it will
vote the Common Stock so acquired in accordance with the requirements of
Section 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 carried
on by Virgin Mobile or any successor to that business; provided,
however, that if the Board of Directors of the Company determines to explore a
sale (in whole or in part) of the business carried on by Virgin Mobile, the
Holder or any Related Person may participate in the sale process if: (i) the
Holder and the Related Persons agree with the Company to comply with the
restrictions generally applicable to participants and if the Board, in its
reasonable discretion, considers such 


 


8

















 


participation to be
consistent with its fiduciary duties, and (ii) the Business Combination
Transaction is limited to the business of Virgin Mobile or any successor to
that 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 Exchange
Act), including involving the election of directors, or seek to advise or
influence any person or entity with respect to the voting of, any securities of
the Company or indebtedness of the Company; provided, however, that,
subject to the restrictions set forth in Section 4.2, the Holder or any Related
Person may enter into an agreement or arrangement with respect to the voting of
its Voting Securities, but not otherwise engage in any of the activities
restricted by this subparagraph (d);


 


(e)           initiate
or propose any stockholder proposals for submission to a vote of stockholders,
whether by action at a stockholder meeting or by written consent, with respect
to 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 removal
of any member of the Board of Directors;


 


(f)            disclose
to any third party, or make any filing under the Exchange Act, including under
Section 13(d) and Schedule 13D, disclosing any intention, plan or
arrangement inconsistent with the foregoing;


 


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


 


(h)           enter
into any discussions or understandings with any third party with respect to any
of the foregoing;


 


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


 


(j)            make
any public announcement with respect to any of the foregoing except as required
by the Exchange Act, in
respect of actions permitted under this Article IV; or


 


(k)           request
a waiver of any of the provisions of this Article IV from the Board of
Directors,


 


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


 


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For purposes of this
Section 4.1, references to the “Company” shall be construed to include
subsidiaries and other persons directly or indirectly controlled by the
Company.


 


4.2.          Voting. Until after
the 2008 Annual Meeting Date, with respect to each matter submitted to the
stockholders of the Company for a vote, whether at a meeting or pursuant to any
consent of stockholders of the Company, where such matter relates to: (a) any
proposed amendment to the Articles or Bylaws of the Company, (b) any proposal
that relates to, or could facilitate, a change of control of the Company,
including a Business Combination Transaction, as reasonably determined by the
Board of Directors, or (c) the election of Directors of the Company, each
Holder agrees to, and agrees to cause its Related Persons to vote (whether by
proxy or otherwise) all Voting Securities Beneficially Owned by such Holder, at
its option, either (i) pro rata in proportion to the votes cast by the other
stockholders or (ii) in support of actions recommended by the Board of
Directors or, when there is no such recommendation, in opposition to any action
proposed 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 Business
Combination Transaction. Each Holder agrees to be present in person or by proxy
at all stockholder meetings of the Company so that its voting securities may be
counted for the purpose of determining the presence of a quorum at such
meetings.


 


ARTICLE V


Registration
Rights


 


5.1.          Demand Registrations.


 


(a) (i)       Subject
to Sections 5.1(b) and 5.2 below, at any time, the Holders shall have the right
at any time following the three month anniversary of the Closing Date and prior
to January 1, 2011 to require the Company to file a registration statement
under the Securities Act covering an aggregate number of Registrable Securities
of 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 stock
dividend, stock split or combination of shares or in connection with a
reclassification, recapitalization, merger, consolidation or other
reorganization), by delivering a written request therefor to the Company
specifying the number of Registrable Securities to be included in such
registration by such Holders and the intended method of distribution of such
Registrable Securities. All such requests by any Holder pursuant to this
Section 5.1(a)(i) are referred to as “Demand Registration Requests,” and
the registrations so requested are referred to as “Demand Registrations”
(with respect to any Demand Registration, the Holders making such demand for
registration being referred to as the “Initiating Holders”). As promptly
as practicable, but no later than five days after receipt of a Demand
Registration Request, the Company shall give written notice (the “Demand
Exercise Notice”) of such Demand Registration Request to all Holders of
record of Registrable Securities.


 


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


 


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Registration (x) the
Registrable Securities of the Initiating Holders and (y) the Registrable
Securities of any other Holder of Registrable Securities which shall have made
a written request to the Company for inclusion in such registration (together
with the Initiating Holders, the “Participating Holders”) (which request
shall specify the maximum number of Registrable Securities intended to be
disposed of by such Participating Holders) within 10 days after the receipt of
the Demand Exercise Notice.


 


(iii)          The Company shall, as expeditiously as
possible but subject to Section 5.1(b), use its commercially reasonable efforts
to (x) effect such registration under the Securities Act of the Registrable
Securities which the Company has been so requested to register, for
distribution in accordance with such intended method of distribution and (y) if
requested by the Majority Participating Holders, obtain acceleration of the effective
date of the registration statement relating to such registration as promptly as
practicable following such request.


 


(b)           Notwithstanding
anything to the contrary in Section 5.1(a), the Demand Registration rights
granted in Section 5.1(a) to the Holders are subject to the following
limitations: (i) the Company shall not be required to cause a registration
pursuant to Section 5.1(a)(i) to be declared effective within a period of 180
days after the effective date of any other registration statement of the
Company filed pursuant to the Securities Act; (ii) if the Board of Directors,
in its good faith judgment, determines that any registration of Registrable
Securities should not be made or continued because it would materially
interfere with any material financing, acquisition, corporate reorganization or
merger or other material transaction or event involving the Company or any of
its subsidiaries (a “Valid Business Reason”), the Company may postpone
filing a registration statement or withdraw a registration statement relating
to a Demand Registration Request until such Valid Business Reason no longer
exists, but in no event for more than 120 days in the aggregate in any
twelve-month period (such period of postponement or withdrawal under this
clause (ii), the “Postponement Period”); and the Company shall give
written notice of its determination to postpone or withdraw a registration
statement and of the fact that the Valid Business Reason for such postponement
or withdrawal no longer exists, in each case, promptly after the occurrence
thereof; (iii) the Company shall not be obligated to effect more than three
Demand Registrations under Section 5.1(a) for all Holders and each Demand
Registration Request shall have been made prior to January 1, 2011; and (iv) the
Company shall not be required to effect a Demand Registration unless the
Registrable Securities to be included in such registration have an aggregate
anticipated offering price of at least $125,000,000 (based on the then-current
market price of the Common Stock).


 


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


 


11

















 


possession of the
prospectus covering such Registrable Securities that was in effect at the time
of receipt of such notice. If the Company shall have withdrawn or prematurely
terminated a registration statement filed under Section 5.1(a)(i) pursuant to
clause (ii) above or as a result of any stop order, injunction or other order
or requirement of the SEC or any other governmental agency or court for any
reason not attributable to the Participating Holders, the Company shall not be
considered to have effected an effective registration for the purposes of this
Agreement until the Company shall have filed a new registration statement
covering the Registrable Securities covered by the withdrawn registration
statement and such registration statement shall have been declared effective.
If the Company shall give any notice of withdrawal or postponement of a
registration statement, the Company shall, at such time as the Valid Business
Reason that caused such withdrawal or postponement no longer exists (but in no
event later than 120 days after the date of the postponement or withdrawal),
use its commercially reasonable best efforts to effect the registration under
the Securities Act of the Registrable Securities covered by the withdrawn or
postponed registration statement in accordance with this Section 5.1 (unless
the Initiating Holders shall have withdrawn such request, in which case the Company
shall not be considered to have effected an effective registration for the
purposes of this Agreement).


 


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


 


(d)           The
Company, subject to Sections 5.2 and 5.6, shall be entitled to include in any
registration statement and offering made pursuant to Section 5.1(a)(i) any
shares of Common Stock that are entitled to be included in such registration
pursuant to the exercise of piggyback rights that are in existence on the date
of this Agreement or that predate, or are not inconsistent with the rights
granted in, or otherwise in conflict with the terms of, this Agreement (“Piggyback
Rights”); provided, however, that such inclusion shall be permitted only to
the extent that it is pursuant to and subject to the terms of the underwriting
agreement or arrangements, if any, entered into by the Participating Holders or
in accordance with the Company’s contractual obligations under existing
contracts.


 


(e)           In
connection with any Demand Registration, the Company shall have the right to
designate the lead managing underwriter in connection with such registration
and each other managing underwriter for such registration, provided that in
each case, each such underwriter is reasonably satisfactory to the Majority
Participating Holders, and such underwriter shall agree with the Company not to
knowingly sell securities in any underwritten offering that represent in excess
of 1% of the then outstanding Common Stock to any person or “group” (as such
term 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 file
with the SEC a registration statement on Form S-3 (the “Shelf Registration
Statement”) relating to the offer and sale of all Registrable Securities
held by the Holders to the public, from time to time, on a delayed or
continuous basis 


 


12

















 


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


 


(b)           If the Board of
Directors, in its good faith judgment, determines that the shelf registration
of Registrable Securities pursuant to the Shelf Registration Statement should
not be continued for any Valid Business Reason, the Company may suspend the
Shelf 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 Company
shall give written notice of its determination to suspend the Shelf
Registration Statement and of the fact that the Valid Business Reason for such
postponement or withdrawal no longer exists, in each case, promptly after the
occurrence thereof. After the Valid Business Reason no longer exists and
without any further request from any Holder, the Company shall as promptly as
reasonably practicable prepare any required post-effective amendment or
supplement to the Shelf Registration Statement or the prospectus, or any
document incorporated therein by reference, or file any other required document
so that, as thereafter delivered to purchasers of the Registrable Securities
included therein, the prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.


 


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


 


5.3.          Allocation of Securities Included
in Registration Statement.


 


(a)           If
any requested registration made pursuant to Section 5.1 involves an
underwritten offering and the lead managing underwriter of such offering, who
shall 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 requested
to be included in such registration by the Holders of Registrable Securities or
any other persons (including those shares of Common Stock requested by the
Company to be included in such registration) exceeds the largest number (the “Section
5.3(a) Sale Number”) that can be sold in an orderly manner in such offering
within a price range acceptable to the Majority Participating Holders, the
Company shall use its commercially reasonable efforts to include in such
registration:


 


(i)            first, all Registrable Securities requested
to 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 the
Section 5.3(a) Sale Number) to be included in such registration shall be
allocated on a pro rata basis among all holders requesting that Registrable
Securities be included in such registration, based 


 


13

















 


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


 


(ii)           second, to the extent that the number
of securities to be included pursuant to clause (i) of this Section 5.3(a) is
less than the Section 6.3(a) Sale Number, the remaining shares to be included
in such registration shall be allocated among all holders requesting that
securities be included in such registration pursuant to the exercise of
Piggyback Rights (“Piggyback Shares”), with such allocation among
holders requesting the registration of Piggyback Shares to be determined
pursuant to and in accordance with the registration rights agreements providing
for such Additional Piggyback Rights, up to the Section 6.3(a) Sale Number; and


 


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


 


If, as a result of the
proration provisions of this Section 5.3(a), any Holder shall not be entitled
to include all Registrable Securities in a registration that such Holder has
requested be included, such Holder may elect to withdraw its request to include
Registrable Securities in such registration or may reduce the number requested
to be included; provided, however, that (x) such request must be made in
writing prior to the earlier of the execution of the underwriting agreement or
the 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 in
the registration as to which such withdrawal was made.


 


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


 


(a)           prepare
and file with the SEC a registration statement on an appropriate registration
form of the SEC for the disposition of such Registrable Securities in
accordance with the intended method of disposition of such Registrable
Securities, which form shall be selected by the Company and shall comply as to
form in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith, and
the Company shall use its commercially reasonable efforts to cause such
registration statement to become and remain effective (provided, however, that
before filing a registration statement or prospectus or any amendments or
supplements thereto, or comparable statements under securities or blue sky laws
of any jurisdiction, or any free writing prospectus related thereto, the
Company will furnish to one counsel for the Holders (selected by the Majority
Participating Holders) and the lead managing underwriter, if any, copies of all
such documents proposed to be filed (including all exhibits thereto), which
documents will be subject to the reasonable review and reasonable comment of
such counsel and the Company shall not file any registration statement or
amendment thereto or any prospectus or supplement thereto to which the holders
of a majority of the Registrable Securities covered by such registration
statement or 


 


14

















 


the underwriters, if any,
shall reasonably object;


 


(b)           prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary
to keep such registration statement effective for such period as any seller of
Registrable Securities pursuant to such registration statement shall request,
provided that, in the case of a Demand Registration, the Company shall be
obligated to keep such a registration statement effective only for 90 days or
until all of the Registrable Securities registered on such registration
statement have been disposed of (if earlier), and to comply with the provisions
of the Securities Act with respect to the sale or other disposition of all
Registrable Securities covered by such registration statement in accordance
with the intended methods of disposition by the seller or sellers thereof set
forth in such registration statement;


 


(c)           furnish,
without charge, to each seller of such Registrable Securities and each
underwriter, if any, of the securities covered by such registration statement
such number of copies (if any) of such registration statement, each amendment
and supplement thereto (in each case including all exhibits), and the
prospectus included in such registration statement (including each preliminary
prospectus) in conformity with the requirements of the Securities Act, and
other documents, as such seller and underwriter may reasonably request in order
to facilitate the public sale or other disposition of the Registrable
Securities owned by such seller (the Company hereby consenting to the use in
accordance with all applicable law of each such registration statement (or
amendment or post-effective amendment thereto) and each such prospectus (or
preliminary prospectus or supplement thereto) by each such seller of
Registrable Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such registration
statement or prospectus):


 


(d)           use
its commercially reasonable efforts to register or qualify the Registrable
Securities covered by such registration statement under such other securities
or “blue sky” laws of such jurisdictions as any sellers of Registrable
Securities or any managing underwriter, if any, shall reasonably request in
writing, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such sellers or underwriter, if any, to
consummate the disposition of the Registrable Securities in such jurisdictions,
except that in no event shall the Company be required to qualify to do business
as a foreign corporation in any jurisdiction where it would not, but for the
requirements of this paragraph (c), be required to be so qualified, to subject
itself to taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;


 


(e)           promptly
notify each Holder selling Registrable Securities covered by such registration
statement and each managing underwriter, if any: (i) when the registration
statement, any pre-effective amendment, the prospectus or any prospectus
supplement related thereto, any post-effective amendment to the registration
statement or any free writing prospectus has been filed and/or used and, with
respect to the registration statement or any post-effective amendment, when the
same has become effective; (ii) of any request by the SEC or state securities
authority for amendments or supplements to the registration statement or the
prospectus related thereto or for additional information; (iii) of the issuance
by the SEC of any stop order suspending the 


 


15

















 


effectiveness of the
registration statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification of any Registrable Securities for sale under
the securities or blue sky laws of any jurisdiction or the initiation of any
proceeding for such purpose; (v) of the existence of any fact of which the
Company becomes aware which results in the registration statement, the
prospectus related thereto, any document incorporated therein by reference, any
free writing prospectus or the information conveyed to any purchaser at the
time of sale to such purchaser containing an untrue statement of a material
fact or omitting to state a material fact required to be stated therein or
necessary to make any statement therein not misleading; and (vi) if at any time
the representations and warranties contemplated by any underwriting agreement,
securities sale agreement, or other similar agreement, relating to the offering
shall cease to be true and correct in all material respects; and, if the
notification relates to an event described in clause (v), the Company shall
promptly 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, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading;


 


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


 


(g)           provide
and cause to be maintained a transfer agent and registrar for all such
Registrable Securities covered by such registration statement not later than
the effective date of such registration statement;


 


(h)           enter
into such customary agreements (including, if applicable, an underwriting
agreement) and take such other actions as the Majority Participating Holders
shall reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities (it being understood that the Holders of the
Registrable Securities which are to be distributed by any underwriters shall be
parties to any such underwriting agreement and may, at their option, require
that the Company make to and for the benefit of such Holders the
representations, warranties and covenants of the Company which are being made
to and for the benefit of such underwriters);


 


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


 


16

















 


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


 


(j)            deliver
promptly to each Holder participating in the offering and each underwriter, if
any, copies of all correspondence between the SEC and the Company, its counsel
or auditors and all memoranda relating to discussions with the SEC or its staff
with respect to the registration statement, other than those portions of any
such memoranda which contain information subject to attorney-client privilege
with respect to the Company, and, upon receipt of such confidentiality
agreements as the Company may reasonably request, make reasonably available for
inspection by any seller of such Registrable Securities covered by such
registration statement, by any underwriter, if any, participating in any
disposition to be effected pursuant to such registration statement and by any
attorney, accountant or other agent retained by any such seller or any such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of the Company’s
officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement;


 


(k)           use
its commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;


 


(l)            provide
a CUSIP number for all Registrable Securities, not later than the effective
date of the registration statement;


 


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


 


(n)           take
all such other commercially reasonable actions as are necessary or advisable in
order to expedite or facilitate the disposition of such Registrable Securities;


 


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


 


17

















 


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


 


(p)           in
connection with any underwritten offering, if at any time the information
conveyed to a purchaser at the time of sale includes any untrue statement of a
material fact or omits to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, promptly file with the SEC such amendments or supplements
to such information as may be necessary so that the statements as so amended or
supplemented will not, in light of the circumstances, be misleading.


 


It is a condition
precedent to the Company’s obligations under this Section 5.4 that each seller
of Registrable Securities as to which any registration is being effected
furnish the Company such information in writing regarding such seller and the
distribution of such Registrable Securities as the Company may from time to
time reasonably request.


 


Each seller of
Registrable Securities agrees that upon receipt of any notice from the Company
of 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 disposition
of Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such seller’s receipt of the copies of the supplemented
or amended prospectus contemplated by paragraph (e) of this Section 5.4 and, if
so directed by the Company, will deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies, then in such seller’s
possession of the prospectus covering such Registrable Securities that was in
effect at the time of receipt of such notice. In the event the Company shall
give any such notice, the applicable period mentioned in paragraph (b) of this
Section 5.4 shall be extended by the number of days during such period from and
including the date of the giving of such notice to and including the date when
each seller of any Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by paragraph (e) of this Section 5.4.


 


If any such registration
statement or comparable statement under “blue sky” laws refers to any Holder by
name or otherwise as the holder of any securities of the Company, then such
Holder 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 be
construed as a recommendation by such Holder of the investment quality of the
Company’s securities covered thereby and that such holding does not imply that
such Holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such Holder by name or
otherwise 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 “blue
sky” or securities law then in force, the deletion of the reference to such Holder.


 


18

















 


5.5           Registration
Expenses.


 


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


 


(b)           Notwithstanding
the foregoing, (x) the provisions of this Section 5.5 shall be deemed amended
to the extent necessary to cause these expense provisions to comply with “blue
sky” laws of each state in which the offering is made and (y) in connection
with any registration hereunder, each Holder of Registrable Securities being
registered shall pay all underwriting discounts and commissions and any
transfer taxes, if any, attributable to the sale of such Registrable
Securities, pro rata with respect to payments of discounts and commissions in
accordance 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 or
accounting duties).


 


5.6.          Certain
Limitations on Registration Rights. In the case of any registration under
Section 5.1 pursuant to an underwritten offering, all securities to be included
in such registration shall be subject to an underwriting agreement and no
Person may participate in such registration unless such Person agrees to sell
such Person’s securities on the basis provided therein and, subject to Section
5.1, completes and executes all reasonable questionnaires, and other documents
(including custody agreements and powers of attorney) which must be executed in
connection therewith, and provides such other information to the Company or the
underwriter as may be necessary to register such Person’s securities.


 


5.7.          Limitations
on Sale or Distribution of Other Securities.


 


(a)           Each
seller of Registrable Securities agrees that, to the extent requested in
writing by a managing underwriter, if any, of any registration effected
pursuant to Section 5.1, not to sell, transfer or otherwise dispose of,
including any sale pursuant to Rule 144 under the Securities Act, any Common
Stock, or any other equity security of the Company or any security convertible
into or exchangeable or exercisable for any equity security of the Company
(other than as part of such underwritten public offering) during the time
period reasonably requested by the managing underwriter, not to exceed 180
days, and the Company hereby (i) also so agrees (except that the Company may
effect any sale or distribution of any such securities pursuant to a registration
on Form S-4 or Form S-8, or any successor or similar form which is then in
effect or upon the conversion, exchange or exercise of any then outstanding
Common Stock Equivalent) and (ii) agrees to use its commercially reasonable
efforts to cause each holder of any equity security or any security convertible
into or exchangeable or exercisable for any equity security of the Company
purchased from the Company at any time other than in a public offering so to
agree. Each seller of Registrable Securities also agrees that, to the extent
requested in writing by a managing underwriter of any underwritten public offering
effected by the Company for its own account, it will not sell any Common Stock
(other than as part of such underwritten public


 


19

















 


offering) during the time
period reasonably requested by the managing underwriter, which period shall not
exceed 30 days.


 


(b)           The
Company hereby agrees that, to the extent requested in writing by a managing
underwriter, if any, of any registration effected pursuant to Section 5.1, if
it shall previously have received a request for registration pursuant to
Section 5.1, and if such previous registration shall not have been withdrawn or
abandoned, the Company shall not sell, transfer, or otherwise dispose of, any
Common Stock, or any other equity security of the Company or any security
convertible into or exchangeable or exercisable for any equity security of the
Company (other than as part of such underwritten public offering, a
registration on Form S-4 or Form S-8 or any successor or similar form which is
then in effect or upon the conversion, exchange or exercise of any then
outstanding Common Stock Equivalent), until a period of 90 days shall have
elapsed from the effective date of such previous registration.


 


5.8.          No
Required Sale. Nothing in this Agreement shall be deemed to create an
independent obligation on the part of any Holder to sell any Registrable
Securities pursuant to any effective registration statement.


 


5.9.          Indemnification.


 


(a)           In
the event of any registration of any securities of the Company under the
Securities Act pursuant to this Article 5, the Company will, and hereby agrees
to, indemnify and hold harmless, to the fullest extent permitted by law, each Holder
of 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 who
participates 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 or
Qualified Independent Underwriter, and each other Person, if any, who controls
such Holder or any such underwriter within the meaning of the Securities Act,
from and against any and all losses, claims, damages or liabilities, joint or
several, actions or proceedings (whether commenced or threatened) and expenses
(including reasonable fees of counsel and any amounts paid in any settlement
effected with the Company’s consent, which consent shall not be unreasonably
withheld or delayed) to which each such indemnified party may become subject
under the Securities Act or otherwise in respect thereof (collectively, “Claims”),
insofar as such Claims arise out of or are based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in any registration
statement under which such securities were registered under the Securities Act
or the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (ii) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary, final or summary prospectus or any amendment
or supplement thereto, together with the documents incorporated by reference
therein, or any free writing prospectus utilized in connection therewith, or
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, (iii)
any untrue statement or alleged untrue statement of a 


 


20

















 


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


 


(b)           Each
Holder of Registrable Securities that are included in the securities as to
which any registration under Section 5.1 is being effected shall, severally and
not jointly, indemnify and hold harmless (in the same manner and to the same extent
as set forth in paragraph (a) of this Section 5.9) to the extent permitted by
law the Company, its officers and directors, each Person controlling the
Company within the meaning of the Securities Act and all other prospective
sellers and their respective directors, officers, fiduciaries, managing
directors, employees, agents, affiliates, consultants, representatives,
successors, assigns, general and limited partners, stockholders and respective
controlling Persons with respect to any untrue statement or alleged untrue
statement of any material fact in, or omission or alleged omission of any
material fact from, such registration statement, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto,
or any free writing prospectus utilized in connection therewith, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company or its representatives by or on behalf of such Holder specifically for
use therein, and shall reimburse such indemnified party for any legal or other
expenses reasonably incurred in connection with investigating or defending any
such Claim as such expenses are incurred; provided, however, that the liability
of 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) the
public offering price of such shares as set forth in the applicable prospectus.
Such indemnity and reimbursement of expenses shall remain in full force and
effect regardless of any investigation made by or on behalf of such indemnified
party and shall survive the transfer of such securities by such Holder.


 


(c)           Indemnification
similar to that specified in the preceding paragraphs (a) and (b) of this
Section 5.9 (with appropriate modifications) shall be given by the Company and
each seller of Registrable Securities with respect to any required registration
or other qualification of 


 


21

















 


securities under any
state securities and “blue sky” laws.


 


(d)           Any
Person entitled to indemnification under this Agreement shall notify promptly
the indemnifying party in writing of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 5.9, but the failure of any such Person to provide
such notice shall not relieve the indemnifying party of its obligations under
the preceding paragraphs of this Section 5.9, except to the extent the
indemnifying party is materially prejudiced thereby and shall not relieve the
indemnifying party from any liability which it may have to any such Person
otherwise than under this Article 5. In case any action or proceeding is
brought against an indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, unless in the reasonable opinion of outside counsel to
the indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof jointly with any other indemnifying party similarly notified, to the
extent that it chooses, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party that it so chooses, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation; provided, however, that (i) if the
indemnifying party fails to take reasonable steps necessary to defend
diligently the action or proceeding within 20 days after receiving notice from
such indemnified party; or (ii) if such indemnified party who is a defendant in
any action or proceeding which is also brought against the indemnifying party
reasonably shall have concluded that there may be one or more legal defenses
available to such indemnified party which are not available to the indemnifying
party; or (iii) if representation of both parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct,
then, in any such case, the indemnified party shall have the right to assume or
continue its own defense as set forth above (but with no more than one firm of
counsel for all indemnified parties in each jurisdiction, except to the extent
any indemnified party or parties reasonably shall have concluded that there may
be legal defenses available to such party or parties which are not available to
the other indemnified parties or to the extent representation of all
indemnified parties by the same counsel is otherwise inappropriate under
applicable standards of professional conduct) and the indemnifying party shall
be liable for any expenses therefor. No indemnifying party shall, without the
written consent of the indemnified party, which consent shall not be
unreasonably withheld, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (A)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (B) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.


 


(e)           To the
extent the foregoing indemnity is held by a court to be unavailable for reasons
of public policy in the United States to hold harmless an indemnified party
under Sections 5.9(a), (b) or (c), then each indemnifying party shall
contribute to the amount paid or 


 


22

















 


payable by such indemnified party as a result of any Claim in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party, on the one hand, and the indemnified party, on the other hand, with
respect to such offering of securities. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or the
indemnified party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. If, however, the allocation provided in the second preceding sentence
is not permitted by applicable law, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative faults but also
the relative benefits of the indemnifying party and the indemnified party as
well as any other relevant equitable considerations. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 5.9(e) were to be determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations 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 include
any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such Claim. No Person guilty of fraudulent
misrepresentation (within the meaning of section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. Each Holder’s obligation to contribute pursuant
to this subsection (e) shall not exceed the product of (i) the number of shares
sold by such Holder in such registration and (ii) the public offering price of
such shares as set forth in the applicable prospectus.


 


(f)            The
indemnity and contribution agreements contained herein shall be in addition to
any other rights to indemnification or contribution which any indemnified party
may have pursuant to law or contract and shall remain operative and in full
force and effect regardless of any investigation made or omitted by or on
behalf of any indemnified party and shall survive the transfer of the
Registrable Securities by any such party.


 


(g)           The
indemnification and contribution required by this Section 5.9 shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or expense, loss, damage or
liability is incurred.


 


5.10.        Free
Writing Prospectuses.


 


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


 


5.11.        Termination
of Registration Rights.


 


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


 


23

















 


such Holder (and persons
included within such Holder pursuant to Rule 144(a)(2) under the Securities
Act) Beneficially Owns Registrable Securities that constitute less than 1% of
the total number of outstanding shares of Common Stock; provided, that
no such termination shall affect any previously accrued rights under Article 5.


 


ARTICLE VI


Underwritten
Offerings


 


6.1.          Requested
Underwritten Offerings. If requested by the underwriters for any
underwritten offering by the Holders pursuant to a registration requested under
Section 6.1, the Company shall enter into a customary underwriting agreement
with the Participating Holders and the underwriters. Such underwriting
agreement shall be satisfactory in form and substance to the Majority
Participating Holders and the Company and shall contain such representations
and warranties by, and such other agreements on the part of, the Company and
such other terms as are generally prevailing in agreements of that type,
including, without limitation, indemnities and contribution agreements on
substantially the same terms as those contained herein. Any Holder
participating in the offering shall be a party to such underwriting agreement
and may, at its option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such Holder and that any or all of the conditions precedent to the obligations
of such underwriters under such underwriting agreement be conditions precedent
to the obligations of such Holder; provided, however, that the Company shall
not be required to make any representations or warranties with respect to
written information specifically provided in writing by a selling Holder for
inclusion in the registration statement and shall not be required to indemnify
any Holder except on the basis provided in Section 5.9 hereof. No Holder shall
be required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or
agreements regarding such Holder, its ownership of and title to the Registrable
Securities, and its intended method of distribution; and any liability of such
Holder to any underwriter or other Person under such underwriting agreement
shall be limited to liability arising from breach of its representations and
warranties and shall be limited to an amount equal to the proceeds (net of
expenses and underwriting discounts and commissions) that it derives from such
registration.


 


ARTICLE VII


General


 


7.1.          Rule
144. The Company covenants that (i) so long as it remains subject to the
reporting provisions of the Exchange Act, it will timely file the reports
required 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 the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 under the Securities
Act), to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (A) Rule 144 under the Securities Act,
as such Rule may be amended 


 


24

















 


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


 


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


 


7.3           NASDAQ
Listing. The Company shall use its commercially reasonable efforts to cause
the shares of Common Stock to be issued in the Transaction to be approved for
quotation on the NASDAQ National Market, subject to official notice of
issuance, prior to the Closing Date.


 


ARTICLE VIII


Miscellaneous


 


8.1.          Effectiveness;
Termination.


 


This Agreement shall
become 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 and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.


 


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


 


(d)           Branson
agrees that he shall be deemed a Holder for purposes of Article IV, Article VII
and Article VIII of this Agreement.


 


(e)           Except
as expressly provided in this Section 8.2, a person who is not a party to this
Agreement (or a successor of a party to this agreement) shall not have any
rights hereunder.


 


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


 


25

















 


expenses incurred by such
party incident to the negotiation, preparation, execution, delivery and
performance of this Agreement other than with respect to the expenses
contemplated by Section 5.5.


 


8.4.          Confidentiality.


 


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


 


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


 


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


 


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


 


8.5.          Severability.  If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect.


 


8.6.          Specific
Enforcement; No Right to Terminate.


 


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


 


26

















 


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


 


(b)           The
parties hereto further agree that they shall not be permitted or have the right
to terminate or suspend performance of any provision of this Agreement, it
being agreed that all provisions of this Agreement shall continue and be
specifically enforceable in all events and under all circumstances regardless
of any events, occurrences, actions or omissions before or after the date of
this Agreement. In furtherance of the foregoing, the parties hereto agree that
they shall not be permitted to, and shall not, bring any claim seeking to
terminate or suspend performance of any provision of this Agreement or seeking
any determination that any provision of this Agreement (including, without
limitation, this Section 8.6) is invalid, inapplicable or unenforceable.


 


8.7.          Consent
to Jurisdiction; Appointment of Agent for Service of Process.


 


(a)           This
Agreement shall be construed and enforced in accordance with, and the rights
and obligations of the parties hereto shall be governed by, the laws of the
State of Delaware, without giving effect to the conflicts of law principles
thereof.


 


(b)           Each
of the parties hereto hereby irrevocably and unconditionally consents to submit
to the exclusive jurisdiction of the courts of the State of Delaware and the
United States of America located in the County of New Castle for any action or
proceeding arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any action or proceeding
relating thereto except in such courts), and further agrees that service of any
process, summons, notice or document by U.S. registered mail to its respective
address set forth in Section 8.9 shall be effective service of process for
any action or proceeding brought against it in any such court. Each of the
parties hereto hereby irrevocably and unconditionally waives any objection to
the laying of venue of any action or proceeding arising out of this Agreement
or the transactions contemplated hereby in the courts of the State of Delaware
or the United States of America located in the County of New Castle, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action or proceeding brought in any such court
has been brought in an inconvenient forum.


 


(c)           Not
later than five days after the date hereof, each Holder shall provide notice to
the other parties of a person or entity reasonably satisfactory to the Company
who or which has been designated, appointed and empowered by such Holder as its
designee, appointee and agent to receive and accept for and on its behalf, and
its properties, assets and revenues, service of any and all legal process,
summons, notices and documents that may be served in any action, suit or
proceeding brought against such Holder in any such United States federal or
state court with respect to its obligations, liabilities or any other matter
arising out of or in connection with this Agreement and that may be made on
such designee, appointee and agent in accordance with legal procedures
prescribed for such courts. Each Holder futher agrees that, if it fails to give
such 


 


27

















 


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


 


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


 


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


 


If to the Company:


 


NTL Incorporated


909 Third Avenue, Suite
2863


New York, New York 10022


Attention:  General Counsel


Facsimile: 212 752-1157


 


with copies (which shall
not 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


 


28

















 


and


 


NTL Incorporated


Bartley Wood Business
Park


Bartley Way, Hook


Hampshire RG27 9UP


Attn. :  General Counsel


Facsimile:  (44) 1256 754 501


 


If to any Holder, the
address 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 from
time to time change its address for notices under this Section 8.9 by
giving at least 10 days notice of such changed address to the other parties
hereto.


 


8.10.        Waivers.


 


(a)           This
Agreement may be amended, waived, modified as supplemented only by written
agreement of the Company and the Majority Holders.


 


(b)           No
waiver by either party of any breach of any provision of this Agreement shall
be deemed to be a continuing waiver in the future thereof or a waiver of any
other provision hereof; nor shall any delay or omission of any party to
exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.


 


8.11.        Headings.  The
headings herein are for convenience only, do not constitute a part of this
Agreement, and shall not be deemed to limit or affect any of the provisions
hereof.


 


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


 


29

















 


IN WITNESS WHEREOF, the
parties have executed this Agreement or have caused this Agreement to be duly
executed by their respective authorized officers as of the date first set forth
above.


 


	
   

  	
  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

  	
   

  



 


30

















 


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

  	
   

  



 


31

















 


EXHIBIT B


 


[Form of]


JOINDER AGREEMENT


 


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


 


By executing and
delivering this Joinder Agreement to the Company, the undersigned hereby agrees
to become a party to, to have the benefits of, to be bound by, and to comply
with the provisions of the Investment Agreement as a Holder in the same manner
as if the undersigned were an original signatory to such agreement.


 


Notices pursuant to Section
8.9 of the Investment Agreement may be given to the undersigned at the address
and facsimile number below, or otherwise as the undersigned may notify to the
other Parties pursuant to Section 8.9.


 


This Agreement is
governed by Delaware law. The parties agree that the court of the State of
Delaware 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 in
connection with this Agreement and irrevocably submit to the jurisdiction of
this court.


 


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


 


	
   

  	
  [SIGNATORY]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  
	
   

  	
  Telephone: (   )
            -          

  
	
   

  	
  Telecopy: (   )
            -          

  
					



 


32