Exhibit 4.2
EXECUTION
VERSION
Virgin Media
Inc.
6.50% Convertible Senior Notes
due 2016
Registration
Rights Agreement
Goldman, Sachs & Co.,
Deutsche Bank Securities Inc.
J.P. Morgan Securities Inc .
c/o
Goldman, Sachs & Co.
85
Broad Street
New
York, New York 10004
Ladies and Gentlemen:
Virgin Media Inc., a Delaware corporation (the
“ Company ” ), proposes to issue and sell
to the Purchasers (as defined herein) upon the terms set forth in
the Purchase Agreement (as defined herein) its 6.50% Convertible
Senior Notes due 2016 (the “ Securities ”
). As an inducement to the Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchasers thereunder, the Company agrees with
the Purchasers for the benefit of Holders (as defined herein) from
time to time of the Registrable Securities (as defined herein) as
follows:
1.
Definitions
.
(a)
Capitalized terms used herein without
definition shall have the meanings ascribed to them in the Purchase
Agreement. As used in this Agreement, the following defined
terms shall have the following meanings:
“Additional
Interest” has the meaning assigned thereto in
Section 6(a) hereof.
“Affiliate”
of
any specified person means any other person which, directly or
indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this
definition, control of a person means the power, direct or
indirect, to direct or cause the direction of the management and
policies of such person whether by contract or otherwise; and the
terms “ controlling ” and “
controlled ” have meanings correlative to the
foregoing.
“
Business day ” means any day,
other than a Saturday or a Sunday, that is neither a legal holiday
nor a day on which banking institutions are authorized or required
by law, regulation or executive order to close in The City of New
York.
“Closing
Date” means the Closing Date as defined in the
Purchase Agreement.
“Commission”
means the United States Securities and Exchange
Commission, or any other federal agency at the time administering
the Exchange Act or the Securities Act, whichever is the relevant
statute for the particular purpose.
“
Common Stock ” means the
Company’s common stock, par value $0.01 per share.
“Company”
has
the meaning assigned thereto in the introductory paragraph
hereof.
“DTC”
means The Depository Trust Company.
“Effective
Date” has the meaning assigned thereto in
Section 2(a)(i) hereof.
“Effective
Failure” has the meaning assigned thereto in
Section 6(b) hereof.
“Effectiveness
Period” has the meaning assigned thereto in
Section 2(a)(i) hereof.
“Effective
Time” means the time at which the Commission declares
the Shelf Registration Statement required by
Section 2(a)(i) effective or at which the Shelf
Registration Statement otherwise becomes effective.
“Electing
Holder” has the meaning assigned thereto in
Section 3(a)(iii) hereof.
“Exchange
Act” means the United States Securities Exchange Act
of 1934, as amended.
“Holder”
means any person that is the record owner of
Registrable Securities (and includes any person that has a
beneficial interest in any Registrable Security in book-entry
form).
“Indenture”
means the Indenture, dated as of April 16,
2008, between the Company and The Bank of New York , as
amended and supplemented from time to time in accordance with its
terms.
“NASD
Rules” means the Rules of the National
Association of Securities Dealers, Inc., as amended from time
to time.
“Notice and
Questionnaire” means a Notice of
Registration Statement and Selling Securityholder Questionnaire
substantially in the form of Appendix A hereto.
The
term “person” means an individual, partnership,
corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
“Prospectus”
means the prospectus (including, without
limitation, any preliminary prospectus, any final prospectus and
any prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement in
reliance upon Rule 430A, 430B or 430C under the Securities
Act) included in the Shelf Registration Statement, as amended or
supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities
covered by the Shelf Registration Statement and by all other
amendments and supplements to such prospectus, including
all
2
material incorporated by reference in such
prospectus and all documents filed after the date of such
prospectus by the Company under the Exchange Act and incorporated
by reference therein.
“Purchase
Agreement” means the purchase agreement, dated as of
April 10, 2008, among the Purchasers and the Company relating
to the Securities.
“Purchasers”
means the Purchasers named in Schedule I
to the Purchase Agreement.
“
Option Closing Date ” means the
last Additional Closing Date as defined in the Purchase
Agreement.
“Registrable
Securities” means all or any portion of the
Securities issued from time to time under the Indenture in
registered form and the shares of Common Stock issuable upon
conversion of such Securities; provided
,
however , that a security ceases to be a Registrable
Security for such period as it is no longer a Restricted Security
pursuant to clause (i) or (ii) of the definition of
Restricted Security (or pursuant to clause (iii) of such
definition after the day that is one year following the later of
the Closing Date and the Option Closing Date) .
“Registration
Default” has the meaning assigned thereto in
Section 6(a) hereof.
“Restricted
Security” means any Security or share of Common
Stock issuable upon conversion of such Securities except any such
Security or share of Common Stock that (i) ceases to be
outstanding, (ii) has been effectively registered under the
Securities Act and sold in a manner contemplated by the Shelf
Registration Statement or (iii) has been transferred in
compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable by a person who is
not an affiliate of the Company pursuant to Rule 144 (or any
successor provision thereto) without any volume or manner of sale
restrictions thereunder.
“Rules and
Regulations” means the published rules and
regulations of the Commission promulgated under the Securities Act
or the Exchange Act, as in effect at any relevant time.
“Securities”
has
the meaning assigned hereto in the introductory paragraph
hereof.
“Securities
Act” means the United States Securities Act of 1933,
as amended.
“Shelf
Registration” means a registration
effected pursuant to Section 2 hereof.
“Shelf Registration
Statement” means a “ shelf
” registration statement filed under the Securities
Act providing for the registration of, and the sale on a continuous
or delayed basis by the Holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act
and/or any similar rule that may be adopted by the Commission,
filed by the Company pursuant to the requirements of
Section 2(a)(i) of this Agreement, including the
Prospectus contained therein, any amendments and supplements to
such registration statement, including post-effective amendments,
and all exhibits and all material incorporated by reference in such
registration statement.
“Suspension
Period” has the meaning assigned thereto in
Section 2(b).
3
“Trust Indenture
Act” means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated
thereunder, as the same shall be amended from time to
time.
The
term “underwriter” means any underwriter of
Registrable Securities in connection with an offering thereof under
a Shelf Registration Statement.
(b)
Wherever there is a reference in this Agreement
to a percentage of the “ principal amount
” of Registrable Securities or to a percentage of
Registrable Securities, Common Stock shall be treated as
representing the principal amount of Securities that was
surrendered for conversion in order to receive such number of
shares of Common Stock.
2.
Shelf Registration
.
(a)
The
Company shall use its commercially reasonable efforts:
(i)
to
cause the Shelf Registration Statement to be declared effective
under the Securities Act no later than the 181 st
calendar day following the later of the Closing Date and the
Additional Closing Date;
(ii)
to
keep the Shelf Registration Statement continuously effective under
the Securities Act in order to permit the Prospectus forming a part
thereof to be usable by Holders until the earliest of (1) the
sale of all Registrable Securities registered under the Shelf
Registration Statement; and (2) one year from the date (the
“ Effective Date ” ) such Shelf
Registration Statement is declared effective (such period being
referred to herein as the “ Effectiveness Period
” );
(iii)
after the Effective Time, within 10 Business
Days after receipt of the completed Notice and Questionnaire from
any Holder that is not then an Electing Holder, the Company shall
file such amendments to the Shelf Registration Statement or
supplements to the related Prospectus as are reasonably necessary
to permit the Holder to deliver the Prospectus to purchasers of
Registrable Securities (subject to the Company’s right to
suspend the use of the Prospectus as set forth in
Section 2(b)); provided , however , that nothing
in this subparagraph shall relieve such Holder of the obligation to
return a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(a)(ii) hereof;
and
(iv)
if
at any time the Securities are convertible into securities other
than Common Stock, to cause, or to cause any successor under the
Indenture to cause, such securities to be included in the Shelf
Registration Statement no later than the date on which the
Securities may then be convertible into such securities;
provided, however
, that the Company’s obligation to file, have declared
effective or maintain effectiveness of the Shelf Registration
Statement required by clause (i) above shall be suspended to
the extent and during the periods that the Registrable Securities
are eligible to be sold by Persons that are not Affiliates of the
Company pursuant to Rule 144 of the Securities Act without any
volume or manner of sale restrictions.
4
The
Company shall be deemed not to have used its commercially
reasonable efforts to keep the Shelf Registration Statement
effective during the requisite period if the Company voluntarily
takes any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell any of
such Registrable Securities during that period, unless such
action is (A) required by applicable law and the Company
thereafter promptly complies with the requirements of
Section 3(j) below or (B) permitted pursuant to
Section 2(b) below.
(b)
The
Company may suspend the use of the Prospectus for a period not to
exceed 30 days in any 90-day period or an aggregate of 90 days in
any 12-month period (a “ Suspension Period
” ) if the Board of Directors of the Company shall
have determined in good faith that because of valid business
reasons (not including avoidance of the Company’s obligations
hereunder), including the acquisition or divestiture of assets,
pending corporate developments and similar events, it is in the
best interests of the Company to suspend such use, and prior to
suspending such use the Company provides the Holders with written
notice of such suspension, which notice need not specify the nature
of the event giving rise to such suspension.
(c)
The
Company agrees that the Company will:
(i) Cooperate with Holders of Securities
to facilitate the delivery of Securities to be sold pursuant to
Rule 144(b)(1)(i) free of any restrictive legends and in
such denominations and registered in such names as the Holders
thereof may request in writing as promptly as practicable but in
any event within three Business Days of receipt of a written
request and in any event, on the day that is one year
following the later of the Closing Date and the Option Closing
Date, facilitate the removal of any restrictive
legends (if any) and cause the Securities to be represented by a
CUSIP that represents that a person who is not an affiliate of the
Company pursuant to Rule 144 (or any successor provision
thereto) can resell such Securities without any volume or manner of
sale restrictions thereunder; and
(ii) Represent and agree with the Holders
that the Company and its Affiliates have not since the Closing Date
resold any Securities that have been acquired or reacquired by any
of them except pursuant to an effective registration statement
under the Securities Act and will not resell any Securities
acquired by them except pursuant to an effective Registration
Statement under the Securities Act until such time as none of the
Securities are Registrable Securities.
3.
Registration
Procedures . In connection with the Shelf
Registration Statement, the following provisions shall
apply:
(a) (i)
Not
less than 30 calendar days prior to the Effective Time of the Shelf
Registration Statement, the Company shall mail the Notice and
Questionnaire to the Holders of Registrable Securities. No
Holder shall be entitled to be named as a selling securityholder in
the Shelf Registration Statement as of the Effective Time, and no
Holder shall be entitled to use the Prospectus forming a part
thereof for resales of Registrable Securities at any time, unless
such Holder has returned a completed and signed Notice and
Questionnaire to the Company
5
by
the deadline for response set forth therein; provided,
however , Holders of Registrable Securities shall have at least
28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such Holders to return a completed
and signed Notice and Questionnaire to the Company;
(ii)
After the Effective Time of the Shelf
Registration Statement, the Company shall, upon the request of any
Holder of Registrable Securities that is not then an Electing
Holder, promptly send a Notice and Questionnaire to such
Holder. The Company shall not be required to take any action
to name such Holder as a selling securityholder in the Shelf
Registration Statement or to enable such Holder to use the
Prospectus forming a part thereof for resales of Registrable
Securities until such Holder has returned a completed and signed
Notice and Questionnaire to the Company, in which case the
Company’s obligations shall be as set forth in
Section 2(a)(iii) above; and
(iii)
The
term “ Electing Holder ” shall mean any
Holder of Registrable Securities that has returned a completed and
signed Notice and Questionnaire to the Company in accordance with
Section 3(a)(i) or 3(a)(ii) hereof.
(b)
The
Company shall furnish to each Electing Holder, prior to the
Effective Time, a copy of the Shelf Registration Statement
initially filed with the Commission, and shall furnish to such
Holders, prior to the filing thereof with the Commission, copies of
each amendment thereto and each amendment or supplement, if any, to
the Prospectus included therein, and shall use its commercially
reasonable efforts to reflect in each such document, at the
Effective Time or when so filed with the Commission, as the case
may be, such comments as such Holders and their respective
counsel reasonably may propose.
(c)
The
Company shall promptly take such action as may be necessary so that
(i) each of the Shelf Registration Statement and any amendment
thereto and the Prospectus forming a part thereof and any amendment
or supplement thereto (and each report or other document
incorporated therein by reference in each case) complies in all
material respects with the Securities Act and the Exchange Act and
the respective rules and regulations thereunder,
(ii) each of the Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain 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 not misleading and (iii) each of the
Prospectus forming a part of the Shelf Registration Statement, and
any amendment or supplement to such Prospectus, does not at any
time during the Effectiveness Period include an untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided,
however, that the Company shall not be required to take such
action in respect of the Shelf Registration Statement or any
amendment thereto or of the Prospectus or any amendment or
supplement to the Prospectus during any Suspension
Period.
(d)
The
Company shall promptly advise each Electing Holder, and shall
confirm such advice in writing if so requested by any such Electing
Holder:
(i)
when a Shelf Registration Statement and any
amendment thereto has been filed with the Commission and when a
Shelf Registration Statement or any post-effective
6
amendment thereto has become
effective;
(ii)
of
any request by the Commission for amendments or supplements to the
Shelf Registration Statement or the Prospectus included therein or
for additional information;
(iii)
of
the issuance by the Commission of any stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation
of any proceedings for such purpose;
(iv)
of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the securities included in the
Shelf Registration Statement for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and `
(v)
of
the occurrence of any event or the existence of any state of facts
that requires the making of any changes in the Shelf Registration
Statement or the Prospectus included therein so that, as of such
date, such Shelf Registration Statement and Prospectus do not
contain an untrue statement of a material fact and do not omit to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not
misleading (which advice shall be accompanied by an instruction to
such Holders to suspend the use of the Prospectus until the
requisite changes have been made).
(e)
The
Company shall use its commercially reasonable efforts to prevent
the issuance, and if issued to obtain the withdrawal at the
earliest possible time, of any order suspending the effectiveness
of the Shelf Registration Statement or, if any such order of
suspension is made effective during or results in any Suspension
Period, promptly following the end of such Suspension
Period.
(f)
The
Company shall furnish to each Electing Holder, without charge, at
least one copy of the Shelf Registration Statement and all
post-effective amendments thereto, including financial statements
and schedules, and, if such Electing Holder so requests in writing,
all reports, other documents and exhibits that are filed with or
incorporated by reference in the Shelf Registration
Statement.
(g)
The
Company shall, during the Effectiveness Period, deliver to each
Electing Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as
such Electing Holder may reasonably request; and the Company
consents (except during the periods specified in
Section 2(b) above or during the continuance of any event
or the existence of any state of facts described in
Section 3(d)(iii), (iv) or (v) above) to the use of
the Prospectus and any amendment or supplement thereto by each of
the Electing Holders in connection with the offering and sale of
the Registrable Securities covered by the Prospectus and any
amendment or supplement thereto during the Effectiveness
Period.
7
(h)
Prior to any offering of Registrable Securities
pursuant to the Shelf Registration Statement, the Company shall use
its commercially reasonable efforts to (i) register or qualify
or cooperate with the Electing Holders and their respective counsel
in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or
“ blue sky ” laws of such jurisdictions
within the United States as any Electing Holder may reasonably
request, (ii) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers and sales in such jurisdictions for so long as may be
necessary to enable any Electing Holder or underwriter, if any, to
complete its distribution of Registrable Securities pursuant to the
Shelf Registration Statement, and (iii) take any and all other
actions necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities; provided ,
however , that in no event shall the Company be obligated to
(A) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be
required to so qualify but for this Section 3(h) or
(B) file any general consent to service of process or become
subject to taxation in any jurisdiction where it is not as of the
date hereof so subject.
(i)
Unless any Registrable Securities shall be in
book-entry only form, the Company shall cooperate with the Electing
Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold
pursuant to the Shelf Registration Statement, which certificates,
if so required by any securities exchange upon which any
Registrable Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel
engraved borders, and which certificates shall be free of any
restrictive legends and in such permitted denominations and
registered in such names as Electing Holders may request in
connection with the sale of Registrable Securities pursuant to the
Shelf Registration Statement.
(j)
Upon the occurrence of any event or the
existence of any state of facts contemplated by
Section 3(d)(v) above, the Company shall prepare a
post-effective amendment to any Shelf Registration Statement or an
amendment or supplement to the related Prospectus 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; provided, however, that the Company shall not be
required to take such action in respect of the Shelf Registration
Statement or any amendment thereto or of the Prospectus or any
amendment or supplement to the Prospectus during any Suspension
Period. If the Company notifies the Electing Holders of the
occurrence of any event or the existence of any state of facts
contemplated by Section 2(b) or
Section 3(d)(v) above, the Electing Holder shall suspend
the use of the Prospectus until the requisite changes to the
Prospectus have been made.
(k)
Not
later than the Effective Time of the Shelf Registration Statement,
the Company shall provide a CUSIP number for the Registrable
Securities that are debt securities.
(l)
To
the extent that the Company is required to file a Shelf
Registration Statement, the Company shall use its commercially
reasonable efforts to comply with all applicable Rules and
Regulations, and to make generally available to its securityholders
as soon as practicable, but in any event not later than eighteen
months after (i) the effective date (as defined in
Rule
8
158(c) under the Securities Act) of the
Shelf Registration Statement, (ii) the effective date of each
post-effective amendment to the Shelf Registration Statement, and
(iii) the date of each filing by the Company with the
Commission of an Annual Report on Form 10-K that is
incorporated by reference in the Shelf Registration Statement, an
earnings statement of the Company and its subsidiaries complying
with Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder (including,
at the option of the Company, Rule 158).
(m)
Prior to any Effective Time of the Shelf
Registration Statement, the Company shall cause the Indenture to be
qualified under the Trust Indenture Act; in connection with such
qualification, the Company shall cooperate with the Trustee under
the Indenture and the Holders (as defined in the Indenture) to
effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the
Trust Indenture Act; and the Company shall execute, and shall use
all reasonable efforts to cause the Trustee to ex
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