Exhibit 10.1
INDEMNITY AGREEMENT
AGREEMENT, dated as of o, 2006, between NTL Incorporated, a Delaware
corporation and its affiliated entities (the "Company"), and o (the
"Indemnitee").
WHEREAS, Indemnitee has agreed to serve, and is serving, as a director
of the Company, at the request of the Board of Directors of the Company
(the "Board of Directors");
WHEREAS, both the Company and Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors and senior
management of public companies and their subsidiaries in the current
environment;
WHEREAS, the Amended and Restated Certificate of Incorporation of the
Company (the "Certificate of Incorporation") and the Amended and Restated
By-laws of the Company (the "By-laws") require the Company to indemnify and
advance expenses to any person who is or was serving or who had agreed to
serve at the request of the Board of Directors as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise to the fullest extent permitted by the Delaware General
Corporation Law ("DGCL"), as the same exists or is hereafter amended, and
the Indemnitee has been serving, and continues to serve, as a director of
the Company in reliance on such provisions;
WHEREAS, Section 145(f) of the DGCL expressly recognizes that the
provisions for the indemnification and advancement of expenses granted by
the DGCL are not exclusive of any other rights to which a person seeking
indemnification or advancement may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or otherwise, and this
Agreement is being entered into pursuant to such provision;
WHEREAS, in recognition of Indemnitee's need for substantial
protection against any potential personal liability in order to assure
Indemnitee's continued service to the Company as a director in an effective
manner and Indemnitee's reliance on the aforesaid provisions of the
Certificate of Incorporation and By-laws, and in part to provide Indemnitee
with specific contractual assurance that the protection promised by the
Certificate of Incorporation and By-laws will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation or any
change in the composition of the Company's Board of Directors or
acquisition of the Company), the Company wishes to provide in this
Agreement for the Indemnification of, and the advancing of expenses to,
Indemnitee to the fullest extent (whether partial or complete) permitted by
law and as set forth in this Agreement, and, to the extent insurance is
maintained, for the continued coverage of the Indemnitee under any
applicable directors' and officers' liability insurance policies;
NOW, THEREFORE, in consideration of the foregoing premises and of
Indemnitee continuing to serve the Company directly or, at its request,
with another enterprise, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
(a) Change in Control of the Company: shall be deemed to have occurred
if (i) any "person" or "group" (as such terms are used in Section 13(d) and
Section 14(d) of the Securities Exchange Act of 1934, as amended), other
than a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned directly or indirectly
by the stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing 20% or more of the total voting
power represented by the Company's then outstanding voting securities, or
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company
and any new director whose election by the Board of Directors or nomination
for election by the Company's stockholders was approved by a vote of at
least two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the Company merges or consolidates
with any other corporation or entity, other than a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least 80% of the total voting power represented by the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation, or the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for
the sale or disposition by the Company, in one transaction or a series of
transactions, of all or substantially all the Company's assets.
(b) Claim: is any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether conducted by or on
behalf of the Company or any other party, that Indemnitee in good faith
believes might lead to the institution of any such action, suit or
proceeding, whether civil, criminal, administrative, investigative or
other.
(c) Expenses: include attorneys' and other professional fees and all
other costs, expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in (including
on appeal), or preparing to defend, be a witness in or participate in, any
Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: is any event or occurrence related to the
fact that Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or is or was serving at the request of the
Company as a director, officer, employee, trustee, agent or fiduciary of
another corporation, partnership, joint venture, trust or other entity, or
by reason of anything done or not done by Indemnitee in any such capacity.
(e) Indemnification Period: shall be such period as the Indemnitee
shall continue to serve as a director, officer, employee, agent or
fiduciary of the Company, or shall continue at the request of the Company
to serve as a director, officer, employee, trustee, agent or fiduciary of
another corporation, partnership, joint venture, trust or other entity, and
thereafter so long as the Indemnitee shall be subject to any possible Claim
arising out of the Indemnitee's tenure in the foregoing positions.
(f) Losses: are any judgments, fines, penalties and amounts paid in
settlement (including all interest assessments and other charges paid or
payable in connection with or in respect of such judgments, fines,
penalties or amounts paid in settlement) of any Claim.
(g) Reviewing Party: shall mean the persons identified in Article VII,
Section 3 of the By-Laws with respect to the determination of a claimants'
entitlement to indemnification or, if there has been a Change in Control,
the special independent counsel referred to in subsection 3(c) hereof.
2. INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Subject to the limitations set forth herein and in Section 3 hereof,
the Company hereby agrees to indemnify Indemnitee as follows:
(a) Basic Indemnification. The Company shall hold harmless and
indemnify Indemnitee to the fullest extent authorized or permitted (i) by
the DGCL, or any other applicable law, the Certificate of Incorporation and
the By-Laws as in effect on the date hereof, or (ii) by any amendment,
modification or restatement of any of the above authorizing or permitting
such indemnification which is adopted after the date hereof (but in the
case of any such amendment, modification or restatement, only to the extent
that such amendment modification or restatement permits the Company to
provide broader indemnification rights than the Company was permitted to
provide immediately prior to such amendment, modification or restatement).
(b) Additional Indemnification. Without limiting the generality of
subsection 2(a) hereof, and subject to the terms of Section 3, in the event
Indemnitee is, was or becomes a party to or witness or other participant
in, or is threatened to be made a party to or witness or other participant
in, a Claim by reason of, or arising, in whole or in part, out of or in
connection with an Indemnifiable Event, the Company shall indemnify
Indemnitee to the fullest extent permitted by law, as soon as practicable
after written demand is presented to the Company but no later than the time
periods prescribed in this Agreement, against any and all Expenses and
Losses related to or arising, in whole or in part, out of or in connection
with such Claim in accordance with the procedures set forth in the By-laws
(or, to the extent that the By-laws are not expressly applicable to such
Claim, in accordance with the procedures set forth in the By-laws as though
such procedures were applicable to such Claim) and this Agreement.
(c) Advancement of Expenses; Enforcement. In the event that the
Indemnitee is, was or becomes a party to or witness or other participant in
any Claim by reason of an Indemnifiable Event, or is threatened to be made
a party to or witness or other participant in, a Claim by reason of, or
arising out of, in whole or in part, or in connection with an Indemnifiable
Event, if so requested by Indemnitee by written demand, the Company shall
advance to Indemnitee (within ten (10) days of receipt of such request) any
and all related Expenses, including Expenses reasonably expected to be
incurred by Indemnitee within three months (such advanced Expenses,
"Advances"). In addition, the Company shall indemnify Indemnitee against
any and all Expenses and, if requested by Indemnitee, shall pay Advances
(within ten (10) days of receipt of such request) to Indemnitee in respect
of such Expenses which are incurred by Indemnitee in connection with any
action brought by Indemnitee for (i) enforcement of this Agreement,
including, without limitation, indemnification of Expenses and/or Advances
by the Company under this Agreement or any other agreement or Company
By-law now or hereafter in effect relating to Claims for Indemnifiable
Events and/or (ii) recovery under any directors' and officers' liability
insurance policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification,
Advances, or insurance recovery, as the case may be. Advances shall be
unsecured and interest free. Advances shall be made without regard to
Indemnitee's ability to repay the Advances, without regard to Indemnitee's
ultimate entitlement to indemnification under this Agreement, and without
regard to any determination by a Reviewing Party under Section 3(a) hereof.
The execution and delivery to the Company of this Agreement shall
constitute an undertaking by the Indemnitee, to the extent that the
Indemnitee is required by law to make such an undertaking, to repay
Advances to the extent that it is ultimately determined, in accordance with
the By-Laws and Section 3 of this Agreement, that Indemnitee is not
entitled to be indemnified by the Company.
(d) Partial Indemnity, Etc. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Losses or Expenses, but not, however, for the entire total
amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion thereof to which Indemnitee is entitled. Moreover, notwithstanding
any other provision of this Agreement, to the extent that Indemnitee has
been successful on the merits or otherwise in defense of any or all Claims
relating in whole or in part to an Indemnifiable Event or in defense of any
issue or matter therein, including dismissal without prejudice, Indemnitee
shall be indemnified against all Expenses incurred in connection therewith.
(e) Contribution. In the event that, as a result of the foregoing
indemnity being unavailable to the Indemnitee because such indemnification
is determined to be unenforceable, the Company shall contribute to the
Losses and Expenses paid or payable by such Indemnitee in respect of any
Claim by reason of, or arising, in whole or in part, out of or in
connection with an Indemnifiable Event, in such proportion as is
appropriate to reflect the relative fault of the Company, on the one hand,
and the Indemnitee, on the other hand, in connection with the matters as to
which such Losses or Expenses relate.
3. PROCEDURAL MATTERS
(a) Determination of Reviewing Party. The obligations of the Company
set forth in Section 2 hereof other than the obligations of the Company set
forth in Section 2(c) shall not apply if the Reviewing Party shall
determine within sixty (60) days of the Indemnitee's written demand in
accordance with Article VII, Section 3 of the Bylaws, that Indemnitee is
not permitted to be so indemnified under applicable law, provided, however,
that
(i) if the Reviewing Party determines that Indemnitee substantively is
not permitted to be indemnified in whole or in part under applicable
law, and the Indemnitee commences litigation in any court in the
States of New York or Delaware seeking an order or judgment by the
court equivalent to the determination of the Reviewing Party or
challenging any such determination by the Reviewing Party or any
aspect thereof within sixty (60) days of receiving notice of such
determination, then the determination by the Reviewing Party or such
aspect so challenged shall have no effect; and
(ii) if there is no determination by the Reviewing Party within sixty
(60) days of the Indemnitee's written demand as described in Article
VII, Section 3 of the By-Laws, the requisite determination of
entitlement to indemnification shall, to the fullest extent not
prohibited by law, be deemed to have been made and Indemnitee shall be
entitled to such indemnification, absent (A) a misstatement by
Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee's statement not materially misleading, in
connection with the request for indemnification, or (B) a final
judicial determination that all or any part of such indemnification is
prohibited under applicable law; provided, however, that such sixty
(60) day period may be extended for a reasonable time, not to exceed
an additional thirty (30) days, if the person, persons or entity
making the determination with respect to entitlement to
indemnification in good faith requires such additional time in order
to make the determination.
(b) Burden of Proof; Procedure. In connection with any determination
by the Reviewing Party or otherwise as to whether Indemnitee is entitled to
be indemnified under this Agreement, the burden of proof shall be on the
Company to establish by clear and convincing evidence that Indemnitee is
not so entitled. Each of the Indemnitee and the Company shall be entitled
to present evidence to the Reviewing Party, to comment to the Reviewing
Party on the evidence presented by the other party, and to communicate with
and make representations to the Reviewing Party (so long as the other party
is given a reasonable opportunity to be present at any oral presentation or
to review and respond to any written presentation). The Reviewing Party
will communicate its determination to the parties without any specification
of findings or reasoning. The determination of the Reviewing Party shall be
given no deference or precedential effect in any judicial proceeding.
(c) Change in Control of the Company. The Company agrees that if there
is a Change in Control of the Company, then with respect to all matters
thereafter arising concerning the rights of Indemnitee to indemnity
payments and expense advances under this Agreement, any other agreements,
the Certificate of Incorporation or the By-laws now or hereafter in effect
relating to Claims for Indemnifiable Events, the Company shall seek legal
advice only from special independent counsel selected by Indemnitee and
approved by the Board of Directors (which approval shall not be
unreasonably withheld), and who has not otherwise performed services for
the Company (other than in connection with such matters) or Indemnitee.
Without limiting the Company's obligation under the immediately preceding
sentence not to unreasonably withhold its consent to counsel selected by
Indemnitee, in the event that Indemnitee and the Company are unable to
agree on the selection of the special independent counsel, such special
independent counsel shall be selected by lot from among at least five
nationally recognized law firms each headquartered in New York City, New
York, each having no less than 250 lawyers. Such selection shall be made in
the presence of Indemnitee (and his legal counsel or either of them, as
Indemnitee may elect). Such special independent counsel, among other
things, shall determine whether and to what extent the Indemnitee would be
permitted to be indemnified under applicable law and shall render in a
timely manner its written opinion to the Company and Indemnitee to such
effect.
The Company agrees to pay the reasonable fees of the special
independent counsel referred to above and to fully indemnify such counsel
against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
4. MODIFICATION; WAIVER.
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto. No waiver
of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions hereof (whether or not similar)
nor shall such waiver constitute a continuing waiver. Any waiver to this
agreement shall be in writing.
5. SUBROGATION.
In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery
of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary or appropriate to secure such rights,
including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
6. NO DUPLICATION OF PAYMENTS.
The Company shall not be liable under this Agreement to make any
payment in connection with any Claim made against Indemnitee to the extent
Indemnitee has otherwise actually received payment from the Company (under
any insurance policy obtained by the Company or otherwise, and including
payment made directly to the Indemnitee by an insurer under such an
insurance policy) of the amounts otherwise indemnifiable hereunder.
7. NOTIFICATION AND DEFENSE OF CLAIM.
Promptly after receipt by Indemnitee of notice of the commencement of
any Claim, Indemnitee will, if a request for indemnification in respect
thereof is to be made against the Company under this Agreement, notify the
Company of the commencement thereof; but the omission so to notify the
Company promptly will not relieve the Company from any liability unless the
Company is materially prejudiced by the failure to be so notified promptly,
but in any case, the Company will not be relieved from any liability which
it may have to Indemnitee otherwise than under this Agreement. With respect
to any such Claim as to which Indemnitee notifies the Company of the
commencement thereof:
(a) the Company will be entitled to participate therein at its own
expense; and
(b) except as otherwise provided below, to the extent that it may
wish, the Company jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. After notice from the Company to Indemnitee of
its election to assume the defense thereof, the Company will not be liable
to Indemnitee under this Agreement for any legal or other expenses
subsequently incurred by Indemnitee in connection with the defense thereof
other than reasonable costs of investigation or as otherwise provided
below. Indemnitee shall have the right to employ its counsel in such Claim,
but the fees and expenses of such counsel incurred after notice from the
Company of its assumption of the defense thereof shall be at the expense of
Indemnitee unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee shall have reasonably concluded
that there may be an actual or potential conflict of interest between the
Company and the Indemnitee in the conduct of the defense of such Claim or
(iii) the Company shall not in fact have employed counsel to assume the
defense of such Claim, in each of which cases the fees and expenses of
counsel shall be at the expense of the Company. The Company shall not be
entitled to assume the defense of any Claim brought by or on behalf of the
Company or as to which the Indemnitee shall have made the conclusion
provided for in clause (ii) of this subsection 7(b).
(c) The Company shall not be liable to indemnify the Indemnitee under
this Agreement for any amounts paid in settlement of any Claim effected
without its prior written consent. The Company shall not settle any Claim
in any manner which would impose any penalty, limitation, admission, Loss
or Expense on the Indemnitee without the Indemnitee's prior written
consent. Neither the Company nor the Indemnitee will unreasonably withhold
their consent to any proposed settlement; provided that Indemnitee may, in
his sole discretion, withhold consent to any proposed settlement that would
impose any penalty, limitation, admission, Loss or Expense on the
Indemnitee other than a Loss or Expense covered under such proposed
settlement.
8. NO PRESUMPTIONS.
For purposes of this Agreement, the termination of any Claim against
Indemnitee by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by applicable
law. In addition, neither the failure of the Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of conduct or did
not have such belief, prior to the commencement of legal proceedings by
Indemnitee to secure a judicial determination that Indemnitee should be
indemnified under applicable law shall be a defense to Indemnitee's Claim
for indemnification or create a presumption that Indemnitee has not met any
particular standard of conduct or did not have any particular belief.
9. NON-EXCLUSIVITY.
The rights of the Indemnitee hereunder shall not be deemed exclusive
and shall be in addition to any other rights Indemnitee may have under the
DGCL, the Certificate of Incorporation, the By-laws or otherwise, and to
the extent that during the Indemnification Period the rights of the then
existing directors and officers of the Company are more favorable to such
directors or officers than the rights currently provided thereunder or
under this Agreement to Indemnitee, Indemnitee shall be entitled to the
full benefits of such more favorable rights to the extent permitted by
applicable law. To the extent that a change in the DGCL (whether by statute
or judicial decision) permits broader indemnification by agreement than
would be afforded under this Agreement, any other agreement, the
Certificate of Incorporation or the By-laws, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change. Other than as set forth in this
section 9, in the case of any inconsistency between the indemnification
provisions of this Agreement and any other agreement relating to the
indemnification of an Indemnitee by the Company or any of its subsidiaries,
the indemnification provisions of this Agreement shall control.
Notwithstanding the foregoing, any agreement or indemnification provision
with the Company or any of its subsidiaries specified on Schedule 1 to this
Agreement is hereby terminated upon effectiveness of this Agreement.
10. LIABILITY INSURANCE
The Company shall maintain an insurance policy or policies providing
directors' and officers' liability insurance that provides that Indemnitee
shall be covered by such policy or policies, in accordance with its or
their terms, to the maximum extent of the coverage available for any
Company director or officer and in amounts and for coverage reasonably
acceptable to Indemnitee. Notice of any termination or failure to renew
such policy or policies shall be provided to Indemnitee promptly upon the
Company's becoming aware of such termination or failure to renew. The
Company shall provide copies of all such insurance policies and any
endorsements thereto whenever such documents have been provided to the
Company.
11. PAYMENT FOR EXPENSES AS WITNESS.
Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee, by reason of the fact that Indemnitee is or was a
director, officer, employee, agent, trustee or fiduciary of the Company or
is or was serving at the request of the Company as a director, officer,
employee, trustee, agent or fiduciary of another corporation, partnership,
joint venture, trustee or other entity, is a witness in any threatened,
pending or completed action, suit or proceeding, or any inquiry or
investigation, whether conducted by or on behalf of the Company or any
other party, the Company agrees to pay to Indemnitee all Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee's behalf (or
reasonably expected to be incurred by Indemnitee or on Indemnitee's behalf
within three months) in connection therewith.
12. BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors,
assigns, including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs and personal and legal
representatives. This Agreement shall continue in effect during the
Indemnification Period, regardless of whether Indemnitee continues to serve
as a director of the Company or in any other capacity at the Company or any
other enterprise at the Company's request.
13. PERIOD OF LIMITATIONS.
No legal action shall be brought and no cause of action shall be
asserted by or in the right of the Company against Indemnitee, Indemnitee's
spouse, heirs, executors or personal or legal representatives after the
expiration of one-year from the date of accrual of such cause of action,
and any claim or cause of action of the Company shall be extinguished and
deemed released unless asserted by the timely filing of a legal action
within such one-year period; provided, however, that if any shorter period
of limitations is otherwise applicable to any such cause of action such
shorter period shall govern.
14. SEVERABILITY.
The provisions of this Agreement shall be severable in the event that
any provision hereof (including any provision within a single section,
paragraph or sentence) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, and the remaining provisions
shall remain enforceable to the fullest extent permitted by applicable law
provided; however, that any such invalid, void, or otherwise unenforceable
provision shall be considered not severable if and to the extent that its
omission from this Agreement would or may materially alter or affect the
intent or effect of this Agreement. In such event, the parties shall use
their reasonable efforts to replace any such invalid, void, or
unenforceable provision with one or more provisions that most closely
reflect their intent and effect.
15. INTERPRETATION
To the extent of any inconsistency between the terms and scope of this
Agreement and the By-Laws or any other prior agreements and undertakings,
both written and oral, between the parties hereto with respect to the
subject matter hereof, the terms and scope of this Agreement shall govern
and control.
16. GOVERNING LAW; VENUE.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in such state without giving effect to the
principles of conflicts of laws. Any action relating to the performance of
this Agreement shall be brought either in the State of New York or
Delaware, at the option of the party commencing such action.
17. NOTICES; WRITTEN DEMAND.
A notice or written demand shall be deemed to be received by the
Company, or the Indemnitee as the case may be, when delivered (i) by
courier to the relevant address set forth below or such other address as
may be notified in writing by the Company or the Indemnitee, as the case
may be, (ii) or five days after dispatch by first class mail (or air mail,
if sent internationally), by registered or certified mail, return receipt
requested, to said address (with a confirmation copy by fax to the fax
number shown below, which confirmation copy is noted as received, or to the
e-mail address noted below, as the case may be). Such notice or written
demand shall be addressed as follows:
If to the Company, to it at either of the following addresses:
NTL Incorporated
909 Third Avenue, Suite 2863
New York New York 10022
Attention (Urgent): General Counsel
Fax number: [ ]
or
NTL Incorporated
NTL House
Bartley Wood Business Park
Hook
Hampshire RG27 9UP
Fax number: [ ]
If to the Indemnitee, to him or her at the following address:
[Address and fax number or e-mail address]
IN WITNESS WHEREOF, upon the parties hereto duly executing the
Agreement, this Agreement shall be in full force and effect from and as of
the date of this Agreement.
NTL INCORPORATED
By:
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Name: Bryan Hall
Title: Secretary & General Counsel
THE INDEMNITEE
By:
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Name: