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 b
