Exhibit 10.40
INDEMNITY
AGREEMENT
AGREEMENT, dated
as of •, 2006, between NTL Incorporated, a Delaware
corporation and its affiliated entities (the
“Company”), and • (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.
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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,
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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 indemnificati
