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FORM OF DIRECTOR AND OFFICER INDEMNITY AGREEMENT
AGREEMENT, dated as of ______________________, between NTL
Incorporated, a Delaware corporation (the "Company"), and separately with each
director and officer of the Company (the "Indemnitee").
WHEREAS, Indemnitee is a director or officer of the Company;
WHEREAS, both the Company and Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors and officers of
public companies in today's environment;
WHEREAS, as a result of substantial changes in the marketplace for
directors and officers liability insurance, the Company does not maintain such
insurance;
WHEREAS, the Bylaws of the Company requires the Company to indemnify
and advance expenses to its directors and officers to the fullest extent
permitted by law and the Indemnitee has been serving and continues to serve as a
director or officer of the Company in part in reliance on such provision;
WHEREAS, Section 145(f) of the Delaware General Corporation Law
expressly recognizes that the indemnification provisions of the Delaware
Corporation Law are not exclusive of any other rights to which a person seeking
indemnification may be entitled by by-law, agreement, vote of stockholders or
otherwise, and this Agreement is being entered into pursuant to such provision;
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to assure Indemnitee's continued service to
the Company in an effective manner and Indemnitee's reliance on the aforesaid
Bylaws and in part to provide Indemnitee with specific contractual assurance
that the protection promised by the Bylaws 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 full
extent (whether partial or complete) permitted by law and as set forth in this
Agreement;
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:
1.0 CERTAIN DEFINITIONS.
(a) Change in Control: shall be deemed to have occurred if (i) any
"person" (as such term is used in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934, as
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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 stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, 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 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' fees and all other costs, expenses and
obligations paid or incurred in connection with investigating, defending, being
a witness in or participating in (including an 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.
(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
Indemnification shall be subject to any possible claim or threatened, pending or
completed action, suit or proceeding or any inquiry or investigation, whether
civil, criminal or investigative, arising out of the Indemnitee's tenure in the
foregoing positions.
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(f) Losses: are any judgments, fines 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 such action, suit or proceeding.
(g) Reviewing Party: shall mean (I) the Board of Directors (provided
that a majority of directors are not parties to the Claim), (ii) a person or
body selected by the Board of Directors and (iii) if there has been a Change in
Control, the special independent counsel referred to in subsection 3(b) hereof.
2.0 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
General Corporation Law of the State of Delaware, or any other applicable law,
the Company's Restated Certificate of Incorporation or By-Laws as in effect on
the date hereof, or (ii) by any amendment thereof or other statutory provisions
authorizing or permitting such indemnification which is adopted after the date
hereof.
(b) Additional Indemnification. Without limiting the generality of
subsection (a) hereof, in the event Indemnitee was, is or becomes a participant
in a Claim by reason of (or arising in part out of) an Indemnifiable Event, the
Company shall indemnity Indemnitee to the fullest extent permitted by law, as
soon as practicable after written demand is presented to the Company, against
any and all Expenses and Losses.
(c) Advancement of Expenses. In the event Indemnitee is, was or becomes
a participant in any Claim by reason of an Indemnifiable Event, if so requested
by Indemnitee, the Company shall advance any and all such Expenses to
Indemnitee.
3.0 GENERAL LIMITATIONS ON INDEMNIFICATION.
(a) Determination of Reviewing Party. Notwithstanding the foregoing,
(I) the obligations of the Company set forth in Section 2 hereof (except with
respect to Expense advances made prior to any determination by a Reviewing Party
referred to below that Indemnitee substantively would not be permitted to be
indemnified for Claims for Indemnifiable Events with respect to which such
advances are being made) shall be subject to the condition that the Reviewing
Party shall not have determined (in a written opinion, in any case in which the
special independent counsel referred to in subsection (b) hereof is involved)
that Indemnitee would not be permitted to be so indemnified under applicable
law, and (ii) if, when and to the extent that the Reviewing Party determines
that Indemnitee would not be permitted to be so indemnified under applicable
law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby
agrees to reimburse the Company) for all such amounts theretofore paid (unless
Indemnitee has
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commenced legal proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under applicable law, in
which event Indemnitee shall not be required to so reimburse the Company until a
final judicial determination is made with respect thereto as to which all rights
of appeal therefrom have been exhausted or lapsed) and shall not be obligated to
indemnify or advance any additional amounts to Indemnitee (unless there has been
a determination by a court of competent jurisdiction that the Indemnitee would
be permitted to be so indemnified under applicable law).
If there has been no determination by the Reviewing Party or if the
Reviewing Party determines that Indemnitee substantively would not be permitted
to be indemnified in whole or in part under applicable law, Indemnitee shall
have the right to commence litigation in any court in the States of New York or
Delaware having subject matter jurisdiction thereof and in which venue is proper
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; any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and Indemnitee.
(b) Change in Control of 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 or the Company's Restated Certificate of
Incorporation, any other agreements or its 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
Company (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. 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 law firms
each in New York City, New York, and having no less than 10 partners. 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 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 and Losses arising out of or relating to this
Agreement or its engagement pursuant hereto.
4.0 NO MODIFICATION.
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
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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 shall be in writing.
5.0 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 to secure such rights, including the execution of such
documents necessary to enable to the Company effectively to bring suit to
enforce such rights.
6.0 REIMBURSEMENT.
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 (under any insurance policy
or otherwise) of the amounts otherwise indemnifiable hereunder.
7.0 EFFECTIVENESS.
This Agreement shall be of full force and effect immediately upon its
execution.
8.0 NOTIFICATION AND DEFENSE OF CLAIM.
Promptly after receipt by Indemnitee of notice of the commencement of
any action, suit or proceeding, Indemnitee will, if a Claim in respect thereof
is to be made against the Company under this Agreement, notify the Company of
the commencement hereof; but the omission so to notify the Company will not
relieve it from any liability which it may have to Indemnitee otherwise than
under this Agreement. With respect to any such action, suit or proceeding 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 action, suit or proceeding, 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
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reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of the defense of such action or (iii)
the Company shall not in fact have employed counsel to assume the defense of
such action, 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 action, suit or proceeding brought by or on behalf of the Company
or as to which the Indemnitee shall have made the conclusion provided for in
(ii) above.
(c) The Company shall not be liable to indemnify the Indemnitee under
this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company shall not settle any action or
claim in any manner which would impose any penalty or limitation on the
Indemnitee without the Indemnitee's written consent. Neither the Company nor the
Indemnitee will unreasonably withhold their consent to any proposed settlement
9.0 NON-EXCLUSIVITY.
The rights of the Indemnitee hereunder shall not be deemed exclusive of
any other rights he may have under the Company's Restated Certificate of
Incorporation, the Company's Bylaws or the Delaware General Corporation Law or
otherwise, and to the extent that during the Indemnification Period the rights
of the then existing directors and officers 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.
10.0 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 an officer or director of the Company
or of any other enterprise at the Company's request.
11.0 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 law.
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12.0 GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware.
13.0 ENTIRE AGREEMENT AND TERMINATION.
This Agreement represents the entire agreement between the parties; and
there are no other agreements, contracts or understandings between the parties
with respect to the subject matter of this Agreement. No termination or
cancellation of this Agreement shall be effective unless in writing and signed
by both parties hereto.
NTL INCORPORATED
By: ________________________________________________
Name:
Title:
By: ________________________________________________
Name:
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Schedule to Indemnity Agreement
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Del ▇▇▇▇▇ October 13, 1993
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