EXHIBIT 10.8
DIRECTOR AND OFFICER INDEMNITY AGREEMENT
AGREEMENT, dated as of January 10, 2003, between NTL Europe, Inc., a
Delaware corporation and its affiliated entities (collectively, 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, 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 its directors and officers to the fullest extent permitted
by law and the Indemnitee has agreed to serve as a director or officer of the
Company in part in reliance on such provisions;
WHEREAS, Section 145(f) of the Delaware General Corporation Law (the
"DGCL") expressly recognizes that the indemnification provisions of the DGCL
are not exclusive of any other rights to which a person seeking
indemnification 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 personal liability in order to assure Indemnitee's
continued service to the Company 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
the Company's 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:
1.0 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 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 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, manager, trustee, agent or fiduciary of
another corporation, partnership, joint venture, trust or other entity, or by
reason of anything done or not done, or allegedly 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
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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, charges, assessments
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 (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 or (iii) if there has been a Change in
Control, the special independent counsel referred to in subsection 3(c)
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
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 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, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than the Company was permitted to provide immediately
prior to such amendment).
(b) Additional Indemnification. Without limiting the generality of
subsection 3(a) hereof, 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, 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.
(c) Advancement of Expenses. In the event 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, the Company shall advance any and all related Expenses to
Indemnitee. In addition, the Company shall indemnify Indemnitee against any
and all costs and expenses and, if requested by Indemnitee, shall advance such
costs and
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expenses to Indemnitee which are incurred by Indemnitee in connection with any
action brought by Indemnitee for (i) indemnification or advance payment of
Expenses 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, advance
expense payment or insurance recovery, as the case may be.
(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 Expenses, but not, however, for all of the 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.
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 shall be
subject to the condition that the Reviewing Party shall not have determined
(based on a written opinion of counsel in all cases) that Indemnitee would not
be permitted to be so indemnified under applicable law, and (ii) the
obligation of the Company to make Expense advances shall be subject to the
condition that, 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;
provided, however, that if Indemnitee has commenced or thereafter commences
legal proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under applicable law, any
determination made by the Reviewing Party that Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for any advancement
of Expenses until a final judicial determination is made with respect thereto
(as to which all rights of appeal therefrom have been exhausted or lapsed) and
the Company 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 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.
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Subject to the foregoing, any determination by the Reviewing Party otherwise
shall be conclusive and binding on the Company and Indemnitee.
(b) Burden of Proof. 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 that Indemnitee is not so entitled.
(c) 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, 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 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, each 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 and expenses 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.
4.0 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 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.
5.0 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 reasonably necessary to secure such rights, including the execution of
such documents reasonably, necessary to enable the Company effectively to
bring suit to enforce such rights.
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6.0 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 (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 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
will not relieve it 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 a 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 8(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
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consent. The Company shall not settle any Claim in any manner which would
impose any penalty or limitation 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
9.0 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.
10.0 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, any other agreement 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. 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 paragraph
10, in the case of any inconsistency between the indemnification provisions of
this Agreement and any other agreement relating to the indemnification of an
Indemnitee the indemnification provisions of this Agreement shall control
unless such other agreement permits broader indemnification in which case such
provisions providing broader indemnification shall control.
11.0 LIABILITY INSURANCE
To the extent the company maintains an insurance policy or policies
providing directors' and officers' liability insurance, 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.
12.0 BINDING EFFECT
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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, director, employee, agent
or fiduciary of the Company or of any other enterprise at the Company's
request.
13.0 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 two years 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
two-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.
14.0 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 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 provisions
that most closely reflect their intent and effect.
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15.0 GOVERNING LAW.
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.
NTL EUROPE, INC.
By:
-----------------------------
Name:
Title:
By: _____________________________
Name:
Title:
SCHEDULE A
Schedule of Signatories to
DIRECTOR AND OFFICER INDEMNITY AGREEMENT
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