Exhibit 10.31



 



Exhibit 10.31


DIRECTOR AND OFFICER INDEMNITY AGREEMENT


     AGREEMENT, dated as of January 10, 2003, between NTL Incorporated, a
Delaware corporation and its affiliated entities (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 been serving and continues 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 any potential 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:


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	1.0	 	 CERTAIN DEFINITIONS.



     (a) 
Change in Control: shall be deemed to have occurred if (i) any
“person” or “group” (as such terms are 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 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 (i) 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; and (ii) any
event or occurrence related to the Indemnitee’s actions or inaction undertaken
in connection with the Company’s steps relating to the POS Regulations, or the
fact that prior to the January 10, 2003 consummation of the Company’s plan of
reorganization (the


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“Plan”) such Indemnitee was a prospective director of the Company or any
affiliate thereof or by reason of anything done or not done by Indemnitee or
the Company in any such capacity, including, but not limited to, any action
taken in such capacity in connection with the consummation of the Plan.


     (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) 
POS Regulations: shall mean the UK Public Offers of Securities
Regulations 1995.


     (h) 
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 2(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


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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).


     (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 (within two business days of receipt of such request)
any and all related Expenses to Indemnitee. In addition, the Company shall
indemnify Indemnitee against any and all expenses and, if requested by
Indemnitee, shall advance (within two business days of receipt of such request)
such 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 Losses or 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.


     (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.



	3.0	 	 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 outside 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


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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 to Indemnitee any
additional amounts covered by such Reviewing Party determination (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. 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 by clear and convincing evidence 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’s 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 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


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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 (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 necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.



	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 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.



	7.0	 	 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


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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 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.



	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


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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 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 permitted by 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 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.



	11.0	 	 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 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.



	12.0	 	 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.



	13.0	 	 PERIOD OF LIMITATIONS.



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     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.



	14.0	 	 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.



	15.0	 	 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.



	 	 	 	 	 
	 	 	NTL INCORPORATED
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	Name:

Title:
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	Name:

Title:



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SCHEDULE A to Exhibit 10.31


     The Company has provided the Director and Officer Indemnity Agreement to
the following persons:


Jeffrey Benjamin

James Bolin

Simon P. Duffy

David Elstein

Robert C. Gale

Gregg N. Gorelick

Lauren Hochman Blair

William R. Huff

Howard S. Kalika

Barclay Knapp

Richard J. Lubasch

Robert Mackenzie

Richard H. Martin Jr.

Bret Richter

Scott E. Schubert

George Zoffinger



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