Exhibit 10.77


 


CONSULTING
AGREEMENT


 


THIS CONSULTING AGREEMENT
(the “Agreement”) is made as of the 8th day of December, 2009, by and between Virgin
Media Inc., a Delaware corporation (the “Company”), and James Chiddix
(the “Consultant”).


 


WHEREAS, the Company wishes
to retain the Consultant to provide services to management of the Company as
requested by the Chief Executive Officer from time to time (the “Services”),
effective as of December 9, 2009 (the “Effective Date”); and


 


WHEREAS, the Consultant
wishes to render such services to the Company on the terms and conditions set
forth herein.


 


NOW, THEREFORE, in
consideration of the mutual covenants contained in this Agreement and for other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties, the parties agree as follows:


 


1.             Effectiveness.  This Agreement shall become effective as of
the Effective Date.


 


2.             Consulting Term.


 


(a)           The term of the Consultant’s retention pursuant to this
Agreement (the “Consulting Term”) shall commence as of the Effective
Date and shall terminate on 30 days’ written notice by either party to the
other party, unless the Consulting Term terminates pursuant to Section 4
of this Agreement.


 


(b)           Status as Consultant; Duties.  During the Consulting Term, the Consultant
shall provide the Services to the Company and shall perform such duties,
services and responsibilities related thereto as may be requested by the Chief
Executive Officer of the Company.  The
Consultant shall report to the Chief Executive Officer of the Company. During
the Consulting Term, the Consultant shall be based in the United States but
shall undertake such overseas travel as is necessary for the proper performance
of his duties hereunder.  The Consultant
acknowledges that the Consultant is not an employee, worker or agent of the
Company. The Consultant shall have no authority to contract on behalf of the
Company and shall not purport to bind the Company in any way. The Consultant
shall comply with all legal and fiscal obligations of the country or countries
in which the Consultant is to perform the Services, including, without
limitation, the obligation to account to the appropriate authorities for all
income tax, Value Added Tax (“VAT”) and other tax, national insurance
contributions and social security levies or the local equivalents in respect of
sums paid to the Consultant pursuant to this Agreement.


 


3.             Consulting Fee. 
During the Consulting Term, in consideration of the performance by the
Consultant of the Consultant’s obligations hereunder to the Company and its
subsidiaries, associated and affiliated companies and joint ventures
(collectively, the “Company Affiliated Group”) in any capacity, the
Company shall cause to be paid to the Consultant a fee of $100,000 per annum
during the Consulting Term (the “Fee”), plus any reasonable
out-of-pocket expenses incurred under this Agreement.  The Fee shall be payable in equal monthly installments, in 


 





















 


arrears. In addition, the Consultant will receive a
one-time supplemental retainer of $10,000 from the Company, payable upon
execution of this Agreement.


 


4.             Termination by
Either Party or by Death or Disability. Each party may terminate the
Consulting Term upon 30 days’ written notice to the other party.  Upon termination by the Company, the Company
may (at its discretion) at any time following the giving of such notice (but
not exceeding the length of the notice given) cease to provide work for the
Consultant. Within 2 1⁄2 months after any termination, the Company shall cause
the Consultant to be paid (x) any earned but unpaid portion of the Fee and
(y) the reimbursement by the Company of outstanding unreimbursed expenses
pursuant to Section 3 through the date of termination, and the
Consultant shall not be entitled to any other payments or reimbursements.
Immediately following termination of the Services for any reason, the
Consulting Term shall terminate.


 


5.             Consultant’s Representation.  The Consultant represents to the Company that
the Consultant’s execution and performance of this Agreement does not violate
any agreement or obligation (whether or not written) that the Consultant has
with or to any person or entity including, without limitation, any prior
employer or any person or entity that has engaged him as a consultant.


 


6.             Consultant’s Covenants.


 


(a)           Confidentiality. The Consultant agrees and
understands that the Consultant has been, and in the discharge of the
Consultant’s obligations under this Agreement, will be, exposed to and receive
information relating to the confidential affairs of the Company Affiliated
Group, including, without limitation, technical information, business and
marketing plans, strategies, customer (or potential customer) information,
other information concerning the products, promotions, development, financing,
pricing, technology, inventions, expansion plans, business policies and
practices, and intellectual property of the Company Affiliated Group, whether
or not reduced to tangible form, and other forms of information considered by
the Company Affiliated Group to be confidential and in the nature of trade
secrets. The Consultant will not knowingly disclose such information, either
directly or indirectly, to any person or entity outside the Company Affiliated
Group without the prior written consent of the Company; provided,
however, that (i) the Consultant shall have no obligation under this Section 6(a) with
respect to any information that is or becomes publicly known other than as a
result of the Consultant’s breach of the Consultant’s obligations hereunder and
(ii) the Consultant may (x) disclose such information to the extent
he reasonably determines that so doing is reasonable or appropriate in the
performance of the Consultant’s duties hereunder or (y) after giving prior
notice to the Company to the extent practicable under the circumstances,
disclose such information to the extent required by applicable laws or
governmental regulations or by judicial or regulatory process.  The Consultant shall comply with the Company’s
data protection policies. Upon termination of the Consultant, the Consultant
shall promptly supply to the Company all property, keys, notes, memoranda,
writings, lists, files, reports, customer lists, correspondence, tapes, disks,
cards, surveys, maps, logs, machines, technical data and any other tangible
product or document which has been produced by, received by or otherwise
submitted to the Consultant in the course of or otherwise in connection with
the Consultant’s services to the Company Affiliated Group during or prior to
the Consulting Term. This confidentiality covenant has no temporal,
geographical or territorial restriction.


 


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(b)           Non-Competition. 
During the period commencing upon the Effective Date and ending on the
12-month anniversary of the termination of the Consultant’s retention by the
Company pursuant to this Agreement, the Consultant shall not, as an employee,
employer, stockholder, officer, director, partner, associate, consultant or
other independent contractor, advisor, proprietor, lender, or in any other
manner or capacity (other than with respect to the Consultant’s services to the
Company Affiliated Group or pursuant to this Agreement), directly or
indirectly:


 


(i)            perform services for, or otherwise
have any involvement with, a business unit of a person, where such business
unit competes directly or indirectly with any member of the Company Affiliated
Group by (x) owning or operating broadband or mobile  communications networks for telephone, mobile
telephone, cable television or internet services, (y) providing mobile
telephone, fixed line telephone, television or internet services or (z) owning,
operating or providing any content-generation services or television channels,
in each case principally in the United Kingdom (the “Core Businesses”); provided,
however, that this Agreement shall not prohibit the Consultant from owning up
to 1% of any class of equity securities of one or more publicly traded
companies; or


 


(ii)           solicit, in competition with any member
of the Company Affiliated Group in the Core Businesses, any business, or order
of business from any person that the Consultant knows was a current or
prospective customer of any member of the Company Affiliated Group during the
Consultant’s retention by the Company;


 


provided, that,
notwithstanding the foregoing, the Consultant shall not be deemed to be in
violation of clause (i) or (ii) of the foregoing by virtue of acting
as a non-executive director, advisor or consultant to any investment banking firm
or consulting firm, private equity or venture capital firm, institutional
investor or similar entity, in each case so long as the Consultant takes
reasonable steps to insulate himself from the businesses and activities of any
such entity that relate to the Core Businesses during any period that this Section 6(b) is
in effect.


 


(c)           Acknowledgment. 
The Consultant expressly recognizes and agrees that the restraints
imposed by this Section 6 are reasonable as to time and geographic
scope and are not oppressive.  The
Consultant further expressly recognizes and agrees that the restraints imposed
by this Section 6 represent a reasonable and necessary restriction
for the protection of the legitimate interests of the Company Affiliated Group,
that the failure by the Consultant to observe and comply with the covenants and
agreements in this Section 6 will cause irreparable harm to the
Company Affiliated Group, that it is and will continue to be difficult to
ascertain the harm and damages to the Company Affiliated Group that such a
failure by the Consultant would cause, that the consideration received by the
Consultant for entering into these covenants and agreements is fair, that the
covenants and agreements and their enforcement will not deprive the Consultant
of an ability to earn a reasonable living, and that the Consultant has acquired
knowledge and skills in this field that will allow the Consultant to obtain
other work as an independent contractor or employee without violating these
covenants and agreements.  The Consultant
further expressly acknowledges that the Consultant has had the opportunity to
consult with counsel or has consulted counsel before executing this Agreement.


 


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(d)           The parties hereto recognize that the
covenants and agreements of the Consultant under this Agreement are special,
unique and of extraordinary character, and that any material breach thereof
shall result in injury to the Company that cannot be compensated by monetary
damages.  If the Consultant shall breach
or fail to perform any term, condition or duty in this Agreement required to be
observed or performed by the Consultant, the Company shall be entitled, inter alia, to institute and prosecute proceedings in any
court of competent jurisdiction, to enforce the specific performance thereof by
the Consultant and to enjoin the Consultant from performing services for any
person or entity or otherwise acting in violation of this Agreement, without
the necessity of proving damages or posting a bond or other security.  In the event of a breach of the provisions of
this Agreement, the Consultant agrees that the remedies at law available to the
Company would be inadequate to protect the Company’s interests; accordingly,
the Consultant agrees not to challenge the claim by the Company for any
equitable remedy including specific performance or an injunction on the basis
that there are adequate remedies at law. 
In case of any breach of this Agreement, nothing herein contained shall
be construed to prevent the Company from seeking such other remedy in the
courts as the Company may elect or invoke.


 


7.             Indemnification.


 


To the extent permitted by
applicable law, the Company shall indemnify the Consultant against, and save
and hold the Consultant harmless from, any damages, liabilities, losses,
judgments, penalties, fines, amounts paid or to be paid in settlement, costs
and reasonable expenses (including, without limitation, attorneys’ fees and
expenses), resulting from, arising out of or in connection with any threatened,
pending or completed claim, action, proceeding or investigation (whether civil
or criminal) against or affecting the Consultant by reason of the Consultant’s
service from and after the Effective Date as a consultant to any member of the
Company Affiliated Group, or in any capacity at the request of any member of
the Company Affiliated Group, or an officer, director or employee thereof, in
or with regard to any other entity, employee benefit plan or enterprise (other
than arising out of the Consultant’s acts of misappropriation of funds or
actual fraud).  In the event the Company
does not compromise or assume the
defense of any indemnifiable claim or action against the
Consultant, the Company shall promptly cause the Consultant to be paid to the
extent permitted by applicable law all costs and expenses incurred or to be
incurred by the Consultant in defending or responding to any claim or
investigation in advance of the final disposition thereof; provided,
however, that if it is ultimately determined by a final judgment of a court of
competent jurisdiction (from whose decision no appeals may be taken, or the
time for appeal having lapsed) that the Consultant was not entitled to
indemnity hereunder, then the Consultant shall repay forthwith all amounts so
advanced.  The Company may not agree to
any settlement or compromise of any claim against the Consultant, other than a
settlement or compromise solely for monetary damages for which the Company
shall be solely responsible, without the prior written consent of the
Consultant, which consent shall not be unreasonably withheld. This right to
indemnification shall be in addition to, and not in lieu of, any other right to
indemnification to which the Consultant shall be entitled pursuant to the Company’s
Certificate of Incorporation, if any, or By-laws or otherwise.


 


8.             Data Protection.  In accordance with relevant data protection
legislation, the Company will hold and process the information it collects
relating to the Consultant in the course of the Consulting Term for the
purposes of administration, statistical and record keeping 


 


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purposes,
including information for occupational health and pension purposes. This may
include information relating to the Consultant’s physical or mental health.
Some of the Consultant’s information may be processed outside the European
Economic Area, including without limitation in the United States. The
Consultant’s information will be treated confidentially and will only be
available to authorized persons.


 


9.             Miscellaneous.


 


(a)           Non-Waiver of Rights.  The failure to enforce at any time the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement or
any part hereof, or the right of either party to enforce each and every
provision in accordance with its terms. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar conditions or provisions at
that time or at any prior or subsequent time.


 


(b)           Notices.  All
notices required or permitted hereunder will be given in writing, by personal
delivery, by confirmed facsimile transmission (with a copy sent by express
delivery) or by express next-day delivery via express mail or any reputable
courier service, in each case addressed as follows (or to such other address as
may be designated):


 


	
  If to the Company:

  	
   

  	
  Virgin Media Inc.

  909 Third Avenue, Suite 2863

  New York, NY 10022

  United States

  Fax: (212) 906-8497110

  Attention: General Counsel

  
	
   

  	
   

  	
   

  
	
  If to the Consultant:

  	
   

  	
  James Chiddix

  Address on file with the Company’s payroll department.

  



 


Notices that are delivered
personally, by confirmed facsimile transmission, or by courier as aforesaid,
shall be effective on the date of delivery.


 


(c)           Binding Effect; Assignment.  This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, executors,
personal representatives, estates, successors (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise) and assigns.  Notwithstanding the provisions of the
immediately preceding sentence, the Consultant shall not assign all or any
portion of this Agreement without the prior written consent of the Company.


 


(d)           Withholding. 
The Company shall have the right to withhold or cause to be withheld
from any payments made pursuant to this Agreement all federal, state, city,
foreign or other taxes and social security or similar payments as shall be
required to be withheld pursuant to any law or governmental regulation or
ruling. Notwithstanding the foregoing, the Consultant 


 


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shall remain responsible for all such amounts as he
may owe in respect of his compensation hereunder.


 


(e)           Entire Agreement. 
This Agreement constitutes the complete understanding between the
parties with respect to the Consultant’s engagement and supersedes any other
prior oral or written agreements, arrangements or understandings between the
Consultant and any member of the Company Affiliated Group. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party that are not set forth
expressly in this Agreement. Subject to such agreements as the Consultant may
have with the Company in his capacity as a non-executive director of the
Company but otherwise without limiting the generality of this Section 9(e),
effective as of the Effective Date, this Agreement supersedes any existing
employment, retention, severance and change-in-control agreements or similar
arrangements or understandings, including without limitation the prior
agreements between the Consultant and the Company and any member of the Company
Affiliated Group, and any and all claims under or in respect of the prior
agreements that the Executive may have or assert on or following the Effective
Date shall be governed by and completely satisfied and discharged in accordance
with the terms and conditions of this Agreement.  No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party that are not set forth expressly in this Agreement.


 


(f)            Severability. 
If any provision of this Agreement, or any application thereof to any
circumstances, is invalid, in whole or in part, such provision or application
shall to that extent be severable and shall not affect other provisions or
applications of this Agreement.


 


(g)           Governing Law, Etc. 
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York (without regard, to the extent permitted
by law, to any conflict of law rules which might result in the application
of laws of any other jurisdiction).  The Consultant
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York and any federal court sitting in the State of New York. Each of the
parties waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) related to or
arising out of or in connection with this Agreement and other matters that are
the subject of this Agreement and agrees that any such action, claim or
proceeding may be brought exclusively in a federal or state court sitting in
the State of New York.


 


(h)           Modifications. 
Neither this Agreement nor any provision hereof may be modified,
altered, amended or waived except by an instrument in writing duly signed by
the party to be charged.


 


(i)            Construction. 
The headings contained herein are solely for purposes of reference, are
not part of this Agreement and shall not in any way affect the meaning or
interpretation of this Agreement. 
References to Sections and Appendices refer to Sections of this Agreement
and Appendices attached to this Agreement. 
The term “person” means an individual person, corporation,
partnership, limited liability company, trust, association or other entity.


 


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(j)            Counterparts. 
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute
one and the same instrument.


 


(Signature page follows.)


 


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IN WITNESS WHEREOF, the
Company has caused this Agreement to be executed and the Consultant has
executed this Agreement as of the day and year first above written, in each
case effective as of the Effective Date.


 


	
   

  	
  VIRGIN MEDIA INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Bryan H. Hall

  
	
   

  	
   

  
	
   

  	
  By: Bryan H. Hall

  
	
   

  	
  Title: General Counsel & Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ James
  Chiddix

  
	
   

  	
  James Chiddix