Form of Indemnity Agreement



 Exhibit 10.22 
  
 INDEMNITY AGREEMENT 
  
 INDEMNITY AGREEMENT, effective as of
                    , 2004 (the “Agreement”), between RCN Corporation, a Delaware corporation (the “Company”), and
                     (the “Indemnitee”). 
  
 WHEREAS, it is essential to the Company to retain and attract as directors and officers the most capable persons available; 
  
 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, basic protection against undue risk of personal liability of directors and officers heretofore has been provided through insurance coverage
providing reasonable protection at reasonable cost, and Indemnitee has relied on the availability of such coverage; but it has become increasingly more difficult to obtain such insurance on terms providing reasonable protection at reasonable cost;

  
 WHEREAS, Article Ninth of the Amended and Restated Certificate
of Incorporation of the Company (the “Charter”), as currently in effect, requires the Company to indemnify and advance expenses to its directors and officers to the full 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 Charter; 
  
 WHEREAS, in recognition of Indemnitee’s need for substantial protection against personal liability in order to enhance Indemnitee’s continued
service to the Company in an effective manner, Indemnitee’s reliance on the aforesaid Charter, and, in part, to provide Indemnitee with specific contractual assurance that the protection promised by such Charter will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation of such Charter or any change in the composition of the Company’s Board of Directors or acquisition transaction relating to 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 Indemnitee under the Company’s directors’ and officers’ liability insurance policies; 
  
 NOW, THEREFORE, in consideration of the premises and of Indemnitee continuing to serve the Company directly or, at its request, another enterprise, and
intending to be legally bound hereby, the parties hereto agree as follows: 
  
 1. Certain Definitions: 
  

	 	(a)	 Change of Control: A “Change of Control shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and




  










	 	 
14(d) of the Securities Exchange Act of 1934, as amended (the “Act”)), 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 25% or more of the total voting power represented by the Company’s then outstanding Voting Securities (as defined below), 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 75% 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 (in
one transaction or a series of transactions) all or substantially all the Company’s assets. 


  

	 	(b)	Claim: The term “Claim” shall mean any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by 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: The term “Expenses” shall 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: The term “Indemnifiable Event” shall mean 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, consultant or fiduciary of another corporation, partnership, joint 



  

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employee benefit plan, trust or other enterprise, or by reason of anything done or not done by Indemnitee in any such capacity. 



 

	 	(e)	Independent Counsel: The term “Independent Legal Counsel” shall mean an attorney or firm of attorneys, selected in accordance with the provisions of Section 3, who shall not have otherwise performed services for the Company or Indemnitee within the last five
years (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements). 

  

	 	(f)	Reviewing Party: The term “Reviewing Party” shall mean any appropriate person or body consisting of a member or members of the Company’s Board of Directors or
any other person or body appointed by the Board who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel. 

  

	 	(g)	Voting Securities: The term “Voting Securities” shall mean any securities of the Company which vote generally in the election of directors.


  
 2. Basic Indemnification Arrangement.

  

	 	(a)	In the event Indemnitee was, is 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 part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the extent permitted by law as soon as practicable but in any event no later than thirty days after written demand is presented to the Company,
against any and all Expenses, judgments, fines, penalties and paid in settlement (including all interest, assessments and other charges paid or payable in connection or in respect of such Expenses, judgments, fines, penalties or amounts paid in
settlement) of such Claim, other than any liability incurred by an Indemnitee under Section 16(b) of the Act. Notwithstanding anything in this Agreement to the contrary, prior to a Change in Control, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee unless the Board of Directors has authorized or consented to the initiation of such Claim. If so requested by Indemnitee, the Company shall advance
(within two business days of such request) any and all Expenses to Indemnitee (an “Expense Advance”). 

  

	 	(b)	 Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have
determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company
to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and 



  

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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 Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a
Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Company’s Board of Directors who
were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. 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 Jersey] or Delaware having subject matter
jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby
consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee. 


  
 3. Change in Control. The Company agrees that if there is a Change in
Control of the Company (other than a Change in Control which has been approved by a majority of the Company’s Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement, Company by-law or provision in the Charter now or hereafter in effect relating to Claims for Indemnifiable Events, the
Company shall seek legal advice only from Independent Legal Counsel by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to indemnify fully 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. 
  

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 4. Indemnification for Additional Expenses. The Company shall indemnify Indemnitee against any and
all expenses (including attorneys’ fees) and, if requested by Indemnitee, shall (within two business days of such request) advance 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, Company By-law or provision in the Charter 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. 
  
 5. 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, judgments, fines, penalties and amounts paid in settlement of a Claim 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, in whole or in
part, 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. 
  
 6. Burden of
Proof. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.

  
 7. No Presumptions. For purposes of this Agreement, the
termination of any claim, action, suit or proceeding, 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 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 or create a presumption that Indemnitee has not met any particular standard
of conduct or did not have any particular belief. 
  
 8.
Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Charter or the Company’s by-laws or the Delaware General Corporation Law (“DGCL”) or otherwise.
To the extent that a change in the DGCL (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Charter or the Company’s by-laws and this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. 
  

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 9. 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.

  
 10. 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. 
  
 11. Amendments, Etc. 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. 
  
 12. 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. 
  
 13. 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, the Charter, Company by-law or otherwise) of the otherwise indemnifiable hereunder. 
  
 14. Binding Effect, Etc. 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, executors and personal and legal
representatives. This Agreement shall continue in effect 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. 
  
 15. Severability. The provisions of this Agreement shall be severable
in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable in any respect, and the validity and
enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired and shall remain enforceable to the fullest extent permitted by law. 
  

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 16. 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. 
  
 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of this
             day of                     , 2004. 
  

			
	RCN CORPORATION
		
	By	 	 
	 	 	 Name:

	 	 	 Title:

		
	 	 	 
	 	 	[Name of Indemnitee]


  

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