Virgin Media 2006 Annual Report Download - page 249

but not, however, for the entire 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. PROCEDURAL MATTERS
(a) Determination of Reviewing Party. The obligations of the Company set forth in Section 2 hereof other than the
obligations of the Company set forth in Section 2(c) shall not apply if the Reviewing Party shall determine within sixty (60) days of
the Indemnitee’s written demand in accordance with Article VII, Section 3 of the Bylaws, that Indemnitee is not permitted to be so
indemnified under applicable law, provided, however, that
(i) if the Reviewing Party determines that Indemnitee substantively is not permitted to be indemnified in whole or in
part under applicable law, and the Indemnitee commences 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 within sixty (60) days of receiving notice of such determination,
then the determination by the Reviewing Party or such aspect so challenged shall have no effect; and
(ii) if there is no determination by the Reviewing Party within sixty (60) days of the Indemnitee’s written demand as
described in Article VII, Section 3 of the By−Laws, the requisite determination of entitlement to indemnification shall, to the
fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification,
absent (A) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (B) a final judicial determination
that all or any part of such indemnification is prohibited under applicable law; provided, however, that such sixty (60) day
period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity
making the determination with respect to entitlement to indemnification in good faith requires such additional time in order to
make the determination.
(b) Burden of Proof; Procedure. 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. Each of the Indemnitee and the Company shall be entitled to present evidence
to the Reviewing Party, to comment to the Reviewing Party on the evidence presented by the other party, and to communicate with
and make representations to the Reviewing Party (so long as the other party is given a reasonable opportunity to be present at any oral
presentation or to review and respond to any written presentation). The Reviewing Party will communicate its determination to the
parties without any specification of findings or
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Source: VIRGIN MEDIA INVESTM, 10−K, March 01, 2007