EXHIBIT 10.13
FORM OF
INDEMNIFICATION AGREEMENT
(DIRECTORS)
This AGREEMENT is made and entered into this ___ day of _______,
200__, by and between Liberty Media International, Inc., a Delaware corporation
(the "Company"), and [NAME OF DIRECTOR] (the "Indemnitee").
WHEREAS, the Company believes that it is essential to attract and
retain as directors and officers the most capable persons available;
WHEREAS, both the Company and Indemnitee recognize the omnipresent
risk of lawsuits and other claims that are routinely filed or made against
directors and officers of companies operating in the public arena in today's
environment, and the attendant costs of defending even wholly frivolous lawsuits
or claims;
WHEREAS, it has become increasingly difficult to obtain insurance
against the risk of personal liability of directors and officers on terms
providing reasonable protection to the individual at reasonable cost to the
companies, and the uncertainties relating to the availability of such insurance
have increased the difficulty of attracting and retaining qualified directors
and officers;
WHEREAS, the Bylaws of the Company provide certain indemnification
rights to the directors and officers of the Company, and its directors and
officers have relied on this assurance of indemnification, as authorized by
Delaware law;
WHEREAS, Indemnitee is concerned that the protection provided by the
Company's Bylaws and available insurance may not be adequate in the present
circumstances, and the Company believes that Indemnitee would be more willing to
serve as a director, and continue to serve, and to take on additional
responsibilities for or on behalf of the Company with the additional protection
afforded by this Agreement;
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability and to encourage Indemnitee's continued
service to the Company, and in view of the increasing difficulty in obtaining
and maintaining satisfactory insurance coverage and Indemnitee's reasonable
reliance on assurance of indemnification, the Company wishes to provide in this
Agreement for the indemnification of and the advancing of expenses to Indemnitee
to the fullest extent permitted by law (whether partial or complete) 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;
WHEREAS, it is reasonable, prudent and appropriate for the Company
contractually to obligate itself to indemnify and to advance expenses on behalf
of directors and officers to the fullest extent permitted by applicable law so
that they will serve or continue to
serve the Company free from undue concern that they will not be so indemnified;
and
WHEREAS, Indemnitee has agreed to serve as a director of the Company
in reliance on the protections and benefits afforded to him under and in
accordance with this Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants and agreements contained herein and Indemnitee's continuing to serve
as a director of the Company, the parties hereto agree as follows:
1. Certain Definitions:
(a) Change in 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), 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 such Act), directly or indirectly, of securities of the
Company representing 15% or more of the total voting power represented by
the Company's then outstanding Voting Securities; (ii) during any period
of two consecutive years (not including any period prior to the date
hereof), 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 at least a majority
thereof; (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation or other 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) more than 50% 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; or (iv) there
occurs any other event of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response
to any similar item on any similar schedule or form) promulgated under
such Act, whether or not the Company is then subject to such reporting
requirement. As used herein, the term "Voting Securities" means any
securities of the Company which vote generally in the election of
directors.
(b) Claim: any threatened, pending or completed action, suit
or proceeding (including any mediation, arbitration or other alternative
dispute resolution
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proceeding), whether instituted by or in the right of the Company or by
any other party, or any inquiry or investigation that Indemnitee in good
faith believes might lead to the institution of any such action, suit or
proceeding, whether civil (including intentional and unintentional tort
claims), 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: 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, employee benefit plan,
trust or other enterprise, or by reason of anything done or not done by
Indemnitee in any such capacity.
(e) Independent Legal Counsel: 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 indemnification agreements or under the Company's Bylaws).
(f) Reviewing Party: 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 Company's Board of Directors who is not a
party to the particular Claim for which Indemnitee is seeking
indemnification, or Independent Legal Counsel.
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 fullest 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
amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such Expenses,
judgments, fines, penalties or amounts paid in settlement) of such Claim.
If so requested by Indemnitee, the Company shall advance (within five
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
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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 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 State of Colorado
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 agrees 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 or Company Bylaw now or hereafter in effect relating to Claims
for Indemnifiable Events, the Company shall seek legal advice only from
Independent Legal Counsel selected 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 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
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.
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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 five business days of
such request) advance such expenses to Indemnitee, which are incurred by
Indemnitee in connection with any action brought by Indemnitee (whether
pursuant to Section 17 of this Agreement or otherwise) for (i)
indemnification or advance payment of Expenses by the Company under this
Agreement or any other agreement or Company Bylaw now or hereafter in
effect relating to Claims for Indemnifiable Events 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. 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 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 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 or create a
presumption that Indemnitee has not met any particular standard of conduct
or did not have any particular belief.
8. Nonexclusivity; Subsequent Change in Law. The rights of the
Indemnitee hereunder shall be in addition to any other rights Indemnitee
may have under the Company's Bylaws or under Delaware law, or otherwise.
To the extent that a change in Delaware law (whether by statute or
judicial decision) permits greater indemnification by agreement than would
be afforded currently under the Company's Bylaws or 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. Amendments; Waiver. 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.
11. 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.
12. 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, Bylaw or otherwise)
of the amounts otherwise indemnifiable hereunder.
13. 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 (including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all
of the business or assets of the Company), assigns, spouses, heirs,
executors and personal and legal representatives. This Agreement shall
continue in effect regardless of whether Indemnitee continues to serve as
a director of the Company or of any other enterprise at the Company's
request.
14. 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) is 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.
15. Effective Date. This Agreement shall be effective as of
the date hereof and shall apply to any claim for indemnification by the
Indemnitee on or after such date.
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.
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17. Equitable Relief. The parties hereto agree that Indemnitee
may enforce this Agreement by seeking specific performance hereof or other
injunctive or equitable relief, without any necessity of showing
irreparable harm or posting a bond, which requirements are hereby waived,
and that by seeking such specific performance or relief, Indemnitee shall
not be precluded from seeking or obtaining any other relief to which he
may be entitled.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date set forth above.
LIBERTY MEDIA INTERNATIONAL, INC.
By:_____________________________
Name:
Title:
INDEMNITEE
________________________________
[NAME OF DIRECTOR]
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