Exhibit 10.10
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered into this
__ day of July, 2000, by and among Tyco International Ltd., a Bermuda company
("Indemnitor"), TyCom Ltd., a Bermuda company ("TyCom"), and Tyco Submarine
Systems Ltd., a Delaware company ("TSSL").
W I T N E S S E T H:
WHEREAS, TSSL is the defendant in that certain civil action, number 00 Civ.
3860, pending in the United States District Court for the Southern District of
New York, styled "Global Crossing Ltd. and South American Crossing (Subsea) Ltd.
v. Tyco Submarine Systems Ltd." (the "Litigation");
WHEREAS, TSSL is the respondent in that certain arbitration proceeding before
the American Arbitration Association, Demand for and Notice of Arbitration,
dated May 22, 2000, styled "Atlantic Crossing Ltd., GT Landing Corp., GT U.K.
Ltd., Global Telesystems GmbH, and GT Netherlands BV against Tyco Submarine
Systems Ltd." (the "Arbitration");
WHEREAS, TyCom is the indirect parent of TSSL; and
WHEREAS, Indemnitor seeks to provide comfort and indemnity in the event of any
liability which may attach to TSSL or to TyCom ( the "Indemnitees") arising out
of or relating to the Litigation and the Arbitration, and any other claim,
counterclaim, action or proceeding relating thereto or arising therefrom
(collectively, the "Actions").
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is expressly acknowledged, the parties hereto agree as
follows:
1. Indemnitor shall protect, indemnify, defend, and hold harmless the
Indemnitees, their respective shareholders and subsidiaries, and the officers,
directors, employees, agents, successors and assigns of each of them
(Indemnitees and such persons collectively referred to as "Indemnitees'
Indemnified Persons"), from and against any and all claims, judgments, losses,
liabilities, expenses (including interest and penalties), and damages,
including, without limitation, compensatory and punitive damages, presently
asserted or subsequently awarded in any or all of the Actions; provided,
however, that the Indemnitor shall not be required to protect, indemnify, defend
or hold harmless hereunder any of Indemnitees' Indemnified Persons from or
against any claim, judgment, loss, liability, expense or damage arising out of
the award of any injunctive relief granted in connection with the Actions,
provided further, that the exclusion in the foregoing proviso shall not extend
to any claim, judgement, loss, liability, expense or damage arising out of any
claim by a third party as a result of action or refusal or forbearance to act by
Indemnitees' Indemnified Person required by any such injunctive relief.
Indemnitor's obligations hereunder shall include, without limitation, paying
when due, or reimbursing Indemnitees' Indemnified Persons for, without demand,
all costs of defense of
Indemnitees' Indemnified Persons including, without limitation, all reasonable
attorneys' fees and legal expenses incurred by Indemnitees' Indemnified Persons
in relation to the Actions. Indemnitor shall have full control over all matters
pertaining to the conduct of the Actions including, subject to Section 4 hereof,
the settlement thereof. This Agreement shall become effective without any
further action required by any of the parties hereto upon the consummation of
the proposed initial public offering of the shares of TyCom.
2. Indemnitees shall provide Indemnitor with such cooperation, assistance and
information as Indemnitor may reasonably request with respect to the Actions or
any insurance claim relating thereto. Indemnitees shall make available and leave
open for Indemnitor's inspection at reasonable times and upon reasonable notice
all documentation (including, without limitation, files, data, books and
records) relating in any manner to the Actions, and Indemnitor may, at its
expense, make copies of any documentation as it may reasonably request.
Indemnitees shall afford Indemnitor reasonable access to Indemnitees' officers,
directors, employees and agents as may be designated by Indemnitor to assist
Indemnitor's counsel in connection with the Actions. Such assistance may
include, without limitation, interviews or attendance at or participation in
depositions, legal proceedings or settlement negotiations. Indemnitor shall
reimburse Indemnitees' Indemnified Persons for any reasonable out-of-pocket
expenses incurred by Indemnitees' Indemnified Persons in providing any
documentation, and shall reimburse Indemnitees for any reasonable out-of-pocket
costs incurred in connection with making any officers, directors, employees or
agents available to assist Indemnitor as provided hereinabove. Each of
Indemnitees' Indemnified Persons shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of such
Indemnitees' Indemnified Person.
3. Indemnitees shall cooperate fully with Indemnitor in any effort by
Indemnitor to reach any reasonable compromise or settlement of any action with
any party to the Actions (or any insurance claim related thereto), including by
participating in or providing the means to effect through the use of its
commercial facilities (including, without limitation, its capabilities to
design, manufacture, install, operate and maintain undersea fiber cable systems)
on terms not less favorable than would be offered to third parties generally to
effect any such compromise or settlement based, in whole or in part, on
commercial arrangements with any such party. Indemnitor shall pay and bear any
loss, liability, expense or damage to any Indemnitees' Indemnified Persons to
the extent resulting from use of Indemnitees' commercial facilities on terms
that are less favorable to Indemnitees than would be offered to third parties
generally in connection with any compromise or settlement of any of the Actions
to that same extent as if such loss, liability, damage or expense was an amount
awarded in the Actions for which Indemnitor would be responsible hereunder.
4. Any compromise or settlement that is consummated by Indemnitor with a party
to such Action in a manner materially adverse to Indemnitees shall, unless (i)
Indemnitor shall pay and bear all of the amounts, losses, liabilities and
expenses and damages payable pursuant to such settlement to the same extent as
if they were amounts awarded
in the Actions for which Indemnitor is responsible and (ii) such compromise or
settlement contains full releases in customary form of all Indemnitees'
Indemnified Persons in respect of the Actions, require the prior consent of a
majority of the independent members of the board of directors of TyCom (which
consent shall also be binding upon TSSL), which consent shall not be
unreasonably withheld.
5. This Agreement is made without any admission of liability by Indemnitees or
Indemnitor and shall not be interpreted as an admission of liability.
Indemnitees and Indemnitor expressly deny any such liability.
6. Any failure on the part of Indemnitees' Indemnified Persons to enforce its
rights under this Agreement shall not be construed as a subsequent waiver of any
such right.
7. All notices, requests, and other communications to any party hereunder shall
be in writing (including facsimile transmission) and shall be given,
if to Indemnitor, to:
The Zurich Centre
Second Xxxxx
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00, Xxxxxxx
Fax: 000-000-0000
Attention: Chief Corporate Counsel
if to TSSL, to:
00 Xxxxxxxx Xxxxxxxx, Xxxx. X
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attention: President
If to TyCom, to:
The Zurich Centre
Second Floor, Suite 201
90 Xxxxx Bay Road
Pembroke HM 08, Bermuda
Fax: 000-000-0000
Attention: President
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed
not to have been received until the next succeeding business day in the place of
receipt. In the event that TyCom does not issue a notice hereunder within a
reasonable period after a request to do so by a majority of the independent
members of the board of directors of TyCom, then Indemnitor and TyCom agree that
such notice may be given on behalf of TyCom by any independent member of its
board of directors.
8. This Agreement may be amended, modified, superseded or cancelled, and any of
the terms, covenants, or conditions hereof may waived, only by an instrument in
writing signed by a majority of the independent members of the board of
directors of TyCom, or each of the parties hereto or, in the case of a waiver,
by or on behalf of the party waiving compliance.
9. This Agreement, as amended by any written amendments, constitutes the
entire agreement between the parties, written or oral, with respect to the
subject matter
hereof.
10. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to the conflict of laws
principles
thereof.
11. This Agreement and the covenants, terms and conditions set forth herein
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
TYCO INTERNATIONAL LTD. TYCO SUBMARINE SYSTEMS LTD.
By:_______________________ By:____________________________
Its:______________________ Title:_________________________
TYCOM LTD.
By:_______________________
Its:______________________
