Item 15. Indemnification of Directors and Officers
QVC, Inc., Affiliate Investment, Inc.; Affiliate Relations Holdings, Inc.; AMI 2, Inc.; ER
Marks, Inc.; QVC Global Holdings I, Inc.; QVC Global Holdings II, Inc., HSN, Inc., AST Sub, Inc., QVC Deutschland GP, Inc., NLG Merger Corp., Ventana
Television, Inc., Ventana Television Holdings, Inc.
Delaware law
Section 145 of the General Corporation Law of the State of Delaware ("DGCL") provides, generally, that a corporation shall
have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (except actions by or in the right
of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation against all expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. A corporation may similarly
indemnify such person for expenses actually and reasonably incurred by such person in connection with the defense or settlement of any action or suit by or in the right of the corporation, provided
that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in the case of claims, issues and matters as
to which such person shall have been adjudged liable to the corporation, provided that a court shall have determined, upon application, that, despite the adjudication of liability but in view of all
of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
Section 102(b)(7)
of the DGCL provides, generally, that the certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to
the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision may not eliminate or limit the liability of a director (i) for
any breach of the director's duty
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of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of Title 8 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. No such provision may eliminate or limit the liability of a
director for any act or omission occurring prior to the date when such provision became effective.
QVC, Inc.
Article Six of our restated certificate of incorporation provides as follows:
No
director of the corporation (which shall include any stockholder of the corporation exercising any of the powers or duties otherwise conferred or imposed upon the board of directors
by the General Corporation Law of the State of Delaware) shall be personally liable for monetary damages to the corporation or its stockholders for any breach of fiduciary duty of such director as a
director to the full extent permitted pursuant to Section 102(b)(7) of the General Corporation Law of the State of Delaware.
Article VII of our bylaws provides in relevant part (with capitalized terms used but not defined herein having the meanings assigned to
them in the bylaws) as follows:
Section 7-1. Indemnification. Subject to Section 7-3 of this Article VII, the Corporation
shall indemnify any person who is a Shareholder Director or officer of the Corporation or any Shareholder Director or officer who is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (any such person is hereinafter referred to in this Article VII as a "Shareholder
Director or officer") against expenses (including, but not limited to, attorneys' fees), judgments, fines and amounts paid in settlement, actually and reasonably incurred by such Shareholder Director
or officer ("liabilities"), to the fullest extent now or hereafter permitted by law in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (as used in this Article VII, "Proceeding" or, in the plural, "Proceedings"), brought or threatened to be brought against such Shareholder Director or officer by
reason of the fact that he or she is or was serving in any such capacity or in any other capacity on behalf of the Corporation, its parent or any of its subsidiaries.
The
Board by resolution adopted in each specific instance may similarly indemnify any person other than a Shareholder Director or officer (any such person is hereinafter referred to in
this Article VII as an "Other Person") for liabilities incurred by him or her in connection with services rendered by him or her for or at the request of the Corporation, its parent or any of
its subsidiaries.
Section 7-2. Advances. Subject to Section 7-3 of this Article VII, expenses (including, but
not limited to, attorneys' fees) incurred by any Shareholder Director or officer in defending a Proceeding shall be paid by the Corporation in advance of the final disposition of such Proceeding as
authorized by the Board in the specific case upon receipt of an undertaking, by or on behalf of such Shareholder Director or officer, to repay such amount without interest if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Corporation as authorized by law. Advance expenses (including, but not limited to, attorneys' fees) incurred by Other Persons may be
paid if the Board deems appropriate and upon such terms and conditions, including the giving of an undertaking, as the Board deems appropriate.
Section 7-3. Actions Initiated Against the Corporation. Anything in Sections 7-1 or 7-2 of this
Article VII to the contrary notwithstanding, with respect to a Proceeding initiated against the
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Corporation
by any person who is or was a Shareholder Director or officer, or by an indemnified person other than a Shareholder Director or officer who is or was adopted by resolution of the Board as
an Other Person, the Corporation shall not be required to indemnify or to advance expenses (including attorney's fees) to such Shareholder Director, officer or Other Person in connection with
prosecuting such Proceeding (or part thereof) or in defending any counterclaim, cross-claim, affirmative defense, or like claim of the Corporation in such Proceeding (or part thereof) unless such
Proceeding was authorized by the Board.
Section 7-4. Applicability; Survival. The provisions of Sections 7-1 and 7-2 shall be applicable
to all Proceedings commenced before or after the amendment, repeal, or modification of, or adoption of this Article VII, regardless of whether such arise out of acts or omissions which occurred
prior or subsequent to such amendment, repeal, modification or adoption, and shall continue as to a person who has ceased to be a Shareholder Director or officer (or, where and so long as the Board
has authorized indemnification or advancement of expenses to an Other Person in accordance with this Article VII, to an Other Person who has ceased to render services for or at the request of
the Corporation its parent or subsidiaries), and shall inure to the benefit of the heirs, executors and administrators of such a person.
Section 7-5. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who
is or was a Shareholder Director, officer, or Other Person of the Corporation, or is or was serving at the request of the Corporation as a Shareholder Director, officer, or Other Person of another
corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her
status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under law.
Section 7-6. Non-Exclusivity. The indemnification and advancement of the expenses provided by, or granted
pursuant to, this Article VII, shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under these bylaws, agreement,
vote of stockholders or disinterested Stockholder Directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.
We have entered into certain indemnity agreements with certain of our executive officers that require us to indemnify such persons to the
fullest extent permitted by law as soon as practicable, but in any event no later than 30 days after written demand is presented to us, 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 such person requests, we will also advance (within five business days of such request) any and all expenses related to such claims. The indemnification agreements also
set forth certain procedures that will apply in the event of a claim for indemnification and for reimbursement to us if it is found that such person is not entitled to such indemnification under
applicable law.
Affiliate Investment, Inc.
Article Seven of the certificate of incorporation of Affiliate Investment, Inc. provides as follows:
A
director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for an act or omission in the director's capacity as a director, except that
this provision does not eliminate or limit the liability of a director for (i) a breach of a director's duty of
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loyalty
to the Corporation or its shareholders; (ii) an act or omission not in good faith or that involves intentional misconduct or a knowing violation of the law; (iii) a transaction
from which a director received an improper benefit, whether or not the benefit resulted from an action taken within the scope of the director's office; nor (iv) an act or omission for which the
liability of a director is expressly provided for by statute, including § 174 of the Delaware General Corporation Law. Any repeal or amendment of this provision by the shareholders
of the Corporation shall be prospective only, and shall not adversely affect any limitation on the liability of a director of the Corporation existing at the time of such repeal or amendment. In
addition to the circumstances in which a director of the Corporation is not liable as set forth in the preceding sentences, a director shall be exonerated from liability to the fullest extent
permitted by any provision of the Delaware General Corporation Law hereafter enacted that further limits the liability of a director.
Section 5 of Article VII of the bylaws of Affiliate Investment, Inc. provides as follows:
The
corporation shall indemnify its officers, directors, employees and agents to the fullest extent permitted by the General Corporation Law of Delaware. With regard to a breach of
fiduciary duty by a director, no director shall be personally liable for monetary damages to the corporation or its stockholders to the full extent permitted pursuant to Section 102(b)(7) of
the General Corporation Law of Delaware.
Affiliate Relations Holdings, Inc.
Article Seven of the certificate of incorporation of Affiliate Relations Holdings, Inc. provides as follows:
No
director shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director. Notwithstanding the
foregoing sentence, a director shall be liable to the extent provided by applicable law, (i) for breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this Article Seventh shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.
Section 5 of Article VII of the bylaws of Affiliate Relations Holdings, Inc. provides as follows:
The
corporation shall indemnify its officers, directors, employees and agents to the fullest extent permitted by the General Corporation Law of Delaware. With regard to a breach of
fiduciary duty by a director, no director shall be personally liable for monetary damages to the corporation or its stockholders to the full extent permitted pursuant to Section 102(b)(7) of
the General Corporation Law of Delaware.
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AMI 2, Inc.
Article Seven of the certificate of incorporation of AMI 2, Inc. provides as follows:
No
Director of the Corporation shall have any personal liability to the Corporation or its stockholder for monetary damages for breach of fiduciary duty as a Director; provided, however,
that nothing herein shall eliminate or limit the liability of a Director: (1) for any breach of the Director's duty of loyalty to the Corporation or its stockholders; (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (3) under Section 174 of the Delaware General Corporation Law; or (4) for any
transaction from which the Director received an improper benefit.
Article VI of the bylaws of AMI 2, Inc. provides as follows:
Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless to the fullest
extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he, or a person for whom he is the legal representative, is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The corporation
shall be required to indemnify a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors of the corporation.
Section 6.2. Prepayment of Expenses. The corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the payment of expenses incurred by a director or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the director or officer to repay all amounts advanced if it should be ultimately determined that the director or officer is not entitled to be indemnified under
this Article or otherwise.
Section 6.3. Claims. If a claim for indemnification or payment of expenses under this Article is not paid
in full within sixty days after a written claim therefor has been received by the corporation the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the claimant was not entitled to the requested
indemnification or payment of expenses under applicable law.
Section 6.4. Non-Exclusivity of Rights. The rights conferred on any person by this Article VI
shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 6.5. Other Indemnification. The corporation's obligation, if any, to indemnify any person who was
or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or non-profit entity shall be reduced by any amount such
person may
collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.
Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this
Article VI shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.
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ER Marks, Inc.
Article Seven of the certificate of incorporation of ER Marks, Inc. provides as follows:
No
director shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director. Notwithstanding the
foregoing sentence, a director shall be liable to the extent provided by applicable law, (i) for breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this Article Seventh shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.
Section 5 of Article VII of the bylaws of ER Marks, Inc. provides as follows:
The
corporation shall indemnify its officers, directors, employees and agents to the fullest extent permitted by the General Corporation Law of Delaware. With regard to a breach of
fiduciary duty by a director, no director shall be personally liable for monetary damages to the corporation or its stockholders to the full extent permitted pursuant to Section 102(b)(7) of
the General Corporation Law of Delaware.
QVC Global Holdings I, Inc.
Article 7 of the certificate of incorporation of QVC Global Holdings I, Inc. provides as follows:
To
the fullest extent permitted by law, a director of the Corporation shall not be personally liable to the Corporation or to its stockholders for monetary damages for any breach of
fiduciary duty as a director. No amendment to, modification of or repeal of this paragraph 7 shall apply to or have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.
Article 8
of the certificate of incorporation of QVC Global Holdings I, Inc. provides as follows:
The
Corporation shall indemnify, advance expenses, and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a
"Covered Person") who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of
the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys' fees) reasonably incurred by such Covered Person.
Notwithstanding the preceding sentence, except for claims for indemnification (following the final disposition of such Proceeding) or advancement of expenses not paid in full, the Corporation shall be
required to indemnify a Covered Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only if the commencement of such Proceeding (or part thereof) by the Covered
Person was authorized in the specific case by the board of directors of the Corporation. Any amendment, repeal or modification of
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this
paragraph 8 shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.
QVC Global Holdings II, Inc.
Article 7 of the certificate of incorporation of QVC Global Holdings II, Inc. provides as follows:
To
the fullest extent permitted by law, a director of the Corporation shall not be personally liable to the Corporation or to its stockholders for monetary damages for any breach of
fiduciary duty as a director. No amendment to, modification of or repeal of this paragraph 7 shall apply to or have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.
Article 8
of the certificate of incorporation of QVC Global Holdings II, Inc. provides as follows:
The
Corporation shall indemnify, advance expenses, and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a
"Covered Person") who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of
the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys' fees) reasonably incurred by such Covered Person.
Notwithstanding the preceding sentence, except for claims for indemnification (following the final disposition of such Proceeding) or advancement of expenses not paid in full, the Corporation shall be
required to indemnify a Covered Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only if the commencement of such Proceeding (or part thereof) by the Covered
Person was authorized in the specific case by the board of directors of the Corporation. Any amendment, repeal or modification of this paragraph 8 shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.
HSN, Inc.
Article 7 of the certificate of incorporation of HSN, Inc. provides as follows:
A
director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability
(i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. If the DGCL is amended to
authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended. No amendment to, modification of, or repeal of this paragraph 7 shall apply to or have any effect on the liability or alleged liability of any director of
the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.
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Section 1 of Article VIII of the bylaws of HSN, Inc. provides as follows:
(a) Each
person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or a person of whom he is the legal representative is or was, at any time during which these Bylaws are in
effect (whether or not such person continues to serve in such capacity at the time any indemnification or payment of expenses pursuant hereto is sought or at the time any proceeding relating thereto
exists or is brought), a director or officer of the Corporation, or is or was at any such time serving at the request of the Corporation as a director, officer or trustee of another corporation or of
a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Corporation (each such person, an "indemnitee"),
whether the basis of such proceeding is alleged action in an official capacity as a director, officer or trustee or in any other capacity while serving as a director, officer or trustee, shall be
indemnified and held harmless by the Corporation to the fullest
extent authorized by the Law as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith and such indemnification shall continue as to a person who
has ceased to be a director, officer or trustee and shall inure to the benefit of his heirs, executors and administrators; provided, however, that except as provided in Article VIII,
paragraph (c) of these Bylaws, the Corporation shall indemnify any such indemnitee seeking indemnification in connection with a proceeding (or part thereof) initiated by such indemnitee only if
such proceeding (or part thereof) was authorized by the Board. The right to indemnification conferred in this Article VIII shall include the right to be paid by the Corporation the expenses
(including attorney's fees) incurred in defending any such proceeding in advance of its final disposition, such advances to be paid by the Corporation within twenty (20) days after the receipt
by the Corporation of a statement or statements from the claimant requesting such advance or advances from time to time; provided, however, that if the Law requires, the payment of such expenses
incurred by an indemnitee in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee while a director or officer, including, without
limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter, the "undertaking") by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal (a "final disposition") that such indemnitee is not entitled to be
indemnified for such expenses under this Article VIII or otherwise. The rights conferred upon indemnitees in this Article VIII shall be contract rights that vest at the time of such
person's service to or at the request of the Corporation and such rights shall continue as to an indemnitee who has ceased to be a director, officer or trustee and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
(b) To
obtain indemnification under this Article VIII, a claimant shall submit to the Corporation a written request, including therein or therewith such documentation
and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to indemnification. Upon written request by a
claimant for indemnification pursuant to the first sentence of this paragraph (b), a determination, if required by applicable law, with respect to the claimant's entitlement thereto shall be
made as follows: (i) by the Board by a majority vote of the Disinterested Directors (as hereinafter defined), even though
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less
than a quorum, or (ii) by a committee of Disinterested Directors designated by majority vote of the Disinterested Directors, even though less than a quorum, or (iii) if there are no
Disinterested Directors or the Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to the claimant, or (iv) if a
quorum of Disinterested Directors so
directs, by the stockholders of the Corporation. If it is so determined that the claimant is entitled to indemnification, payment to the claimant shall be made within ten (10) days after such
determination.
(c) If
a claim under Article VIII, paragraph (a) of these Bylaws is not paid in full by the Corporation within thirty (30) days after a written claim
pursuant to Article VIII, paragraph (b) of these Bylaws has been received by the Corporation (except in the case of a claim for advancement of expenses, for which the applicable period
is twenty (20) days), the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending
any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standard of conduct which
makes it permissible under the Law for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including the Disinterested Directors, Independent Counsel or stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of conduct set forth in the Law, nor an actual determination by the Corporation (including the Disinterested Directors,
Independent Counsel or stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
(d) If
a determination shall have been made pursuant to Article VIII, paragraph (b) of these Bylaws that the claimant is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial proceeding commenced pursuant to Article VIII, paragraph (c) of these Bylaws.
(e) The
Corporation shall be precluded from asserting in any judicial proceeding commenced pursuant to Article VIII, paragraph (c) of these Bylaws that the
procedures and presumptions of this Article VIII are not valid, binding and enforceable and shall stipulate in such proceeding that the Corporation is bound by all the provisions of this
Article VIII.
(f) The
right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article VIII
(i) shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate, Bylaws, agreement, vote of stockholders or
Disinterested Directors or otherwise and (ii) cannot be terminated by the Corporation, the Board or the stockholders of the Corporation with respect to a person's service prior to the date of
such termination. Any amendment, modification, alteration or repeal of this Article VIII that in any way diminishes, limits, restricts, adversely affects or eliminates any right of an
indemnitee or his successors to indemnification, advancement of expenses or otherwise shall be prospective only and shall not in any way diminish, limit, restrict, adversely affect or eliminate any
such right with respect to any actual or alleged state of facts, occurrence, action or omission then or previously existing, or any action, suit or proceeding previously or thereafter brought or
threatened based in whole or in part upon any such actual or alleged state of facts, occurrence, action or omission.
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(g) The
Corporation may grant rights to indemnification, and rights to be paid by the Corporation the expenses incurred in defending any proceeding in advance of its final
disposition, to any current or former employee or agent of the Corporation to the fullest extent of the provisions of this Article VIII with respect to the indemnification and advancement of
expenses of current or former directors and officers of the Corporation.
(h) If
any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the validity,
legality and enforceability of the remaining provisions of this Article VIII (including, without limitation, each portion of any paragraph of this Article VIII containing any such
provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (2) to the
fullest extent possible, the provisions of this Article VIII (including, without limitation, each such portion of any paragraph of this Article VIII containing any such provision held to
be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
Section 2 of Article VIII of the bylaws of HSN, Inc. provides as follows:
The
Corporation may maintain insurance, at its expense, to protect itself and any current or former director, officer, employee or agent of the Corporation and any current or former
director, officer, trustee, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including any person who serves or served in any such capacity with
respect to any employee benefit plan maintained or sponsored by the Corporation, against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Law.
AST Sub, Inc.
Article VIII of the certificate of incorporation of AST Sub, Inc. provides as follows:
Section 2
of Article VIII of the certificate of incorporation of AST Sub, Inc. provides as follows:
Section 1. Elimination of Certain Liability of Directors. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is
not permitted under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or
is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the
legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment, to the fullest extent permitted by law, only
to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the
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Corporation
to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, amounts paid or to be paid in settlement, and excise taxes or
penalties arising under the Employee Retirement Income Security Act of 1974) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to
a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in
paragraph (b) hereof, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board. The right to indemnification conferred in this Section shall be a contract right and shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the General Corporation Law of the State of Delaware requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section or
otherwise. The Corporation may, by action of the Board, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors
and officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of this Section is not paid in full
by the Corporation within thirty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make it permissible under the General
Corporation Law of the State of Delaware for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its Board, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the
Corporation (including its Board, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, By-law, agreement, vote of stockholders or disinterested directors or otherwise.
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QVC Deutschland GP, Inc.
Section 9 of the certificate of incorporation of QVC Deutschland GP, Inc. provides as follows:
No
director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that this provision shall
not eliminate or limit the liability of a director (a) for any breach of the director's duty of loyalty to the Corporation or its stockholders; (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law; (c) under Section 174 of the Delaware General Corporation Law; or (d) for any
transaction from which the director derived an improper personal benefit. Any repeal or modification of this Article 6.3 shall be prospective only and shall not adversely affect any right or
protection of, or any limitation of the liability of, a director of the Corporation existing at, or arising out of facts or incidents occurring prior to, the effective date of such repeal or
modification.
Article IV of the bylaws of QVC Deutschland GP, Inc. provides as follows:
4.1 Right to Indemnification. The Company shall indemnify any person who was or is party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding"), by reason of the fact that such person is or
was a director or officer of the Company or a constituent corporation absorbed in a consolidation or merger, or is or was serving at the request of the Company or a constituent corporation absorbed in
a consolidation or merger, as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or is or was a director or officer of the Company serving at its
request as an administrator, trustee or other fiduciary of one or more of the employee benefit plans of the Company or other enterprise, against expenses (including attorneys' fees), liability and
loss actually and reasonably incurred or suffered by such person in connection with such proceeding, whether or not the indemnified liability arises or arose from any threatened, pending or completed
proceeding by or in the right of the Company, except to the extent that such indemnification is prohibited by applicable law.
4.2 Advance of Expenses. Expenses incurred by a director or officer of the Company in defending a proceeding
shall be paid by the Company in advance of the final disposition of such proceeding subject to the provisions of any applicable statute.
4.3 Procedure for Determining Permissibility. To determine whether any indemnification or advance of expenses
under this Article IV is permissible, the board of directors by a majority vote of a quorum consisting of directors not parties to such proceeding may, and on request of any person seeking
indemnification or advance of expenses shall be required to, determine in each case whether the applicable standards in any applicable statute have been met, or such determination shall be made by
independent legal counsel if such quorum is not obtainable, or, even if obtainable, a majority vote of a quorum of disinterested directors so directs, provided that, if there has been a change in
control of the Company between the time of the action or failure to act giving rise to the claim for indemnification or advance of expenses and the time such claim is made, at the option of the person
seeking indemnification or advance of expenses, the permissibility of indemnification or advance of expenses shall be determined by independent legal counsel. The reasonable expenses of any director
or officer in prosecuting a successful claim for indemnification, and the fees and expenses of any special legal counsel engaged to determine permissibility of indemnification or advance of expenses,
shall be borne by the Company.
4.4 Contractual Obligation. The obligations of the Company to indemnify a director or officer under this
Article IV, including the duty to advance expenses, shall be considered a contract between
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the
Company and such director or officer, and no modification or repeal of any provision of this Article IV shall affect, to the detriment of the director or officer, such obligations of the
Company in connection with a claim based on any act or failure to act occurring before such modification or repeal.
4.5 Indemnification Not Exclusive; Inuring of Benefit. The indemnification and advance of expenses provided by
this Article IV shall not be deemed exclusive of any other right to which one indemnified may be entitled under any statute, provision of the Certificate of Incorporation, these bylaws,
agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office, and shall
inure to the benefit of the heirs, executors and administrators of any such person.
4.6 Insurance and Other Indemnification. The board of directors shall have the power to (i) authorize the
Company to purchase and maintain, at the Company's expense, insurance on behalf of the Company and on behalf of others to the extent that power to do so has not been prohibited by statute,
(ii) create any fund of any nature, whether or not under the control of a trustee, or otherwise secure any of its indemnification obligations, and (iii) give other indemnification to the
extent permitted by statute.
Ventana Television, Inc.
Section 6.3 of the certificate of incorporation of Ventana Television, Inc. provides as follows:
No
director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that this provision shall
not eliminate or limit the liability of a director for (a) for any breach of the director's duty of loyalty to the Corporation or its stockholders; (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law; (c) under Section 174 of the Delaware General Corporation Law; or (d) for any transaction from which
the director derived an improper personal benefit. Any repeal or modification of this Article 6.3 shall be prospective only and shall not adversely affect any right to protection of, or any
limitation of the liability of, a director of the Corporation existing at, or arising out of facts or incidents occurring prior to, the effective date of such repeal or modification.
Article 6 of the bylaws of Ventana Television, Inc. provides as follows:
6.1. Authorization of Indemnification. Each person who was or is a party or is threatened to be made a party to
or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether by or in the right of the Corporation or
otherwise (a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee, partner (limited or general) or agent of another corporation or of a partnership, joint venture, limited liability company, trust or
other enterprise, including service with respect to an employee benefit plan, shall be (and shall be deemed to have a contractual right to be) indemnified and held harmless by the Corporation (and any
successor to the Corporation by merger or otherwise) to the fullest extent authorized by, and subject to the conditions and (except as provided herein) procedures set forth in the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but any such amendment shall not be deemed to limit or prohibit the rights of indemnification hereunder for past acts or omissions of
any such person insofar as such amendment limits or prohibits the indemnification rights that said law permitted the Corporation to provide prior to such amendment), against all expenses, liabilities
and losses (including attorneys' fees, judgments, fines, ERISA taxes or penalties and amounts paid or to be paid
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in
settlement) reasonably incurred or suffered by such person in connection therewith; provided, however, that the Corporation shall indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person (except for a suit or action pursuant to Section 6.2 hereof) only if such proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation. Persons who are not directors or officers of the Corporation and are not so serving at the request of the Corporation may be similarly indemnified in respect of such
service to the extent authorized at any time by the Board of Directors of the Corporation. The indemnification conferred in this Section 6.1 also shall include the right to be paid by the
Corporation (and such successor) the expenses (including attorneys' fees) incurred in the defense of or other involvement in any such proceeding in advance of its final disposition; provided. however,
that, if and to the extent the Delaware General Corporation Law requires, the payment of such expenses (including attorneys' fees) incurred by a director or officer in advance of the final disposition
of a proceeding shall be made only upon delivery to the Corporation of an undertaking by or on behalf of such director or officer to repay all amounts so paid in advance if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under this Section 6.1 or otherwise; and provided, further, that, such expenses incurred by other employees and agents
may be so paid in advance upon such terms and conditions, if any, as the Board of Directors deems appropriate.
6.2. Right of Claimant to Bring Action Against the Corporation. If a claim under Section 6.1 is not paid
in full by the Corporation within sixty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring an action against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such action. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in connection with any proceeding in advance of its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed or is otherwise not entitled to indemnification under Section 6.1, but the burden of proving such defense shall be on the Corporation. The failure of the
Corporation (in the manner provided under the Delaware General Corporation Law) to have made a determination prior to or after the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law shall not be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct. Unless otherwise specified in an agreement with the claimant, an actual determination by the Corporation (in the manner provided under
the Delaware General Corporation Law) after the commencement of such action that the claimant has not met such applicable standard of conduct shall not be a defense to the action, but shall create a
presumption that the claimant has not met the applicable standard of conduct.
6.3. Non-exclusivity. The rights to indemnification and advance payment of expenses provided by
Section 6.1 hereof shall not be deemed exclusive of any other rights to which those seeking indemnification and advance payment of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.
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Ventana Television Holdings, Inc.
Section 6.3 of the certificate of incorporation of Ventana Television Holdings, Inc. provides as follows:
No
director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that this provision shall
not eliminate or limit the liability of a director for (a) for any breach of the director's duty of loyalty to the Corporation or its stockholders; (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law; (c) under Section 174 of the Delaware General Corporation Law; or (d) for any transaction from which
the director derived an improper personal benefit. Any repeal or modification of this Article 6.3 shall be prospective only and shall not adversely affect any right to protection of, or any
limitation of the liability of, a director of the Corporation existing at, or arising out of facts or incidents occurring prior to, the effective date of such repeal or modification.
Article 6 of the bylaws of Ventana Television Holdings, Inc. provides as follows:
6.1. Authorization of Indemnification. Each person who was or is a party or is threatened to be made a party to
or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether by or in the right of the Corporation or
otherwise (a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee, partner (limited or general) or agent of another corporation or of a partnership, joint venture, limited liability company, trust or
other enterprise, including service with respect to an employee benefit plan, shall be (and shall be deemed to have a contractual right to be) indemnified and held harmless by the Corporation (and any
successor to the Corporation by merger or otherwise) to the fullest extent authorized by, and subject to the conditions and (except as provided herein) procedures set forth in the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but any such amendment shall not be deemed to limit or prohibit the rights of indemnification hereunder for past acts or omissions of
any such person insofar as such amendment limits or prohibits the indemnification rights that said law permitted the Corporation to provide prior to such amendment), against all expenses, liabilities
and losses (including attorneys' fees, judgments, fines, ERISA taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith;
provided, however, that the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person (except for a suit or action
pursuant to Section 6.2 hereof) only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. Persons who are not directors or officers of the
Corporation and are not so serving at the request of the Corporation may be similarly indemnified in respect of such service to the extent authorized at any time by the Board of Directors of the
Corporation. The indemnification conferred in this Section 6.1 also shall include the right to be paid by the Corporation (and such successor) the expenses (including attorneys' fees) incurred
in the defense of or other involvement in any such proceeding in advance of its final disposition; provided. however, that, if and to the extent the Delaware General Corporation Law requires, the
payment of such expenses (including attorneys' fees) incurred by a director or officer in advance of the final disposition of a proceeding shall be made only upon delivery to the Corporation of an
undertaking by or on behalf of such director or officer to repay all amounts so paid in advance if it shall ultimately be determined that such director or officer is not entitled to be indemnified
under this Section 6.1 or otherwise; and provided, further, that, such
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expenses
incurred by other employees and agents may be so paid in advance upon such terms and conditions, if any, as the Board of Directors deems appropriate.
6.2. Right of Claimant to Bring Action Against the Corporation. If a claim under Section 6.1 is not paid
in full by the Corporation within sixty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring an action against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such action. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in connection with any proceeding in advance of its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed or is otherwise not entitled to indemnification under Section 6.1, but the burden of proving such defense shall be on the Corporation. The failure of the
Corporation (in the manner provided under the Delaware General Corporation Law) to have made a determination prior to or after the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law shall not be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct. Unless otherwise specified in an agreement with the claimant, an actual determination by the Corporation (in the manner provided under
the Delaware General Corporation Law) after the commencement of such action that the claimant has not met such applicable standard of conduct shall not be a defense to the action, but shall create a
presumption that the claimant has not met the applicable standard of conduct.
6.3. Non-exclusivity. The rights to indemnification and advance payment of expenses provided by
Section 6.1 hereof shall not be deemed exclusive of any other rights to which those seeking indemnification and advance payment of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.
QVC Rocky Mount, Inc.
Section 55-8-51 of the North Carolina Business Corporation Act ("NCBCA") provides that a corporation may indemnify an individual made a
party to a proceeding because he is or was a director against liability incurred in the proceeding if (1) he conducted himself in good faith; (2) he reasonably believed (a) in the
case of conduct in his official capacity with the corporation, that his conduct was in its best interests; and (b) in all other cases, that his conduct was at least not opposed to its best
interests; and (3) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. However, a corporation may not indemnify a director in connection with
a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or in connection with any other proceeding charging improper personal benefit to him,
whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him.
Section 55-8-52
of the NCBCA provides that unless the Articles of Incorporation state otherwise, requires a corporation to indemnify a director who was wholly successful, on the
merits or otherwise, in the defense of any proceeding to which he was a party because he is or was a director of the corporation against reasonable expenses incurred by him in connection with the
proceeding.
Additionally,
§ 55-8-53 of the NCBCA allows a corporation to advance expenses incurred by a director in defending a proceeding in advance of the final disposition of
such proceeding as authorized by the board of directors in the specific case or as authorized or required under any provision in the
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articles
of incorporation or bylaws or by any applicable resolution or contract upon receipt of an undertaking by or on behalf of the director to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the corporation against such expenses. Section 55-8-56 of the NCBCA provides that a corporation may indemnify and advance expenses to an
officer, employee or agent to the same extent as a director.
Article VII of the bylaws of QVC Rocky Mount, Inc. provides in relevant part (with capitalized terms used but not defined herein
having the meanings assigned to them in the bylaws) as follows:
Section 7.01. Right to Indemnification. Each person who was or is a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal (hereinafter, a "proceeding" and including without
limitation, a proceeding brought by or behalf of the Corporation itself), by reason that he is or was a Director or officer of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or as trustee or administrator under an
employee benefit plan, whether the basis of such proceeding is alleged action in an official capacity as a Director of officer or in any other capacity while serving as a director, officer, partner,
trustee, employee, agent, trustee or administrator, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Act as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than the Act permitted the Corporation to provide
prior to such amendment) against all expense, liability and loss (including attorney's fees, judgments, fines, excise taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith, and such indemnification shall continue as to a person who has ceased to serve in the capacity that initially entitled such person to
indemnification hereunder and shall inure to the benefit of his heirs, executors and administrators; provided, however, that the Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Article VII shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Act so requires, the payment of expenses incurred by a Director or officer in his capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a director or officer, including without limitation, service to an employee benefit plan) in advance of the final disposition of
a proceeding shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such Director or officer, to repay all amounts so advanced if it shall ultimately be determined
that the Director or officer is not entitled to be indemnified under this Section or otherwise.
Section 7.02. Right of Claimant to Bring Suit. If a claim under Section 7.01 hereof is not paid in
full by the Corporation within 90 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to
the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Act for the
Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of
Directors,
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independent
legal counsel, or its shareholder) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has
met the applicable standard of conduct set forth in the act, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its shareholders) that the
claimant has not met the applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
Section 7.03. Nonexclusivity of Rights. The right to indemnification and the advancement and payment of
expenses conferred in this Article VII shall not be exclusive of any other right which any person may have or hereafter acquire under any law (common or statutory), the Corporation's Articles
of Incorporation, these Bylaws, any agreement, the vote of shareholders or disinterested Directors or otherwise.
HSNi, LLC, HSN Holding LLC, Home Shopping Network En Espanol, L.L.C., H.O.T. Networks Holdings (Delaware) LLC, HSN of Nevada LLC,
Ingenious Designs LLC
Delaware Law
Section 18-108 of the DLLC Act provides, generally, that subject to such standards and restrictions, if any, as are set forth in its
limited liability company agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims
and demands whatsoever.
HSN Holding LLC
Section 14 of the company agreement of HSN Holding LLC provides, in relevant part, as follows:
14.3 Indemnification.
(a) To
the fullest extent permitted by law, the Company shall indemnify and hold harmless each Covered Person from and against any and all losses, claims, demands,
liabilities, expenses, judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative
("Claims"), in which the Covered Person may be involved, or threatened to be involved, as a party or otherwise, by reason of its management of the affairs of the Company or which relates to or arises
out of the Company or its property, business or affairs. A Covered Person shall not be entitled to indemnification under this Section 14.3 with respect to any Claim initiated by such Covered
Person unless such Claim (or part thereof) (A) was brought to enforce such Covered Person's rights to indemnification hereunder or (B) was authorized or consented to by the Manager.
Expenses incurred by a Covered Person in defending any Claim shall be paid by the Company in advance of the final disposition of such Claim upon receipt by the Company of an undertaking by or on
behalf of such Covered Person to repay such amount if it shall be ultimately determined that such Covered Person is not entitled to be indemnified by the Company as authorized by this
Section 14.3.
Home Shopping Network En Espanol, L.L.C.
Article 18 of the company agreement of Home Shopping Network En Espanol, L.L.C. provides as follows:
18.1 Members' Indemnification. No Member has or will have any authority to act for or to assume any obligation
or responsibility on behalf of another Member or the Company except as expressly provided in this Agreement or in a writing signed by both Members. In addition to the other
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remedies
specified in this Agreement, each Member agrees to indemnify and hold each other Member harmless from and against any claim, demand, loss, damage, liability or expense of any kind or nature
whatsoever, including reasonable outside attorneys' fees, incurred by or against such other Member and arising out of or resulting from any action taken by the indemnifying Member in violation of the
first sentence of this Section 18.1.
18.2 Indemnification as to Actions or Omissions in Company's Business. Except to the extent otherwise provided
in this Agreement, the Members will cause the Company to indemnify, defend and hold harmless each Member and their respective officers, directors, employees and agents (collectively, "Indemnitees")
from any loss, liability or damage incurred or suffered by any such Indemnitees with respect to any third-party claim by reason of any act performed or omitted to be performed, or alleged to have been
performed or omitted, by such Indemnitees in connection with the Business of the Company (including any judgment, award, settlement, costs and other expenses, and reasonable outside attorneys' fees
incurred in connection with the defense of any actual or threatened claim or action based on any such act or omission); provided that, if an Indemnitee's action or omission to act caused the loss,
liability or damage incurred or suffered, such Indemnitee may not receive indemnification or avoid liability by reason of this provision with respect to any claim as to which the Indemnitee is
adjudged by a final nonappealable decision of a court of competent jurisdiction to have acted in or with fraud, bad faith, gross negligence or willful misconduct. Any such indemnification will be made
promptly following the fixing of the loss, liability or damage incurred or suffered by final nonappealable decision, settlement, contract or otherwise (except that any attorneys' fees and the expenses
of defense may be paid as incurred).
18.3 Indemnification of Board of Directors and Officers. The Members will cause the Company to indemnify the
Directors and officers of the Company.
18.4 Cross Indemnification. As between the Members, no Member will be liable or bear responsibility for more
than its proportionate share (based on its Percentage Interest at the time such liability or obligation arises) of each of the liabilities and obligations of the Company. In the event that either
Member is required to pay, discharge or otherwise bear responsibility for any amount of any liability or obligation of the Company in excess of such Member's proportionate share otherwise than by
reason of such Member's violation of this Agreement, fraud, bad faith, gross negligence or willful misconduct), the other Member agrees to indemnify, hold harmless and reimburse such Member against
and for such other Member's proportion share of such excess. It is the intention of the Members that, following
the operation of this Section, each Member will have borne exactly its proportionate share of the liability or obligation of the Company at issue.
Home Shopping Network En Espanol L.P.
Section 17-108 of the Delaware Revised Uniform Partnership Act provides, generally, that subject to such standards and restrictions, if
any, as are set forth in its partnership agreement, a limited partnership may, and shall have the power to, indemnify and hold harmless any partner or other person from and against any and all claims
and demands whatsoever.
Section 4.1(m) of the limited partnership agreement of Home Shopping Network En Espanol, L.P. provides as follows:
The
General Partner is hereby authorized and empowered in the name of and on behalf of the Partnership to indemnify and hold harmless on behalf of the Partnership any partner or other
person from and against any and all claims and demands whatsoever.
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Section 4.5
of the limited partnership agreement of Home Shopping Network En Espanol, L.P. provides as follows:
No
Article 4 Indemnified Party shall be liable to the Partnership or to the Limited Partners for losses sustained or liabilities incurred as a result of any act or omission by the
Article 4 Indemnified Party if (i) the Article 4 Indemnified Party acted in good faith and in a manner it reasonably believed to be in, or not opposed to, the best interests of
the Partnership and, with respect to any criminal proceeding, bad no reasonable cause to believe its conduct was unlawful and (li) its conduct did not constitute gross negligence, or willful
misconduct.
Section 4.6
of the limited partnership agreement of Home Shopping Network En Espanol, L.P. provides as follows:
(a) Except
as otherwise provided by law, no Article 4 Indemnified Party (as defined below)below) shall be personally liable for the return of any portion of the
Capital Contributions of the Limited Partners or shall be required to pay to the Partnership or any Limited Partner any deficit in any other Partner's Capital Account. No Article 4 Indemnified
Party shall be liable, responsible or accountable to the Partnership or any Limited Partner for (i) any act or omission performed or omitted by any of them or for any costs, damages or
liabilities arising therefrom, or by law, unless that act or omission constituted gross negligence, or willful misconduct; or (ii) except as provided in clause (i) of this
Section 4.6(a) with respect to the person who performed or omitted such acts, any loss due to the negligence, dishonesty or bad faith of any employee, officer, broker, consultant or other agent
of the Partnership, selected, engaged and retained in good faith by the General Partner. The General Partners and the other Article 4 Indemnified Parties may consult with counsel and
accountants in respect of Partnership affairs and be fully protected and justified in any action or inaction which is taken in accordance with the advice or opinion of such counsel or accountants,
provided that they shall have been selected with reasonable care.
(b) The
Partnership shall:
(i) indemnify
and hold harmless the General Partner, the former, present and future members, partners, officers, directors, shareholders, employees and other agents of the
General Partner and its Affiliates and the respective employees, officers, directors, agents, partners, personal representatives, heirs, successors in interest and assignees of any thereof (each, an
"Article 4 Indemnified Party"), from and against any and all damages incurred or suffered by any Article 4 Indemnified Party arising out of or in connection with the Partnership's
business or affairs (including, without limitation, reasonable fees and disbursements of counsel); provided, however, that the Partnership shall not indemnify or hold harmless any Article 4
Indemnified Party with respect to any act or omission which was performed or omitted by it which constituted gross negligence, or willful misconduct; and
(ii) advance
to any Article 4 Indemnified Party expenses for which the Partnership is required to indemnify the Article 4 Indemnified Party pursuant to this
Section 4.6(b), including, without limitation,
legal fees and disbursements of counsel incurred in connection with any claim which may result in indemnification pursuant to this Section 4.6(b), subject to the undertaking of the
Article 4 Indemnified Party to repay such advances if it is ultimately determined that such Article 4 Indemnified Party is not entitled to be indemnified.
(c) The
exculpation provided in Section 4.5 and the indemnification provided in this Section 4.6 shall survive any termination of this Agreement. Any person
who ceases to be an Article 4 Indemnified Party shall remain entitled to exculpation pursuant to Section 4.5 and/or indemnification pursuant to this Section 4.6 for any action or
omission performed or omitted by the person while it was an Article 4 Indemnified Party.
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(d) If
it shall ultimately be determined that an Article 4 Indemnified Party is not entitled to the indemnification provided by this Section 4.6, the
Article 4 Indemnified Party promptly repay to the Partnership the amount of any expenses advanced to such Article 4 Indemnified Party and the amount of all costs of the Partnership in
providing indemnification pursuant to this Agreement.
(e) An
Article 4 Indemnified Party shall not be denied exculpation in whole or in part pursuant to Section 4.5 or indemnification in whole or in part pursuant
to this Section 4.6 because such person has an interest in the transaction with respect to which the indemnification applies if the transaction is otherwise permitted under this Agreement or
otherwise.
Article 7
of the limited partnership agreement of Home Shopping Network En Espanol, L.P. provides as follows:
The
Limited Partnership shall, to the fullest extent to which is it empowered to do so by the Delaware L.P. Act or any other applicable law, indemnify and make advances for
expenses to any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was an employee of the Limited Partnership, against losses, damages, expenses (including attorneys' fees), judgments, fines and amounts
reasonably incurred by him or her in connection with such action, suit or proceeding.
Article 15
of the limited partnership agreement of Home Shopping Network En Espanol, L.P. provides as follows:
15.1 Partners' Indemnification. No Partner has or will have any authority to act for or to assume any obligation
or responsibility on behalf of another Partner or the Limited Partnership except as expressly provided in this Agreement or in a writing signed by all Partners. In addition to the other remedies
specified in this Agreement, each Partner agrees to indemnify and hold each other Partner harmless from and against any claim, demand, loss, damage, liability or expense of any kind or nature
whatsoever, including reasonable outside attorneys' fees, incurred by or against such other Partner and arising out of or resulting from any action taken by the indemnifying Partner in violation of
the first sentence of this Section 15.1.
15.2 Indemnification as to Actions or Omissions in Limited Partnership's Business.
Except
to the extent otherwise provided in this Agreement, the Partners will cause the Limited Partnership to indemnify, defend and hold harmless each Partner and their respective
officers, directors, employees and agents (collectively, "Indemnitees") from any loss, liability or damage incurred or suffered by any such Indemnitees with respect to any third-party claim by reason
of any act performed or omitted to be performed, or alleged to have been performed or omitted, by such Indemnitees in connection with the Business of the Limited Partnership (including any judgment,
award, settlement, costs and other expenses, and reasonable outside attorneys' fees incurred in connection with the defense of any actual or threatened claim or action based on any such act or
omission); provided that, if an Indemnitee's action or omission to act caused the loss, liability or damage incurred or suffered, such Indemnitee may not receive indemnification or avoid liability by
reason of this provision with respect to any claim as to which the Indemnitee is adjudged by a final nonappealable decision of a court of competent jurisdiction to have acted in or with fraud, bad
faith, gross negligence or willful misconduct. Any such indemnification will be made promptly following the fixing of the loss, liability or damage incurred or suffered by final nonappealable
decision, settlement, contract or otherwise (except that any attorneys' fees and the expenses of defense may be paid as incurred).
15.3 Cross Indemnification. As between the Partners, no Partner will be liable or bear responsibility for more
than its proportionate share (based on its Percentage Interest at the time such liability or obligation arises) of each of the liabilities and obligations of the Limited Partnership. In the
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event
that either Partner is required to pay, discharge or otherwise bear responsibility for any amount of any liability or obligation of the Limited Partnership in excess of such Partner's
proportionate share (otherwise than by reason of such Partner's violation of this Agreement, fraud, bad faith, gross negligence or willful misconduct), the other Partner agrees to indemnify, hold
harmless and reimburse such Partner against and for such other Partner's proportion share of such excess. It is the intention of the Partners that, following the operation of this Section, each
Partner will have borne exactly its proportionate share of the liability or obligation of the Limited Partnership at issue.
QVC San Antonio, LLC
Section 101.402 of the Texas Limited Liability Company Act provides that a limited liability company may indemnify a person; pay in
advance or reimburse expenses incurred by a person; and purchase or procure or establish and maintain insurance or another arrangement to indemnify or hold harmless a person.
Article IX of the company agreement of QVC San Antonio, LLC provides in relevant part (with capitalized terms used but not defined
herein having the meanings assigned to them in the company agreement) as follows:
9.3 Indemnification.
To the fullest extent permitted by applicable law, each Shareholder, Director, and officer shall be entitled to indemnification from the Company for any
loss, damage or claim incurred by such Person by reason of any act or omission performed or omitted by such Person in good faith on behalf of the Company and in a manner reasonably believed to be
within the scope of authority conferred on such Person by this Agreement, unless it is finally adjudicated that such loss, damage or claim was incurred by reason of such Person's gross negligence,
willful misconduct or breach of contract; provided, however, that any indemnity under this Section 9.3 shall be provided out of and to the extent of Company assets only, and no Shareholder
shall have any personal liability on account thereof. The indemnification provided by this Section 9.3 shall continue as to a Person who has ceased to serve in the capacity by reason of which
the Person was indemnified under this Section with respect to matters arising during the period the Person served in such capacity, and shall inure to the benefit of the heirs, executors, and
administrators of such Person.
9.4 Advancement
of Expenses. To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Shareholder, Director, or officer in defending
any claim, demand, action, suit or proceeding (including court costs and attorneys' fees) shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Person to repay such amount if it shall be determined that the Person is not entitled to be indemnified
as authorized in Section 9.3 hereof. Notwithstanding any other provision of this Article, the Company may pay or reimburse expenses incurred by a Shareholder, Director, or officer in connection
with his appearance as a witness or other participation in a proceeding at a time when the Shareholder, Director, or officer is not named a defendant or respondent in the proceeding.
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