{"id":40794,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/indemnification-agreement-at-home-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-at-home-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/indemnification-agreement-at-home-corp.html","title":{"rendered":"Indemnification Agreement &#8211; At Home Corp."},"content":{"rendered":"<pre>\n                           INDEMNIFICATION AGREEMENT\n\n     This Agreement, made and entered into this ___ day of ________________,\n1997 ('Agreement'), by and between At Home Corporation, a Delaware corporation\n('Company'), and _____________________________ ('Indemnitee'):\n\n     WHEREAS, highly competent persons have become more reluctant to serve\nprivately- and publicly-held corporations as directors or in other capacities\nunless they are provided with adequate protection through insurance or adequate\nindemnification against inordinate risks of claims and actions against them\narising out of their service to and activities on behalf of the corporation; and\n\n     WHEREAS, directors, officers, and other persons in service to corporations\nor business enterprises are being increasingly subjected to expensive and time-\nconsuming litigation relating to, among other things, matters that traditionally\nwould have been brought only against the Company or business enterprise itself;\nand\n\n     WHEREAS, the uncertainties relating to such insurance and to\nindemnification have increased the difficulty of attracting and retaining such\npersons; and\n\n     WHEREAS, the Board of Directors of the Company (the 'Board') has determined\nthat the increased difficulty in attracting and retaining such persons is\ndetrimental to the best interests of the Company's stockholders and that the\nCompany should act to assure such persons that there will be increased certainty\nof such protection in the future; and\n\n     WHEREAS, it is reasonable, prudent and necessary for the Company\ncontractually to obligate itself to indemnify such persons to the fullest extent\npermitted by applicable law so that they will service or continue to serve the\nCompany free from undue concern that they will not be so indemnified; and\n\n     WHEREAS, this Agreement is a supplement to and in furtherance of the\nCertificate of Incorporation and the Bylaws of the Company and any resolutions\nadopted pursuant thereto, and shall not be deemed a substitute therefor, nor to\ndiminish or abrogate any rights of Indemnitee thereunder; and\n\n     WHEREAS, the Certificate of Incorporation, the Bylaws and the Delaware\ndirector indemnification statute each is nonexclusive, and therefore each\ncontemplates that contracts may be entered into with respect to indemnification\nof directors, officers and employees; and\n\n     WHEREAS, it is reasonable, prudent and necessary for the Company\ncontractually to obligate itself to indemnify, and to advance expenses on behalf\nof, such persons to the fullest extent permitted by applicable law so that they\nwill serve or continue to serve the Company free from undue concern that they\nwill not be so indemnified; and\n\n \n     WHEREAS, Indemnitee is willing to serve, continue to serve and to take on\nadditional service for or on behalf of the Company on the condition that he be\nso indemnified;\n\n     NOW, THEREFORE, in consideration of the premises and the covenants\ncontained herein, the Company and Indemnitee do hereby covenant and agree as\nfollows:\n\n     Section 1.  Services by Indemnitee.  Indemnitee agrees to serve and\/or\n                 ----------------------\ncontinue to serve as a director, officer, employee and\/or agent of the Company\nand, and at the request of the Company, as a director, officer, employee, agent\nand\/or fiduciary of another corporation, partnership, joint venture, trust,\nemployee benefit plan or other enterprise.  Indemnitee may at any time and for\nany reason resign from such position (subject to any other contractual\nobligation or any obligation imposed by operation of law), in which event the\nCompany shall have no obligation under this Agreement to continue Indemnitee in\nsuch position.  This Agreement shall not be deemed an employment contract\nbetween the Company (or any of its subsidiaries) and Indemnitee.  Indemnitee\nspecifically acknowledges that Indemnitee's employment with the Company (or any\nof its subsidiaries), if any, is at will, and that Indemnitee may be discharged\nat any time for any reason, with or without cause, except as may be otherwise\nprovided in any written employment contract between Indemnitee and the Company\n(or any of its subsidiaries), other applicable formal severance policies duly\nadopted by the Board, or, with respect to service as a director of the Company,\nby the Company's Certificate of Incorporation, Bylaws, and the General\nCorporation Law of the State of Delaware.  The foregoing notwithstanding, this\nAgreement shall continue in force after Indemnitee has ceased to serve as an\nofficer, director, employee and\/or agent of the Company or as a director,\nofficer, employee, agent and\/or fiduciary of another corporation, partnership,\njoint venture, trust, employee benefit plan or other enterprise.\n\n     Section 2.  Indemnification - General.  The Company shall indemnify, and\n                 -------------------------\nadvance Expenses (as hereinafter defined) to, Indemnitee (a) as provided in this\nAgreement and (b) (subject to the provisions of this Agreement) to the fullest\nextent permitted by applicable law in effect on the date hereof and as amended\nfrom time to time.  The rights of Indemnitee provided under the preceding\nsentence shall include, but shall not be limited to, the rights set forth in the\nother Sections of this Agreement.\n\n     Section 3.  Proceedings Other Than Proceedings by or in the Right of the\n                 ------------------------------------------------------------\nCompany.  Indemnitee shall be entitled to the rights of indemnification provided\n-------\nin this Section 3 if, by reason of his Corporate Status (as hereinafter\ndefined), he is, or is threatened to be made, a party to or a participant in any\nthreatened, pending, or completed Proceeding (as hereinafter defined), other\nthan a Proceeding by or in the right of the Company.  Pursuant to this Section\n3, Indemnitee shall be indemnified against all Expenses, judgments, penalties,\nfines and amounts paid in settlement (including all interest, assessments and\nother charges paid or payable in connection with or in respect of such Expenses,\njudgments, penalties, fines and amounts paid in settlement) actually and\nreasonably incurred by him or on his behalf in connection with such Proceeding\nor any claim, issue or matter therein, if he acted in good faith and in a manner\nhe reasonably believed to be in or not opposed to the best interests of the\nCompany and, with respect to any criminal Proceeding, had no reasonable cause to\nbelieve his conduct was unlawful.\n\n                                      -2-\n\n \n     Section 4.  Proceedings by or in the Right of the Company.  Indemnitee\n                 ---------------------------------------------\nshall be entitled to the rights of indemnification provided in this Section 4\nif, by reason of his Corporate Status, he is, or is threatened to be made, a\nparty to or a participant in any threatened, pending or completed Proceeding\nbrought by or in the right of the Company to procure a judgment in its favor.\nPursuant to this Section, Indemnitee shall be indemnified against all Expenses\n(including all interest, assessments and other charges paid or payable in\nconnection with or in respect of such Expenses) actually and reasonably incurred\nby him or on his behalf in connection with such Proceeding if he acted in good\nfaith and in a manner he reasonably believed to be in or not opposed to the best\ninterests of the Company; provided, however, that, if applicable law so\nprovides, no indemnification against such Expenses shall be made in respect of\nany claim, issue or matter in such Proceeding as to which Indemnitee shall have\nbeen adjudged to be liable to the Company unless and to the extent that the\nCourt of Chancery of the State of Delaware, or the court in which such\nProceeding shall have been brought or is pending, shall determine that such\nindemnification may be made.\n\n     Section 5.  Partial Indemnification.  Notwithstanding any other provision\n                 -----------------------\nof this Agreement, to the extent that Indemnitee is, by reason of his Corporate\nStatus, a party to (or a participant in) and is successful, on the merits or\notherwise, in defense of any Proceeding, he shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection\ntherewith.  If Indemnitee is not wholly successful in defense of such Proceeding\nbut is successful, on the merits or otherwise, as to one or more but less than\nall claims, issues or matters in such Proceeding, the Company shall indemnify\nIndemnitee against all Expenses actually and reasonably incurred by him or on\nhis behalf in connection with each successfully resolved claim, issue or matter.\nFor purposes of this Section and without limitation, the termination of any\nclaim, issue or matter in such a Proceeding by dismissal, with or without\nprejudice, shall be deemed to be a successful result as to such claim, issue or\nmatter.  If Indemnitee is entitled under any provision of this agreement to\nindemnification by the Company for some or a portion of the Expenses, judgments,\npenalties, fines and amounts paid in settlement (including all interest,\nassessments and other charges paid or payable in connection with or in respect\nof such Expenses, judgments, penalties, fines and amounts paid in settlement)\nactually and reasonably incurred by him or on his behalf in connection with such\nProceeding or any claim, issue or matter therein, but not, however, for the\ntotal amount thereof, the Company shall nevertheless indemnify Indemnitee for\nthe portion to which Indemnitee is entitled.\n\n     Section 6.  Indemnification for Additional Expenses.\n                 ----------------------------------------\n\n     (a) The Company shall indemnify Indemnitee against any and all Expenses\nand, if requested by Indemnitee, shall (within twenty (20) business days of such\nrequest) advance such Expenses to Indemnitee, which are incurred by Indemnitee\nin connection with any action brought by Indemnitee for (i) indemnification or\nadvance payment of Expenses by the Company under this Agreement or any other\nagreement or bylaw of the Company now or hereafter in effect; or (ii) recovery\nunder any directors' and officers' liability insurance policies maintained by\nthe Company, regardless of whether Indemnitee ultimately is determined to be\nentitled to such indemnification, advance expense payment or insurance recovery,\nas the case may be.\n\n                                      -3-\n\n \n     (b) Notwithstanding any other provision of this Agreement, to the extent\nthat Indemnitee is, by reason of his Corporate Status, a witness in any\nProceeding to which Indemnitee is not a party, he shall be indemnified against\nall Expenses actually and reasonably incurred by him or on his behalf in\nconnection therewith.\n\n     Section 7.  Advancement of Expenses.  The Company shall advance all\n                 -----------------------\nreasonable Expenses incurred by or on behalf of Indemnitee in connection with\nany Proceeding within twenty (20) days after the receipt by the Company of a\nstatement or statements from Indemnitee requesting such advance or advances from\ntime to time, whether prior to or after final disposition of such Proceeding.\nSuch statement or statements shall reasonably evidence the Expenses incurred by\nIndemnitee and shall include or be preceded or accompanied by an undertaking by\nor on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately\nbe determined that Indemnitee is not entitled to be indemnified against such\nExpenses.  Notwithstanding the foregoing, the obligation of the Company to\nadvance Expenses pursuant to this Section 7 shall be subject to the condition\nthat, if, when and to the extent that the Company determines that Indemnitee\nwould not be permitted to be indemnified under applicable law, the Company shall\nbe entitled to be reimbursed, within thirty (30) days of such determination, by\nIndemnitee (who hereby agrees to reimburse the Company) for all such amounts\ntheretofore paid; provided, however, that if Indemnitee has commenced or\n                  --------  -------\nthereafter commences legal proceedings in a court of competent jurisdiction to\nsecure a determination that Indemnitee should be indemnified under applicable\nlaw, any determination made by the Company that Indemnitee would not be\npermitted to be indemnified under applicable law shall not be binding and\nIndemnitee shall not be required to reimburse the Company for any advance of\nExpenses until a final judicial determination is made with respect thereto (as\nto which all rights of appeal therefrom have been exhausted or lapsed).\n\n     Section 8.  Procedure for Determination of Entitlement to Indemnification.\n                 --------------------------------------------------------------\n\n     (a) To obtain indemnification under this Agreement, Indemnitee shall submit\nto the Company a written request, including therein or therewith such\ndocumentation and information as is reasonably available to Indemnitee and is\nreasonably necessary to determine whether and to what extent Indemnitee is\nentitled to indemnification.  The Secretary of the Company shall, promptly upon\nreceipt of such a request for indemnification, advise the Board in writing that\nIndemnitee has requested indemnification.\n\n     (b) Upon written request by Indemnitee for indemnification pursuant to the\nfirst sentence of Section 8(a) hereof, a determination, if required by\napplicable law, with respect to Indemnitee's entitlement thereto shall be made\nin the specific case at the election of Indemnitee, by any of the following\nprocedures:  (i) by a majority vote of the Disinterested Directors (as\nhereinafter defined), even though less than a quorum of the Board, or (ii)  by\nIndependent Counsel in a written opinion to the Board, a copy of which shall be\ndelivered to Indemnitee or (iii) by the stockholders of the Company; and, if it\nis so determined that Indemnitee is entitled to indemnification, payment to\nIndemnitee shall be made within seven (7) business days after such\ndetermination.  Indemnitee shall cooperate with the person, persons or entity\nmaking such determination with respect to Indemnitee's entitlement to\nindemnification, including providing to such person, persons or entity upon\nreasonable advance request any \n\n                                      -4-\n\n \ndocumentation or information which is not privileged or otherwise protected from\ndisclosure and which is reasonably available to Indemnitee and reasonably\nnecessary to such determination. Any costs or expenses (including reasonable\nattorneys' fees and disbursements) incurred by Indemnitee in so cooperating with\nthe person, persons or entity making such determination shall be borne by the\nCompany (irrespective of the determination as to Indemnitee's entitlement to\nindemnification) and the Company hereby indemnifies and agrees to hold\nIndemnitee harmless therefrom.\n\n     (c) In the event the determination of entitlement to indemnification is to\nbe made by Independent Counsel pursuant to Section 8(b) hereof, the Independent\nCounsel shall be selected as provided in this Section 8(c).  The Independent\nCounsel shall be selected by Indemnitee (unless Indemnitee shall request that\nsuch selection be made by the Board of Directors, in which event the Board shall\nselect such counsel and give written notice to Indemnitee of the identity of\nsuch Independent Counsel), and Indemnitee shall give written notice to the\nCompany advising it of the identity of the Independent Counsel so selected.  In\neither event, Indemnitee or the Company, as the case may be, may, within ten\n(10) days after such written notice of selection shall have been given, deliver\nto the Company or to Indemnitee, as the case may be, a written objection to such\nselection; provided, however, that such objection may be asserted only on the\n           --------  -------\nground that the Independent Counsel so selected does not meet the requirements\nof 'Independent Counsel' as defined in Section 17 of this Agreement, and the\nobjection shall set forth with particularity the factual basis of such\nassertion.  If such written objection is so made and substantiated, the\nIndependent Counsel so selected may not serve as Independent Counsel unless and\nuntil such objection is withdrawn or a court has determined that such objection\nis without merit.  If, within twenty (20) days after submission by Indemnitee of\na written request for indemnification pursuant to Section 8(a) hereof, no\nIndependent Counsel shall have been selected and not objected to, either the\nCompany or Indemnitee may petition the Court of Chancery of the State of\nDelaware for resolution of any objection which shall have been made by the\nCompany or Indemnitee to the other's selection of Independent Counsel and\/or for\nthe appointment as Independent Counsel of a person selected by the Court or by\nsuch other person as the Court shall designate, and the person with respect to\nwhom all objections are so resolved or the person so appointed shall act as\nIndependent Counsel under Section 8(b) hereof.  The Company shall pay any and\nall reasonable fees and expenses of Independent Counsel incurred by such\nIndependent Counsel in connection with acting pursuant to Section 8(b) hereof,\nand the Company shall pay all reasonable fees and expenses incident to the\nprocedures of this Section 8(c), regardless of the manner in which such\nIndependent Counsel was selected or appointed.  Upon the due commencement of any\njudicial proceeding or arbitration pursuant to Section 10(a)(iii) of this\nAgreement, Independent Counsel shall be discharged and relieved of any further\nresponsibility in such capacity (subject to the applicable standards of\nprofessional conduct then prevailing).\n\n     (d) The Company shall not be required to obtain the consent of Indemnitee\nto the settlement of any Proceeding which the Company has undertaken to defend\nif the Company assumes full and sole responsibility for such settlement and such\nsettlement grants Indemnitee a complete and unqualified release in respect of\nthe potential liability.  The Company shall not be \n\n                                      -5-\n\n \nliable for any amount paid by Indemnitee in settlement of any Proceeding that is\nnot defended by the Company, unless the Company has consented in writing to such\nsettlement, which consent shall not be unreasonably withheld.\n\n     (e) In the event the Company shall be obligated to advance the expenses for\nany Proceeding against Indemnitee, the Company, if appropriate, shall be\nentitled to assume the defense of such proceeding, upon the delivery to\nIndemnitee of written notice of its election to do so.  After delivery of such\nnotice and the retention of such counsel by the Company, the Company will not be\nliable to Indemnitee under this Agreement for any fees of counsel subsequently\nincurred by Indemnitee with respect to the same Proceeding, provided that (a)\nIndemnitee shall have the right to employ his own counsel in any such proceeding\nat Indemnitee's expense; (b) Indemnitee shall have the right to employ his own\ncounsel in connection with any such Proceeding, at the expense of the Company,\nif such counsel serves in a review, observer, advice and counseling capacity and\ndoes not otherwise materially control or participate in the defense of such\nProceeding; and (c) if (i) the employment of counsel by Indemnitee has been\npreviously authorized by the Company, (ii) Indemnitee shall have reasonably\nconcluded that there may be a conflict of interest between the Company and\nIndemnitee in the conduct of any such defense or (iii) the Company shall not, in\nfact, have employed counsel to assume the defense of such Proceeding, then the\nreasonable fees and expenses of Indemnitee's counsel shall be at the expense of\nthe Company.\n\n     Section 9.  Presumptions and Effect of Certain Proceedings.\n                 -----------------------------------------------\n\n     (a) In making a determination with respect to entitlement to\nindemnification or the advancement of expenses hereunder, the person or persons\nor entity making such determination shall presume that Indemnitee is entitled to\nindemnification or advancement of expenses under this Agreement if Indemnitee\nhas submitted a request for indemnification or the advancement of expenses in\naccordance with Section 8(a) of this Agreement, and the Company shall have the\nburden of proof to overcome that presumption in connection with the making by\nany person, persons or entity of any determination contrary to that presumption.\nNeither the failure of the Company (including the Board or independent legal\ncounsel) to have made a determination prior to the commencement of any action\npursuant to this Agreement that indemnification is proper in the circumstances\nbecause Indemnitee has met the applicable standard of conduct, nor an actual\ndetermination by the Company (including the Board or independent legal counsel)\nthat Indemnitee has not met such applicable standard of conduct, shall be a\ndefense to the action or create a presumption that Indemnitee has not met the\napplicable standard of conduct.\n\n     (b) If the person, persons or entity empowered or selected under Section 8\nof this Agreement to determine whether Indemnitee is entitled to indemnification\nshall not have made a determination within sixty (60) days after receipt by the\nCompany of the request therefor, the requisite determination of entitlement to\nindemnification shall be deemed to have been made and Indemnitee shall be\nentitled to such indemnification, absent (i) a misstatement by Indemnitee of a\nmaterial fact, or an omission of a material fact necessary to make Indemnitee's\nstatement not materially misleading, in connection with the request for\nindemnification, or (ii) a prohibition of \n\n                                      -6-\n\n \nsuch indemnification under applicable law; provided, however, that such 60-day\n                                           --------  -------\nperiod may be extended for a reasonable time, not to exceed an additional thirty\n(30) days, if the person, persons or entity making the determination with\nrespect to entitlement to indemnification in good faith requires such additional\ntime for the obtaining or evaluating of documentation and\/or information\nrelating thereto; and provided, further, that the foregoing provisions of this\n                      --------  -------\nSection 9(b) shall not apply (i) if the determination of entitlement to\nindemnification is to be made by the stockholders pursuant to Section 8(b) of\nthis Agreement and if (A) within fifteen (15) days after receipt by the Company\nof the request for such determination the Board of Directors has resolved to\nsubmit such determination to the stockholders for their consideration at an\nannual meeting thereof to be held within seventy-five (75) days after such\nreceipt and such determination is made thereat, or (B) a special meeting of\nstockholders is called within fifteen (15) days after such receipt for the\npurpose of making such determination, such meeting is held for such purpose\nwithin sixty (60) days after having been so called and such determination is\nmade thereat, or (C) a written consent of stockholders is solicited within\nfifteen (15) days after such receipt for the purpose of making such\ndetermination, and such consent is obtained within sixty (60) days after such\nsolicitation, or (ii) if the determination of entitlement to indemnification is\nto be made by Independent Counsel pursuant to Section 8(b) of this Agreement.\n\n     (c) The termination of any Proceeding or of any claim, issue or matter\ntherein, by judgment, order, settlement or conviction, or upon a plea of nolo\n                                                                         ----\ncontendere or its equivalent, shall not (except as otherwise expressly provided\n----------\nin this Agreement) of itself adversely affect the right of Indemnitee to\nindemnification or create a presumption that Indemnitee did not act in good\nfaith and in a manner which he reasonably believed to be in or not opposed to\nthe best interests of the Company or, with respect to any criminal Proceeding,\nthat Indemnitee had reasonable cause to believe that his conduct was unlawful.\n\n     (d) For purposes of any determination of 'good faith,' Indemnitee shall be\ndeemed to have acted in 'good faith' if Indemnitee's action is based on the\nrecords or books of account of the Company or relevant enterprise, including\nfinancial statements, or on information supplied to Indemnitee by the officers\nof the Company or relevant enterprise in the course of their duties, or on the\nadvice of legal counsel for the Company or relevant enterprise or on information\nor records given or reports made to the Company or relevant enterprise by an\nindependent certified public accountant or by an appraiser or other expert\nselected with reasonable care by the Company or relevant enterprise.  The\nprovisions of this Section 9(d) shall not be deemed to be exclusive or to limit\nin any way the other circumstances in which Indemnitee may be deemed to have met\nthe applicable standard of conduct set forth in this Agreement.\n\n     (e) The knowledge and\/or actions, or failure to act, of any other director,\nofficer, agent or employee of the Company or relevant enterprise shall not be\nimputed to Indemnitee for purposes of determining the right to indemnification\nunder this Agreement.\n\n                                      -7-\n\n \n     Section 10.  Remedies of Indemnitee.\n                  -----------------------\n\n     (a) In the event that (i) a determination is made pursuant to Section 8 of\nthis Agreement that Indemnitee is not entitled to indemnification under this\nAgreement, (ii) advancement of Expenses is not timely made pursuant to Section 7\nof this Agreement, (iii) no determination of entitlement to indemnification\nshall have been made pursuant to Section 8(b) of this Agreement within ninety\n(90) days after receipt by the Company of the request for indemnification, (iv)\npayment of indemnification is not made pursuant to Section 5 or 6 of this\nAgreement within twenty (20) days after receipt by the Company of a written\nrequest therefor, or (v) payment of indemnification is not made within seven (7)\nbusiness days after a determination has been made that Indemnitee is entitled to\nindemnification, Indemnitee shall be entitled to an adjudication by the Court of\nChancery of the State of Delaware of his entitlement to such indemnification or\nadvancement of Expenses.  Alternatively, Indemnitee, at his option, may seek an\naward in arbitration to be conducted by a single arbitrator pursuant to the\nCommercial Arbitration Rules of the American Arbitration Association.\nIndemnitee shall commence such proceeding seeking an adjudication or an award in\narbitration within one hundred eighty (180) days following the date on which\nIndemnitee first has the right to commence such proceeding pursuant to this\nSection 10(a); provided, however, that the foregoing clause shall not apply in\n               --------  -------\nrespect of a proceeding brought by Indemnitee to enforce his rights under\nSection 5 of this Agreement.\n\n     (b) In the event that a determination shall have been made pursuant to\nSection 8(b) of this Agreement that Indemnitee is not entitled to\nindemnification, any judicial proceeding or arbitration commenced pursuant to\nthis Section 10 shall be conducted in all respects as a de novo trial, or\n                                                        -- ----\narbitration, on the merits and Indemnitee shall not be prejudiced by reason of\nthat adverse determination.  If a Change of Control shall have occurred, in any\njudicial proceeding or arbitration commenced pursuant to this Section 10, the\nCompany shall have the burden of proving that Indemnitee is not entitled to\nindemnification or advancement of Expenses, as the case may be.\n\n     (c) If a determination shall have been made pursuant to Section 8(b) of\nthis Agreement that Indemnitee is entitled to indemnification, the Company shall\nbe bound by such determination in any judicial proceeding or arbitration\ncommenced pursuant to this Section 10, absent (i) a misstatement by Indemnitee\nof a material fact, or an omission of a material fact necessary to make\nIndemnitee's statement not materially misleading, in connection with the request\nfor indemnification, or (ii) a prohibition of such indemnification under\napplicable law.\n\n     (d) In the event that Indemnitee, pursuant to this Section 10, seeks a\njudicial adjudication of or an award in arbitration to enforce his rights under,\nor to recover damages for breach of, this Agreement, Indemnitee shall be\nentitled to recover from the Company, and shall be indemnified by the Company\nagainst, any and all expenses (of the types described in the definition of\nExpenses in Section 17 of this Agreement) actually and reasonably incurred by\nhim in such judicial adjudication or arbitration, but only if he prevails\ntherein.  If it shall be determined in said judicial adjudication or arbitration\nthat Indemnitee is entitled to receive part but not all of the indemnification\nor advancement of expenses sought, the expenses incurred by Indemni-\n\n                                      -8-\n\n \ntee in connection with such judicial adjudication or arbitration shall be\nappropriately prorated. The Company shall indemnify Indemnitee against any and\nall Expenses and, if requested by Indemnitee, shall (within twenty (20) days\nafter receipt by the Company of a written request therefor) advance such\nexpenses to Indemnitee, which are incurred by Indemnitee in connection with any\naction brought by Indemnitee for indemnification or advance of Expenses from the\nCompany under this Agreement or under any directors' and officers' liability\ninsurance policies maintained by the Company, regardless of whether Indemnitee\nultimately is determined to be entitled to such indemnification, advancement of\nExpenses or insurance recovery, as the case may be.\n\n     (e) The Company shall be precluded from asserting in any judicial\nproceeding or arbitration commenced pursuant to this Section 10 that the\nprocedures and presumptions of this Agreement are not valid, binding and\nenforceable and shall stipulate in any such court or before any such arbitrator\nthat the Company is bound by all the provisions of this Agreement.\n\n     Section 11.  Non-Exclusivity; Survival of Rights; Insurance; Subrogation.\n                  ------------------------------------------------------------\n\n     (a) The rights of indemnification and to receive advancement of Expenses as\nprovided by this Agreement shall not be deemed exclusive of any other rights to\nwhich Indemnitee may at any time be entitled under applicable law, the\nCertificate of Incorporation, the Bylaws, any agreement, a vote of stockholders\nor a resolution of directors, or otherwise.  No amendment, alteration or repeal\nof this Agreement or of any provision hereof shall limit or restrict any right\nof Indemnitee under this Agreement in respect of any action taken or omitted by\nsuch Indemnitee in his Corporate Status prior to such amendment, alteration or\nrepeal.  To the extent that a change in the General Corporation Law of the State\nof Delaware, whether by statute or judicial decision, permits greater\nindemnification or advancement of Expenses than would be afforded currently\nunder the Company's Bylaws and this Agreement, it is the intent of the parties\nhereto that Indemnitee shall enjoy by this Agreement the greater benefits so\nafforded by such change.  No right or remedy herein conferred is intended to be\nexclusive of any other right or remedy, and every other right and remedy shall\nbe cumulative and in addition to every other right and remedy given hereunder or\nnow or hereafter existing at law or in equity or otherwise.  The assertion or\nemployment of any right or remedy hereunder, or otherwise, shall not prevent the\nconcurrent assertion or employment of any other right or remedy.\n\n     (b) To the extent that the Company maintains an insurance policy or\npolicies providing liability insurance for directors, officers, employees, or\nagents of the Company or of any other corporation, partnership, joint venture,\ntrust, employee benefit plan or other enterprise which such person serves at the\nrequest of the Company, Indemnitee shall be covered by such policy or policies\nin accordance with its or their terms to the maximum extent of the coverage\navailable for any such director, officer, employee or agent under such policy or\npolicies.\n\n     (c) In the event of any payment under this Agreement, the Company shall be\nsubrogated to the extent of such payment to all of the rights of recovery of\nIndemnitee, who shall execute all papers required and take all action necessary\nto secure such rights, including execu-\n\n                                      -9-\n\n \ntion of such documents as are necessary to enable the Company to bring suit to\nenforce such rights.\n\n     (d) The Company shall not be liable under this Agreement to make any\npayment of amounts otherwise indemnifiable hereunder if and to the extent that\nIndemnitee has otherwise actually received such payment under any insurance\npolicy, contract, agreement or otherwise.\n\n     (e) The Company's obligation to indemnify or advance expenses hereunder to\nIndemnitee who is or was serving at the request of the Company as a director,\nofficer, employee, agent and\/or fiduciary of any other corporation, partnership,\njoint venture, trust, employee benefit plan or other enterprise shall be reduced\nby any amount Indemnitee has actually received as indemnification or advancement\nof expenses from such other corporation, partnership, joint venture, trust,\nemployee benefit plan or other enterprise.\n\n     Section 12.  Duration of Agreement.  This Agreement shall continue until\n                  ---------------------\nand terminate upon the later of:  (a) ten (10) years after the date that\nIndemnitee shall have ceased to serve as a director, officer, employee and\/or\nagent of the Company or of any other corporation, partnership, joint venture,\ntrust, employee benefit plan or other enterprise which Indemnitee served at the\nrequest of the Company; or (b) the final termination of any Proceeding then\npending in respect of which Indemnitee is granted rights of indemnification or\nadvancement of expenses hereunder and of any proceeding commenced by Indemnitee\npursuant to Section 10 of this Agreement relating thereto.  This Agreement shall\nbe binding upon the Company and its successors and assigns and shall inure to\nthe benefit of Indemnitee and his heirs, executors and administrators.\n\n     Section 13.  Severability.  If any provision or provisions of this\n                  ------------\nAgreement shall be held to be invalid, illegal or unenforceable for any reason\nwhatsoever:  (a) the validity, legality and enforceability of the remaining\nprovisions of this Agreement (including without limitation, each portion of any\nSection of this Agreement containing any such provision held to be invalid,\nillegal or unenforceable, that is not itself invalid, illegal or unenforceable)\nshall not in any way be affected or impaired thereby; (b) such provision or\nprovisions shall be deemed reformed to the extent necessary to conform to\napplicable law and to give the maximum effect to the intent of the parties\nhereto; and (c) to the fullest extent possible, the provisions of this Agreement\n(including, without limitation, each portion of any Section of this Agreement\ncontaining any such provision held to be invalid, illegal or unenforceable, that\nis not itself invalid, illegal or unenforceable) shall be construed so as to\ngive effect to the intent manifested thereby.\n\n     Section 14.  Exception to Right of Indemnification or Advancement of\n                  -------------------------------------------------------\nExpenses.  Except as provided in Section 6(a) of this Agreement, Indemnitee\n--------\nshall not be entitled to indemnification or advancement of Expenses under this\nAgreement with respect to any Proceeding brought by Indemnitee (other than a\nProceeding by Indemnitee to enforce his rights under this Agreement), or any\nclaim therein prior to a Change in Control, unless the bringing of such\nProceeding or making of such claim shall have been approved by the Board of\nDirectors.\n\n                                      -10-\n\n \n     Section 15.  Identical Counterparts.  This Agreement may be executed in one\n                  ----------------------\nor more counterparts, each of which shall for all purposes be deemed to be an\noriginal but all of which together shall constitute one and the same Agreement.\n\n     Section 16.  Headings.  The headings of the paragraphs of this Agreement\n                  --------\nare inserted for convenience only and shall not be deemed to constitute part of\nthis Agreement or to affect the construction thereof.\n\n     Section 17.  Definitions.  For purposes of this Agreement:\n                  -----------\n\n     (a) 'Change in Control' means a change in control of the Company occurring\nafter the Effective Date of a nature that would be required to be reported in\nresponse to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any\nsimilar item on any similar schedule or form) promulgated under the Securities\nExchange Act of 1934, as amended (the 'Act'), whether or not the Company is then\nsubject to such reporting requirement; provided, however, that, without\n                                       --------  -------\nlimitation, such a Change in Control shall be deemed to have occurred if after\nthe Effective Date (i) any 'person' (as such term is used in Sections 13(d) and\n14(d) of the Act) acquires 'beneficial ownership' (as defined in Rule 13d-3\nunder the Act), directly or indirectly, (other than as a result of an Indirect\nTransfer which does not result in a Change in Control of a Stockholder (as each\nsuch term is defined in the Stockholders Agreement) of securities of the Company\nrepresenting twenty percent (20%) or more of the combined voting power of the\nCompany's then outstanding securities without the prior approval of at least\ntwo-thirds of the members of the Board in office immediately prior to such\nperson attaining such percentage interest or (ii) there occurs a proxy contest,\nor the Company is a party to a merger, consolidation, sale of assets, plan of\nliquidation or other reorganization not approved by at least two-thirds of the\nmembers of the Board then in office, as a consequence of which members of the\nBoard in office immediately prior to such transaction or event constitute less\nthan a majority of the Board thereafter.  Notwithstanding the foregoing, a\nChange in Control shall not be deemed to have occurred so long as the members of\nthe TCI Stockholder Group (as defined in the Stockholders Agreement) are the\nbeneficial owners of securities of the Company representing fifty percent or\nmore of the combined voting power of the Company's outstanding securities.\n\n     (b) 'Corporate Status' describes the status of a person who is or was a\ndirector, officer, employee, fiduciary or agent of the Company or of any other\ncorporation, partnership, joint venture, trust, employee benefit plan or other\nenterprise which such person is or was serving at the request of the Company.\n\n     (c) 'Disinterested Director' means a director of the Company who is not and\nwas not a party to the Proceeding in respect of which indemnification is sought\nby Indemnitee.\n\n     (d) 'Effective Date' means ______________, 1996.\n\n     (e) 'Expenses' shall include all reasonable attorneys' fees, retainers,\ncourt costs, transcript costs, fees of experts, witness fees, travel expenses,\nduplicating costs, printing and binding costs, telephone charges, postage,\ndelivery service fees, and all other disbursements \n\n                                      -11-\n\n \nor expenses of the types customarily incurred in connection with prosecuting,\ndefending, preparing to prosecute or defend, investigating, being or preparing\nto be a witness in, or otherwise participating in, a Proceeding.\n\n     (f) 'Independent Counsel' means a law firm, or a member of a law firm, that\nis experienced in matters of corporation law and neither presently is, nor in\nthe past two years has been, retained to represent:  (i) the Company or\nIndemnitee in any matter material to either such party, or (ii) any other party\nto the Proceeding giving rise to a claim for indemnification hereunder.\nNotwithstanding the foregoing, the term 'Independent Counsel' shall not include\nany person who, under the applicable standards of professional conduct then\nprevailing, would have a conflict of interest in representing either the Company\nor Indemnitee in an action to determine Indemnitee's rights under this\nAgreement.  The Company agrees to pay the reasonable fees of the Independent\nCounsel referred to above and to fully indemnify such counsel against any and\nall Expenses, claims, liabilities and damages arising out of or relating to this\nAgreement or its engagement pursuant hereto.\n\n     (g) 'Proceeding' includes any threatened, pending or completed action,\nsuit, arbitration, alternate dispute resolution mechanism, investigation,\ninquiry, administrative hearing or any other actual, threatened or completed\nproceeding, whether brought by or in the right of the Corporation or otherwise\nand whether civil, criminal, administrative or investigative, in which\nIndemnitee was, is, may be or will be involved as a party or otherwise, by\nreason of the fact that Indemnitee is or was a director, officer, employee\nand\/or agent of the Company, by reason of any action taken by him or of any\ninaction on his part while acting as director, officer, employee and\/or agent of\nthe Company, or by reason of the fact that he is or was serving at the request\nof the Company as a director, officer, employee, agent or fiduciary of another\ncorporation, partnership, joint venture, trust or other enterprise; in each case\nwhether or not he is acting or serving in any such capacity at the time any\nliability or expense is incurred for which indemnification or advancement of\nexpenses can be provided under this Agreement; except one (i) initiated by an\nIndemnitee pursuant to Section 10 of this Agreement to enforce his rights under\nthis Agreement or (ii) pending on or before the Effective Date.\n\n     (h) 'Stockholders Agreement' means that certain Amended and Restated\nStockholders' Agreement, dated as of August 1, 1996, by and among the\nCorporation and certain of its stockholders, as such agreement may be amended\nfrom time to time.\n\n     Section 18.  Enforcement.\n                  ------------\n\n     (a) The Company expressly confirms and agrees that it has entered into this\nAgreement and assumed the obligations imposed on it hereby in order to induce\nIndemnitee to serve as a director, officer, employee and\/or agent of the\nCompany, and the Company acknowledges that Indemnitee is relying upon this\nAgreement in serving as a director, officer, employee and\/or agent of the\nCompany.\n\n     (b) This Agreement constitutes the entire agreement between the parties\nhereto with respect to the subject matter hereof and supersedes all prior\nagreements and under-\n\n                                      -12-\n\n \nstandings, oral, written and implied, between the parties hereto with respect to\nthe subject matter hereof.\n\n     Section 19.  Modification and Waiver.  No supplement, modification or\n                  -----------------------\namendment of this Agreement shall be binding unless executed in writing by both\nof the parties hereto.  No waiver of any of the provisions of this Agreement\nshall be deemed or shall constitute a waiver of any other provisions hereof\n(whether or not similar) nor shall such waiver constitute a continuing waiver.\n\n     Section 20.  Notice by Indemnitee.  Indemnitee agrees promptly to notify\n                  --------------------\nthe Company in writing upon being served with any summons, citation, subpoena,\ncomplaint, indictment, information or other document relating to any Proceeding\nor matter which may be subject to indemnification or advancement of Expenses\ncovered hereunder.  The failure of Indemnitee to so notify the Company shall not\nrelieve the Company of any obligation which it may have to Indemnitee under this\nAgreement or otherwise.\n\n     Section 21.  Notices.  All notices, requests, demands and other\n                  -------\ncommunications hereunder shall be in writing and shall be deemed to have been\nduly given if (i) delivered by hand and receipted for by the party to whom said\nnotice or other communication shall have been directed, (ii) mailed by certified\nor registered mail, return receipt requested, with postage prepaid, on the third\nbusiness day after the date on which it is so mailed, (iii) dispatched by\nrecognized overnight courier with fees prepaid, on the first business day after\ndispatch or (iv) transmitted by facsimile (confirmed by first class mail), on\nthe date of transmission:\n\n     (a) If to Indemnitee, to the address and facsimile number listed on the\nsignature page hereto.\n\n     (b)  If to the Company to:\n\n               At Home Corporation\n               425 Broadway\n               Redwood City, CA 94063\n               Facsimile:  (415) 944-8500\n               Attention:  David G. Pine, Esq.\n\n               with a copy to:\n\n               Fenwick &amp; West LLP\n               Two Palo Alto Square\n               Suite 800\n               Palo Alto, CA 94306\n               Facsimile:  (415) 494-1417\n               Attention:  Gordon K. Davidson, Esq.\n\n                                      -13-\n\n \nor to such other address or facsimile number as may have been furnished to\nIndemnitee by the Company or to the Company by Indemnitee, as the case may be.\n\n     Section 22.  Contribution.  To the fullest extent permissible under\n                  ------------\napplicable law, if the indemnification provided for in this Agreement is\nunavailable to Indemnitee for any reason whatsoever, the Company, in lieu of\nindemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee,\nwhether for judgments, fines, penalties, excise taxes, amounts paid or to be\npaid in settlement and\/or for Expenses, in connection with any claim relating to\nan indemnifiable event under this Agreement, in such proportion as is deemed\nfair and reasonable in light of all of the circumstances of such Proceeding in\norder to reflect (i) the relative benefits received by the Company and\nIndemnitee as a result of the event(s) and\/or transaction(s) giving cause to\nsuch Proceeding; and\/or (ii) the relative fault of the Company (and its\ndirectors, officers, employees and agents) and Indemnitee in connection with\nsuch event(s) and\/or transaction(s).\n\n     Section 23.  Governing Law; Submission to Jurisdiction; Appointment of\n                  ---------------------------------------------------------\nAgent for Service of Process.  This Agreement and the legal relations among the\n----------------------------\nparties shall be governed by, and construed and enforced in accordance with, the\nlaws of the State of Delaware, without regard to its conflict of laws rules.\nExcept with respect to any arbitration commenced by Indemnitee pursuant to\nSection 10(a) of this Agreement, the Company and Indemnitee hereby irrevocably\nand unconditionally (i) agree that any action or proceeding arising out of or in\nconnection with this Agreement shall be brought only in the Chancery Court of\nthe State of Delaware (the 'Delaware Court'), and not in any other state or\nfederal court in the United States of America or any court in any other country,\n(ii) consent to submit to the exclusive jurisdiction of the Delaware Court for\npurposes of any action or proceeding arising out of or in connection with this\nAgreement, (iii) appoint, to the extent such party is not a resident of the\nState of Delaware, irrevocably RL&amp;F Service Corp., One Rodney Square, 10th\nFloor, 10th and King Streets, Wilmington, Delaware 19801 as its agent in the\nState of Delaware as such party's agent for acceptance of legal process in\nconnection with any such action or proceeding against such party with the same\nlegal force and validity as if served upon such party personally within the\nState of Delaware, (iv) waive any objection to the laying of venue of any such\naction or proceeding in the Delaware Court, and (v) waive, and agree not to\nplead or to make, any claim that any such action or proceeding brought in the\nDelaware Court has been brought in an improper or otherwise inconvenient forum.\n\n     Section 24.  Miscellaneous.  Use of the masculine pronoun shall be deemed\n                  -------------\nto include usage of the feminine pronoun where appropriate.\n\n                                      -14-\n\n \n     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the\nday and year first above written.\n\nATTEST                                AT HOME CORPORATION\n\nBy:                                   By:\n   --------------------------------      ----------------------------------\n   Name:                                 Name:\n   Title:                                Title:\n\n\n                                      INDEMNITEE\n\n \n                                      -------------------------------------\n                                      Signature\n\n \n                                      -------------------------------------\n                                      Print Name\n\n                         Address:\n                                      -------------------------------------\n                                      \n                                      -------------------------------------\n                                      \n                                      -------------------------------------\n                         Facsimile:   (   )\n                                      -------------------------------------\n\n                                      -15-\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6782],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9553,9557],"class_list":["post-40794","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-at-home-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-corporate","corporate_contracts_types-corporate__indemn"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40794","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40794"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40794"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40794"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40794"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}