Exhibit 10.12
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Execution Copy
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made and entered into
this 16th day of October, 2002 between Adelphia Communications Corporation, a
Delaware corporation (the "Company"), and Xxxxxxx Xxxxxxx ("Indemnitee"), a
director of the Company.
WHEREAS, the Indemnitee has been nominated to serve on the Company's board
of directors (the "Board") and agrees, on the condition that he be so
indemnified, to serve as a director of the Company and in such capacity will
render services to the Company;
WHEREAS, the Company is aware that because of the increased exposure to
litigation subjecting directors to expensive litigation risks, talented and
experienced persons are increasingly reluctant to serve or continue to serve as
directors and officers of corporations unless they are appropriately
indemnified;
WHEREAS, the Company is also aware that statutes and judicial decisions
regarding the duties of directors and officers are often difficult to apply,
ambiguous or conflicting and therefore fail to provide directors with adequate
guidance regarding the proper course of action;
WHEREAS, the Company desires to attract and retain the services of highly
experienced and capable individuals, such as Indemnitee, to serve as directors
of the Company and to indemnify its directors so as to provide them with the
maximum protection permitted by law;
WHEREAS, the Company believes that it is fair and proper to protect the
Company's directors from the risk of judgments, settlements and other expenses
which may occur as a result of their service to the Company, even in cases in
which such persons received no personal profit or were not otherwise culpable;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Indemnitee, intending to be legally bound, hereby
agree as follows:
SECTION 1. Definitions. For purposes of this Agreement, the following terms
shall have the meanings set forth below:
(a) "Change of Control" shall be deemed to have occurred in any one of
the following circumstances occurring after the date hereof: (i) there
shall have occurred an event required to be reported with respect to the
Company in response to Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any similar item or any similar schedule or form) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
regardless of whether the Company is then subject to such reporting
requirement; (ii) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) shall have become the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 15% or more of the combined voting
power of the Company's then outstanding voting securities; (iii) the
Company is a party to a merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which members of
the Board in office immediately prior to such transaction or event
constitute less than a majority of the Board thereafter; (iv) all or
substantially all the assets of the Company are sold or disposed of in a
transaction or series of related transactions; or (v) the individuals who
on the date hereof constitute the Board (including, for this purpose, any
new director whose election or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the directors
then still in office who were directors on the date hereof) cease for any
reason to constitute at least a majority of the Board.
(b) "Enterprise" means any Person of which Indemnitee is or was a
Fiduciary.
(c) "Expenses" means all direct and indirect costs (including, without
limitation, attorneys' fees, retainers, court costs, transcripts, fees of
experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and all
other disbursements or out-of-pocket expenses) actually, reasonably and
customarily incurred in connection with (i) any Proceeding, (ii)
establishing or enforcing any right to indemnification or advancement of
expenses under this Agreement, applicable law, any other agreement or
provision of the Company's Certificate of Incorporation or By-laws now or
hereafter in effect or otherwise, or (iii) the review and preparation of
this Agreement on behalf of Indemnitee; provided, however, that "Expenses"
shall not include any Liabilities.
(d) "Fiduciary" means an individual serving as a director, officer,
trustee, general partner, managing member, fiduciary, board of directors'
committee member, employee or agent of (i) the Company, (ii) any resulting
corporation in connection with a consolidation or merger to which the
Company is a party, or (iii) any other Person (including an employee
benefit plan) at the request of the Company, including any service with
respect to an employee benefit plan, its participants or its beneficiaries.
(e) "Independent Counsel" means a nationally recognized law firm, or a
member of a nationally recognized law firm, that is experienced in matters
of corporate law and neither currently is, nor in the five years previous
to its selection or appointment has been, retained to represent (i) the
Company or the Indemnitee in any matter material to either such party
(other than with respect to matters concerning the rights of Indemnitee
under this Agreement or of other indemnities under similar indemnification
agreements) or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder. For the avoidance of doubt, any law
firm or member of a law firm that shall have advised either party with
respect to the review and preparation of this Agreement shall not be
Independent Counsel for the purposes of this Agreement.
(f) "Liabilities" means liabilities of any type whatsoever incurred by
reason of (i) the fact that Indemnitee is or was a Fiduciary, or (ii) any
action taken (or failure to act) by him or on his behalf in his capacity as
a Fiduciary, including, but not limited to, any judgments, fines (including
any excise taxes assessed on Indemnitee with respect to an employee benefit
plan), ERISA excise taxes and penalties, and penalties and amounts paid in
settlement of any Proceeding (including all interest, assessments and other
charges paid or payable in connection with or in respect of such judgments,
fines, penalties or amounts paid in settlement).
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(g) "Person" means any individual, partnership, joint venture, firm,
corporation, association, limited liability company, trust, estate,
governmental unit or other enterprise or entity.
(h) "Proceeding" shall mean any threatened, pending or completed
investigation, civil or criminal action, third-party action, derivative
action, claim, suit, arbitration, counterclaim, cross claim, alternative
dispute resolution mechanism, inquiry, administrative hearing or any other
proceeding whether civil, criminal, administrative, legislative or
investigative, including any appeal therefrom in which Indemnitee was
involved as a party or otherwise by reason of (i) the fact that Indemnitee
is or was a Fiduciary, or (ii) any action taken (or failure to act) by him
or on his behalf in his capacity as a Fiduciary.
(i) "Subsidiary" means any Person of which a majority of the
outstanding voting securities or other voting equity interests are owned,
directly or indirectly by the Company.
SECTION 2. Services by the Indemnitee. Subject to the effectiveness of this
Agreement pursuant to Section 13 hereof, the Indemnitee agrees to serve as a
director of the Company at the will of the Company for so long as the Indemnitee
is duly elected and qualified, appointed or until such time as the Indemnitee
tenders a resignation in writing or is removed as a director in accordance with
the Company's Bylaws as amended from time to time; provided, however, the
Indemnitee may at any time and for any reason resign from such position.
SECTION 3. Indemnification.
(a) Indemnification. Subject to the further provisions of this
Agreement, the Company hereby agrees to and shall indemnify Indemnitee and
hold him harmless from and against any and all Expenses and Liabilities
incurred by Indemnitee or on Indemnitee's behalf, to the fullest extent
permitted by applicable law in effect on the date hereof, and to such
greater extent as applicable law may thereafter permit or authorize.
(b) Presumptions.
(i) Upon making any request for indemnification or advancement of
Expenses under this Agreement, Indemnitee shall be presumed to be
entitled to such indemnification or advancement of Expenses, as the
case may be, under this Agreement and, in connection with any
determination with respect to entitlement to indemnification under
Section 4(c) hereof, the Company shall have the burdens of coming
forward with evidence and of persuasion to overcome that presumption
in connection with the making by any Person of any determination
contrary to that presumption. Neither the failure of any Person to
have made such determination prior to the commencement of any action
pursuant to this Agreement that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of
conduct, nor an actual determination by any Person that Indemnitee has
not met any applicable standard of conduct, shall be a defense to any
such action by Indemnitee or create a presumption that Indemnitee has
not met the applicable standard of conduct.
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(ii) For purposes of any determination of good faith, Indemnitee
shall be deemed to have acted in good faith if Indemnitee's action is
based on the records or books of account of any Enterprise, including
financial statements, or on information supplied to Indemnitee by the
officers of such Enterprise in the course of their duties, or on the
advice of legal counsel for such Enterprise or on information or
records given or reports made to such Enterprise by an independent
certified public accountant or by an appraiser or other expert
selected by such Enterprise. The provisions of this Section 3(b) shall
not be deemed to be exclusive or to limit in any way the other
circumstances in which Indemnitee may be deemed or found to have met
the applicable standard of conduct set forth in this Agreement.
(iii) If the Person empowered or selected under Section 4(c)
hereof to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within twenty (20) calendar days
after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to
have been made and Indemnitee shall be entitled to such
indemnification, absent (A) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the request
for indemnification, or (B) a prohibition of such indemnification
under applicable law.
(iv) The knowledge and/or actions, or failure to act, of any
other Fiduciary shall not be imputed to Indemnitee for purposes of
determining any right to indemnification under this Agreement.
(c) Effect of Certain Proceedings. The termination of any Proceeding
by judgment, order, settlement, conviction or upon a plea of nolo contendre
or its equivalent, shall not, of itself, create a presumption that
Indemnitee did not act in good faith and in a manner reasonably believed to
be in or not opposed to the best interests of the Company, and with respect
to any criminal Proceeding, that Indemnitee had reason to believe his or
her conduct was unlawful.
SECTION 4. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance all Expenses
incurred by Indemnitee or on Indemnitee's behalf, without regard to
Indemnitee's ultimate entitlement to indemnification under the other
provisions of this Agreement. Indemnitee hereby undertakes to repay such
amounts advanced if, and only to the extent that, it shall be determined by
a final judgment or other final adjudication, not subject to further appeal
or review, that Indemnitee is not entitled to be indemnified by the Company
as authorized hereby, or under applicable law or otherwise. The advances to
be made hereunder shall be paid by the Company to Indemnitee within twenty
(20) calendar days following delivery of any written request, from time to
time, by Indemnitee to the Company. Any overdue amount of such Expenses to
be paid by the Company hereunder shall bear interest, compounded monthly,
at a rate of 8% per annum. Advances payable hereunder shall include any and
all reasonable Expenses incurred pursuing an action to enforce this right
of advancement, including Expenses incurred
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preparing and forwarding any statements to the Company to support the
advances claimed.
(b) Notice by Indemnitee. To obtain indemnification under this
Agreement, Indemnitee shall, as promptly as reasonably practicable under
the circumstances, notify the Company in writing upon being served with any
summons, citation, subpoena, complaint, indictment, information or other
document relating to any Proceeding or any other matter which may be
subject to indemnification of Liabilities or advancement of Expenses
covered by this Agreement; provided however, that any delay or failure to
so notify the Company shall relieve the Company of its obligations
hereunder only to the extent, if at all, that the Company is actually and
materially prejudiced by reason of such delay or failure. Notice to the
Company shall be directed to the President/Chief Executive Officer of the
Company, with a copy to the Company's outside counsel, at the addresses
shown on the signature page of this Agreement (or such other address as the
Company shall designate in writing to Indemnitee) in accordance with
Section 18 hereof.
(c) Determination of Entitlement to Indemnification. Upon the receipt
of any notice pursuant to Section 4(b) hereof, a determination, if
expressly required by applicable law, with respect to Indemnitee's
entitlement to indemnification hereunder shall be made within twenty (20)
calendar days by (i) a majority vote of the Board who are not parties to
the Proceeding in respect of which indemnification is sought by Indemnitee,
even though less than a quorum or (ii) by a committee of such directors
designated by majority vote of such directors even though less than a
quorum, or (iii) if there are no such directors, or if such directors so
direct, by Independent Counsel in a written opinion to the Board (a copy of
which opinion shall be delivered to Indemnitee); provided, however, that if
there has been a Change of Control at or prior to the time of such notice
by Indemnitee, Indemnitee's entitlement to indemnification shall be
determined within the foregoing time period by Independent Counsel selected
by Indemnitee, such determination to be set forth in a written opinion to
the Board (a copy of which opinion shall be delivered to Indemnitee). The
Company agrees to pay the reasonable fees of any Independent Counsel and to
fully indemnify such Independent Counsel against any and all Expenses,
claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto. If, pursuant to the foregoing,
it is determined that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within twenty (20) calendar days from the date of
notice by Indemnitee pursuant to Section 4(b) hereof. Indemnitee shall
reasonably cooperate in the making of such determination, including
providing upon reasonable advance request any documentation or information
which is not privileged or otherwise protected from disclosure and which is
reasonably available to Indemnitee and reasonably necessary to such
determination. For the avoidance of doubt, any costs or expenses (including
attorneys' fees and disbursements) incurred by Indemnitee in so cooperating
with the Person making such determination shall be included as Expenses for
the purposes of this Agreement. Nothing in this Section 4(c) shall be
construed to limit or modify the presumptions in favor of Indemnitee set
forth in Section 3(b).
(d) Notice to Insurers. If, at the time of the receipt of any notice
of any Proceeding pursuant to Section 4(b) hereof, the Company has
directors' and officers' liability insurance in effect, then the Company
shall give prompt notice of the
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commencement of such Proceeding to the directors' and officers' liability
insurers in accordance with the procedures set forth in the respective
policies. The Company shall thereafter take all necessary or appropriate
action to cause such insurers to pay, on behalf of Indemnitee, all amounts
payable as a result of such Proceeding in accordance with the terms of such
policies. The failure or refusal of such insurers to pay any such amount
shall not affect or impair the obligations of the Company under this
Agreement.
(e) Control of Defense; Counsel Costs; Settlement. In connection with
paying the Expenses of any Proceeding against Indemnitee under Section
4(a), the Company shall be entitled to elect to assume the defense of such
Proceeding, with counsel approved by Indemnitee, which approval shall not
be unreasonably withheld, by the delivery to Indemnitee of written notice
of its election to do so. After delivery of such notice, approval of such
counsel by Indemnitee and the retention of such counsel by the Company, the
Company shall not be liable to Indemnitee under this Agreement for any fees
of separate counsel subsequently incurred by Indemnitee with respect to the
same Proceeding; provided, that (i) Indemnitee shall have the right to
employ counsel in any such Proceeding at Indemnitee's expense; and
provided, further (ii) if (A) the employment of counsel by Indemnitee has
been authorized by the Company, (B) Indemnitee shall have reasonably
concluded that there is an actual conflict of interest between the Company
and Indemnitee in the conduct of any such defense, or (C) the Company shall
not have employed counsel to assume the defense of such Proceeding, then in
any such event the fees and expenses of Indemnitee's counsel shall be at
the expense of the Company. The Company shall not be entitled to assume the
defense of any Proceeding brought in the name of or on behalf of the
Company or as to which Indemnitee shall have made the conclusion provided
for in (B) above. Notwithstanding the foregoing, if at any time the Company
fails to pay any Expenses with respect to any Proceeding in accordance with
Section 4(a) hereof, Indemnitee shall immediately be entitled to assume and
control his own defense in such Proceeding with counsel of his own choice
(by notice to the Company), and will have all rights to indemnification of
those counsel Expenses hereunder. The Company shall not settle any action
or claim in any manner that would impose any limitation or unindemnified
penalty on Indemnitee without Indemnitee's written consent, which consent
shall not be unreasonably withheld.
SECTION 5. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section
4(c) of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not timely made
pursuant to Section 4(a) hereof, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 4(c) hereof within
twenty (20) calendar days after receipt by the Company of notice pursuant
to Section 4(b) hereof, or (iv) payment of indemnification is not made
pursuant to the third last sentence of Section 4(c) hereof within twenty
(20) calendar days after the date of notice by Indemnitee pursuant to
Section 4(b) hereof, Indemnitee shall be entitled to an adjudication by the
Delaware Court of Chancery or other court of competent jurisdiction of his
entitlement to such indemnification, advancement of Expenses, or to recover
damages for breach of this Agreement. The Company shall not oppose
Indemnitee's right to seek any such adjudication.
(b) In the event that a determination shall have been made pursuant to
Section 4(c) of this Agreement that Indemnitee is not entitled to
indemnification, any
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judicial proceeding commenced pursuant to this Section 5 shall be conducted
in all respects as a de novo trial and Indemnitee shall not be prejudiced
by reason of that adverse determination. In any judicial proceeding
commenced pursuant to this Section 5 the Company shall have the burdens of
coming forward with evidence and of persuasion to prove that Indemnitee is
not entitled to indemnification or advancement of Expenses, as the case may
be, and the Company may not refer to or introduce into evidence any
determination pursuant to Section 4(c) of this Agreement adverse to
Indemnitee for any purpose. If a determination shall have been made
pursuant to Section 4(c) hereof that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section 5, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material
fact necessary to make Indemnitee's statement not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition of
such indemnification under applicable law.
(c) In the event that Indemnitee, pursuant to this Section 5, seeks a
judicial adjudication to enforce his rights under, or to recover damages
for breach of, this Agreement, Indemnitee shall be entitled to recover from
the Company, and shall be indemnified by the Company against, any and all
Expenses actually and reasonably incurred by him in such judicial
adjudication. If it shall be determined in said judicial adjudication that
Indemnitee is entitled to receive part but not all of the indemnification
or advancement of Expenses sought, the Indemnitee shall be entitled to
recover from the Company, and shall be indemnified by the Company against,
any and all Expenses reasonably incurred by Indemnitee in connection with
such judicial adjudication.
(d) The Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 5 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and
shall stipulate in any such court that the Company is bound by all the
provisions of this Agreement.
SECTION 6. Nonexclusivity. The indemnification provided by this Agreement
shall be in addition to any rights to which Indemnitee may be entitled under the
Company's Certificate of Incorporation, the Company's Bylaws, any agreement, any
vote of shareholders or disinterested directors, the General Corporation Law of
the State of Delaware (the "DGCL") or otherwise, both as to action in
Indemnitee's official capacity and as to action in another capacity while
holding such office.
SECTION 7. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses or Liabilities actually or reasonably incurred by
Indemnitee in investigation, defense, appeal or settlement of any Proceeding,
but not, however, for the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such Expenses and Liabilities to which
Indemnitee is entitled.
SECTION 8. Mutual Acknowledgment. Both the Company and Indemnitee
acknowledge that in certain instances, U.S. Federal law or applicable public
policy may prohibit the Company from advancing expenses or indemnifying its
directors under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Company may be required in the future to undertake with
the Securities and Exchange Commission to submit the question of indemnification
to a court in certain circumstances for a determination of the Company's right
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under public policy to indemnify Indemnitee. Any action taken pursuant to the
terms of this Section 8 shall not constitute a breach of this Agreement.
SECTION 9. Directors' and Officers' Liability Insurance. The Company shall
use its best efforts to obtain and maintain on an ongoing basis a policy or
policies of insurance on commercially reasonable terms with reputable insurance
companies providing liability insurance for Fiduciaries, including Indemnitee,
in respect of acts or omissions occurring while serving in such capacity, and to
ensure the Company's performance of its indemnification obligations under this
Agreement, on terms with respect to coverage and amount (including with respect
to the payment of Expenses) no less favorable than those of such policy or
policies of insurance in effect on the date hereof. To the extent that the
Company maintains a policy or policies of insurance pursuant to this Section 9,
Indemnitee shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for any Fiduciary
under such policy or policies.
SECTION 10. Severability. If this Agreement or any portion hereof shall be
invalidated or ruled to be unenforceable on any ground by any court of competent
jurisdiction, then the Company shall nevertheless indemnify Indemnitee to the
full extent permitted by applicable law and the court is expressly requested and
authorized to construe this Agreement in order, as closely as possible, to
provide the benefits to Indemnitee intended by this Agreement.
SECTION 11. Duration of Agreement. The indemnification provided under this
Agreement shall continue as to the Indemnitee for any action taken or not taken
while serving as a Fiduciary even though Indemnitee may have ceased to serve in
such capacity at the time of any action or other covered proceeding.
SECTION 12. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify Indemnitee as follows:
(a) Excluded Acts. No indemnification shall be made for any acts or
omissions or transactions, if and to the extent that it shall be determined
by a final judgment or other final adjudication, not subject to further
appeal or review, that a director may not be relieved of liability arising
from any such acts or omissions or transactions under the DGCL.
(b) Indemnitee Liable to Company. No indemnification shall be made in
respect of any Proceeding, claim, issue or matter as to which it shall have
been determined by a final judgment or other final adjudication, not
subject to further appeal or review, that Indemnitee is liable to the
Company unless and only to the extent that such final judgment or other
final adjudication shall determine that, despite the adjudication of
liability but in view of all of the circumstances of the case, Indemnitee
is fairly and reasonably entitled to indemnity for such Expenses as the
court deems proper and then only to the extent that the court shall
determine.
(c) Claims Initiated by Indemnitee. No indemnification or advance of
Expenses to Indemnitee shall be made with respect to Proceedings or claims
initiated or brought voluntarily by Indemnitee and not by way of defense,
except with respect to such Proceedings brought to establish or enforce a
right to indemnification or advancement of Expenses under this Agreement or
any other statute or applicable law or otherwise as
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required under Section 145(c) of the DGCL or any other provision of the
Certificate of Incorporation or Bylaws of the Company, unless (i) the Board
of Directors has approved the initiation or bringing of such Proceeding (or
any part of any Proceeding) or (ii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers vested in
the Company under applicable law.
(d) Lack of Good Faith. No indemnification shall be made to indemnify
Indemnitee for any Expenses or Liabilities incurred by Indemnitee with
respect to any Proceedings instituted by Indemnitee to enforce or interpret
this Agreement, if it shall be determined by a final judgment or other
final adjudication, not subject to further appeal or review, that each of
the material assertions made by Indemnitee in such proceeding was not made
in good faith or was frivolous;
(e) Insured Claims. No indemnification shall be made to indemnify
Indemnitee for Expenses or Liabilities of any type whatsoever if, but only
to the extent that, Indemnitee shall have actually received payment with
respect to any such Expenses or Liabilities from an insurer under any
policy of directors' and officers' liability insurance maintained by the
Company, and any such payment shall not be recovered (in whole or in part)
from Indemnitee by such insurer;
(f) Claims under Section 16(b). No indemnification shall be made under
this Agreement for Expenses, Liabilities and the payment of profits arising
from the purchase and sale by Indemnitee of securities in violation of
Section 16(b) of the Exchange Act or any similar state or local law with
respect to the disgorgement of "short swing" profits; or
(g) Unauthorized Settlements. No indemnification shall be made under
this Agreement for any amounts paid in settlement of any Proceedings
covered hereby without the prior consent of the Company to such settlement,
which consent shall not be unreasonably withheld;
provided, that nothing in this Section 12 shall be construed to limit or modify
the presumptions in favor of Indemnitee set forth in Section 3(b).
SECTION 13. Effectiveness of Agreement. The indemnification permitted under
the terms of certain provisions of this Agreement shall be effective as of the
date of approval of this Agreement by the U.S. Bankruptcy Court overseeing the
Company's case under chapter 11 of title 11 of the U.S. Code (the "Bankruptcy
Court"), in an order stating that no further approval by the Bankruptcy Court
shall be required before the Company makes any payment to Indemnitee hereunder,
and shall apply to acts or omissions of Indemnitee which occurred prior to such
date if Indemnitee was a Fiduciary at the time such act or omission occurred.
SECTION 14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, and all of which shall
constitute one and the same agreement.
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SECTION 15. Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors,
assigns, including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs, and executors,
administrators, personal and legal representatives. The Company shall
require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all or substantially all, or a
substantial part of the business or assets of the Company, by written
agreement in the form and substance satisfactory to Indemnitee, expressly
to assume and agree to perform this Agreement in the manner and to the same
extent that the Company would be required to perform if no such succession
had taken place.
(b) The indemnification and advancement of Expenses provided by, or
granted pursuant to this Agreement shall continue as to a person who has
ceased to be a Fiduciary. If the Indemnitee is deceased and is entitled to
indemnification under any provision of this Agreement, when requested in
writing by the spouse of the Indemnitee, and/or the Indemnitee's heirs,
executors, administrators, legatees or assigns, the Company shall provide
appropriate evidence of the Company's agreement set out herein to indemnify
the Indemnitee against and to itself assume such Expenses.
SECTION 16. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. The observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) by the party entitled to enforce such term only by a writing
signed by the party against which such waiver is to be asserted. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.
SECTION 17. Notice. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand or by courier and receipted for by the part addressee, on the
date of such receipt, (ii) if mailed by domestic certified or registered mail
with postage prepaid, on the third business day after the date postmarked or
(iii) if sent by facsimile transmission and fax confirmation is received, on the
next business day following the date on which such facsimile transmission was
sent. Addresses for notice to either party are as shown on the signature page of
this Agreement, or as subsequently modified by written notice.
SECTION 18. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall, at the Company's expense, execute all
documents required and do all acts that may be necessary to secure such rights
and to enable the Company effectively to bring suit to enforce such rights.
SECTION 19. Evidence of Coverage. Upon request by Indemnitee, the Company
shall provide copies of any and all directors' and officers' liability insurance
policies obtained and maintained in accordance with Section 9 of this Agreement.
The Company shall
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promptly notify Indemnitee of any changes in the Company's directors' and
officers' liability insurance coverage.
SECTION 20. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without application of the conflict of laws principles
thereof.
SECTION 21. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction and venue of the Bankruptcy Court and
the courts of the State of New York for all purposes in connection with any
action or proceeding which arises out of or relates to this Agreement.
SECTION 22. Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement between the parties hereto with respect
to the matters covered hereby, and any other prior or contemporaneous oral or
written understandings or agreements with respect to the matters covered hereby
are superseded by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above-written.
ADELPHIA COMMUNICATIONS CORPORATION
Xxx Xxxxx Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
With a copy to:
Xxxxx, Schiller & Flexner, LLP
00 Xxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxxxxxx Xxxxx
Facsimile: (000) 000-0000
and
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
AGREED TO AND ACCEPTED: INDEMNITEE:
Xxxxxxx Xxxxxxx
c/o Yale Law School
Room 104
000 Xxxx Xxxxxx
Xxx Xxxxx, XX 00000
/s/ Xxxxxxx Xxxxxxx
------------------------------
With a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Fax: (000) 000-0000
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