Common use of Action or Proceeding Clause in Contracts

Action or Proceeding. Other Than an Action by or in the Right of --------------------------------------------------------------- the Indemnitors. --------------- Indemnitee shall be entitled to the indemnification rights provided in this Section 3 if he is or was 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 in nature, other than an action by or in the right of the Indemnitors, by reason of the fact that he is or was a director, officer, employee, agent or fiduciary of the Indemnitors or is or was serving at the request of the Indemnitors as a director, officer, employee, agent, partner, trustee or fiduciary of any other entity, or by reason of anything done or not done by him in any such capacity. Pursuant to this Section 3, Indemnitee shall be indemnified against reasonable costs and expenses (including, but not limited to, counsel fees, costs, judgments, penalties, fines, ERISA excise taxes, and amounts paid in settlement) (collectively, "Damages") actually and reasonably incurred by him in connection with such -------- action, suit or proceeding (including, but not limited to, the investigation, defense or appeal thereof), if, in the case of conduct in his official capacity with the corporation, he acted in good faith and in the Indemnitors's best interests, and in all other cases, he acted in good faith and was at least not opposed to the Indemnitors's best interests, and with respect to any criminal action or proceeding had no reasonable cause to believe his conduct was unlawful, except that no indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged to be liable for (i) negligence or misconduct in the performance of his duty to any of the Indemnitors unless and only to the extent that the court in which such action or suit was brought, or any other court of competent jurisdiction, shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court shall deem proper or (ii) the indemnification does not relate to any liability arising under Section 16(b) of the Securities Exchange Act of 1934, as amended, or any of the rules or regulations promulgated thereunder. Notwithstanding the foregoing, the Indemnitors shall be required to indemnify an officer or director in connection with an action, suit or proceeding initiated by such person only if such action, suit or proceeding was authorized by the Board or a committee thereof. No indemnity pursuant to this Agreement shall be provided by the Indemnitors for Damages that have been paid directly to Indemnitee by an insurance carrier under a policy of directors' and officers' liability insurance maintained by the Indemnitors.

Action or Proceeding. Other Than an Action by or in the ------------------------------------------------------ Right of --------------------------------------------------------------- the IndemnitorsCompany. --------------- The Indemnitee shall be entitled to the indemnification -------------------- rights provided in this Section 3 if he he/she is or was 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 in nature, other than an action by or in the right of the IndemnitorsCompany, by reason of the fact that he he/she is or was a director, officer, employee, employee or agent or fiduciary of the Indemnitors Company, or is or was serving at the request of the Indemnitors Company as a director, officer, employee, agent, partner, trustee employee or agent or fiduciary of any other entity, including but not limited to, another corporation, partnership, joint venture, trust, or by reason of anything done or not done by him the Indemnitee in any such capacity. Pursuant to this Section 3Section, the Indemnitee shall be indemnified against reasonable costs and all expenses (including, but not limited to, counsel including attorneys' fees), costs, judgments, penalties, fines, ERISA excise taxes, fines and amounts paid in settlement) (collectively, "Damages") settlement actually and reasonably incurred by him the Indemnitee in connection with such -------- action, suit or proceeding (including, but not limited to, the investigation, defense or appeal thereof), if, in if the case of conduct in his official capacity with the corporation, he Indemnitee acted in good faith and in a manner the Indemnitors's best interests, and Indemnitee reasonably believed to be in all other cases, he acted in good faith and was at least or not opposed to the Indemnitors's best interestsinterests of the Company, and with respect to any criminal action or proceeding proceeding, had no reasonable cause to believe his his/her conduct was unlawful, except that no indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged to be liable for (i) negligence or misconduct in the performance of his duty to any of the Indemnitors unless and only to the extent that the court in which such action or suit was brought, or any other court of competent jurisdiction, shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court shall deem proper or (ii) the indemnification does not relate to any liability arising under Section 16(b) of the Securities Exchange Act of 1934, as amended, or any of the rules or regulations promulgated thereunder. Notwithstanding the foregoing, the Indemnitors shall be required to indemnify an officer or director in connection with an action, suit or proceeding initiated by such person only if such action, suit or proceeding was authorized by the Board or a committee thereof. No indemnity pursuant to this Agreement shall be provided by the Indemnitors for Damages that have been paid directly to Indemnitee by an insurance carrier under a policy of directors' and officers' liability insurance maintained by the Indemnitors.

Action or Proceeding. Other Than an Action by or in the Right of --------------------------------------------------------------- the IndemnitorsIndemnitor. --------------- -------------- Indemnitee shall be entitled to the indemnification rights provided in this Section 3 if he is or was 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 in nature, other than an action by or in the right of the IndemnitorsIndemnitor, by reason of the fact that he is or was a director, officer, employee, agent or fiduciary of the Indemnitors Indemnitor or is or was serving at the request of the Indemnitors Indemnitor as a director, officer, employee, agent, partner, trustee agent or fiduciary of any other entity, entity or by reason of anything done or not done by him in any such capacity, including, but not limited to, the extent of any liability, cost, or expense that any director has incurred as a personal obligor or guarantor for any obligation of the Indemnitor. Pursuant to this Section 3, Indemnitee shall be indemnified against reasonable costs and expenses (including, but not limited to, counsel including attorney's fees), costs, judgments, penalties, fines, ERISA excise taxes, fines and amounts paid in settlement) (collectively, "Damages") settlements actually and reasonably incurred by him in connection with such -------- action, suit or proceeding (including, but not limited to, the investigation, defense or appeal thereof), if, in the case of conduct in his official capacity with the corporation, if he acted in good faith and in the Indemnitors's best interests, and any manner he reasonably believed to be in all other cases, he acted in good faith and was at least or not opposed to the Indemnitors's best interestsinterests of the Indemnitor, and and, with respect to any criminal action or proceeding proceeding, had no reasonable cause to believe his conduct was unlawful; provided, except that no however, the Indemnitor shall not be obligated to indemnify the Indemnitee in connection with any actions, suits or proceedings initiated by the Indemnities if the indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged to be liable for (i) negligence or misconduct in the performance of his duty relates to any of the Indemnitors unless and only to the extent that the court in which such action "short-swing" disgorgement or suit was brought, or any other court of competent jurisdiction, shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court shall deem proper or (ii) the indemnification does not relate to any similar liability arising under Section 16(b) of the Securities Exchange Act of 1934, as amended, or any of the rules or regulations promulgated thereunder. Notwithstanding the foregoing, the Indemnitors shall be required to indemnify an officer or director in connection with an action, suit or proceeding initiated by such person only if such action, suit or proceeding was authorized by the Board or a committee thereof. No indemnity pursuant to this Agreement shall be provided by the Indemnitors for Damages that have been paid directly to Indemnitee by an insurance carrier under a policy of directors' and officers' liability insurance maintained by the Indemnitors.

Action or Proceeding. Other Than an Action As of the Closing, no action or -------------------------- proceeding by any public authority or in the Right of --------------------------------------------------------------- the Indemnitors. --------------- Indemnitee person shall be entitled to the indemnification rights provided in this Section 3 if he is pending before any court or was a party administrative body or is overtly threatened to restrain, enjoin or otherwise prevent the consummation of this Agreement or the transactions contemplated herein. Further, except as described on Exhibit 3.7(a), there shall not be made a party to any -------------- threatened, instituted or pending or completed action, suit any action or proceeding, whether civilbefore any court or governmental authority or agency, criminaldomestic or foreign, administrative (i) challenging or investigative in natureseeking to make illegal, other than an action by or in to delay or otherwise directly or indirectly restrain or prohibit, the right consummation of the Indemnitors, by reason of the fact that he is transactions contemplated hereby or was a director, officer, employee, agent or fiduciary of the Indemnitors or is or was serving at the request of the Indemnitors as a director, officer, employee, agent, partner, trustee or fiduciary of any other entity, or by reason of anything done or not done by him in any such capacity. Pursuant seeking to this Section 3, Indemnitee shall be indemnified against reasonable costs and expenses (including, but not limited to, counsel fees, costs, judgments, penalties, fines, ERISA excise taxes, and amounts paid in settlement) (collectively, "Damages") actually and reasonably incurred by him obtain material damages in connection with such -------- actiontransactions, suit (ii) seeking to prohibit direct or proceeding indirect ownership or operation by Purchaser of all or a material portion of the business or assets of Seller, or to compel Purchaser or Seller to dispose of or to hold separately all or a material portion of the business or assets of Seller, as a result of the transactions contemplated hereby, (including, but not limited to, the investigation, defense iii) seeking to require direct or appeal thereof), if, in the case indirect transfer or sale by Purchaser of conduct in his official capacity with the corporation, he acted in good faith and in the Indemnitors's best interests, and in all other cases, he acted in good faith and was at least not opposed to the Indemnitors's best interests, and with respect to any criminal action or proceeding had no reasonable cause to believe his conduct was unlawful, except that no indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged to be liable for (i) negligence or misconduct in the performance of his duty to any of the Indemnitors unless and only Assets, (iv) seeking to the extent that the court in which such action invalidate or suit was brought, or render unenforceable any other court material provision of competent jurisdiction, shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court shall deem proper or (ii) the indemnification does not relate to any liability arising under Section 16(b) of the Securities Exchange Act of 1934, as amended, this Agreement or any of the rules other agreements attached hereto as Exhibits or regulations promulgated thereunderSchedules, or otherwise contemplated hereby, (v) seeking relief against Seller under any federal or state law or regulation relating to bankruptcy, insolvency, reorganization or moratorium or creditors' rights generally, (vi) otherwise relating to and materially adversely affecting the transactions contemplated hereby, or (vii) which could result in any material adverse change in the business, operations, financial condition or properties of Seller or the Assets. Notwithstanding (d No Adverse Changes. There shall have been no event or change occurring ------------------ between the foregoingexecution of this Agreement and the Closing which in the aggregate may be deemed to have a material adverse effect on the business, operations, financial condition or properties of Seller or the Indemnitors Assets. (e Litigation. Except as described on Exhibit 3.12, there shall be required to indemnify an no ---------- ------------ actions, proceedings or investigations pending, threatened against Seller or its officers or directors before any court, any administrative agency or administrative officer or director executive, which could result in connection with an actionany material adverse change in the business, suit operations, financial condition or proceeding initiated properties of Seller or the Assets. (f Waiver of Conditions Precedent. Purchaser may waive any or all of ------------------------------ the conditions precedent set forth in this Article 8.2, either prospectively or retroactively, by giving written notice of such person only if such action, suit or proceeding was authorized by the Board or a committee thereofwaiver to Seller. No indemnity waiver of any condition precedent pursuant to this Agreement paragraph 8.2(f) shall, unless otherwise expressly stated in such written notice of waiver, extend to any other covenant or agreement contained herein or to any other condition precedent. (g Breach or Violation. Seller shall have obtained, or caused to be provided by -------------------- obtained, each consent and approval necessary in order that the Indemnitors for Damages that have been paid directly transactions contemplated herein not constitute a breach or violation of, or result in a right of termination or acceleration of, or creation of any encumbrance on any of the Assets, pursuant to Indemnitee by an insurance carrier under a policy the provisions of directors' and officers' liability insurance maintained by the Indemnitors.any agreement, arrangement or undertaking of or affecting Seller or any license, franchise or permit of or affecting Seller. (h

Action or Proceeding. Other Than an Action by or in the Right of --------------------------------------------------------------- the Indemnitors. --------------- Indemnitee shall be entitled to the indemnification rights provided in this Section 3 if he is or was 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 in nature, other than an action by or in the right of the Indemnitors, by reason of the fact that he is or was a director, officer, employee, agent or fiduciary of the Indemnitors or is or was serving at the request of the Indemnitors as a director, officer, employee, agent, partner, trustee or fiduciary of any other entity, or by reason of anything done or not done by him in any such capacity. Pursuant to this Section 3, Indemnitee shall be indemnified against reasonable costs and expenses (including, but not limited to, counsel fees, costs, judgments, penalties, fines, ERISA excise taxes, and amounts paid in settlement) (collectively, "Damages") actually and reasonably incurred by him in connection with such -------- action, suit or proceeding (including, but not limited to, the investigation, defense or appeal thereof), if, in the case of conduct in his official capacity with the corporation, he acted in good faith and in the Indemnitors's best interests, and in all other cases, he acted in good faith and was at least not opposed to the Indemnitors's best interests, and with respect to any criminal action or proceeding had no reasonable cause to believe his conduct was unlawful, except that no indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged to be liable for (i) negligence or misconduct in the performance of his duty to any of the Indemnitors unless and only to the extent that the court in which such action or suit was brought, or any other court of competent jurisdiction, shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses as such court shall deem proper or (ii) the indemnification does not relate to any liability arising under Section 16(b) of the Securities Exchange Act of 1934, as amended, or any of the rules or regulations promulgated thereunder. Notwithstanding the foregoing, the Indemnitors shall be required to indemnify an officer or director in connection with an action, suit or proceeding initiated by such person only if such action, suit or proceeding was authorized by the Board or a committee thereof. No indemnity pursuant to this Agreement shall be provided by the Indemnitors for Damages that have been paid directly to Indemnitee by an insurance carrier under a policy of directors' and officers' liability insurance maintained by the Indemnitors.